Raj Bahadur and Others vs State of U.P.

M. Chaudhary, J.—This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 20th of September, 1982 passed by V Sessions Judge, Fatehpur in Sessions Trial No. 372 of 1981 State v. Raj Bahadur and Ors. convicting accused Raj Bahadur and Manni Lal u/s 148 IPC and accused Jagdish, Jagroop, Sahdeo and Ram Vishambhai u/s 147 IPC and sentencing Manni Lal and Raj Bahadur to three years rigorous imprisonment and Jagdeo, Jagroop, Sahdeo and Ram Vishambhar to two years'' rigorous imprisonment respectively thereunder. Accused Raj Bahadur was further convicted u/s 302 read with Section 301 IPC and accused Manni Lal, Jagdeo, Jagroop, Sahdeo and Ram Vishambhar u/s 302 read with Section 149 IPC and each of them sentenced to imprisonment for life thereunder. Accused Raj Bahadur and Manni Lal were also convicted u/s 307 IPC and accused Jagdeo, Jagroop, Sahdeo and Ram Vishambhar u/s 307 read with Section 149 IPC and each of them sentenced to five years'' rigorous imprisonment respectively thereunder. All the accused were also convicted u/s 323 read with Section 149 IPC and each of them sentenced to six months rigorous imprisonment thereunder. All the sentences were made to run concurrently.

Prosecution case as unfolded during the trial in brief is: Rameshwar and Bhagwat Prasad are real brothers and Ram Sanehi, Ram Khilavan and Girja Shanker are sons of Rameshwar. Sarju and Mahendra arc sons of Ram Khilavan and Gaytri Devi and Sheela Devi his daughters. Accused Ram Vishambhar and Raj Bahadur are cousins, and Manni Lal, Jagdeo, Jagroop and Sahdeo are the sons of Ram Vishambhar. Since the houses of Rameshwar and Ram Vishambhar were situate adjacently quarrel often took place between them over nail On 20th of March, 1981 it was the festival of Holi. That day at abut 10:00 p.m. after Holi Dahan procession of the villagers proceeded from that place singing phag and as they reached in front of the house of Raj Bahadur, Raj Bahadur started hurling abuses to Sarju and as Sarju abused him in turn Raj Bahadur showing him countrymade pistol shouted that he would kill him. Immediately Sarju ran away to his house. At that time Rameshwar with his brother Bhagwat Prasad and sons Ram Sanehi, Ram Khilavan and Girja Shanker were sitting there. As Sarju was telling to his family members about the said incident Raj Bahadur and Manni Lal armed with country made pistols and Ram Vishambhar, Jagdeo, Jag.-oop and Sahdeo with lathis reached in front of the house of Rameshwar sho rting that they were their old enemies and should be killed so that every day dispute may come to an end, and the accused armed with lathis gave lathi blows to them. Ram Sanehi also hurled lathi in self-defence but in the meanwhile Manni Lal fired at Ram Sanehi with country made pistol hitting him at his head and sustaining the firearm injuries he fell down. Immediately Raj Bahadur fired at Sarju with country made pistol but missed the target and that shot hit Sheela standing at the chabutara causing injures at her arm. Raj Bahadur again fired at Sarju but that shot hit Gayri Devi standing at the chabutara and sustaining the firearm injuries she fell down and died on the spot instantaneously. On the hue and cry raised by family members of Gaytri Devi all the accused entered the house of Ram Vishambhar. The incident took place at about 10:30 p.m. After a little while a shot as fired inside the house of Ram Vishambhar and then Manni Lal and Raj Bahadur raising shouts went towards north. It was a moonlit night (Pooranmashi). The injured and the witnesses saw the incident in the light of burning lantern hanging at the door of Rameshwar''s house and moonlight and recognized the assailants well. After making arrangement for a bullock cast injured Girja Shanker taking Ram Sanehi whose condition was precarious went to Jahanabad. Bhagwat Prasad went to police station Jafarganj situate at a distance of some eight miles from village Kakora and handed over written report of the occurrence to the police there at 4:30 a.m. the same night.

