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2014 DIGILAW 1108 (ALL)

Alwar v. State of U. P.

2014-04-04

ARVIND KUMAR TRIPATHI

body2014
JUDGMENT Arvind Kumar Tripathi (II),J. 1. Heard Shri Vivek Bhatt, learned counsel appearing on behalf of appellant nos.1, 2 and 4, Shri Awanish Kumar Bhatt, learned counsel appearing on behalf of appellant nos.3, 5 and 6, Sri Sharad Dixit learned AGA for the State respondent and Shri Sunil Kumar Singh, learned counsel for the informant. 2. This criminal appeal has been filed by the appellants - Alwar, Badam, Haripal, Morpal, Hari Singh and Rama Deen, challenging the judgment and order dated 15.9.2005 passed in Sessions Trial No.235 of 2004 by the learned Additional Sessions Judge, Court No.2, Hardoi convicting the appellants and sentencing them to undergo 8 years RI under Section 304 (2) read with Section 149 IPC, and further convicting the appellants - Alwar, Morpal, Hari Pal and Ramadeen and sentencing them to undergo 3 years RI under Section 148 IPC and convicting the appellants - Badam and Hari Singh and sentencing them for 2 years RI under Section 147 IPC. 3. The prosecution case, in brief, are that FIR was lodged by Smt. Kiran on 11.11.2003, at about 11: 25 AM, alleging that Morpal was cutting a branch of Neem tree standing on the Gram Sabha land and her husband Satish forbade him from doing so, and thereafter, he went away beside the river Manjhiri to water the field. Due to this dispute on 11.11.2003, at about 10 AM, Alwar having gun in his hand, Morpal having country made pistol, Badam having lathi, Haripal having country made pistol, Hari Singh having lathi and Ramadeen having gun, went to her field started abusing and with the intention to kill him starting beating by lathi. At the time of incidence, Chandrapal, Ram Vilas, Srinivas saw the incidence and exhorted the assilants. Then, the assailants threatening to kill fled away towards east. On this, a case under Sections 147, 148, 149, 307, 323, 504, 506 IPC was registered as case crime no.130 of 2003. Investigation was handed over to Shri Shyam Bahadur Yadav, Incharge Police Station. 4. The Investigating Officer, after investigation, sent the injured for treatment. It was not possible to record the statement of the injured, as his condition deteriorated and he was unconscious. The statement of the informant was recorded. Evidence was collected, place of occurrence was inspected and plain and blood stained earth was taken to prepare fard. 4. The Investigating Officer, after investigation, sent the injured for treatment. It was not possible to record the statement of the injured, as his condition deteriorated and he was unconscious. The statement of the informant was recorded. Evidence was collected, place of occurrence was inspected and plain and blood stained earth was taken to prepare fard. On 11.11.2003 itself, brother of the deceased Srinivas Tiwari informed the police station that his brother died at about 12: 35 hours while he was being taken to CHC for treatment. On this information of Srinivas regarding death of injured, case was converted under Section 302 IPC. Thereafter, the Investigating Offier went to CHC, Harpalpur prepared panchana of the dead body, and it was sent for post mortem. The statement of the witnesses was recorded. The statement of the accused persons were recorded after their arrest. On 13.11.2003, on the pointing out of Hari Singh and Badam Singh two lathis were recovered and fard was prepared. Charge sheet under Sections 147, 148, 149, 307, 323, 504, 506 IPC was submitted against the accused persons. The case was submitted for trial. 5. On 3.4.2004, learned Sessions Judge, Hardoi framed charges against Badam and Hari Singh under Section 147, 302/149 IPC and against Alwar, Morpal, Haripal and Rama Deen under Section 148, 302/149 IPC. The accused persons denied the charges and claimed to be tried. 6. The prosecution has examined the informant as PW-1, Srinivas as PW-2, Constable, Lalta Prasad as PW-3, Shyam Bahadur Yadav, Investigating Officer as PW-4, Dr. P.V. Tripati as PW-5. The statment of accused persons was recorded under Section 313 Cr.P.C. They pleaded not guilty and claimed to be tried. 7. Learned counrt below, after going through the evidence on record and after hearing the parties, convicted the accused persons, as mentioned above. Feeling aggrieved, this criminal appeal has been filed. 8. The post mortem of deceased was conducted by Dr. V.V. Tripathi. 