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2015 DIGILAW 2881 (ALL)

RAM NATH v. STATE OF U. P.

2015-09-15

ARVIND KUMAR TRIPATHI, RANJANA PANDYA

body2015
JUDGMENT Hon’ble Arvind Kumar Tripathi, J.—The present appeal has been preferred on behalf of the appellants assailing the judgement and order of conviction and sentence dated 26.9.1981 passed by II Additional Sessions Judge, Gonda in Sessions Trial No. 192 of 1979 arising out of Case Crime No. 58 of 1979, P.S. Katra Bazar, District Gonda by which the accused-appellants Ram Nath Ayodhya and Ram Milan were convicted under Section 148 IPC and sentenced to 2 years R.I. each, accused-appellants Chhedi Ram, Lakhan, Mahadeo, Sunder and Shanker were convicted under Section 147 IPC and sentenced to 1 year R.I. each. All the appellants were convicted and sentenced to life imprisonment under Section 302/149 IPC. They were further sentenced to 1 year R.I. each under Section 323/149 IPC with the direction that all the sentences shall run concurrently. 2. The F.I.R. was lodged against nine persons out of which appellant No. 9 Smt. Munni Devi was acquitted. The appeal was preferred by all the aforesaid eight convicted accused-appellants. During pendency of appeal, appellant No. 1 to 5 and 8 died and in respect of them appeal stand abated. Hence, now the present appeal is pending in respect of appellants No. 6 and 7 namely Mahadeo and Sunder. 3. Mr. S.M. Nasir and Mr. S.M.Parvez, learned Advocates appeared on behalf of the appellants and Mr. Sharad Dixit, learned AGA appeared on behalf of the State. 4. We have heard the arguments on 18.8.2015 and 19.8.2015 and the judgment was reserved. Brief facts of the case is that the F.I.R. was lodged by Smt. Shanti Devi, wife of deceased Hausla Prasad Pandey. According to F.I.R. version in the grove of brother-in-law of informant Bhagwati Prasad situated at village Rampur, P.S. Katra Bazar, Ram Nath and Baij Nath had constructed a ‘Marha’. The mango, mahua, pipal, goolar, bamboo, guava and farenda trees were standing in that grove. One year before the incident Ram Nath intended to take forcible possession over some of the trees of that grove. Proceeding under Section 107 Cr.P.C. was initiated against Ram Nath and deceased Hausla Prasad, husband of the informant and brother-in-law. That proceeding under Section 107 Cr.P.C. terminated in month of ‘Magh’. On 16.4.1979 at about 8 a.m. The informant was picking Mahua fruits in that grove. Her husband deceased Hausla Prasad was thrashing seeds of ‘Arhar’ in ‘Khalihan’ ‘. Proceeding under Section 107 Cr.P.C. was initiated against Ram Nath and deceased Hausla Prasad, husband of the informant and brother-in-law. That proceeding under Section 107 Cr.P.C. terminated in month of ‘Magh’. On 16.4.1979 at about 8 a.m. The informant was picking Mahua fruits in that grove. Her husband deceased Hausla Prasad was thrashing seeds of ‘Arhar’ in ‘Khalihan’ ‘. wife of Ram Nath untied her cows and she-buffaloes for grazing. The she-buffaloes ate up Mahua fruits collected by the informant. When informant raised objection why she left she-buffaloes to eat ‘Mahua fruits’ then she abused and in return informant also abused. The altercation took place in between them. Thereafter Milan, Lakhan, Mahadeo and Sunder came there holding lathi, husband of the informant came their with ‘Kanta’. Wife of Ram Nath exhorted to assault and not to care for the consequences. Ram Nath and others started beating her husband Hausla Prasad who in self-defence started plying ‘Kanta’. Informant raised alarm then Kriparam, Rajaram and Bhagwati reached there. They forbade the accused. Thereafter Lakhan assaulted Kriparam, Milan and Rajaram. Deceased Hausla Prasad was plying ‘Kanta’ in self-defence and the ‘Kanta’ caused head injury to accused-appellant Lakhan. Thereafter Milan, Mahadeo, Sunder assaulted Hausla Prasad by ‘lathi’ and Hausla Prasad, husband of the informant fell on the ground. The informant fell upon her husband to cover him and to save him. She was also assaulted. She was separated by the accused. Milan exhorted his companion to bring ‘Kanta’, ‘gadasa’. Ram Nath came with ‘gadasa’, Ayodhya with ‘Kanta’, Chhedi Ram with ‘ballam’. Chhedi Ram gave ‘ballam’ to Milan and he took his lathi. Ram Nath assaulted with ‘gadasa’, Ayodhya with ‘Kanta’. Thereafter, they lifted her husband and had taken him to the house of Ram Nath and there accused-appellant Milan killed him assaulting repeatedly with ‘ballam’. The other companion were throwing ash which was witnessed by her, another witnesses from the door of Ram Nath. The population of ‘Ahir’ was more and in their comparison number of ‘Brahmin’ was very less. She was weeping and crying. When her nephew Tilak Ram returned from school, he took her to police station on his bicycle. On her oral information, F.I.R. was lodged and registered at 1.30 p.m. on the same day i.e. on 16.4.1979 under Section 147, 148, 323, 324, 302/149 IPC (Ex. Ka-1). Entry was made in the G.D. at Serial No. 60 (Ex. Ka-8). When her nephew Tilak Ram returned from school, he took her to police station on his bicycle. On her oral information, F.I.R. was lodged and registered at 1.30 p.m. on the same day i.e. on 16.4.1979 under Section 147, 148, 323, 324, 302/149 IPC (Ex. Ka-1). Entry was made in the G.D. at Serial No. 60 (Ex. Ka-8). Investigation of the case was entrusted to S.I. Iqbal Singh (PW-11). He recorded the statement of informant, wife of the deceased at the police station itself and thereafter he proceeded to the place of occurrence. The place of occurrence is village Raipur situated at a distance of about 10 miles from the police station Katra Bazar. He prepared the inquest report of the dead body of Hausla Prasad (Ex. Ka-2). After completing other formalities, the dead body was sealed and the same was sent to the mortuary with challan (Ex. Ka-13) and letter addressed to the Chief Medical Officer (Ex. Ka-14). He took blood-stained ‘vest’ and ‘Janeu’ and prepared recovery memo (Ex. Ka-3). He also recovered blood-stained and simple earth from the place of occurrence and prepared memo (Ex. Ka-5). Thereafter, the I.O. came to know from the informant that Ram Nath and Chhedi Ram were trying to flee. He raided the place in village Chehwal and arrested them. Thereafter, he came to Chiyamatiyapur Ghat where he arrested the accused Lakhan. He also found and noted ‘Kanta’ injury on head of Lakhan. Their statements were recorded. They were sent in custody of Inspector S.N.Shukla and other police personnel to the police station with the instruction to provide ‘first-aid’ to the injured accused Lakhan. Thereafter, he again came to the place of occurrence and recorded the statement of witnesses. He inspected the place of occurrence, prepared site plan (Ex. Ka-5). He found the basket containing ‘Mahua fruits’ near the place of occurrence underneath Mahua tree. He also took 5 Mahua fruits and prepared memo (Ex. Ka-4). The basket was also taken into custody. Thereafter, he recorded the statement of witnesses of panchayatnama, statement of Kriparam and sent him for medical examination on 17.4.1979. He came to the police station on 17.4.1979 and deposited the sealed bundle. 5. Post-mortem on the dead body of deceased Hausla Prasad was conducted by Dr. K.N.Srivastava PW-9 on 18.4.1979 at about 8 a.m. The dead body was found to be two days old. He came to the police station on 17.4.1979 and deposited the sealed bundle. 5. Post-mortem on the dead body of deceased Hausla Prasad was conducted by Dr. K.N.Srivastava PW-9 on 18.4.1979 at about 8 a.m. The dead body was found to be two days old. Skin was found peeled off at places. There was faecal discharge from anus. Rigor mortis was present in lower limbs and had passed off from upper limbs. On opening of abdomen foul smelling gase was found. The Doctor noted following ante-mortem injuries on person of the deceased: 1. Lacerated wound 7 cm x 0.5 cm x scalp deep on right parietal region of scalp. 2. Lacerated wound 3.5 cm x 1cm x scalp deep on right frontal region parallel to mid line. 3. Lacerated wound 2 cm x 0.5 cm x scalp deep on right frontal region of skull parallel to mid line. 4. Lacerated wound 2.5 cm x 1cm x bone deep on right side of forehead. It was vertical and lower and was at medial part of right eye brow. 5. Lacerated wound 1.5 cm x 0.5 cm x skin deep on left side of frontal region of skull. 6. Lacerated wound 1.5 cm x 0.5 cm on left side forehead. 7. Lacerated wound 1.5 cm x 1 cm x skin deep on middle of upper lip. 8. Lacerated wound 2 cm x 0.5 cm x mueous membrance deep on inner aspect of upper lip. 9. Contusion 3.5 cm x 2 cm on right arm anteriorty 13 cm below shoulder. 10. Punctured wound 0.5 cm x 0.5 cm x 1 cm on posterior aspect of right forearm. 11. Punctured wound 0.5 cm x 0.5 cm x 1 cm on dorsal aspect of right hand at base of right index finger. 12. Lacerated wound 2 cm x 1 cm x bone deep on laterial aspect of right hand. There is fracture of proximal phalynx at litter finger. 13. Contusion 1.5 cm x 0.5 cm on right hand palm aspect 0.5 cm above root of little finger. 14. Contusion 3 cm x 1 cm on left arm laterally, 8 cm below shoulder. 15. Contusion 4 cm x 0.5 cm anteriorly right arm, 8 cm below shoulder. 16. Incised wound spindle shape of 7 cm x 1.5 cm (in middle) x skin deep on late-rial aspect of left elbow. 