& Anr Vs. State of U.P  Insc 902 (5 December 2006)
Sinha & Markandey Katju S.B. Sinha, J.
appellants are before us questioning the judgment and order dated 11.3.1999
passed in Criminal Appeal No.2824 of 1980, whereby and whereunder their
conviction and sentence under Section 302 read with Section 149 of the Indian
Penal Code, 1860 ('IPC', for short) and other provisions have been upheld.
incident resulting in death of one Hazarilal and Smt. Ram Shree and serious
injuries to one Balbir Singh and simple injuries to Smt. Mohar Shree took place
at about 10 a.m. on 2nd November, 1979 in village Balarpur, P.S. Bhagaon, District Mainpuri, U.P.
The First Information Report was lodged by one Harpal Singh, son of Hazarilal
and husband of deceased Smt. Ram Shree.
are also residents of the same village. They, together with Registar Singh, Bahadur,
Babu Ram, Chhotelal, Sohran, Sohran, Jai Singh, Subedar and Kedar sons of Jai
Singh were named in the First Information Report. Three persons were not named
therein being unknown. Bahadur Singh is said to be an outsider.
Ram, Chhotlal and Sohran are real brothers being sons of Chaman Lal. Registar
Singh is son of Babu Ram. Phool Singh @ Bhajan Lal is son of Punno. Jai Singh
is son of Nagpal. Subedar and Kedar are sons of Jai Singh. Babu Ram and Phool
Singh died during trial. Jai Singh was acquitted by the High Court, whereas Subedar
and Kedar had been acquitted by the learned Sessions Judge. Phool Singh, Registar
Singh and Bahadur Singh were said to be armed with guns. Jai Singh, since
acquitted, was said to be armed with hand grenades. Appellants herein, Subedar
and Kedar were said to be armed with country made pistols.
between the parties is not in dispute. Long standing land dispute between them
also stands admitted. In the First Information Report it was alleged that a
murderous assault was made on Ram Autar, brother of the first informant, in
1976, wherein the accused persons were alleged to be the assailants. However,
it ended in submission of a final report as nobody was prepared to support the
case due to terror created by Registar Singh and Bahadur Singh. Ram Autar
thereafter shifted to Gopalganj in Bihar.
Ram Swarup, another brother of the informant shifted to Mainpuri. Ram Swarup on
the fateful day came to the village. On receipt of the said information, the
accused persons said to have formed an unlawful assembly and armed with various
lethal arms, came to the place of occurrence. They were seen by Balbir
Singh-P.W.3. He started running towards the village. An exhortation was given
by Registar Singh and he was chased. Shots were fired resulting in sustenance
of injuries by him on his right arm. Harpal Singh was, at that time, sitting on
a cot. His mother and aunt were sitting on the earth. They were talking amongst
themselves. Hazarilal, the deceased, uncle of Balbir Singh was tethering his
cattle. He informed them that Registar Singh and others were coming to their
house armed with firearms and also that he had received firearms injuries. Balbir
Singh concealed himself inside his house. Jai Singh had, allegedly, thrown a
hand grenade at Hazarilal. He fell down, whereafter Phool Singh and Bahadur
Singh fired shots at him. Harpal Singh ran and entered in the house of his
uncle Ram Swarup. He took the rifle of Ram Swarup and fired towards the accused
persons from the upper story of the house of Ram Swarup. In the meantime, Smt.
Ram Shree, wife of Harpal Singh, also started firing from the gun of the first
informant. At this, the accused persons made indiscriminate firing at her, due
to which she received injuries and died. The accused persons reached the house
of Phool Singh and Anokhey, uncles of the first informant and fired several
rounds of shots causing of injuries to Smt. Mohar Shree, wife of Balbir Singh. Shiv
Singh also said to have received injuries, which was not believed by the
learned Sessions Judge. Hazarilal and Smt. Ram Shree died. The gun which was
used by Smt. Ram Shree was taken away by the accused persons.
First Information Report was lodged at about 11.45 p.m. The distance between the village and police station is said
to be 8 kms. Dr. R.K. Jain - P.W.6, Surgeon of District Hospital, Mainpuri
conducted autopsy on the dead bodies. The injured were treated by Dr. S.C. Dubey
P.W.8. The prosecution in support of his case examined the first informant Harpal
Singh besides Balbir Singh P.W.3 and Smt. Roopwati P.W.4. Virendra Singh P.W.2
was examined, however, he was later declared hostile. The Investigating
Officer, Durga Prasad Sharma examined himself as P.W.5.
herein and Jai Singh were convicted for commission of an offence under Section
302 read with Section 149 of the Indian Penal Code and were sentenced to
undergo rigorous imprisonment for life for committing murder of Hazarilal and Smt.