7. Learned counrt below, after going through the evidence on record and after hearing the parties, convicted the accused persons, as mentioned above. Feeling aggrieved, this criminal appeal has been filed. 8. The post mortem of deceased was conducted by Dr. V.V. Tripathi. As per post mortem report the injuries are (1) Lacerated wound 4 cm x 2.5 cm x bone deep on the left dorsam of forearm 5 cm above the left wrist joint underneath both radius and ulna bone found fractured; (2) Contusion 8 cm x 5 cm on the left dorsum of forearm; (3) contusion 10 cm x 9 cm on the upper part of back; (4) contusion 10 cm x 6 cm on the right arm; (5) lacerated wound 4 cm x 1 cm on the right dissal part of arm underneath humerus bone found fractured; (6) contusion 8 cm x 7 cm on the right dorsum of forearm; (7) contusion 8 cm x 4 cm on the abdomen on the right side; (8) contusion 7 cm x 5 cm on the left leg; (9) consution 8 cm x 6 cm on the right leg; and contusion 3 cm x 2 cm on the forehead. On the internal examination. The doctor opined that all the injuries were caused by kudal, and time of death was probably 10: 00 AM on 11.11.2003. He has further stated that there was no gun shot would on the body of deceased. 9. The prosecution has produced the informant as PW-1. She, in her examination in chief, supporting the FIR version, has stated that the deceased was her husband. The accused persons Alwar, Badam, Hari Singh, Haripal, Morpal and Ramadeen all are from one family, and on 11.11.2003, she saw the accused persons going towards north in the field, and on the basis of earlier hot talks, she pursued them. She stated that the accused persons Badam and Hari Singh were having lathis whereas Alwar, Ramadeen were armed with gun, Morpal and Haripal were armed with country made pistol. The accused persons having reached the field of Kashmir started abusing her husband - the deceased and firing on him. Having heard the sound of fire her husband ran towards east. As soon as he ran for about 20-25 steps the accused persons assault them by lathis, butt of the gun and butt of country made pistol. The accused persons having reached the field of Kashmir started abusing her husband - the deceased and firing on him. Having heard the sound of fire her husband ran towards east. As soon as he ran for about 20-25 steps the accused persons assault them by lathis, butt of the gun and butt of country made pistol. She further stated that Srinivas, Rinkoo, Chandrapal, Ramvilas and Shyama Kumar, who were present on the field, rushed there after hearing the alarm. Then the accused persons, firing and threatening to kill, fled towards east. She has stated that her husband received injuries all over his body and he was taken to the hospital by putting him on the cot. She stated that she dictated the entire story to one Rajesh and gave the same for registration of FIR. She has further said that her husband was sent to Haripalpur Government Hospital by the police and she was detained at police station. She has stated that her husband died on the way when he was being taken to the hospital. PW-1, in her examination in chief, has stated that accused persons assaulted her husband by lathi, butt of the gun and but of country made pistol. During cross examination, when she was asked as to whether she has stated the same before the Investigating Officer, then she stated that, yes, she has informed the Investigating Officer regarding the same. Then the question was asked as to whether she can explain why this does not form of her statement under Section 161 Cr.P.C., she said that she cannot say. She has further stated that four persons have fired in the air, not on her husband, who has not received any gun shot injury. She has further stated that she has not seen any blank cartridge, tikli and pillet. 10. PW-2 Srinivas, in his statement, has stated that the accused persons came on 11.11.2003, at about 10 AM. They started abusing the deceased and firing on him. He stated that when Satish started running they assalted him by lathi and danda. When the witnesses started shouting, the accused persons fled towards east. He has stated, in his examination in chief, that Satish was assaulted by lathi, danda due to which he fell down. He further stated that accused persons having gun in their hands fired upon Satish. He stated that when Satish started running they assalted him by lathi and danda. When the witnesses started shouting, the accused persons fled towards east. He has stated, in his examination in chief, that Satish was assaulted by lathi, danda due to which he fell down. He further stated that accused persons having gun in their hands fired upon Satish. He fled up to 20 - 25 paces, then he was surrounded by all the accused persons, and he was assaulted by kicks, fists, butt of country made pistols, butt of gun, lathi and danda. 