State of U.P. Vs. Kishan
Chand & Ors [2004] Insc 471 (20 August 2004)
B.N. Agrawal & H.K. Sema
Sema,J.
Nine accused were put on trial before the Addl. Sessions Judge. During the
pendency of the trial, one accused died, therefore, eight accused have faced
the trial. At the end of the trial, the trial court acquitted accused nos. 6,
7, and 8 of all the charges. No appeal was preferred by the State against their
acquittal. The five accused (respondents herein) namely Kishan Chand, Rama
Shankar, Ram Chandra, Gauri Shankar and Chhotey Lal were convicted under
various Sections of Law as follows:- Accused Kishan Chand was sentenced to
undergo life imprisonment under Sections 302/34 and 302/149 I.P.C. Six months
R.I. under Section 323 I.P.C. One years R.I. under Section 148 I.P.C.
and 5 years R.I. under Section 307 read with Section 149 I.P.C. and 5 years
R.I.
Accused Rama Shankar was sentenced to undergo life imprisonment under
Section 302 I.P.C. One year R.I. under Section 148 I.P.C. 5 years R.I. under
Section 307/149 I.P.C. and 6 months R.I. under Section 323 read with 34 I.P.C.
Accused Ram Chandra son of Bala Sukh and Gauri Shanker were sentenced to
undergo life imprisonment under Section 302 read with Section 34 I.P.C. and
Section 302 read with Section 149 I.P.C.
Six months R.I. under Section 323/34 I.P.C. One year R.I. under Section 149
and 5 years R.I. under Section 307 read with Section 149 I.P.C.
Accused Chhotey Lal was sentenced to undergo one year R.I.
under Section 148 I.P.C. Life imprisonment under Section 302/149 I.P.C. and
five years R.I. under Section 307/149 I.P.C. The sentences, however, were
directed to run concurrently.
On appeal, being preferred by the accused persons, the High Court by the
impugned order acquitted them of all the charges levelled against them. Hence,
this appeal by special leave, has been preferred by the State of U.P.
Briefly stated the facts are as follows:- The accused and the complainants
are all residents of Harish Purwa, P.S. Sachendi District Kanpur. On 3.8.1974
at about 5.30 p.m. the accused formed an unlawful assembly in the dharmashala
of Shridhar in village Hariram ka Purwa and in furtherance of common object
murdered Sheo Ram and Mool Chand and caused injuries to PW1- Shridhar and PW8 -
Mizazi Lal. The first information report lodged by PW3-Ram Swarup disclosed
that on the fateful day at about 5.30 p.m. Chhotey Lal (PW2) son of Tulsi was
singing on the eve of Raksha Bandhan in the dharmashala of Shridhar. Ashok
Chand, Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand his son Ramoo and
others were also there. In the meantime, accused Kishan Chand son of Hem Raj,
Rama Shankar son of Chhotey Lal, Ram Chandra son of Sada Sukh, Gauri Shankar
son of Hem Raj and Chhotey Lal armed with gun, country made pistols and hockey-sticks
reached there. Immediately thereafter, accused Kishan Chand gave a hockey blow
to Shridhar. Thereupon, the deceased Mool Chand asked him not to quarrel on the
festival day. Accused Rama Shankar fired at him. Thereafter, accused Kishan
Chand fired at Shridhar who fell down after sustaining injuries. Accused Ram
Chandra was at the roof and instigated the accused to kill the informant and
others. At his instigation accused Chottey Lal, Kishan Chand, Rama Shankar,
Gauri Shankar and Ram Chandra became more furious and started firing
indiscriminately from their gun and country made pistols. In the process,
Shridhar (PW-1) and Mizazi Lal (PW-8) had also received injuries. In the said
incident, Sheo Ram and Mool Chand died on the spot.
In course of the trial, the prosecution relied upon the testimony of
eyewitnesses PW1-Shridhar, PW2-Chottey Lal, PW3-Ram Swarup and PW8-Mizazi Lal.
Counsel for the State, contended that the Trial Court, was justified in placing
reliance on the eye witnesses account of PWs 1, 2, 3 and 8 and the High Court
was clearly in error in disbelieving the eyewitnesses account of prosecution
witnesses resulting in acquittal of accused on the basis of perverse finding.
Per contra counsel for the accused-respondents would contend that the so-called
eyewitnesses are interested witnesses. PW2- Chottey Lal, PW3-Ram Swarup, being
the brothers of the deceased, their testimony is not reliable and the High
Court was justified in disbelieving their testimony. He would further contend
that there was an enmity between the parties and the witnesses deposed falsely
against the accused because of animosity. Counsels on both the sides have taken
pain in taking us through the entire judgment of the High Court. To say the
least, the High Court did not assign any reason much less ostensible reason for
discarding the testimony of the eyewitnesses account.