The police registered a crime against the accused accordingly and started the investigation. Station Officer Jai Karan Singh who took up investigation of the case in his hands recorded statements of Bhagwat, the first informant at the police station itself. Then he went at the scene of occurrence and recorded statements of the witnesses and drew inquest on the dead body of Gaytri Devi and handed over the dead body in a sealed cover alongwith necessary papers to constable Pratap Singh for being taken for its post mortem. It appears that Girja Shanker taking his injured brother Ram Sanehi reached Jahanabad Hospital but the injured was not attended by the doctor as it was the police case and chitthi majroobi was not with the injured. Then Girja Shanker leaving Ram Sanehi with Dankava Kori and asking him to take Ram Sanehi to District Hospital Fatehpur returned back to his village and requested the investigating officer to give him chitthi majroobi. The investigating officer recorded statement of Girja Shanker at the scene of occurrence and asked him to go to the Hospital as one constable taking chitthi majroobi was being sent to the Hospital. Then Girja Shanker went to the District Hospital Fatehpur. By that time Ram Sane hi was admitted in the Hospital but the constable taking chitthi majroobi had not reached, there.

Medical examination of injured Ram Sanehi by Dr G.S. Gain, medical officer District Hospital at 7:00 p.m. revealed below noted injures on his person:

One firearm wound of entry 2 cm x 1 cm x muscle deep on the midline of head 8 cm above the right eyebrow, margins inverted. No blackening and tattooing present.

The patient complained of pain in left shoulder but no external injury was visible.

The injured was admitted in the Hospital.

Autopsy conducted on the dead body of Gaytri by Dr L.K. Singh, medical officer District Hospital Fatehpur on 22nd of March, 1981 at 2:30 p.m. revealed below noted ante mortem injuries:

Multiple gunshot wounds of entry on front of chest and abdomen upper part in an area of 9" x 7" covering both the breasts, epigastrium, hypochondrium and sternw 2" above umbilicus each measuring 1/6" x 1/6" x cavity deep, blackening and tattooing absent. Direction of wounds front to backwards.

On internal examination sternum and 3rd and 4th ribs on left side were found fractured. Both the lungs arid pleura, heart, peritoneum, pericardium, large intestine and fiver were lacerated. Stomach was also lacerated and contained undigested food 4 ozs.

The doctor recovered 28 pellets from the body.

The doctor opined that the death was caused due to shock and hemorrhage as a result of firearm injuries about one and half days ago.

Injured Km. Sheela, Sarju and Mahendra got themselves medically examined by Dr. Yashwant Vishvakarma, medical officer in-charge PHC Khajuha on 22nd of March, 1981.

Medical examination of Km. Sheela by Dr. Yashwant Vishvakarma, medical officer in-charge PHC Khajuha on 22nd of March, 1981 at 6:00 p.m. revealed below noted injuries on his person:

Gunshot wound of entry 1/4 cm x 1/4 cm x tissue deep on posterior aspect of left forearm 1 cm below the lateral epicondyle.

Gunshot wound of entry 1/4 cm x 1/4 cm x tissue deep on front of left forearm (elbow) 18 cm above the lower end of radius.

Gunshot wound of entry 1/4 cm x 1/4 cm x tissue deep on medial aspect of left upper arm 9 cm above the medial epicondyle.

Gunshot wound of entry 1/4 cm x 1/4 cm x tissue deep on posterior aspect of left upper arm 10 cm above olecranon process.

The doctor opined that the injuries were caused by firearm and about two days old in duration. He was referred to District Hospital Fatehpur for x-ray of left upper arm and forearm.

Medical examination of injured Sarju by Dr. Yashwant Vishvakarma the same day at 6:25 p.m. revealed below noted injury on his person:

Contusion 5 cm x 21/2 cm on outer surface of right leg 24 cm above the lateral malleolus.