17. 14. Contusion 3 cm x 1 cm on left arm laterally, 8 cm below shoulder. 15. Contusion 4 cm x 0.5 cm anteriorly right arm, 8 cm below shoulder. 16. Incised wound spindle shape of 7 cm x 1.5 cm (in middle) x skin deep on late-rial aspect of left elbow. 17. Contusion 5 cm x 2 cm on right forearm. 18. Lacerated wound 6 cm x 0.5 cm x bone deep on eminence of right hand. 19. Contusion 13 cm x 5 cm on front aspect of the chest left side, below clavicle. 20. Contusion 10 cm x 5 cm on right side of neck. 21. Contusion 3 cm x 1.5 cm on right side of chest, 5 cm below nipple. 22. Contusion 4 cm x 3 cm on right side chest, 17 cm below arm pit. 23. Incised wound 2 cm x 1 cm on right leg, 19 cm below knee. 24. Incised wound 2 cm x 0.5 cm x skin deep, 1.5 cm below injury No. 23. 25. Incised wound 2 cm x 1 cm x muscle deep on right side foot medially. 26. Incised wound 1 cm x 0.5 cm x skin deep on right foot, 1.5 cm below lateral malleolus. 27. Contusion 1.5 cm x 1.5 cm on left side back. 28. Contusion 7 cm x 1.5 cm right side of chest 6.5 cm from nipple. 6. On internal examination of the dead body, the Doctor found fracture of right parietal bone. Haematoma was found present over membrane. Membrane and brain were found congested. Parietal lobe stood covered with blood clots. Heart was empty. Stomach contained 3 ounce of digested food. Small intestine was empty and large intestines contained faecal matter and gases at places. According to opinion of the Doctor death was caused due to shock and haemorrhage as a result of ante-mortem injuries. 7. On 25.4.1979, the I.O. recorded the statement of Rajaram. On the same day, the I.O. came to know that the accused Milan, Mahadeo, Sunder, Shanker, Smt. Munni and Ayodhya had surrendered before the Court. He recorded their statements in police lock-up on the date of remand. Thereafter on 10.5.1979, the I.O. recorded the statement of Tilak Ram and Bhagwati Prasad. The extract of Khatauni and the judgment in the proceeding under Section 107/117 Cr.P.C. was given to the I.O. by Bhagwati Prasad. He recorded their statements in police lock-up on the date of remand. Thereafter on 10.5.1979, the I.O. recorded the statement of Tilak Ram and Bhagwati Prasad. The extract of Khatauni and the judgment in the proceeding under Section 107/117 Cr.P.C. was given to the I.O. by Bhagwati Prasad. After completing the investigation and necessary formalities, the charge-sheet was submitted. The charge was framed on 23.2.1980 under Section 148, 302/149, 323/149 IPC against accused-appellants Ram Nath, Ayodhya and Milan, under Section 147, 302/149, 323/149 against accused-appellants Chhedi Ram, Lakhan, Mahadeo, Sunder, Shanker and Smt. Munni. They pleaded not to be guilty and claimed to be tried. 8. The prosecution to prove its case examined Tilak Ram as PW-1 who took informant Shanti Devi on his bicycle for lodging the F.I.R. PW-2 Bhagwati Prasad, eye-witness, PW-3 Shanti Devi informant wife of the deceased Hausala Prasad, PW-4 Kriparam, eye-witness, PW-5 Rajaram, eye-witness, PW-6 Dr. Satya Prakash, Medical Officer PHC Katra Bazar who examined informant Shanti Devi on 16.4.1979 and found 15 injuries. He also examined injured Rajaram who has received 3 injuries on 25.4.1979. PW-7 Constable Hari Shanker Rai who had written the oral information given by Smt. Shanti Devi informant, prepared the chick report and also noted the same at G.D. No. 16. PW-8 Constable V. K.Singh. PW-9 Dr. K.M.Srivastava, Radiologist who conducted post-mortem on body of the deceased Hausla Prasad on 18.4.1979 and found 28 injuries. He proved the post-mortem report. PW-10 S.I. S.N. Shukla who initiated proceeding under Section 151, 107/116 Cr.P.C. against both the parties. PW-11 S.I. Iqbal Singh of P.S. Kotwali, who prepared panchayatnama and took blood-stained ‘Vest’ and ‘Janeu’ of the deceased. PW-12 Lekhpal Ram Naresh Prasad who was examined to prove the ownership and possession of Bhagwati Prasad over plot No. 799 and 800. 9. After the prosecution closed the evidence, statements of accused-appellants were recorded under Section 313 Cr.P.C. Thereafter in defence Dr. S.K.Srivastava was examined as DW-1 who medically examined accused-appellant Lakhan and noted two injuries. Injury No. 1 was incised wound 10.3 cm. x 0.5 cm. into bone deep 11 cm. above the right ear and 8.5 cm. above the right eye brow. Injury No. 2 was contusion on right ear and according to Doctor injury No. 1 head injury might have been caused by ‘Kanta’ and injury No. 2 by hard blunt weapon like lathi. x 0.5 cm. into bone deep 11 cm. above the right ear and 8.5 cm. above the right eye brow. Injury No. 2 was contusion on right ear and according to Doctor injury No. 1 head injury might have been caused by ‘Kanta’ and injury No. 2 by hard blunt weapon like lathi. Putti Lal as DW-2 and Tikori Singh as DW-3. 