Raisingh and Others vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 23-04-2007 passed by First Additional Sessions Judge, Manendragarh in Sessions Trial No. 139/06. By the impugned judgment, accused Raisingh, Rama, Raju, Anil Kumar and Dada @ Surendra Kumar have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

On 24-09-2004, at about 7:30 PM, deceased persons Dukhiram and Prakash and Chandrawati (PW-2) were going from their new house to old house. When they reached near the house of appellant Raisingh, the appellants formed an unlawful assembly and in furtherance of common object of the said assembly, abused the deceased persons and Chandrawati (PW-2), caused them to run, appellant Raisingh assaulted deceased Dukhiram and other appellants assaulted deceased Prakash with farsa, lathi and rod. Deceased persons Dukhiram and Praksah sustained injuries on their body. When Satiraj (PW-4), Hiran and Akalu (PW-3) tried to save the deceased persons, the appellants assaulted them and they also sustained injuries on their body. The incident was witnessed by Suraj (PW-11), Basanti (PW-7) and Injina (PW-6). Deceased Dukhiram was taken to Community Health Center (CHC), Khadgawan for treatment and was thereafter referred to the District Hospital, Baikunthpur, there he died. Deceased Prakash died on the spot. Suraj lodged Dehati Merg Intimation (Ex.-P/35), Dehati Nalishi (Ex.-P/36) and First Information Report (Ex.-P/36A) were registered for the offence under Sections 147, 148, 149, 306 and 302 IPC against the appellants in Police Station Khadgawan. During the treatment deceased Dukhiram died. Akalu (PW-3) lodged Merg Intimation (Ex.-P/2) in Police Station, Khadgawan. Inquest (Ex.-P/3) was prepared on the dead body of deceased Prakash and inquest (Ex.-P/4) was prepared on the dead body of deceased Dukhiram. Deceased Prakash was sent to CHC, Khadgawan, for postmortem examination and injured Satiraj (PW-4) and Akalu (PW-3) were also sent to CHC, Khadgawan.

Deceased Dukhiram

Post-mortem examination on the dead body of deceased Dukhiram was conducted by Doctor Sukhdeo Hirawan Sen (PW-8). He gave his report (Ex.-P/19) finding:

(i) incised wound on the right side of scalp and bones were fractured (12 stitches were present),

(ii) abrasion, 1 c.m. x 1 c.m. x skin deep on right elbow, frontal and parietal bones were fractured and brain material had come out. Right temporal and left parietal bones were also fractured and blood clot was present.

He opined that the death was due to severe haemorrhagic shock as a result of head injury.

Deceased Prakash

Doctor Sukhdeo Hirawan Sen (PW-8) also conducted postmortem examination on the dead body of deceased Prakash and gave his report (Ex.-P/20) finding:

(i) abrasion, 1 c.m. x 1 c.m. on the right knee,

(ii) abrasion, 1 c.m. x 1 c.m. below the left knee,

(iii) incised wound, 9 c.m. x 1 c.m. x muscle deep on the back,

(iv) incised wound, 12 c.m. x 6 c.m. x bone deep on the upper side of right fore-arm and soft tissues were cut and blood vessel was also cut,

(v) abrasion, 10 c.m. x � c.m. x muscle deep on the back,

(vi) abrasion, 4 c.m. x 1 c.m. x muscle deep on the right rib, blood clot was present.

The injuries were ante-mortem in nature. He opined that the death was due to severe haemorrhagic shock as a result of head injury.

Injured Satiraj (PW-4)

Doctor Sukhdeo Hirawan Sen (PW-8) examined injured Satiraj (PW-4) and gave his report (Ex.-P/21) finding:

(i) tenderness on the left fore-arm,

(ii) lacerated wound, 3 c.m. x 1 c.m. over head in the right temporal region,

(iii) lacerated wound on the muscle of left leg,

(iv) contusion, 5 c.m. x 2 c.m. with tenderness over left thigh. The injured was referred for X-ray examination of injury No. (i).

Injured Akalu (PW-3)

Doctor Sukhdeo Hirawan Sen (PW-8) also examined Akalu (PW-3) and gave his report (Ex.-P/23) finding:

(i) swelling and pain on the thumb of left palm,

(ii) swelling and pain on middle finger of left hand,

(iii) swelling over right palm,

(iv) abrasion of 2 c.m. on left leg.