The doctor opined that the injury was caused by blunt object, simple in nature and about two days old in duration.

Medical examination of injured Mahendra by Dr. Yashwant Vishvakarma the same day at 6:40 p.m. revealed belownoted injury on his person:

Contusion 6 cm x 2 cm present on outer surface of right leg 8 cm below the tibia.

The doctor opined that the injury was caused by blunt object, simple in nature and about two days old in duration.

Medical examination of Girja Shanker by Dr Yashwant Vishvakarma, medical officer in-charge PHC Khajuha on 24th of March, 1981 at 8:00 a.m. revealed belownoted injury on his person:

Abraded contusion 10 cm x 11/2 cm on left infra scapular region 3 cm below and medial to the inferior angle of scapula.

The doctor opined that the injury was caused by blunt object, simple in nature and about three and a half days old in duration.

All the four injured abovenamed were medically examined by Dr Yashwant Vishvakarma, medical officer in-charge PHC Khajuha on their respective chitthi majroobis issued by the police on 21st of March, 1981.

After completing investigation the police submitted charge sheet against the accused accordingly.

After framing of charge against the accused the prosecution examined Bhagwat Prasad (PW 1), Ram Saheni (PW 2), Girja Shanker (PW 3), Sarju (PW 4) and Rang Pal (PW 5) as eye witnesses of the occurrence. PW 4 HM Shiv Nandan Prasad who prepared check report on the basis of written report handed over to him by Bhagwat Prasad at the police station and made entry regarding registration of the crime in the GD proved these papers. PW 9 Dr. G.S. Gaur, medical officer District Hospital Fatehpur who medically examined Ram Sanehi proved the injury report. PW 10 Dr. Yashwant Vishvakarma who medially examined injured Sheela, Sarju and Mahendra on 22nd of March, 1981 and injured Girja Shanker on 24th of March, 1981 proved the injury reports. PW 8 Station Officer Jai Karan Singh who investigated the crime in main and after completing investigation submitted charge sheet against the accused proved the police papers. He also stated that the cross-case on the FIR lodged by Ram Vishambhar was registered on 21st of March, 1981 at 6:30 a.m. and after investigating that rime lie submitted final report in cross-case.

The accused pleaded not guilty and stated that the occurrence did not take place in the manner alleged by the prosecution. The defence case is that Holi Dahan was done at the instance of Bhagwat Prasad and others in the field of Ram Vishambhar and as he asked them not to perform Holi Dahan there altercation ensued and Sarju and his associates beat him with fists and kicks; that in the meanwhile Jagroop, Manni Lal and Sahdeo sons of Ram Vishambhar reached there and asked Sarju and his associates not to proceed further; that then Sarju and his associates fired at them thereby causing injuries to his sons and that thereon someone fired from their side also.

The accused examined DW 1 Ram Vishak Singh, DW 2 Dr. S.K Misra, DW 3 Jagdev Prasad and DW 4 Ram Karan in their support. DW 1 Ram Vishak Singh, clerk in the court of Judicial Magistrate, Collectorate Fatehpur stated that special report of the said crime was received in the office on 23rd of March 1981. DW 2 Dr S.N. Misra, Jail doctor who medically examined accused Jagroop on 23rd of March, 1981 and accused Sahceo and Manni Lal on 27th of March, 1981 proved the injury reports.

Medical examination of accused Jagroop by Dr S.N. Misra, the jail doctor revealed belownoted injuries on his person:

Gunshot wounds of entry (multiple) on from lower third of right thigh including front of knee, clotted crest present on the wounds each measuring 1/8" surrounded by inflammatory oedema.

Two gunshot wounds of entry on medial of left thigh each measuring 1/8" crest present, wounds surrounded by inflammatory oedema.

The doctor opined that the injuries were simple caused by firearm and about four days old in duration. No comment about distance.

