Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 572 (ALL)

KRIPA RAM v. STATE OF U. P.

2018-03-09

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2018
JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) 1. The instant Criminal Appeal has been preferred against the judgment and order of conviction dated 9.2.1988 passed by the Additional Sessions Judge/ Special Judge ( E.C. Act) Jhansi, in S.T. No. 70 of 1985- State Vs. Chhakki and others, under sections 148, 149, 307 and 302 I.P.C., appellant- Kalyan has been sentenced to life imprisonment under Section 302 IPC, 3 years R.I. under Section 307 IPC, 1 year R.I. under Section 148 IPC and 1 year R.I. under Section 323/149 IPC, whereas, appellants- Chakki, Ghanshyam, Komal and Gulab have been sentenced to life imprisonment under Section 302/149 IPC, 3 years R.I. under Section 307/149 IPC, one year R.I. under Section 323/149 and 1 year R.I. under Section 147 IPC. All the sentences have been directed to run concurrently. 2. Appropriate to mention that during pendency of this appeal, appellant no.1 Kripa Ram, appellant no.4 Parash Ram and appellant no.7 Brindawan expired, therefore, their appeal stood abated against them vide order of this Court dated 13.01.2017. Now, the consideration of this appeal is confined to the rest of the surviving appellants, namely, appellant no.2 Chhaki, appellant no.3 Kalyan, appellant no.5 Ghanshyam, appellant no.6 Komal and appellant no.8 Gulab. 3. Heard Sri R.K. Singh, Sri Anil Srivastava and Sri G.S. Chauhan, learned counsel for the appellants, Sri A.N. Mulla, Sri Saghir Ahmed assisted by Kumari Meena and Smt. Manju Thakur, learned A.G.A. for the State. 4. Stream of events leading up to this appeal as discernible from the record appears to be that a written report was lodged at Police Station- Moth, district- Jhansi on 2.3.1985 at 3.10 P.M. regarding the incident in question having taken place on 2.3.1985 at 2.30 P.M. in front of the house of Kunwar Lal situated in village- Bhujond, Police Station- Moth, district- Jhansi with the averments, inter-alia, that there being enmity between the informant and Parash Ram s/o Har Lal Yadav of village- Bhujond and proceeding under section 107/117 Cr.P.C. was currently under way. Today, at 2.30 P.M. when the informant's father- Kunwar Lal Yadav and his two brothers- Lakhan Singh and Sahab Singh and Parash Ram son of Har Lal Yadav, Jaswant Singh s/o Mathura Prasad were talking to each other in front of his house, when accused- Kalyan s/o Chhakki, Chhakki s/o Govindi, Kripa Ram s/o Govindi, Parsh Ram s/o Hal Lal, Ghanshyam s/o Parsh Ram, Komal s/o Parsh Ram, Brindawan s/o Parmanand, Gulab s/o Brindaban arrived on the spot possessing gun and 'lathies' surrounded them. Kalyan said to my father that he behaves as big leader and threatened to kill him today and all the assailants began to beat the informant side by plying lathi. Incident was witnessed by Devi Kachhi, Mathura Prasad and Asharam who arrived on the spot and intervened in the incident and tried to save the informant side. In the meanwhile, Kalyan Singh rushed to the top of the house of Bal Ram on its roof and fired from there, which shot hit informant's father- Kunwar Lal, who fell down and died (on the spot) while informant (Raja Singh), Parash Ram and Yashwant sustained pellets injury, whereas, Sahab Singh and Lakhan Singh sustained injury by lathi. The dead body of Kunwar Lal was lying on the spot. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1. 5. The contents of the written report were taken down in the check FIR at case crime no. 37 of 1985, under sections 147, 148, 149, 302, 307 I.P.C. at 3.10 P.M. on 2.3.1985 at Police Station- Moth, Police Station- Jhansi. The Check FIR is Exhibit Ka-13. On the basis of entry so made in the Check FIR, a case was registered at rapat no.20 on 2.3.1985 at 3.10 P.M. at aforesaid case crime number under aforesaid sections of IPC against the accused. Copy of the GD entry is Exhibit Ka-14. 6. We also gather from record that after entrustment of the investigation to the Investigating Officer- S.I. Ram Prakash Gupta- SHO of Police Station- Moth, Jhansi (P.W.8), reached to the spot with police force and raided house of accused- Chakki and Kriparam and arrested them on the second floor of their house and also recovered licensed SBBL Gun from Chakki along with three .12 bore cartridges and prepared arresting and recovery memo- Exhibit Ka-4. He also recovered four empty cartridges in the presence of witnesses from the roof of the house and prepared a memo of the same and kept it under seal, the memo is Exhibit Ka-5. 