In further investigation, spot map was prepared vide Ex.-P/1. u/s 27 of the Evidence Act, memorandum statement of appellant Raisingh was recorded vide Ex. P-5, memorandum statement of appellant Rama vide Ex. P-6, memorandum statement of appellant Dada @ Surendra Kumar vide Ex. P-7, memorandum statement of appellant Anil Kumar vide Ex. P-8 and memorandum statement of appellant Raju vide Ex. P-49 were recorded. At their instances, farsa and bamboo stick were seized from appellant Anil Kumar vide Ex. P.-9, farsa was seized from appellant Rama vide Ex. P-10, other farsa was seized from appellant Raisingh vide Ex. P.-39, aintha was seized from appellant Raju vide Ex. P-11, bamboo stick was seized from appellant Raisingh, vide Ex. P-12, baniyan was seized from appellant Raisingh vide Ex. P-13, shirt was seized from appellant Rama vide Ex. P-14 and T-Shirt was seized from appellant Anil Kumar vide Ex. P-15. Blood stained soil, plain soil, brick bates (piece of brick), slipper (chappal) and a piece of stone were seized from the place of occurrence vide Ex. P-16. Appellant Raisingh was sent to CHC, Khadgawan for medical examination vide Ex. D-6A and Dr. Sukhdeo Hirawan Sen (PW-8) examined him and gave his report (Ex. D-6). Seized farsa and bamboo stick were sent to CHC Khadgawan for examination. The seized articles were sent to Forensic Science Laboratory (FSL), Raipur. A report (Ex. P-48) was received therefrom. In Ex. P-48, it is reported that article A-blood stained soil, article C-1, C-2, C-3 & C-4 - piece of brick, chappal, hawai chappal and piece of stone, article D- baniyan of appellant Raisingh, article E-full shirt of appellant Rama, article F- T-Shirt of appellant Anil Kumar, article H- danda of appellant Dada @ Surendra Kumar, article 1-1 -farsa of appellant Anil Kumar, article 1-2 - danda of appellant Anil Kumar, article J- farsa of appellant Raisingh, article K- farsa of appellant Rama, article L- rod of appellant Raju, articles M-1 and M-2 baniyan and gamchha of deceased Prakash, article N-1, N-2 and N-3- shirt, chaddi and gamchha of deceased Dukhiram were found stained with blood.

After completion of the investigation, charge sheet was filed against the accused/appellants in the Court of Judicial Magistrate First Class, Manendragarh who, in turn, committed the case to the Court of Session, Ambikapur, from where it was received on transfer by the First Additional Sessions Judge, Manendragarh, who conducted the trial and convicted and sentenced the appellants as mentioned above.

On 24.09.2005, learned Additional Sessions Judge held that accused Himmat was juvenile on the date of incident. Therefore, he directed to file charge sheet against accused Himmat before the Juvenile Justice Board, Ambikapur.

Shri H.S. Ahluwalia, learned counsel appearing on behalf of the appellants argued that the formation of an unlawful assembly and the appellants being members thereof was not proved; common object (s) were also not proved; evidence of witnesses are not reliable. Chandrawati (PW-2) is the widow of deceased Dukhiram and mother of deceased Prakash. Akalu (PW-3) and Satiraj (PW-4) were also in relation of the deceased persons. Injina (PW-6) is the sister of deceased Dukhiram. Basanti (PW-7) is the wife of Akalu (PW-3). Suraj (PW-11) is the brother of deceased Dukhiram and uncle of deceased Prakash. They are relative and highly interested witnesses, therefore, their evidence is not reliable. There are material contradictions in their statements. Appellant Raisingh and other appellants also sustained injuries, but the prosecution failed to explain the injuries on the body of accused persons, therefore, the case of the prosecution is suspicious. He further argued that prior to this incident, appellant Raisingh was assaulted by deceased Dukhiram and, therefore, appellant Raisingh had gone to Police Station for lodging a report. Hence, appellant Raisingh was not present at the place of occurrence at the time of incident. He further argued that appellant Raju was also not present. He had gone for his labour work and was not present in Village Dubchhola. There are material contradictions in the statements of the prosecution witnesses. The appellants are falsely implicated in the case. The prosecution has utterly failed to prove the case beyond all reasonable doubts. Therefore, the appellants deserve to be acquitted of the charges framed against them.

Shri UNS Deo, learned Government Advocate appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellants do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of Session Case No. 139/06.