Ram Shree; under Section 307 read with Section 149 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for five years for making murderous
assault on Balbir Singh, under Section 324 read with Section 149 of the Indian
Penal Code and sentenced to undergo rigorous imprisonment for two years for
causing hurt to Smt. Mohar Shree. All sentences, however, were directed to run
concurrently. As noticed hereinbefore, the High Court has given benefit of
doubt to Jai Singh and acquitted him.
A. Siddiqui, learned counsel appearing on behalf of the appellants raised the following
contentions before us:
The First Information Report was entertained without assigning any crime number
Having regard to the manner in which the occurrence had taken place and the
fact that the first informant had to travel 8 kms, the First Information Report
could not have been lodged within 1 hour 45 minutes.
The said report having been forwarded to the learned Magistrate only on the
next day, i.e., 3rd November, it should be held to be ante-timed.
As in the letter addressed to the Medical Officer, the 'Hazhoori Chiththies'
and the letter requesting the doctor to conduct post mortem, the crime number
was not mentioned, the same establishes that the First Information Report was
The Investigating Officer having opined that an offence under Section 396 IPC
having been committed, there was no reason to convert the same to an offence
under Section 302 IPC.
The post mortem report would show that one of the injuries (injury No.5) that
there was blackening and thus, the shot must have been fired from a short
distance and having regard to the fact that the appellants were said to be
carrying pistols, they could not have caused the said injuries.
Appellants did not have any motive to commit the offence and they have been
roped in as there is a tendency in India to implicate the family members of the accused falsely.
Eye-witnesses being P.W.1 and 2 having not mentioned the name of appellant No.1
in their statements before the police under Section 161 of the Criminal
Procedure Code, 1973, they should not have been relied upon.
No case has been made out for inferring that the appellants and other accused
had common object in commission of the offence.
K. Srivastava, learned counsel appearing on behalf of the State, on the other
hand, supported the impugned judgment.
learned Sessions Judge as also the High Court analysed the evidences brought on
records by the prosecution very minutely.
First Information Report was promptly lodged. After such a ghastly crime was
committed, it was but natural for P.W.1 to report the matter as early as possible
to the police. It was also necessary to get necessary medical assistance for
the injured persons, particularly having regard to the nature of injuries
suffered by them. P.W.1 had travelled in a bullock cart to the out skirts of
the village. He thereafter took the tractor of one Braj Bhujbal Singh Thakur to
travel upto the police station. He returned to his village on a cycle.
Investigating Officer was cross-examined on the question of alleged ante-timing
of the First Information Report. It may be that the special report was sent to
the Magistrate on 3rd November, but, then keeping in view the magnitude of the
occurrence, we do not think that the same itself would negate the entire
also are unable to accept the submissions of the learned counsel for the
appellants that the number of crime case had not been mentioned in the
documents. The inquest report mentioned the number of crime. The time of
recording the First Information Report had also been mentioned there. Crime
number was not necessary to be mentioned on the challan of the dead bodies or
letters to the doctors for the medical examination of the injured persons and
for obtaining post mortem report of the deceased. Those documents, undoubtedly,
were prepared after preparation of panchnama and the fact which was recorded in
the panchnama, in our opinion, was not necessary to be mentioned in the other
documents and in any event, such omission would not be of much significance.
P.W.1 was also a witness to the said panchnama.
evidence, in our opinion, supports the prosecution case.
found on the persons of the deceased and also the injured persons categorically
point out that they had been caused by firearms. The Investigating Officer had
also recovered a large number of cartridges from the place of occurrence. The
evidence brought on records also suggests that indiscriminate firing had been
done towards Smt. Ram Shree. The window, where she was found dead, had been
broken. The gun used by Smt. Ram Shree was also found missing.
therefore, do not find any reason to differ with the findings of the learned
Sessions Judge and the High Court.
on the part of the appellants and other accused persons to commit the murder is
evident. The offence was committed by the accused as they could come to learn
that Ram Autar was available in the village.
had shifted to Gopalganj in the State of Bihar and Ram Swarup shifted to Mainpuri.
the three eye-witnesses, thus, fully supported the prosecution case.
submission of Mr. Siddiqui that P.Ws. 1 and 2 did not name Hori Lal in their
statements under Section 161 of the Criminal Procedure Code, is not correct.