Medical examination of accused Sahdeo by Dr. S.N. Misra on 27th of March, 1981 at 12:42 noon revealed below noted injuries on his person:

Multiple gunshot wounds of entry in an area of 11 cm x 8 cm on left lumbar region and lateral abdomen and part of left hip each rounded 1/8" with black crests.

The doctor opined that the injury was simple caused by firearm and about one week old in duration. About distance no comments.

Medical examination of accused Manni Lal that very day at 12:52 noon revealed below noted injuries on his person:

Healed abrasion 2 cm x 0.2 cm on right parietal region of scalp, black crest present. Charring of surrounding hair.

Complained of pain in right leg. No apparent injury seen.

The doctor opined that the injury No. 1 was caused by firearm, simple in nature and about one week old in duration. Distance could not be ascertained.

DW 3 Jagdev Prasad who is a resident of village Rampur within the limits of police station Jaspur District Banda stated that accused Jagdeo resided with his elder brother Jagdish and last year on the Holi festival he was present at village Rampur. DW 4 Ram Karan stated that the fateful day Holi Dahan was being performed in the field of Raj Bahadur and Ram Vishambhar at the instance of Bhagwati and others; that Ram Vishambhar, Raj Bahadur, Manni Lal and Sahdeo took exception thereto; that t that time Ram Saheni and Girja Shanker were armed with guns and a Sarju with countrymade pistol and hot exchange took place between them and a quarrel ensued; that then Ram Sanehi fired with his gun thereby causing injuries to Jagroop and Sarju also fired thereby causing injury to Manni Lai; that in the meanwhile gun of Girja Shanker fell down which was picked up by some relative of Raj Bahadur who fired two shots but none got injured and that then again Ram Sanehi and Sarju fired thereby causing injuries to Gaytri Devi and Sheela. A perusal of Khatauni extract for the Fasli years 1384 to 1389 goes to show that Ram Vishambhar and Bhagwandin, father of at used Raj Bahadur were sah khatedars of field No. 1290 alongwith other fields (Ext kha 13). Subsequently CW 1 Buddh Bihari Pandey, Deputy Jailor District Jail Fatehpur and CW 2 Constable Dhani Ram Yadav were examined by the Court as Court witnesses. CW 1 Buddh Bihari Pandey produced Gate Register and proved the entries regarding entering of Dr. S.N. Misra in jail on 23rd of March, 1981 at 10:40 a.m. and exit at 2:00 p.m. and on 27th of March, 1981 his entry at 9:40 a.m. and exit at 1:50 p.m. CW 2 Constable Dhani Ram Yadav stated that special report of the crime was sent to Higher Authorities on 21st of March, 1981 at 8:30 a.m. through Constable Pratap Singh and he returned to the police station on 23rd of March, 1981 at 7:15 a.m.

On an appraisal of the parties'' evidence on record the learned trial judge held the accused guilty of the offences as stated above and convicted and sentenced them accordingly.

Feeling aggrieved by the impugned judgment the accused appellants preferred this appeal for redress.

We have heard Sri V.P. Srivastava, learned Counsel for the accused appellants and Sri Karuna Nand Bajpayee, learned AGA for he State respondent.