It is not disputed that witness Chandrawati (PW-2), Akalu (PW-3), Satiraj (PW-4), Injina (PW-6), Basanti (PW-7) and Suraj (PW-11) are related to each other. Dr. Sukhdeo Hirawan Sen (PW-8) examined Akalu (PW-3) and Satiraj (PW-4) and gave his reports (Ex. P-23 and Ex. P-21, respectively). Looking to the medical evidence, it is apparent that Akalu (PW-3) and Satiraj (PW-4) are injured eye-witnesses.

In Mano Dutt and Another Vs. State of U.P., the Hon''ble Supreme Court observed as follows:

....... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.

We may merely refer to Abdul Sayeed Vs. State of Madhya Pradesh, where this Court held as under: (SCC pp. 271-72, paras 28-30)

The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant (s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.'' [Vide Ramlagan Singh and Others Vs. State of Bihar, , Malkhan Singh and Another Vs. State of U.P., , Machhi Singh and Others Vs. State of Punjab, Appabhai and Another Vs. State of Gujarat, Bonkya Alias Bharat Shivaji Mane and others Vs. State of Maharashtra, Bhag Singh and Others Vs. State of Punjab, , Mohar and Another Vs. State of U.P., Dinesh Kumar Vs. State of Rajasthan, , Vishnu v. State of Rajasthan, (2009) 10 SCC 477, Anna Reddy Sambasiva Reddy and Others Vs. State of Andhra Pradesh, and Balraje @ Trimbak Vs. State of Maharashtra,

While deciding this issue, a similar view was taken in Jarnail Singh and Others Vs. State of Punjab, , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa and others Vs. State of Karnataka, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

In State of U.P. Vs. Kishan Chand and Others, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

...........

In Dharnidhar Vs. State of U.P. and Others, , the Hon''ble Supreme Court held as follows:

There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan Vs. U.T. of Pondicherry, , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)

We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

Similar view was taken by this Court in Ram Bharosey Vs. State of U.P., , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.

In Brahm Swaroop and Another Vs. State of U.P., the Hon''ble Supreme Court held as follows:

Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. ..........

Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". .........

In Waman and Others Vs. State of Maharashtra, , the Hon''ble Supreme Court held as follows:

In Balraje @ Trimbak Vs. State of Maharashtra, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. .........

........ 29. ...... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives'' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh and Others Vs. State of Punjab, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje @ Trimbak Vs. State of Maharashtra,

In the instant case, Chandrawati (PW-2), Satiraj (PW-4) and Akalu (PW-3) deposed that on 24.09.2004 at about 7:00 to 7:30 PM, Injina (PW-6) was ill and deceased persons Dukhiram and Prakash and Chandrawati (PW-2) were going to the house of Injina (PW-6) to see her. When they reached near the house of appellant Raisingh (A-1), where appellants Raisingh (A-1), Rama (A-2), Raju (A-3), Anil Kumar (A-4) and Dada @ Surendra Kumar (A-5) were sitting. Appellant Raisingh (A-1) assaulted deceased Dukhiram with a farsa. Deceased Dukhiram sustained injury on his head and fell down. Deceased Prakash tried to run away. Appellant Rama assaulted deceased Prakash with a farsa. Deceased Prakash sustained injuries on his hand. Thereafter, appellant Anil Kumar (A-4) assaulted deceased Prakash with a farsa. Deceased Prakash sustained injuries on his rib. Deceased Prakash shouted for help and at that time Satiraj (PW-4) came there and when he tried to save deceased Prakash, appellant Raisingh assaulted Satiraj (PW-4) with the farsa. Akalu (PW-3) also tried to intervene and save deceased Prakash. Appellants Raju and Dada @ Surendra Kumar assaulted Akalu (PW-3) with rod and lathi. Satiraj (PW-4) sustained injury on his hand and Akalu (PW-3) also sustained injury on his hand. At that time, Injina (PW-6), Basanti (PW-7) and Suraj (PW-11) also reached the place of occurrence and witnessed the incident.

Injina (PW-6), Basanti (PW-7) and Suraj (PW-11) deposed that on the date of incident, at about 7:00 to 7:30 PM, Raisingh(A-1), Rama (A-2), Raju (A-3), Anil Kumar (A-4) and Dada @ Surendra Kumar (A-5) were sitting in the courtyard armed with farsa and lathi. Deceased persons Dukhiram and Prakash and Chandrawati (PW-2) were coming from their new house to old house. When they reached near the house of appellant Raisingh, appellant Raisingh gave farsa blow on the head of deceased Dukhiram and appellant Rama assaulted deceased Prakash with a farsa. Appellant Anil Kumar also assaulted deceased Prakash with a farsa and other appellants also assaulted deceased Prakash and Prakash died on the spot.