7. Inquest of deceased- Kunwar Lal- was conducted on 2.3.1985 at 5.00 P.M. by the Investigating Officer (P.W.8) in the presence of inquest witnesses. The dead body was sealed and sent for postmortem examination through Constable- Shyam Singh and Chowkidar- Nathuram. Inquest report is Exhibit Ka-2. 8. The Investigating Officer has proved specimen seal, Form No.33, Police Challan dead body, Report of R.I. and report of C.M.O., Photonash etc. as Exhibit Ka-15 to Ka-19. He also prepared site plan of the place of occurrence at the instance of witness- Sahib Singh- which is Exhibit Ka-20. Simple and blood stained clay- roll was also collected from the spot and kept under seal and verified by the witnesses, memo whereof is Exhibit Ka-6. 9. Statement of a number of prosecution witnesses was recorded by the I.O. The recovered material and the two arrested- accused were brought at the police station and kept in the lock-up and an entry to that effect was made at Serial No.25 at 6.10 P.M. on 2.3.1985 in the G.D. of Police Station- Moth, which is Exhibit Ka-21. The Investigating Officer also recorded statement of few prosecution witnesses on 3.3.1985; and the recovered SBBL Gun and cartridges, were sent for Forensic Examination to Lucknow. After completing the necessary formalities, the I.O. submitted the charge- sheet- Exhibit Ka-22- against the accused. 10. Consequently, the case was committed to the court of Sessions where both the prosecution and the appellants were heard on the point of charge and trial court was satisfied with the prima facie case, therefore, it framed charges under Sections 147, 302/149, 307/149, 323/149 IPC against all the seven appellants (except accused Kalyan), besides framing charges against appellant- Kalyan- under Sections 148, 302, 307 and 323/149 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. 11. Consequently, the prosecution was required to adduce its testimony, whereupon the prosecution produced in all 8 witnesses. Brief reference of the same is sketched as herein under:- 12. P.W.1 Raja Singh is the informant of this case. P.W.2 Parshuram s/o Mathura Prasad is the eyewitness of the occurrence. 11. Consequently, the prosecution was required to adduce its testimony, whereupon the prosecution produced in all 8 witnesses. Brief reference of the same is sketched as herein under:- 12. P.W.1 Raja Singh is the informant of this case. P.W.2 Parshuram s/o Mathura Prasad is the eyewitness of the occurrence. P.W.3 Mathura Prasad s/o Ajuhi is also the eyewitness of the occurrence. Dr. R.N. Sharma P.W.4 is the Medical Officer of District Hospital- Jhansi. He conducted autopsy on the cadaver of the deceased- Kunwar Lal on 3.3.1985. Chatur Singh P.W.5 is witness of fact of arrest of accused- Chhakki and Kriparam. Ram Asrey Pandey, Scientist of Vidhi Vigyan Prayogshala, Agra is P.W.6. He has proved the Forensic Examination Report, Exhibit Ka-7. Dr. R.P. Gupta P.W.7 has conducted medical examination of injured- Jaswant Singh, Lakhan Singh and Parshuram s/o Mathura Prasad, Raja Singh, Sahab Singh and has proved their respective medical examination reports. Besides, he medically examined accused Chakki Lal at 12.05 P.M. and has proved the same as Exhibit Kha-2/3. Ram Prakash Gupta P.W.8 is the investigating Officer. He has detailed the various steps in completing the investigation and has filed charge- sheet, Exhibit Ka-22. 13. Except as above no other evidence was adduced, therefore, evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C., wherein the accused cited various reasons for their false implication and claimed themselves to be innocent. 14. A joint written submission has been filed by all the appellants, wherein, submission clarifies fact that the prosecution witnesses are partisan and interested. Allegations levelled by the prosecution to the ambit that firing was done by Kalyan from the roof is denied. The incident was not caused by the appellants. Deceased- Kunwar Lal was supporter of Congress party and at the time of occurrence voting was being done for Legislative Assembly. Ranjeet Singh Judev was the Congress candidate in the election, whereas, Kunwar Manvendra Singh was contesting election on the ticket of BJP; and the deceased Kunwar Lal was a campaigner for candidature of Congress party. Ranjeet Singh Bhudev (Congress Candidate) at that point of time was Home