10. Learned counsel for the petitioners assailing the judgment of the conviction on the ground that the incident took place on the spur of the movement. There was no intention or common object to commit murder. Initially the allegation was against four persons that they assaulted with lathi. Subsequently the other three accused persons came with Gadasa, Kanta and Ballam and Chediram gave his Ballam to Millan and took his lathi and he himself took his lathi. He further submitted that only two appellants No. 6 and 7 i.e. Mahadeo & Sunder against whom there was allegation that they assaulted with lathi and subsequently as per allegation he was taken to the house. When the deceased Hausala Prasad fell down. He was taken to the house of Ramnath where he was assaulted with Kanta, even according to prosecution case initially the quarrel took place in between the two ladies, the informant and wife of the appellant Ram Nath, when she-buffalo of Ramnath ate ‘mahua fruit’ collected by the informant Shanti Devi and they abused each other, thereafter Milan, Lakhan, Mahadeo and Sunder reached there and assaulted Hausala Prasad with lathi who in self defence used Kanta. Due to which the injury was caused on the head of the accused appellant Lakhan. 11. Learned counsel for the appellant further submitted that according to witness PW-3 Shanti Devi, PW-2 Bhagauti Prasad, PW-4 Kripa Ram and PW-5 Raja Ram they also saw the incident when Hausala Prasad was taken in the house of Ram Nath from outside the house from the open door. According to PW-4 Kripa Shanker, about 15-20 injuries were caused by ballam and according to PW-5 Raja Ram the accused Milan assaulted with 20-25 times but the medical report does not support their statement as only two punctured wound were found on the person of the deceased Hausala Prasad on posterior aspect of right forearm dorsal aspect of the right hand at base of right index finger. According to prosecution case, he submitted that the presence of the witnesses are doubtful. The presence of independent witness PW-4 and PW-5 are doubtful. The injury of Raja Ram was found to have been received four days before the incident. He also contended that so for as the appellants are concerned, there was allegation that they assaulted with lathi and not by kanta, ballam and gadasa, so no offence is made out against them beyond Section 325 I.P.C. or under Section 304 I.P.C., hence the impugned judgment and order of conviction under Section 302 I.P.C. read with Section 149 I.P.C. vide order dated 26.9.1981 is liable to be quashed as the Section 149 I.P.C. will not be applicable. 12. Learned A.G.A. vehemently opposed the aforesaid prayer that the incident took place on 16.4.1979 after 8.00 a.m. The distance from the place of Katra from the place of the incident i.e. Raipur is 10 K.M. When PW-1 Tilak came from school, then he went by cycle to the Police Station to lodge the First Information Report and First Information Report was lodged at 1.30 p.m. on the same day. So there is prompt First Information Report. All the accused are named in the First Information Report. The presence of PW-3, the informant Shanti Devi, wife of the deceased Hausala Prasad is not doubtful She is injured witness. She has proved the First Information Report. The other witnesses are also injured witnesses and according to the doctor the injuries might have been received in the incident dated 16.4.1979. He also contended that in the present case Section 149 I.P.C. is applicable. Initially the altercation took place in between the wife of Ram Nath and the informant Shanti Devi, wife of the deceased Hausala. Thereafter on exhortation of Munni Devi, wife of Ram Nath the accused appellants, Milan, Lakhan, Mahadeo and Sunder reached there with lathi so initially five persons who assaulted Hausala Prasad with lathi were there. Subsequently the deceased Hausala Prasad tried to use Kanta in self defence causing injury to accused Lakhan, then the accused Milan called other accused persons to come with gadasa and kanta. Thereafter other four accused appellants namely Ramnath having gadasa, Mahadeo having kanta, Chhedi Ram with ballam and Shanker with lathi came there and they also assaulted. Thereafter when Hausala Prasad fell down, he was taken to the house of Ram Nath. Thereafter other four accused appellants namely Ramnath having gadasa, Mahadeo having kanta, Chhedi Ram with ballam and Shanker with