Satiraj (PW-4) deposed that after assaulting the deceased persons, the appellants fled from the place of occurrence. He further deposed that deceased Dukhiram was taken to Khadgawan Hospital from where he was referred to the District Hospital, Baikunthpur. Dr. Rameshwar Sharma (PW-10) examined deceased Dukhiram and found lacerated wound over middle of the head and brain material was coming out. He referred deceased Dukhiram to Neurosurgical Department for CT scan.

Chandrawati (PW-2), Akalu (PW-3) and Suraj (PW-11) deposed that Suraj (PW-11) lodged Dehati Merg Intimation (Ex. P-35) regarding the death of deceased Prakash. Police reached the place of occurrence and recorded Dehati Nalishi (Ex. P-36) and Dehati Merg Intimation (Ex. P-35). Akalu (PW-3) also lodged Merg Intimation (Ex. P-2) in Police Station Khadgawan regarding the death of deceased Dukhiram.

Dr. Sukhdeo Hirawan Sen (PW-8) deposed that he conducted postmortem examinations on the dead bodies of deceased persons Dukhiram and Prakash and he also examined injured Satiraj (PW-4) and Akalu (PW-3). He deposed that he gave postmortem examination report (Ex. P-19) in respect of deceased Dukhiram finding (i) incised wound on the right side of scalp and bones were fractured (12 stitches were present), (ii) abrasion, 1 c.m. x 2 c.m. x skin deep on right elbow, frontal and parietal bones were fractured and brain material had come out. Right temporal and left parietal bones were also fractured and blood clot was present. He further deposed that he had opined that the death was due to severe haemorrhagic shock as a result of head injury.

He further deposed that he gave postmortem examination report (Ex. P-20) in respect of deceased Prakash finding (i) abrasion, 1 c.m. x 1 c.m. on the right knee, (ii) abrasion, 1 c.m. x 1 c.m. below the left knee, (iii) incised wound 9 c.m. x 1 c.m. x muscle deep on the back, (iv) incised wound 12 c.m. x 6 c.m. x bone deep on the upper side of right fore-arm and soft tissues were cut and blood vessel was also cut, (v) abrasion, 10 c.m. x � c.m. x muscle deep on the back, (vi) abrasion 4 c.m. x 1 c.m. x muscle deep on the right rib, blood clot was present. The injuries were ante-mortem in nature. He further deposed that he had opined that the death was due to severe haemorrhagic shock as a result of head injury.

He further deposed that he examined injured Satiraj (PW-4) and gave his report (Ex.-P/21) finding (i) tenderness on the left fore-arm, (ii) lacerated wound, 3 c.m. x 1 c.m. over head in the right temporal region, (iii) lacerated wound on the muscle of left leg, (iv) contusion, 5 c.m. x 2 c.m. with tenderness over left thigh. The injured was referred for X-ray examination of injury No. (i).

He further deposed that he also examined Akalu (PW-3) and gave his report (Ex.-P/23) finding (i) swelling and pain on the thumb of left palm, (ii) swelling and pain on middle finger of left hand, (iii) swelling over right palm, abrasion of 2 c.m. on left leg.

Learned counsel for the appellants has argued that there are material contradictions in the evidence of prosecution witnesses. The above argument is not acceptable.

So far as the discrepancies or improvements are concerned, discrepancies or improvement which do not materially affect the case of prosecution and are insignificant and as such can not form the basis for doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly shift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. [See Kuria and Another Vs. State of Rajasthan,

In the instant case, Chandrawati (PW-2), Akalu (PW-3) Satiraj (PW-4), Injina (PW-6), Basanti (PW-7) and Suraj (PW-11) specifically deposed that appellant Raisingh assaulted deceased Dukhiram with the farsa and appellant Rama assaulted deceased Prakash with the farsa. Ex. D-1 is case diary statement of Chandrawati (PW-2). In Ex. D-1 it is specifically mentioned that:

Ex. D-2 is case diary statement of Akalu (PW-3). Ex. D-3 is case diary statement of Satiraj (PW-4). Ex. D-4 is case diary statement of Injina (PW-6). Ex. D-5 is case diary statement of Basanti (PW-7). Ex. D-6 is case diary statement of Suraj (PW-11). In their case diary statements, it is specifically mentioned that appellants Raisingh and Rama were having farsa in their hands and appellant Raisingh assaulted deceased Dukhiram with the farsa and appellant Rama assaulted deceased Prakash with the farsa.