Minister of State Government of Uttar Pradesh. Ranjeet Singh Judev was the Congress candidate in the election, whereas, Kunwar Manvendra Singh was contesting election on the ticket of BJP; and the deceased Kunwar Lal was a campaigner for candidature of Congress party. Ranjeet Singh Bhudev (Congress Candidate) at that point of time was Home Minister of State Government of Uttar Pradesh. Accused- Parshuram had lodged case against the witness Raja Singh, his brother Sahab Singh and Lakhan Singh under Sections 452, 323 IPC, which case is pending in the court of Munsif Magistrate, court no.5, wherein, the accused are the witnesses. Not only this but also various cases were under way at the instance of the accused side against the informant side. The fact is that 10 years prior to the incident, deceased- Kunwar Lal had forcibly grabbed five Bighas of land of his brother Atbal Singh, wherefor, a Panchayat was convened and that land is in possession of Raja Singh and his brother Sahab Singh and Lakhan Singh even today. Brother of deceased Kunwar Lal- Atbal was possessing single barrel licensed gun prior to the incident. No recovery was effectuated by the Investigating Officer and a number of other reasons have been described in the written submission of the accused apart from fact that on 2.3.1985 around 10 to 10.30 A.M. Parshuram s/o Mathura Prasad said to Chakki that he is encouraging fake voting for Manvendra Singh, which was denied by accused Chakki, whereupon Parshuram started abusing the informant side severely and beat Chakki Lal with lathi and caused injury on him, whereupon, the informant side was intercepted by few strangers, then the informant side also beat the strangers, who (strangers) retaliated with the informant side and one of them fired with his gun, Jaswant Singh was also present on the spot, shot hit Kunwar Lal causing his death. The informant colluded with the witnesses and the police thus lodged a false case. No ocular testimony was led by the defence. Consequently, defence was closed. 15. After considering both the sides on merit and after appraisal of facts and circumstances of the case and evaluating the evidence, the trial court returned finding of conviction against the appellants and passed sentence for the charges against the accused. Accused Kalyan was sentenced to imprisonment for life under Section 302; and 3 years R.I. under Section 307 IPC; 1 year R.I. each under Sections 148 and 323/149 IPC, respectively. Accused Kalyan was sentenced to imprisonment for life under Section 302; and 3 years R.I. under Section 307 IPC; 1 year R.I. each under Sections 148 and 323/149 IPC, respectively. Similarly rest of the accused were also sentenced to similar imprisonment under aforesaid Sections of Indian Penal Code- say- 302/149, 307/149, 323/149 IPC. Except, appellant- Kalyan- all the other appellants were also sentenced to 1 year R.I. under Section 147 IPC. Sentences were directed to run concurrently. 16. Resultantly, this appeal. 17. Quintessence of the argument advanced by the learned counsel for the appellants is primarily confined to the ambit that the incident infact was committed by some strangers on a day when polling for the concerned Legislative Assembly seat (of State of U.P.) was going on in village- Bhujond, in which some strangers fired on deceased- Kunwar Pal, who died, whereas, the other injured were beaten by blunt object by the strangers. Present appellants (the five surviving appellants) have been deliberately roped in, in this case by the informant on account of enmity- both political as well as village partibandi existing between both the sides. The FIR itself is ante- timed and has not been lodged at 3.10 P.M. on 3rd March, 1985. The incident took place at 2.30 P.M. on 2.3.1985 and the distance of the police station from village- Bhujond has been described in the FIR as 5 Kms. Testimony of the informant Raja Singh P.W.1 is clear on the point that the FIR was written after 20 minutes of the incident, therefore, by the time the written report was scribed, it must have been over 3 P.M. After getting the report scribed (by Pritam Singh) the informant boarded bus from the village- Bhujond to the police station- Moth, then it is not possible within such short span of time to reach the police station and lodge the report at 3.10 P.M. The fact is that in the morning of 2nd March, 1985, accused Chhakki- was deliberately beaten by the informant side after some altercation on point of manipulation in the on going voting for the seat of Legislative Assembly in village- Bhujond was alleged by the informant side. The injury report of accused- Chhakki- has not been explained. 