lathi came there and they also assaulted. Thereafter when Hausala Prasad fell down, he was taken to the house of Ram Nath. There Milan assaulted him with ballam repeatedly. When the witnesses Kripa Ram and Raja Ram tried to intervene, they were also assaulted by the accused appellants. Hence the presence of any of the witnesses is not doubtful on the ground that their version was not corroborated by the medical report. From outside the house the witnesses saw the incident They saw that 20-25 times he was assaulted with ballam but it is not clear whether all the blows hit the deceased Hausala Prasad or not. He also contended that there are 28 injuries caused on the person of the deceased Hausala Prasad noted by the Dr.Krishna Murari Srivastava, PW-9 who conducted the post-mortem examination on the person of the deceased. Parietal bone was found fractured and according to the Doctor, the injuries were sufficient to cause death. It was stated that injury No. 10 and 11 could have been caused by pointed weapon. Injury No. 23 to 26 would also have been caused by grazing of the pointed weapon. Injury No. 16 would have been caused by sharp-edged weapon so it is incorrect that only two injuries were found which could have been caused by ballam. 13. Learned A.G.A. further submitted that no premeditation is required to attract the common object. The accused can join the incident, even on the spur of the movement in view of the judgment of Apex Court, and there is no major contradiction in the evidence, even there was statement by the witnesses that the deceased was assaulted 15-25 times by ballam, hence there is no illegality in judgement and order of the conviction and sentence. He relied the judgement of the Apex Court reported in the case of Nand Kumar v. State of Chhattisgarh, 2015(1) SCC 776 . 14. Considered the submissions of counsels for the parties and perused the record. 15. According to prosecution case, the dispute took place when the informant Shanti Devi, wife of Hausala Prasad was picking and collecting mahua fruit from the grove of her brother-in-law Bhagauti Prasad situated at village Rampur, PS.Katra bazar. 14. Considered the submissions of counsels for the parties and perused the record. 15. According to prosecution case, the dispute took place when the informant Shanti Devi, wife of Hausala Prasad was picking and collecting mahua fruit from the grove of her brother-in-law Bhagauti Prasad situated at village Rampur, PS.Katra bazar. When the she-buffalo of Ram Nath ate mahua fruit collected by Shanti Devi, she raised objection, on which Smt.Munni Devi, wife of Ram Nath abused her and in returned informant also abused. Thereafter on exhortation of Smt.Munni Devi, wife of accused Ram Nath, accused Milan, Lakhan, Mahadeo and Sunder came there having lathi in their hands and assaulted the deceased Hausala Prasad who was working in Khalihan near place of occurrence came with kanta. On exhortation of Munni Devi, all the four accused persons started assaulting Hausala Prasad with lathi who was wielding kanta in self defence. After hearing hue and cry raised by Smt. Shanti Devi, Kripa Ram, Raja Ram and Bhagauti reached near the place of incident. They forbid the accused persons not to assault Hausala Prasad. Thereafter Lakhan accused assaulted Kripa Ram and Milan assaulted the deceased Hausala Prasad who used ‘Kanta’ in self defence that caused head injury to the accused appellant Lakhan. The accused appellant assaulted Hausala Prasad who fell down on the ground and thereafter the informant Shanti Devi fell on her husband to save him and she too was assaulted. Thereafter on exhortation by accused appellant Milan, his other companions came with gadasa, ballam, Kanta. Ram Nath was having gadasa and Ayodhya, Chhediram came with kanta and ballam and Shanker was holding lathi, hence total nine persons assembled there. Out of nine persons, all assaulted except Smt.Munni Devi who only exhorted, the other accused persons and she was acquitted by trial Court, against which no appeal has been preferred on behalf of State. 16. Out of nine accused persons who were challanned, only eight accused appellants were convicted who preferred the criminal appeal. Out of eight appellants, all are dead except appellant No. 6 Mahadeo and No. 7 Sunder, who assaulted with lathi. 17. The main contention of counsel for the appellant is that there was no common intention to kill the deceased Hausala Prasad but on the spur of movement the incident took place after quarrel took place in between two ladies, the informant and wife of Ram Nath. 18. 