In the instant case, there are no material variations or improvements in the statements of prosecution witnesses. The witnesses who witnessed the incident specifically deposed that the accused persons had come with weapons and assaulted deceased persons Dukhiram and Prakash and when Akalu (PW-3) and Satiraj (PW-4) tried to save them, the appellants also assaulted them. There is no material contradictions in the evidence of prosecution witnesses.

Learned counsel for the appellants has argued that appellant Raisingh was also injured and the prosecution has failed to explain his injuries. The above argument is not acceptable.

In Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, the Hon''ble Supreme Court observed thus:

........ It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh and Others Vs. State of Bihar, ...

In Amar Malla and Others Vs. State of Tripura, the Hon''ble Supreme Court observed thus:

........ It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating officer.

[See also Ram Vishambhar and Others Vs. State of U.P. Through Home Secretary, Guru Dev Singh Vs. State of M.P., and Waman and Others Vs. State of Maharashtra,

In the instant case, appellant Raisingh was also sent to CHC, Khadgawan. Doctor Sukhdeo Hirawan Sen (PW-8) deposed that he examined appellant Raisingh and gave his report (Ex. D-6) finding (i) lacerated wound, 4 x � x skin deep over right temporal area, bleeding was present (ii) lacerated wound, 10 x � x skin deep over right fronto temporal area, bleeding was present (iii) lacerated wound, 2 x � c.m. x skin deep over left temporal area near the left ear. He further deposed that all the injuries were caused by hard and blunt object and were simple in nature.

From the medical evidence in respect of appellant Raisingh, it is evident that the injuries sustained by him were simple in nature, therefore, merely because the prosecution has failed to explain the injuries of appellant Raisingh ipso facto cannot be taken as a ground for throwing out the prosecution case. The case of the prosecution is duly supported by injured eye witnesses Akalu (PW-3), Satiraj (PW-4), Chandrawati (PW-2), Injina (PW-6), Basanti (PW-7) and Suraj (PW-11).

Learned counsel for the appellants has argued that the statements of the witnesses u/s 161 Cr.P.C. was recorded belatedly, but the prosecution did not offer any explanation regarding delayed recording of the statements. The above argument is not acceptable.

In State of U.P. Vs. Satish, the Hon''ble Supreme Court observed thus:

As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion.

It is to be noted that the explanation when offered by the IO on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of the prosecution''s evidence tendered by the other witnesses.

In Shyamal Ghosh Vs. State of West Bengal, the Hon''ble Supreme Court held that:--

Delay in examination of witnesses is variable factor. It would be depend upon a number of circumstances. For example, non-avail ability of witnesses, the investigating officer being preoccupied in serious matters, the investigating officer spending his time in arresting the accused who are absconding, being occupied in other spheres of investigation of the same case which may require his attention urgently and importantly, etc.

In Banti @ Guddu Vs. State of Madhya Pradesh, the Hon''ble Supreme Court held thus:

As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir and Others Vs. State of Punjab, and Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir,

In Surajit Sarkar Vs. State of West Bengal, the Hon''ble Supreme Court observed thus:

In State of U.P. Vs. Satish, relied on by learned counsel for the State, the reason for the delay in examination of the witnesses is not quite clear. But, this Court reiterated the two principles earlier recognized, namely, that mere delay in examination of a witness does not make the prosecution version suspect and that the investigating officer must be asked the reason for the delay in examination of the witness. Ganesh Bhavan Patel and Another Vs. State of Maharashtra, was explained by observing that delay in examination of the witnesses was not the only determinative factor - in fact, there were several factors taken together along with the delayed examination of witnesses that provided the basis for acquittal.

Finally, reference was made by learned counsel for the Shyamal Ghosh Vs. State of West Bengal, ) to contend that the delayed examination of a witness will not vitiate the prosecution case. We agree that delay per se may not be a clinching factor but when there is a whole range of facts that need to be explained but cannot, then the cumulative effect of all the facts could have an impact on the case of the prosecution.