18. The injury report of accused- Chhakki- has not been explained. 18. Apart from that, it has been claimed that the entire facts and circumstances when collated with evidence of this case rule out prevalence and existence of common object among all the accused to kill anyone or to cause any gunshot injury. In this regard role of Kalyan alone should be taken to be his isolated act, if proved (though not admitted) when he fired with the gun, though his participation in the incident is denied. The other accused, except Kalyan had no common object to kill anybody, though their participation in the incident is denied. Testimony is crystal clear both on facts and circumstances that as soon as first shot was fired on Kunwar Lal by accused Kalyan, it hit Kunwar Lal, the other assailants, who were possessing lathis fled away from the scene, whereafter also firing continued and at least 4-5 shots in all were fired on the spot, which particular factual aspect itself is self revealing of the exclusive intention of accused Kalyan alone to kill Kunwar Lal to the exclusion of rest all other accused. Had rest of the accused, except Kalyan, any common object to kill Kunwar Lal and others, then their conduct/act subsequent to the firing (by Kalyan) must have been in line with the on going firing and they must have stayed there in support of firing and have continued with their participation in the incident from that particular point of time till firing lasted and must not have escaped away from the scene leaving behind Kalyan alone. The criminal act being in prosecution of common object to kill or to act with the intention to kill was not working between Kalyan on the one hand and the rest of the accused, on the other hand. 19. The recovered gun belongs to Chhakki. The genesis of the crime has been suppressed. The medical examination of Chhakki was not conducted the very same day of the occurrence, but on the next day of the occurrence i.e. 3.3.1985, while he was arrested by the police on 2.3.1985 itself. The testimony of the prosecution witnesses of fact is contradictory in material particulars primarily on point of the description of the incident. Case of the prosecution is inconsistent and incoherent. 20. The testimony of the prosecution witnesses of fact is contradictory in material particulars primarily on point of the description of the incident. Case of the prosecution is inconsistent and incoherent. 20. Learned AGA vehemently refuted aforesaid contention and submitted that the testimony of the prosecution witnesses inspires confidence. Raja Singh P.W.1 and Parshu Ram P.W.2 are the injured witnesses. Their presence on the spot and testimony cannot be doubted. Their testimony is consistent on the point of occurrence. The very manner and the style in which the incident took place when viewed in its totality and wholesomeness proves existence and prevalence of the common object, which formed basis for committing the crime. All the accused arrived on the spot in a group and started beating the informant side, which ultimately resulted into death of Kunwar Lal and causing injuries to others. 21. The injury caused on Chhakki is neither grievous nor serious in nature and non- explanation of the same does not render the prosecution case either suspicious or erroneous. The court below has rightly recorded conviction and awarded just sentence. 22. We have also considered the rival submissions. 23. After considering the various aspects of this case and the claim raised, pros and cons, by both the sides the core consideration that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove is case against the appellants under various charges beyond reasonable doubt? 