After going through the impugned judgment and record of the case we find it difficult to differ with the findings recorded by the learned tial judge against the accused. PW 1 Bhagwat Prasad, the first informant narrated all the facts of occurrence from the beginning to the end as state d above deposing that the fateful night after joining ceremony of Holi Dahan he was sitting in front of the house of Rameshwar; that at that time procession of the villagers singing phag was proceeding; that in the meanwhile at about 10:00 p.m. Sarju reached there and told them that Raj Bahadur taking countrymade pistol threatened him with murder; that in the meanwhile Raj Bahadur and Manni Lal armed with countrymade pistols and Jagdeo, Jagroop, Sahdeo and Ram Vishambhar taking lathis reached there and started hurling abuses; that he and others asked them not to quarrel that day; that then the assailants armed with lathis started giving lathi blows to Ram Saneni, Sarju, Mahendra and Girja Shanker; that immediately Ram Sanehi hurled lathis in selfdefence but in the meanwhile Manni Lal fired at Ram Sanehi hitting him at his head; that then Raj Bahadur fired at Sarju but shot fired by him hit Sheela causing injuries to her and then Raj Bahadur again fired at Sarju but that shot hit Gaytri Devi and sustaining the firearm injuries at her chest she fell down and that then all the assailants ran and entered the house of Ram Vishambhar. He further stated that at that time a burning lantern was hanging at the door of the house of Rameshwar and it was also a moon lit night and they recognized the assailants well in that light; that after a little while he heard sound of d shot fired inside the house of Ram Vishambhar and that thereafter Raj Bahadu; and Manni Lal went out of his house and ran away. He also stated that after making arrangement for a bullock cart Girja Shanker took injured Ram Sanehi to Jahanabad Hospital and he got report of the occurrence scribed by Ram Kishore and went to police station and handed over written report of the occurrence to the police there (Ext Ka 1). PW 2 Ram Sanehi, PW 3 Girja Shanker, PW 4 Sarju, all the three injured corroborated him stating likewise. PW 5 Rang Pal also deposed all the facts of the occurrence corroborating them on all the material points. Testimony of all the eye witnesses abovenamed stands corroborated by FIR of the occurrence lodged at police station Jafarganj situate at a distance of eight miles from village Kakora at 4:30 a.m. the same night promptly and medical evidence. Testimony of PW 1 Bhagwat Prasad, PW 2 Run Sanehi, PW 3 Girja Shanker and PW 4 Sarju stands corroborated by the testimony of PW 5 Rang Pal who is quite an independent witness as he had no axe to grind against the accused. No doubt, it has come in evidence that Rang Pal''s father Sadhu had lodged an FIR against one Batti Singh, Ram Asrey and others in the year 1961 and then criminal case numbered as 127 of 1961 State v. Batti Singh and Ors. was launched and in that case Bhagwat Prasad appeared as a prosecution witness, but that is of no consequence. That time PW 5 Rang Pal was a child hardly 4-5 years of age as he stated his age to be 25 years on 30th of June, 1982 when his statement was recorded. All the five witnesses abovenamed were subjected to searching and rambling cross-exam nation but nothing tangible could be elicited to shake the central core of their version regarding the occurrence. However learned Counsel for the appellants has advanced following arguments assailing judgment of the trial court, and now we shall see if any of them has got any force:

First, learned Counsel for the appellants vehemently argued that there is no mention in the FIR lodged by Bhagwat Prasad that Sarju, Mahendra and Girja Shanker received injuries in the said incident and their medical examination is also much delayed as Sarju and Mahendra got themselves medically examined in the evening of 22nd of march 1981 and Girja Shanker on 24th of March and hence it is doubtful if they got injured at all in the said occurrence. Said argument advanced by learned Counsel for the appellants deserves outright rejection. No doubt, there is no mention in the FIR that Sarju, Mahendra and Girja Shanker received injuries in the said incident and Km Sheela, Sarju and Mahendra got themselves medically examined at PHC Khajuha in the evening of 22nd of March 1981 and Girja Shanker got himself medically examined on 23rd of March 1981; but PW 8 Station Officer Jai Karan Singh, the investigating officer deposed that he recorded statements of Girja Shanker, Sarju, Mahendra and Km Sheela at the scene of occurrence the same day i.e. on 21st of March, 1981 and all of them were injured at that time and chitthi majroobis were issued for their medical examination that very day. A perusal of he injury reports of all the four abovenamed goes to show that their chitthi majroobis were issued on 21st of March 1981. PW 3 Girja Shanker stated in his cross-examination that since his niece Gaytri died in the said incident and condition of his real brother Ram Sanehi was serious due to head injury received by him in the said incident and he was admitted in the Hospital he had no time to get himself medically examined at PHC Khajuha earlier.