11. The Investigating Officer, in his cross examination, has added that the informant has not stated before him that the accused persons assaulted by butt of gun. He has further stated that the informant has not informed him that accused persons opened fire in the air. He has further stated that danda was recovered from the open verandah of the shop of Alwar. 12. It was submitted by the learned counsel for the appellants that four persons Alwar, Harpal, Morpal and Rama Deen are alleged to have carrying guns, and it is also in the evidence that though all fired upon the deceased, but there is no gun shot injury on the body of the deceased. It was further submitted that it is not the case of prosecution, in their FIR, or in their statement under Section 161 Cr.P.C. that those accused persons assaulted the deceased by the butt of their firearms. It was further submitted that from the place of occurrence, no spent cartridge, tikli and pillet were recovered. This only leads to the fact that these persons were not present on the scene of occurrence, and they have not participated in the crime. It was further submitted that Section 149 IPC creates a constructive and vicarious liability on the members of unlawful assembly for the unlawful acts committed pursuant to which common object by any other member of that assembly, but prosecution must alleged some overt act, and active participation of each members of unlawful assembly. It was further submitted that presence of appellants, who are alleged to have used lathi, is doubtful, hence they cannot be convicted with the aid of Section 149 IPC. 13. It was further submitted that presence of appellants, who are alleged to have used lathi, is doubtful, hence they cannot be convicted with the aid of Section 149 IPC. 13. In the case of Daya Kishan v. State of Haryana, (2010) 5 SCC 81 , the Apex Court has held that there are two essential ingredients of Section 149 IPC, viz., (1) commission of an offence by any member of unlaw assembly, and (2) such offence must have been committed in prosecution of common object of an assembly. 14. In the light of submission made by learned counsel for the appellants, it has to be seen as to whether the appellants - Alwar, Haripal, Morpal and Rama Deen had participated in the offence and has acted with common object of killing Satish. 15. There is no gun shot wound on the body of the deceased. No spent cartridge, tikli and pillet were found on the place of occurrence by the Investigating Officer. In the FIR, it has not been mentioned that firearms were not used as firearm, but there butts were used. The Investigating Officer has also stated that the informants has not told him that Alwar, Haripal, Morpal and Rama Deen had assaulted by the butt of their firearms. This clearly goes to show that this is an improvement by the prosecution after seeing the injuries on the bodies of the deceased. This clearly reveals that witnesses are partly reliable, and partly unreliable. The principles of false in one, false in all, cannot be applied in relation to the deposition of witnesses, who have been found lieing on particular fact, and whose remaining part of testimony is otherwise truthful. When there are improvement, and embellishment in the statement of witnesses, the Court has to separate the grain from the chaff. 16. In the instant case, the motive of offence is alleged to be that Morpal was cutting a branch of Neem tree, which was standing over the Gram Samaj land, then Satish (the deceased) forbade him from cutting tree. In her examination in chief, she has stated that tree is standing in her khalihan, and her husband is the owner of that tree. On 11.11.2003, at about 7 or 8 AM, Morpal was cutting a branch of the tree, and Satish forbade him, then Morpal alighted from the tree and threatened, then went away. In her examination in chief, she has stated that tree is standing in her khalihan, and her husband is the owner of that tree. On 11.11.2003, at about 7 or 8 AM, Morpal was cutting a branch of the tree, and Satish forbade him, then Morpal alighted from the tree and threatened, then went away. The informant has stated, in her cross examination, that uprooted branch was not found near the tree, as it was taken away grand mother of Morpal. She has further stated that she had not seen that uprooted branch at the house of Morpal. Investigating Officer has also not visited the Neem tree. She has also not pointed out the Neem tree to the Investigating Officer. She has further stated that apart from this, there is no enmity with the accused persons. This statement clearly fails to establish the motive. 