24. While considering the various aspects of this case regarding occurrence a look over the content of the description of the incident as narrated in the written report, Exhibit Ka-1, is reflective of fact that on the day of occurrence it was around 2.30 P.M. the informant Raja Sigh P.W.1, his father Kunwar Lal and brothers Lakhan Singh and Sahab Singh, Parash Ram S/o Mathura Prasad, Jaswant Singh were talking to each other infront of informant's house in village- Bhujoud. Old enmity was existing between the parties and in the meanwhile, all the aforesaid appellants appeared on the scene, they possessed lathi and gun and started beating the informant side, whereupon, Devi Kacchi s/o Mathura Prasad, Mathura Prasad s/o Ajuddi, Asha Ram s/o Lala Ram arrived on the spot and tried to save the informant side. Old enmity was existing between the parties and in the meanwhile, all the aforesaid appellants appeared on the scene, they possessed lathi and gun and started beating the informant side, whereupon, Devi Kacchi s/o Mathura Prasad, Mathura Prasad s/o Ajuddi, Asha Ram s/o Lala Ram arrived on the spot and tried to save the informant side. In the meanwhile Kalyan Singh ran away upon the roof of house of Balram and with intention to kill fired (from the roof) with the gun, which hit informant's father- Kunwar Lal, who consequently fell down and died on the spot. Informant Parash Ram and Jaswant sustained pellet injury and Sahab Singh and Lakhan Singh sustained injury caused by lathi. This report was lodged at Police Station- Moth at 3.10 P.M. 25. No doubt the lodging of the FIR is quick and appears to have been hurried up for the reason that the occurrence took place at 2.30 P.M. on 2.3.1985 and FIR lodged at 3.10 P.M., the same day. The written report was scribed by one Preetam Singh on the spot in the house of the informant 20 minutes after the occurrence and then the informant along with others boarded a bus in the village (Bhujond) and within 5 to 7 minutes it reached police station- Moth. He (informant) claims that after the bus reached to the police station, he handed over the report, which was then lodged. Under facts and circumstances of this particular case, it should not be strictly construed that it was sharp 2.30 P.M., by all means when the incident took place. There may be some variation in the actual timing of the incident than the time considered and guessed by the informant, which timing infact cannot match with the watch kept at the police station, and the same cannot be said to have matched exactly with the memory of the informant as well. Therefore, it cannot be said that factum of lodging of prompt FIR is either fatal or erroneous and the FIR is ante-timed. At this juncture we may conveniently observe that it has emerged in the testimony of the concerned police personnel- say- P.W.8- the I.O. On page- 98 of the paper book that on the day of occurrence after lodging of this report at case crime no.37 of 1985 no other report- cognizable or non- cognizable- was lodged at the police station. At this juncture we may conveniently observe that it has emerged in the testimony of the concerned police personnel- say- P.W.8- the I.O. On page- 98 of the paper book that on the day of occurrence after lodging of this report at case crime no.37 of 1985 no other report- cognizable or non- cognizable- was lodged at the police station. Therefore, claim made by defence to the extent that the FIR is ante- timed cannot be accepted as the correct position. 26. In so far as the point of injury being caused to one of the accused- Chhakki- is concerned, copy- whereof is Exhibit Kha-2, it can be observed that these injuries cannot be termed to be either grievous or serious in nature so as to require explanation as to how it was caused. Therefore, non- explanation of injury of accused Chhakki does not make any difference. 27. Next, the contention raised is one in the form and to the ambit that the incident was caused by some strangers and one among the strangers fired with his gun, which hit Kunwar Lal, is not gathered either from prevailing facts or circumstances of this case or from any testimony on record. No factual or testimonial account emerges in this regard and no such material came to the knowledge of the Investigating Officer while collecting evidence in this case that may give credence to the suggestion that there was involvement of strangers in the commission of the offence. Therefore, claim staged by the defence in that particular form that the incident was committed by some strangers is not sustainable. 28. We now turn on to the meritorial analogy and scrutiny of the alleged incident vis-a-vis facts and circumstances of this case, primarily the point of prevalence of common object among all the accused. 