Secondly, the appellants'' learned Counsel strenuously argued that since prosecution did not explain the injuries received by accused Manni Lal, Jagroop and Sahdeo in the said incident the prosecution has suppressed the truth regarding the incident and hence no reliance should be placed on the prosecution version of the occurrence. Said argument advanced by appellants'' learned Counsel is equally fallacious. A perusal of the injury reports prepared by the jail doctor who medically examined accused Manni Lal, Sahdeo and Jagroop goes to show that the injuries sustained by the three accused were minor and of superficial nature. Medical examination of accused Manni Lal on 27th of March, 1981 in jail by Dr S.N. Misra revealed a healed abrasion 2 cm x 0.2 cm on right parietal region. Medical examination of accused Sahdeo revealed multiple gunshot wounds of entry in an area of 11 cm x 8 cm on left lumbar region, abdomen and part of left hip each rounded 1/8" in size. The doctor opined that injuries received by both the injured were simple in nature. Moreover, a perusal of the FIR lodged by accused Ram Vishambhar goes to show that there is no mention in the FIR that Sahdeo and Manni Lal also received injuries (Ext ka 11). Furthermore, no reason has been given as to why these two injured accused did not get themselves medically examined in the PHC or District Hospital soon after receiving the injuries. As far as injuries of Jagroop are concerned, firearm injuries received by him are not on vital part of the body and each gunshot wound of entry is rounded 1/8" in size. DW 2 Dr S.N. Misra, jail doc or who medically examined accused Jagroop and Sahdeo stated that at me time of noting down their injuries in the Register he had given a distance of firing as from about 50 yards which he subsequently cut down and wrote ''no comments about the distance'' and that he made this overwriting subsequently in consultation with Dr. Anand Swarup probably within ten days of medical examination of the two injured. Under these circumstances, we are of the view that it was not obligatory on the part of prosecution to explain the alleged injuries of accused Sahdeo, Manni Lal and Jagroop. It is well established by a catena of decisions that mere non-explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by the accused are minor or superficial or where the prosecution evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy that it tar outweighs the effect of the omission on the part of the prosecution to explain the injuries. Testimony of five eye witnesses including three injured witnesses and one independent witness is so cogent and consistent, so spontaneous and reliable that it far outweighs the effect of omission on the part of prosecution to explain the alleged injuries received by the accused. Testimony of injured witnesses has got its own relevance and efficacy.

Besides it, the accused have improved their version at different stages as a perusal of the FIR lodged by Ram Vishambhar at police station Jafarganj on 21st of March, 1981 at 6:30 a.m. goes to show that at about 10:30 p.m. on 20st of March, 1981 his son Jagroop was coming to his house from the place of Holi Dahan that Sarju started hurling abuses to him; that at that very time Ram Sanehi and Girja Shanker armed with guns and Sarju with countrymade pistol threatened him with murder and started beating Ram Vishambhar and as Jagroop rushed for his rescue Girja Shanker fired at him and sustaining the firearm injuries Jagroop fell down whereas accused Ram Vishambhar stated in his statement recorded u/s 313 of the Code of Criminal Procedure that ceremony of Holi Dahan was performed in his field at the instance of Bhagwat Prasad and others and as he took exception thereto Sarju and his associates beat him with lists a ad kicks and then as his sons Jagroop, Manni Lal and Sahdeo rushed for his rescue Sarju and his associates fired at them thereby causing firearm injuries to all his three sons and then firing was made from his side. However, the defence case as suggested to the prosecution witnesses is that Holi Dahan was performed in the field of Ram Vishambhar at the instance of Bhagwat Prusad and others and as Ram Vishambhar took exception thereto they beat Ram Vishambhar and as his sons Jagroop, Sahdeo and Manni Lal came for his rescue Girja Shanker, Ram Sanehi and Sarju fired at them with countrymade pistol and runs thereby causing injuries to them and that then shots were fired from the side of the accused in defence in which Ram Sanehi and Sheela got injured and Gaytri died due to injuries sustained by her in that firing. However DW 4 Ram Karan stated that that fateful day Holi Dahan was being performed in the field of Ram Vishambhar at the instance of Bhagwat Prasad and others and as Ram Vishambhar, Raj Bahadur, Manni Lal and Sahdeo took exception thereto Ram Sanehi and Girja Shanker armed with guns and Sarju with countrymade pistol fired at them thereby causing injuries to Jagroop and Manni Lal that in the meanwhile gun of Girja shanker fell down which was picked up by some relative of Raj Bahadur who fired two shots but none received any injury and that thereafter Ram Sanehi and Sarju again fired with their respective weapons thereby causing injuries to Gaytri Devi and Sheela. However this witness Ham Karan stated that at that time there was no crop in the field of Ram Vishambhar in which Holi Dahan was performed.