In the instant case, the date and time of incident was 24.09.2004 at about 7:30 PM and Dehati Merg Intimation (Ex. P-35) and Dehati Nalishi (Ex. P-36) were recorded on the same day at about 8:30 PM, i.e., within an hour of the incident. It appears that the FIR was lodged without any delay. Dukhiram (deceased) was taken to the hospital for treatment and during the treatment deceased Dukhiram died. Thereafter, another Merg Intimation (Ex. P-2) was recorded in Police Station Khadgawan. Thereafter, inquest (Ex. P-3 and Ex. P-4) were prepared on the dead body of deceased persons on 25.09.2004.

The case diary statements of Chandrawati (PW-2), Akalu (PW-3), Satiraj (PW-4), Injina (PW-6) and Basanti (PW-7) were recorded on 26.09.2004, 27.09.2004, 27.09.2004 and on 25.09.2004, respectively. It appears that the case diary statements of the above witnesses were recorded after 2-3 days of the incident. Chandrawati (PW-2) had already lost her son. In this circumstance, the above prosecution witnesses would try to save deceased Dukhiram. Nothing has been brought on record by the defence which could show that the evidence of Chandrawati (PW-2), Akalu (PW-3), Satiraj (PW-4), Injina (PW-6), Basanti (PW-7) and Suraj (PW-11) are tutored and the defence did not put any question to the Investigating Officer to explain for the delay in examination of the witnesses. Merely the case diary statements of the above witnesses were recorded after 2 or 3 days of the incident, their evidence cannot be doubted.

Now, we shall examine whether on the basis of the evidence of above witnesses, it can be established that the appellants formed an unlawful assembly or they were members of the said assembly, if so, what was the common object of the assembly?

What is to prove against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons, constituting the assembly and he entertained along with other members of the assembly.

Section 149 IPC contemplates common object and Section 141 IPC defines an unlawful assembly. Section 141 IPC provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in Section 141, it further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in Section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of Section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in Sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of Section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in Section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of Section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the acts provided in Section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of Section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in Section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. It if is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of Section 149 IPC.

In Dharnidhar Vs. State of U.P. and Others, the Hon''ble Supreme Court held that the principles controlling the application of provisions of Section 149 IPC have been quite well settled by now. Years back, the Bench of this Court in Masalti Vs. State of U.P., , declared the dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by Section 141 IPC. The crucial question to be determined in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot eo instanti. ( Maranadu and Another Vs. State by Inspector of Police, Tamil Nadu,

In Muthu Naicker and Others Vs. State of Tamil Nadu, , while dealing the matter in relation to unlawful assembly, the Hon''ble Supreme Court held that where there is melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. The Hon''ble Supreme Court held that in a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one''s eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Reference was also made to decision of Masalti Vs. State of U.P.,

In the instant case, the deceased persons and Chandrawati (PW-2) were going from their new house to old house to see Injina (PW-6) who was ill and when they reached near the house of appellant Raisingh, at that time, the appellants came there armed with farsa, lathi and rod. Appellant Raisingh gave farsa blow to deceased Dukhiram and appellant Rama gave farsa blow to deceased Prakash and when deceased Prakash tried to escape, appellant Anil chased him and gave him farsa blow and the other appellants also assaulted deceased Prakash. When Satiraj (PW-4) and Akalu (PW-3) tried to save the deceased persons, the appellants also assaulted them.

Sub-Inspector S.N. Tripathi (PW-13) deposed that he recorded memorandum statements of the appellants and at their instances, farsa, rod and lathi were seized from the respective appellants. Ulam (PW-5) deposed that the police recorded memorandum statements of the appellants vide Ex.-P/5 to Ex.-P/8 and at their instances, farsa, rod and lathi were seized from the respective appellants. Sub-Inspector S.N. Tripathi (PW-13) further deposed that the seized articles were sent to FSL, Raipur for chemical examination and report (Ex.-P/48) was received therefrom. In Ex.-P/48, it is reported that article A-blood stained soil, article C-1, C-2, C-3 & C-4 - piece of brick, chappal, hawai chappal and piece of stone, article D- baniyan of appellant Raisingh, article E- full shirt of appellant Rama, article F- T-Shirt of appellant Anil Kumar, article H- danda of appellant Dada @ Surendra Kumar, article 1-1 - farsa of appellant Anil Kumar, article 1-2 - danda of appellant Anil Kumar, article J- farsa of appellant Raisingh, article K- farsa of appellant Rama, article L- rod of appellant Raju, articles M-1 and M-2 baniyan and gamchha of deceased Prakash, article N-1, N-2 and N-3- shirt, chaddi and gamchha of deceased Dukhiram were found stained with blood.