17. The main contention of counsel for the appellant is that there was no common intention to kill the deceased Hausala Prasad but on the spur of movement the incident took place after quarrel took place in between two ladies, the informant and wife of Ram Nath. 18. Regarding applicability of Section 149 I.P.C. counsel for the appellant relied the judgement of Apex Court in case of Puran v. State of Rasthan, AIR 1976 SC 912 , in which it was held that in case of sudden mutual fight between two parties, there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on an accused. The accused in such a case can be convicted only for the injuries caused by him, by his individual acts. 19. He also relied upon the judgment in the case of Ram Manohar and others v. State, 2014(2) JIC 559 (All), in which it was held by division bench of this Court that causing of non-superficial injuries to the accused persons which would not have been explained as a fact, and defence established itself plea of right of private defence by preponderance of probabilities. The accused could not held guilty of sharing a common intention or object of committing murder of the deceased, when an incident is the outcome of a sudden fight, in which deceased appears to have intervened and to have received a single fatal blow by a Pharsa causing death which was plied by Ram Manohar. Therefore, it cannot be inferred that the appellants were sharing a common object. 20. Learned A.G.A. relied upon the judgement in Hakkim v. State represented by Deputy Superintendent of Police, 2015(2) Supreme 58 ; Jay Prakash v. State of Bihar, 2012 (4) SCC 379 . 21. Therefore, it cannot be inferred that the appellants were sharing a common object. 20. Learned A.G.A. relied upon the judgement in Hakkim v. State represented by Deputy Superintendent of Police, 2015(2) Supreme 58 ; Jay Prakash v. State of Bihar, 2012 (4) SCC 379 . 21. In the case of Pooran (supra) that was a case of sudden mutual fight between the parties and fight between the two parties took place in one stage and not at two stages but in the present case initially sudden quarrel took place only in between the informant Shanti Devi, wife of the deceased and Munni Devi, wife of the accused Ram Nath and on exhortation of the wife of Ram Nath the other accused reached there armed with lathi and husband of the deceased who was working in nearby place of Khalihan, reached there with kanta and he used kanta only in defence causing injuries to one of the accused appellant Lakhan. Hence injuries to Lakhan-accused has also been explained. There was already enmity with regard to the possession of the land belonging to the Bhagauti-witness, brother of the informant in whose grove land Smt.Shanti Devi was picking mahua fruit which were eaten by she-Buffalo of Ram Nath and on her objection she was abused by wife of Ram Nath. The accused did not try to settle the matter rather started assaulting the deceased Hausala Prasad with lathi though there was no mistake on the part of the informant-Shanti Devi or from Hausala Prasad. Subsequently other four persons were called by the accused appellants and other appellants joined the incident with common object to kill Hausala Prasad because the repeated blows causing 28 injuries on the person of the deceased clearly shows intention to kill the deceased Hausala Prasad. Hence that case will not be applicable in the present case. 22. The case of Ram Manohar (supra) will also not be applicable in the present case where there was plea of right of private defence from side of the accused but in the present case the accused side were aggressors, they first assaulted the deceased Hausala Prasad and the witnesses and head injury was caused only to the accused Lakhan, when in self defence Kanta was plied by the deceased Hausala, when the four persons-accused surrounded him and started assaulting him with lathi. 23. 23. The fact in the case of Ram Manohar (Supra) was that the appellants were trying to make a drain in the ‘sahan’ and in front of the house of the informant Tameshwar for draining out the water discharged from their hand pump. When the informant opposed making of the drain as he said that he used his bullocks for running Kohlu (sugar crushing plant) at the spot and his work would be adversely effected then an altercation took place between the parties. As the consequence the appellant Ram Manohar went to his house and brought out a ‘pharsa’ and other appellant Mahbal, s/o and Vishram and Chandrajit came with lathi on which family members of the deceased intervened whereupon the appellant Ram Manohar assaulted one Ramdaur s/o Tameshwar on his head with a pharsa and other family members of the informant. In