They had named him. The only omission on their part is that he had not been
named as using firearms. Some discrepancies are there as to whether the
appellants had been holding pistols or guns. In our opinion, the same is not
very material for our purpose. We, having regard to the facts and circumstances
of the case, are unable to accept the submission of the learned counsel that
the prosecution has failed to prove common object on the part of the
notice some decisions relied upon by the learned counsel. In Baladin & Ors.
vs. State of Uttar
Pradesh [AIR 1956 SC
181], this Court held that mere presence of a person does not make him a member
of an unlawful assembly. The said decision, however, has been explained by this
Court in Masalti & Ors. vs. State of Uttar Pradesh [AIR 1965 SC 202], wherein it has clearly been held that
the same had been rendered in the peculiar facts obtaining therein, stating :
In other words, an assembly of five or more persons actuated by, and
entertaining one or more of the common objects specified by the five clauses of
S.141, is an unlawful assembly. The crucial question to determine in such a
case is whether the assembly consisted of five or more persons and whether the
said persons entertained one or more of the common objects as specified by
S.141. While determining this question, it becomes relevant to consider whether
the assembly consisted of some persons who were merely passive witnesses and
had joined the assembly as a matter of idle curiosity without intending to
entertain the common object of the assembly. It is in that context that the observations
made by this Court in the case of Baladin, (S) AIR 1956 SC 181 assume
significance; otherwise, in law, 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 some illegal overt act or had been guilty of some illegal
omission in pursuance of the common object of the assembly. In fact, S.149
makes it clear that if an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in prosecution of
that object, every person who, at the time of the committing of that offence,
is a member of the same assembly, is guilty of that offence; and that emphatically
brings out the principle that the punishment prescribed by S.149 is in a sense
vicarious and does not always proceed on the basis that the offence has been
actually committed by every member of the unlawful assembly. Therefore, we are
satisfied that the observations made in the case of Baladin, (S) AIR 1956 SC
181 must be read in the context of the special facts of that case and cannot be
treated as laying down an unqualified proposition of law such as Mr. Sawhney
suggests." Reliance has also been placed in Nathu Singh Yadav vs. State of
Madhya Pradesh [JT 2002 (9) SC 591], wherein again
Ugar Ahir & Ors. vs. The State of Bihar [AIR 1965 SC 277] was noticed.
principle of law has been laid down therein. The decision was rendered in the
fact situation obtaining in those cases.
141 and 142 of the Indian Penal Code read as under:
assembly of five or more persons is designated an 'unlawful assembly', if the
common object of the persons composing that assembly is First To overawe by
criminal force, or show of criminal force, the Central or any State Government
or Parliament or the Legislature of any State, or any public servant in the
exercise of the lawful power of such public servant; or Second To resist the
execution of any law, or of any legal process; or Third To commit any mischief
or criminal trespass, or other offence; or Fourth By means of criminal force,
or show of criminal force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way, or of
the use of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or Fifth By means of
criminal force, or show of criminal force, to compel any person to do what he
is not legally bound to do, or to omit to do what he is legally entitled to do.
An assembly which was not unlawful when it assembled, may subsequently become
an unlawful assembly."
Being member of unlawful assembly.
being aware of facts which render any assembly an unlawful assembly,
intentionally joins that assembly, or continues in it, is said to be a member
of an unlawful assembly." Common object would mean the purpose or design
shared by all the members of such assembly. It may be formed at any stage.
in a given case the accused persons shared common object or not, must be
ascertained from the acts and conduct of the accused persons.
surrounding circumstances are also relevant and may be taken into consideration
in arriving at a conclusion in this behalf.
in two parts. The first part would be attracted when the offence is committed
in furtherance of the common object. The offence, even if is not committed in
direct prosecution of the common object of the assembly, Section 149 IPC may
still be attracted.
if an offence is committed in furtherance of such common object, the same would
come within the purview of second part.
instant case, all the accused persons came heavily armed. They were seen by Balbir
Singh. He was not only chased, a shot was fired at him resulting in his
sustenance of an injury on his right arm. He still ran and informed others.