According to the prosecution witnesses, appellants Raisingh, Rama and Anil Kumar were carrying farsa and appellant Raju was carrying rod and other appellants were carrying lathi with them and they assaulted deceased persons Dukhiram and Prakash and also injured witnesses Satiraj (PW-4) and Akalu (PW-3). Their evidence is duly corroborated by the medical evidence and also by the FIR.

It appears that the farsa which were seized from appellants Raisingh (A-1), Rama (A-2) and Anil Kumar (A-4) were stained with blood and the rod seized from appellant Raju (A-3) and the lathi seized from appellant Dada @ Surendra Kumar (A-5) were stained with blood and the seized clothes were also stained with blood.

Looking to the evidence of injured eye-witnesses and other eyewitnesses, appellant Raisingh firstly assaulted Dukhiram (deceased), thereafter, appellants Rama and Anil Kumar assaulted Prakash (deceased) and other appellants also assaulted Prakash (deceased) and injured Akalu (PW-3) and Satiraj (PW-4). Therefore, the intention of the appellants clearly shows that they joined to kill the deceased persons in furtherance of their common object of committing murder of deceased persons Dukhiram and Prakash and that of causing injuries to Akalu (PW-3) and Satiraj (PW-4). Therefore, it is established that the appellants formed the unlawful assembly and in furtherance of their common object, they assaulted deceased persons Dukhiram and Prakash and injured Akalu (PW-3) and Satiraj (PW-4) with farsa, rod and lathi.

Learned counsel for the appellants has argued that the deceased persons Dukhiram and Prakash had assaulted appellant Raisingh prior to this incident and appellant Raisingh had gone to Police Station for lodging a report. He was sent to the hospital for medical examination. It appears that appellant Raisingh was not present at the time of occurrence. Therefore, appellant Raisingh cannot be convicted. The above argument is not acceptable.

Ex. D-6A is a requisition for medical examination (MLC application) of appellant Raisingh. In Ex. D-6A, it is mentioned that:

Looking to Ex.-D-6A, it appears that appellant Raisingh sustained injuries at about 7:30 p.m. According to the prosecution, the date and time of the incident was 24-09-2004 at about 7:30 p.m. It appears that when Dukhiram (deceased) and Prakash (deceased) sustained injuries, at that time, appellant Raisingh also sustained injuries on his body in the same incident. The prosecution witnesses specifically deposed that appellant Raisingh was carrying a farsa and he firstly assaulted Dukhiram (deceased) and thereafter the appellants assaulted Prakash (deceased). Therefore, the presence of appellant Raisingh at the place of occurrence is established.

Learned counsel for the appellants has argued that appellant Raju was not present at the place of occurrence at the time of incident. The above argument is not acceptable.

Appellant Raju took a plea that he was not present at the place of occurrence at the time of incident and he was working with contractor Pravin Kumar Singh (DW-3). Pravin Kumar Singh (DW-3) deposed that appellant Raju was working under him as labour in the year 2004, but he did not know whether on 24-09-2004 appellant Raju was working under him or not. He was not able to state whether appellant Raju was working with him in the month of September, 2004 or not. He further deposed that the labours were working from 7.00 a.m. to 3.00 p.m. Looking to the evidence of Pravin Kumar Singh (DW-3), it is not established that on the date of incident appellant Raju was working as labour at the time of incident. Therefore, appellant Raju was not able to prove his defence of alibi.

Having examined the testimonies of the above eye witnesses with utmost circumspection, we find that the prosecution has been able to establish that the appellants formed the unlawful assembly. It is established that the appellants, who were 5 in numbers, assaulted Dukhiram (deceased) and Prakash (deceased) and also injured Akalu (PW-3) and Satiraj (PW-4). They definitely shared common object of committing murder of Dukhiram (deceased) and Prakash (deceased) and that of causing simple injury to injured Akalu (PW-3) and Satiraj (PW-4).

We are of the view that the learned Additional Sessions Judge was completely right in convicting and sentencing the appellants under Sections 147, 148, 302/149 and 323/149 IPC. The impugned judgment, being not exceptionable, is affirmed. For the foregoing reasons, we do not find any substance in the appeal; it is liable to be and is hereby dismissed.