that case Ram Manohar gave only single blow to the deceased with pharsa and other accused participated in the fight which took place in between the parties and did not cause injury to the deceased. In that case it was found that the absence of admission and explanation of the injuries caused by the prosecution suggested that the prosecution has not come out with true and complete facts of the origin of the case and the accused side pleaded right of private defence. Hence that judgement is not applicable in the present case. 24. In case of Nand Kumar v. State of Chhatisgarh, 2015(1) SCC 776 , it was held by the Apex Court that when several people participated in commission of an offence with deadly weapon and attacked on one and or more persons with an intention to kill, then the witnesses who are closely related with the victim(s) are not expected to describe the incident in graphic detail and with such precision that which member and in what manner he participated in the commission of offence. Their evidence is required to be appreciated in its totality. The related witnesses alone were examined and examination of more witnesses was not necessary for the prosecution. 25. If the statement of the witnesses who were examined were found worthy of acceptance to prove its case for the prosecution side then no more witnesses are required to be examined. How many and who should be examined for proving their case, it is for the prosecution to decide. 25. If the statement of the witnesses who were examined were found worthy of acceptance to prove its case for the prosecution side then no more witnesses are required to be examined. How many and who should be examined for proving their case, it is for the prosecution to decide. Quality of evidence is necessary and not quantity of witnesses. On question of law regarding unlawful assembly in the case of Hakkim (Supra) while considering the applicability of Section 149 in view of the evidence available on record supported the prosecution case regarding use of multiple weapon in the crime and simple as well as grievous injuries were caused. The contention on behalf of the accused was rejected regarding non applicability of Section 149 I.P.C. 26. In the case of State of U.P. v. Naresh and others, (2011)4 SCC 324 , it was held by the Supreme Court that the First Information Report is not an encyclopaedia of entire case. It might not and need not contain all the details. The Court has to determine after examining entire factual scenario whether the person has participated in the crime or has falsely been implicated. It was further observed that the evidence of the injured witness must be given due weightage being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he would spare the actual assailant in order to falsely implicate to someone else. The testimony of an injured witness is accorded a special status in law. The witnesses would not like and want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. 27. The Hon’ble Apex Court considered and affirmed the view taken in case of Misalti v. State of U.P., AIR 1965 SC 202 . In that case it was held by the Apex Court that it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed same illegal overt act or had been guilty of some illegal omission in pursuance of the common object of assembly. In that case it was held by the Apex Court that it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed same illegal overt act or had been guilty of some illegal omission in pursuance of the common object of assembly. It was further observed that “ In fact, Section 149 I.P.C. makes it clear that if an offence is committed by any member of unlawful assembly in the prosecution of the common object of that assembly or such as members of that assembly knew likely to be committed in prosecution of that object, every person who, at that time of committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principal that the punishment prescribed by Section 149 I.P.C. is in a sense vicarious and does not always proceed on the basis that offence has been actually committed by every member of the unlawful assembly. 28. In view of the fact of the present case it is clear that Bhagwati, PW-2 Smt.Shanti Devi, wife of the deceased, PW-3, Kripa Ram, PW-4 and Raja Ram, PW-5 are injured witnesses, and in view of the facts, their presence is not doubtful. They have fully supported, the prosecution version regarding participation of all the accused appellants, in their statements, barring minor and natural discrepancies. There is no major contradiction and discrepancy in their statements and with the medical report. PW-1 being wife of the deceased is interested witness. However, PW-4 and 5 are independent witnesses. There is no reason of false implication of the accused appellant and to leave the real culprits unpunished. 