29. As per the testimony of the three witnesses of fact- say- Raja Singh s/o Kunwar Lal- P.W.1, Parshu Ram s/o Mathura Prasad- P.W.2 and Mathura Prasad s/o Ajuhi- P.W.3, their testimony on the whole proves and establishes fact that on the day of occurrence on 2.3.1985 it was around 2.30 P.M. while the informant along with others were talking to each other in front of the house (of informant) in baramda, the accused appeared on the spot. All the accused, except Kalyan, were possessing lathi, whereas, Kalyan was possessing gun. All the accused, except Kalyan, were possessing lathi, whereas, Kalyan was possessing gun. At the exhortation of Kalyan, all the other accused started beating/assaulting the informant side with lathi. In the meanwhile, Kunwar Lal tried to catch Kalyan, then Kalyan scampered away from there and went upon the roof of house of Balram and therefrom, he fired with his gun, which hit Kunwar Lal, due to which, he fell down and died on the spot. It also emerges from the testimony of all the aforesaid witnesses of fact that as soon as the first shot was fired by Kalyan, it hit Kunwar Lal, he fell down and expired, and simultaneously the rest of the accused, who were possessing lathi and assaulting the informant side, fled away from the scene, whereas the fact is that firing by Kalyan did not stop, but he continued to fire several rounds- say- 4-5 rounds on the spot (after the other of co-accused had fled away from the scene) which aspect serves as an independent circumstance of this case, which fact and circumstance is overwhelmingly indicative and suggestive of fact that the common object, which was operative on the spot for committing the offence was basically confined to only causing assault on the informant side and thereby to create panic by causing simple injury on the informant side and there was no common object to either kill or to cause gunshot injury on the informant side by the rest of the accused (who possessed lathi) except accused Kalyan. The fact situation and the testimonial account is explicit to the magnitude that all the assailants, fled away from the scene the moment first shot was fired by accused Kalyan. The particular factual aspect goes to establish that all the accused arrived on the spot collectively and Kalyan alone was possessing a gun, whereas the others were possessing lathi. Kalyan exhorted others to beat the informant side, whereupon, all his (Kalyan) accomplices started charging lathi on the informant side and Kalyn was also there, but he did not fire with the gun on the spot. Kalyan exhorted others to beat the informant side, whereupon, all his (Kalyan) accomplices started charging lathi on the informant side and Kalyn was also there, but he did not fire with the gun on the spot. In the meanwhile, he (Kalyan) was tried to be caught by Kunwar Lal, whereupon, he ran away towards and upto the house of Balram, climbed upon the roof of his house and from there he shot fire which hit Kunwar Lal, and in the meanwhile all the other assailants (who were possessing lathi) fled away from the scene, though the firing by Kalyan continued. This piece of specific testimony has emerged in the testimony of Parshu Ram P.W.2 and Mathura Prasad P.W.3- both the eyewitnesses- on page- 52 and page-68 of the paper book, respectively, that as soon as first shot was fired the other co-accused fled away from the scene. 30. As per testimony of Parshu Ram P.W.2 on page- 50, the assault was initially caused by charging lathi, but after Kalyan fired shot with his gun (from roof top), the assault being caused by lahti was stopped and no attempt, whatsoever, was made by the rest of the accused to keep on plying lathi or to hold ground firmly till firing continued. It means as soon as the firing was started by Kalyan, assault by lathi was stopped and here on page- 52 of the paper book of his (P.W.2) testimony, it has been categorically and unequivocally testified that as soon as Kalyan fired with his gun accused Chhakki, Kripa Ram, Parash Ram, Ghanshyam, Komal, Brindawan and Gulab fled away from the scene. 31. This specific testimony clarified the fact situation to the expanse that the moment the first shot was fired by Kalyan the rest of the aforementioned assailants left the scene. This testimonial version has been dittoed by Mathura Prasad P.W.3, when he also corroborated Parshu Ram P.W.2 to the magnitude that the aforesaid assailants fled away from the scene the moment first shot was fired. Testimony of the two prosecution witnesses of fact also finds corroboration from the testimony of Raja Singh P.W.1- the informant, with slight variation that all the accused fled away, whereas, the fact situation shows that only the 7 co-accused who were assaulting with lathi fled away from the scene leaving behind accused Kalyan. 