No doubt, it has come in evidence that during previous years celebrations of Holi Dahan were used to be performed over he land of Faguni near the fields of Ram Vishambhar and Faguni but in the year 1981 Faguni raised kachcha constructions of his house over that land 2-3 months prior to Holi festival and hence Holi Dahan was performed over the mendh in between the fields of Faguni and Ram Vishambhar. It would lot be out of place to mention here that it is a matter of common knowledge that celebration of the ceremony of Holi Dahan is not such which may be performed at anyplace all of a sudden. Preparations for the ceremony of Holi Dahan are made for several days together prior thereto, and this ceremony is performed by all the villagers at one place and it is not the function of 2 or 4 families. Moreover, assault at Sarju, Ram Sanehi, Girja Shanker and Mahendra was made in front of the house of Rameshwar and not at the place of Holi Dahan which was quite far away from the house of Rameshwar. Dead body of Gaytri was found King at the chabutra of the house of Rameshwar, and blood was also lying there. Furthermore, plea of self-defence was not taken in the FIR lodged by accused Ram Vishambhar. For these reasons, the defence version is palpably false, and plea of self-defence is liable to be rejected.

Lastly, the appellants'' learned Counsel half heartedly argued that application of Section 149 IPC should not be made as the assailants armed with lathis did not share the common object of committing murder of Sarju. Section 149 IPC provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that unlawful assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed. In the instant case all the accused armed with countrymade pistols and lathis went together in front of the house of Rameshwar and the assailants armed with lathis gave lathi blow to Ram Sanehi, Sarju, Mahendra and Girja Shanker, and Manni Lal fired at Ram Sanehi hitting him at his head and Raj Bahadur fired at Sarju twice but missed the target and the shots fired by him hit Km Sheela and Gaytri and then all of them ran away and entered the house of Ram Vishambhar. The occurrence resulted in the death of Gaytri and causing injuries to Ram Sanehi, Mahendra, Girja Shanker and Km Sheela. All these facts are sufficient to establish that death of Gaytri was caused in prosecution of the common object of the unlawful assembly to commit the murder of Sarju.

For the foregoing discussion, we find no good reason interfere with the well reasoned judgment passed by the learned trial judge. The appeal has no merit and is liable to be dismissed.

The appeal is dismissed, and the impugned judgment an. order is hereby affirmed. Accused appellants Raj Bahadur, Manni Lal, Jagdeo, Jagroop, Sahdeo and Ram Vishambhar are on bail. Their bail is cancelled. Chief Judicial Magistrate, Fatehpur is directed to get all the accused appellants arrested and send them to jail to serve out the sentence imposed upon each of them.

Office is directed to send copy of the judgment and record of lower court to the Court below immediately for ensuring necessary compliance under intimation to this Court within two months from today.