29. It is clear from the facts and circumstances that initially five persons took part in the incident and subsequently four other persons joined the incident who came holding ballam, kanta, lathi and gandasa. 28 injuries were noted on the person of the deceased which are lacerated wounds, contusions incised and punctured wound and those injuries can be caused by lathi, ballam, gadasa and kanta. 28 injuries were noted on the person of the deceased which are lacerated wounds, contusions incised and punctured wound and those injuries can be caused by lathi, ballam, gadasa and kanta. Hence the intention and object of members of assembly to joint assembly is clear that there was intention to kill the deceased Hausala Prasad though it is not necessary to show that every member of unlawful assembly committed illegal overt in pursuance of common object of assembly. If an offence is committed by any member of unlawful assembly in furtherance of any common object of that unlawful assembly, every person, who participated in that assembly, at the time of committing of that offence, is member of that assembly and is guilty of that offence and as per principle of vicarious liability every member of unlawful assembly is liable to be convicted with the aid of Section 149 I.P.C., irrespective of the fact whether the offence was actually committed by every member of assembly or not. Hence in the present case the contention on behalf of the counsel for the appellant that Section 149 I.P.C. is not applicable, has no force, hence is not acceptable. All the accused appellants were members of unlawful assembly and are liable to be convicted read with Section 149 I.P.C. 30. Further, contention in the present case is that incident took place on the spur of movement. There was no per-meditation. According to prosecution case itself PW-1 the informant Smt.Shanti Devi had collected ‘mahua fruit’ which was eaten by she-buffalo of accusedc Ram Nath and when objection was raised by Smt.Muni Devi, wife of the deceased then wife of the accused appellant Ramnath abused and in return the informant also abused. Hence the quarrel took place in between them and on exhortation of Muni Devi initially four persons came there with lathi and started assaulting the deceased Hausala Prasad who in defence plied kanta and injuries caused to Lakhan, hence injuries caused to the accused Lakhan has been explained. Only appellant Mahadeo and Sunder are alive and according to prosecution case itself, they assaulted with lathi, hence it is clear that the occurrence took place on the spur of movement, initially after quarrel in between two ladies. Subsequently when Hausala Prasad was taken inside the house of Ram Nath, he was assaulted by accused Milan, who is now dead. 31. Subsequently when Hausala Prasad was taken inside the house of Ram Nath, he was assaulted by accused Milan, who is now dead. 31. According to exception 4 to the Section 300 I.P.C. ‘culpable homicide’ is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. As per explanation it is immaterial in such case which party offers provocation and commits the first assault. In the present case also it is clear that the offence was committed in a sudden fight. Subsequently when the deceased Hausala Prasad was taken into the house of Ram Nath, there was no allegation against, the appellants Mahadeo and Sunder rather the allegation was against only the accused Milan who is now dead. 32. Hence in view of the abovenoted discussion, both the appellants are liable to be convicted under Section 304(I) read with Section 149 I.P.C. in place of Section 302/149 I.P.C. Neither any sentence in other Section was challenged nor in view of the facts any interference is required with regard to the conviction and sentence under Section 147 and 323/149 I.P.C.. 33. Hence conviction and sentence under Section 302/149 I.P. C for life imprisonment is hereby set aside and both the appellants Mahadeo and Sunder are sentenced and convicted to undergo ten years’ R.I. Both are on bail. 34. Accordingly this appeal is partly allowed. Both the appellants, Sunder and Mahadeo shall be taken into custody forthwith to serve out remaining period of sentence. He shall get the benefit of Section 428 Cr.P.C. 35. Let this order be communicated to the Chief Judicial Magistrate, Gonda, for compliance of the order and to submit the report to this Court for keeping the same on record within four weeks.