32. Testimony of the two prosecution witnesses of fact also finds corroboration from the testimony of Raja Singh P.W.1- the informant, with slight variation that all the accused fled away, whereas, the fact situation shows that only the 7 co-accused who were assaulting with lathi fled away from the scene leaving behind accused Kalyan. 32. If the fact situation is so explicitly proved by none other than the testimonial account of the eyewitnesses, then obviously, the very subsequent reaction to the situation given by the rest of the accused (except Kalyan) in fleeing away from the scene can be legally construed to mean that they neither had any common object to kill anybody nor to cause any gunshot wound by attacking informant side and it appears that the gun was possessed by accused Kalyan that in case any counter attack takes place in retaliation by the informant side, then the same can be safely repelled by the use of gun, but as the situation developed suddenly on the spot Kalyan separated himself from the rest of the group when he ran away upon the roof of house of Balram and fired shots from there when the other assailants fled away from the scene and they did not cause any further assault by lathi. They did no covert act than to move away rapidly from the spot and never assaulted. Kalyan and they did not return to the spot. Simultaneous reaction by the other co-accused to the act of firing done by Kalyan shows their real gesture. Therefore, the contention raised by the learned counsel for the appellants to the magnitude and expanse that the intention to kill can be imputed only against the accused Kalyan, but not against the rest of the accused, by application of common object either to kill or to cause gun-shot injury- was not there, is sustained by us. 33. Therefore, the contention raised by the learned counsel for the appellants to the magnitude and expanse that the intention to kill can be imputed only against the accused Kalyan, but not against the rest of the accused, by application of common object either to kill or to cause gun-shot injury- was not there, is sustained by us. 33. In view of above analogy and scrutiny of fact and testimony that they dissociated themselves from the act of firing and they did not approve this act (of firing), it is obvious that the trial court erred while it appraised facts and evaluated testimony of this case on the above specific fact situation vis-a-vis testimonial account of P.W.2 and P.W.3 and came out with a case of existence and prevalence of common object as defined under Section 149 of the IPC and imputed vicarious liability on the other co-accused- who were possessing lathi. 34. In the wake of above, now the things have crystallized to the shape that all the accused had common object only to cause injury and to create terror in the mind of the informant side but not to cause death of any person or to cause any grievous injury by gunshot. 35. The wholesome consideration of the entire occurrence vis-a-vis fact and testimony on record is indicative of fact that there was enmity between the parties, but the accused (eight in numbers) arrived on the spot and at the exhortation of Kalyan (one among accused), lathi blows were given on the informant side and a peculiar situation developed when Kalyan ran away from the scene, positioned himself on the roof of house of Balram, fired from there on Kunwar Lal which act was never approved by the rest of the accused, therefore, they fled away from the scene, at the stroke of first shot. Had it been a case of firing just on the spot after arrival of all the accused, then common object to kill or intention to kill could have been easily inferred to have existed among all the miscreants, but the moment the first shot was fired by Kalyan, after remain upon the roof of house of Balram, the other assailants fled away from the scene. We may ingeminate that this fact situation by itself proves explicitly that there was existing no common object either to kill or to cause any gunshot injury by opening assault on the informant side on the spot. That way the trial court erred while it recorded finding that all the accused acted in prosecution of the common object. 36. While inferring existence and prevalence of common object in prosecution of a criminal act inference/conclusion is not to be drawn from isolated act of one among the accused, but it is the wholesome outcome of the incident- previous and subsequent- which would form basis of consideration of prevalence of common object. After weighing all the factual aspects of a particular case, testimony and circumstances, inference of existence of common object can be legally drawn. 