17. It is noteworthy that all the accused persons belong to same family. As accused persons - Alwar, Badam, Hari Singh and Haripal, are real brothers, Morpal is the son of accused Badam and Rama Deen is the Uncle of Alwar. If the intention of Alwar, Morpal, Harpal and Rama Deen was to kill the deceased, then they should have fired upon the deceased, which was the surest way to kill the deceased, but, admittedly, they had not fired upon the deceased, as per prosecution version. 18. The fact that no spent cartridge, tikli or pillet were found on the place of occurrence, this creates doubts about the presence of these accused persons. This is also substantiated by the fact that there is no injury on the body of the deceased, which could be said to have been caused by firearms. 19. In the case of Chhotanney and others v. State of Uttar Pradesh and others, AIR 2009 SC 2013 , the Apex Court has held that doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. 20. In the case of Bikau Pandey and others v. State of Bihar, (2003) 12 SCC 616 the Apex Court while discussing the scope of "common object" has held as under: - "'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object, of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. (para 11) Section 149 , IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly, set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object, which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly know was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly Knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. [See Chikkarange Gowda and others v. State of Mysore, MANU SC 0116 1956 = 1956 Cr.L.J 1365]" (para 12) 21. As it has been discussed above that the motive has not been substantiated, absence of spent cartridge, tikli and pillet on the spot creates doubt regarding participation of Alwar. Morpal, Harpal and Rama Deen. This doubt is borne out from the evidences, hence it is a reasonable doubt. The averments of PW-1 and PW-2 that those accused persons used their firearms as blunt object is an improvement after legal advice, as this fact does not find place in the statement under Section 161 Cr.P.C., as has been admitted by the Investigating Officer. 22. From the above discussions, it is clear that the prosecution has failed to prove its case beyond reasonable doubt against Alwar. Morpal, Harpal and Rama Deen, and also considering the application of Section 149 IPC and with the available material on the side of prosecution, I hold that it is not safe to convict them. 23. 22. From the above discussions, it is clear that the prosecution has failed to prove its case beyond reasonable doubt against Alwar. Morpal, Harpal and Rama Deen, and also considering the application of Section 149 IPC and with the available material on the side of prosecution, I hold that it is not safe to convict them. 23. So far as Badam and Hari Singh are concerned, the prosecution story is substantiated by the number of injuries, and proved by the eye witnesses PW-1 and PW-2. 24. In view of the above, the criminal appeal is liable to be partly allowed, and Alwar. Morpal, Harpal and Rama Deen are liable to be acquitted, and for accused persons Badam and Hari Singh, the conviction and sentence is liable to be maintained. 25. In the result, the appeal is partly allowed. The conviction and sentenced of Alwar. Morpal, Harpal and Rama Deen is quashed. They are on bail. Their bail bonds are discharged. They need not surrender. 26. However, the conviction and sentence of Badam and Hari Singh is maintained. They are on bail. They are directed to surrender before the trial court to serve out the sentence within a period of 30 days from today, failing which, the Chief Judicial Magistrate concerned will ensure strict compliance of the judgment. 27. The Senior Registrar, High Court Lucknow Bench is directed to communicate this judgment to the Sessions Judge concerned for strict compliance.