Before others could conceal themselves, the appellants reached the spot and
started firing. Hazarilal was done to death by a shot fired from a close range.
The autopsy surgeon did not say what would be the distance from which shot was
fired. It would depend upon the nature of the weapon used. The distance in case
of a pistol may be 2 feet, whereas in case of a shot gun, it may be 3 feet.
But, undoubtedly the injury resulted from a shot fired from a short distance.
In Modi's "Medical Jurisprudence and Toxicology", 23rd Edition at
page 721, it is stated:
a firearm is discharged very close to the body or in actual contact,
subcutaneous tissues over an area of two or three inches around the wound of
entrance are lacerated and the surrounding skin is usually scorched and
blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless
propellant powder. The adjacent hairs are singed, and the clothes covering the
part are burnt by the flame. If the powder is smokeless, there may be a greyish
or white deposit on the skin around the wound. If the area is photographed by
infrared light, a smoke halo round the wound may be clearly noticed. Blackening
is found, if a firearm like a shotgun is discharged from a distance of not more
than three feet and a revolver or pistol discharged within about two feet. In
the absence of powder residue no distinction can be made between one distance
shot and another, as far as distance is concerned. Scorching in the case of the
latter firearms is observed within a few inches, while some evidence of
scorching in the case of shotguns may be found even at one to three ft.
Moreover, these signs may be absent when the weapon is pressed tightly against
the skin of the body, as the gases of the explosion and the flame smoke and
particles of gunpowder will all follow the track of the bullet in the body.
Wetting of the skin or clothes by rain reduces the scorching range. Blackening
is not affected by wet surface although it can easily be removed by a wet
cloth. Blackening with a high power rifle can occur up to about one ft. Usually
if there are unburnt powder grains, the indication is that the shot was fired
from a revolver or a pistol and shorter the barrel of the weapon used the
greater will be the tendency to the presence of unburnt of slightly burnt
powder grains." In Major Sir Gerald Burrard's "The identification of
Firearms and Forensic Ballistics" at page 59, it is stated:
scorching and blackening prove definitely that the shot was fired from very
close quarters, in which case an assertion by the suspected person that the
deceased fired the shot himself, cannot be disproved if the weapon used was a
pistol or revolver. But if it is possible to establish that the range of the
shot must have been greater than the length of the deceased's arm the matter
assumes a somewhat different complexion, and the evidence may be of great use
in bringing a murderer to book.
extreme limit of the blackening range is well within any normal person's arm's
length, and so the absence of blackening is no proof that the shot was fired
from sufficiently far away to have made it impossible for the deceased to have
been clutching either the weapon, or the individual who is suspected of having
held the weapon.
the presence or absence of unburnt or partially burnt powder grains may indicate
a range which is either just within or just without this critical distance; and
on this account the investigation into the question of unburnt power grains may
become a matter of primary importance." [See also Baso Prasad & Ors.
vs. State of Bihar reported in 2006 (12) SCALE 354.]
However, no hard and fast rule can be laid down therefor.
Russell A. Gregory's "Identification of Disputed Documents, Fingerprints
and Ballistics", 3rd Edition, at page 117, it is stated:
distance from which a firearm was discharged can be judged to a limited extent.
If black powder has been used the distribution of the tattoo marks made by the
powder, round about the wound will give some indication as to the distance of
the weapon from the wound. This will vary according to the caliber of the
weapon and the make of the cartridge. If any empty cartridges have been found
on the scene of the crime, similar cartridges should be tested in the suspect
weapon and the distance judged by the dispersion of the pellets or distribution
of unburnt powder marks. Black powder however is now rarely used in cartridges.
Modern smokeless powder leaves little markings of burnt powder beyond eight to
ten inches. Within this distance small particles of unburnt powder may be found
entangled in the clothing or at the wound of entry. These may be of evidential
value if they correspond to the powder in the ammunition found in the
possession of the accused." There cannot be any doubt whatsoever that
where two views are possible, benefit of doubt must be given to the accused as
was submitted by the learned counsel. But, we have no doubt that the High Court
had come to a correct conclusion.
the reasons aforementioned, in our considered view, there is no merit in this
appeal. It is dismissed accordingly.
appellants are on bail. Their bail bonds are cancelled. They are directed to
surrender forthwith before the Chief Judicial Magistrate, Mainpuri, failing
which appropriate steps be taken for their arrest.