37. Hence in this particular case, the act of firing and the consequential death and injury caused by firing is to be imputed and confined to be exclusive act of accused- Kalyan (appellant no.3) alone and it shall not create any vicarious liability by resorting to prevalence of common object, for the other co-accused. The point is that the various injuries caused by lathi blows on the informant side by the other surviving- accused- Chhakki, Ghanshyam, Komal and Gulab- are simple in nature, as testified by Dr. R.P. Gupta P.W.7. There is nothing in the testimony of the doctor witness to the effect that there was any supplementary report of any of the injured (on informant side), who sustained grievous injury caused by any hard and blunt object or fact that it was grievous in nature. The injury found on the person of injured Lakhan Singh has not been proved to be grievous. Similarly, injury (Exhibit Ka-10) on the person of Parshu Ram s/o Mathura Prasad, has been stated to be simple in nature and caused by blunt object. Likewise, the injury (Exhibit Ka-11) caused on the person of Raja Singh is also simple in nature caused by blunt object and the injury on Sahab Singh, (Exhibit Ka-12), is also simple in nature. 38. That way the assertion made by the prosecution to the magnitude that the common object (as imputed against the appellants) was one to kill or to cause grievous injury cannot be said to have been reasonably established. 39. 38. That way the assertion made by the prosecution to the magnitude that the common object (as imputed against the appellants) was one to kill or to cause grievous injury cannot be said to have been reasonably established. 39. Therefore, the common object to beat the informant side is easily established and confined to the sphere of causing simple injury only and it cannot travel beyond that, meaning thereby that all the surviving accused (Chhakki, Ghanshyam, Komal and Gulab) committed offence under Sections 323 IPC read with Section 149 IPC and under Section 147 IPC. They are not vicariously responsible for committing offence under Sections 302/149 IPC and 307/149 IPC. 40. In so far as the case of Kalyan is concerned, his offence stands totally on different footing than that of the other surviving appellants, thus stood proved under Sections 302, 307, 148 and 323 read with 149 IPC beyond all reasonable doubt. 41. Consequently, this appeal in so far as it relates to the case of accused Kalyan, being devoid of merit is dismissed by us and the finding and sentence awarded to him by the trial court is hereby affirmed by us. 42. In view of foregoing discussion, in so far as the case of the rest of the accused- Chakki, Ghanshyam, Komal and Gulab- is concerned, they cannot be saddled with the responsibility of committing offence under sections 302/149 and 307/149 IPC. Therefore, finding of conviction recorded under Sections 302/149 and 307/149 against them by the trial court is hereby set aside by us. They are exonerated of the above charges. But, their conviction and sentence awarded by the trial court under Sections 323/149 and 147 IPC is sustained by us. 43. We may sum up that this appeal in so far as it relates to the case of appellants- Chakki, Ghanshyam, Komal and Gulab is concerned, the same is allowed partly in aforesaid terms and the judgment and order impugned dated 9.2.1988 passed by the Additional Sessions Judge/ Special Judge (E.C. Act) Jhansi, in S.T. No. 70 of 1985- State Vs. Chhakki and others stands modified accordingly to the aforesaid extent. 44. Appellants are on bail. Their bail bonds are hereby cancelled. Appellant Kalyan shall be taken into custody to serve out the remaining part of his sentence imposed upon him. Chhakki and others stands modified accordingly to the aforesaid extent. 44. Appellants are on bail. Their bail bonds are hereby cancelled. Appellant Kalyan shall be taken into custody to serve out the remaining part of his sentence imposed upon him. In case, appellants Chakki, Ghanshyam, Komal and Gulab- have not served out their respective sentences of imprisonment, they shall be taken into custody for serving out the remaining sentence. 45. Let a copy of this order/judgment be certified to the court below for necessary information an follow up action.