The submission of the counsel for the accused that the testimony of PWs
cannot be acted upon, as they are the interested witnesses is to be noted only
to be rejected. By now, it is well-settled principle of law that animosity is a
double-edged sword. It cuts both sides. It could be a ground for false
implication and it could also be a ground for assault. Just because the
witnesses are related to the deceased would be no ground to discard their
testimony, if otherwise their testimony inspires confidence. In the given facts
of the present case they are but natural witnesses. We have no reason to
disbelieve their testimony. Similarly, being the relatives, it would be their
endeavour to see that the real culprits are punished and normally they would
not implicate wrong persons to the crime, so as to allow the real culprits to
escape unpunished.
That apart PW1-Shridhar and PW-8 Mizazi Lal are both independent and injured
witnesses. The testimony of an injured witness has its own relevance and
efficacy. The fact that the witnesses sustained injuries at the time and place
of occurrence lends support to their testimony that the witnesses were present
during the occurrence. The injured witnesses were subjected to lengthy
cross-examination but nothing could be elicited to discredit their testimony.
Counsel for the accused contended that the prosecution fails to establish
which of the accused caused fatal injuries. This submission is misconceived.
The convictions were recorded under Sections 302 with the aid of Section 34 and
under Section 302 with the aid of Section 149. It is a well established
principle of law that when the conviction is recorded with the aid of Section
149, relevant question to be examined by the court is whether the accused was a
member of unlawful assembly and not whether he actually took active part in the
State of U.P., 1964 (8) S.C.R. 133 at page 148 SCR held:- "What has to be
proved against a person who is alleged to be a member of an unlawful assembly
is that he was one of the persons constituting the assembly and he entertained
along with the other members of the assembly the common object as defined by
s.141, I.P.C.
Section 142 provides that whoever, 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. 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." Further at page 149
SCR it is said:- "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." Counsel for the respondents, strenuously
urged that from the evidence of the prosecution witnesses accused Ram Chandra
was at the roof and instigated the accused to finish the prosecution party and
as such it cannot be said that the accused formed an unlawful assembly to
perpetrate the crime. We are unable to countenance with this submission of the
counsel. Firstly, an assembly, which was not unlawful assembly when it
assembled, may subsequently become an unlawful assembly. Secondly, common
object of the unlawful assembly can be gathered from the nature of the
assembly, arms used by them and the behaviour of the assembly at or before
scene of occurrence. It is an inference to be deduced from the facts and
circumstances of each case. In the instant case, the prosecution evidence
disclosed that it was a Raksha Bandan day when the singing was going on, the
accused appeared at the scene with gun and country made pistols and
hockey-sticks, attacked the prosecution party and started firing
indiscriminately resulting in the death of Sheo Ram and Mool Chand. Deduced
from the surrounding facts and circumstances of this case, it is clear that the
accused did form an unlawful assembly and in furtherance of that common object
of the unlawful assembly, crime has been perpetrated.
The next contention of the counsel for the respondents that the
non-explanation of the injuries sustained by the accused caused prejudice to
the accused, also deserves to be rejected. The prosecution has explained that
at the time of arrest the accused tried to flee and in that process sustained
some injuries being beaten by the arresting party. The injuries sustained by
the accused were simple in nature. This apart, it is well-settled principle of
law that non- explanation of injuries sustained by the accused by the
prosecution would not vitiate the trial, if the prosecution evidence against
the accused is so strong on the basis of which alone the conviction can be
recorded. As already noted, in the present case, out of four eyewitnesses two
are independent and stamped witnesses.
There is yet another contention of the counsel for the respondents, which
deserves outright rejection. Counsel would contend that after the
reconstruction of the case record the statements made by the
accused-respondents under Section 313 Cr.P.C. have not been properly considered
by the Trial Court and prejudice thereby has been caused to the
accused-respondents. We have gone through the judgment of the Trial Court which
would show that the statements made by the accused under Section 313 have been
quoted in verbatim and the same have been considered by the Trial Court in
great detail. Before the High Court, it was not the case of the accused that
the reconstruction of the record has not been done properly. Conversely, the
High Court in the order dated 7.10.1994 has recorded the total satisfaction
that the reconstructed record is proper.
In the premises aforesaid, we are clearly of the view, that the High Court fell in error in acquitting the accused resulting in grave miscarriage of
justice. The impugned order of the High Court is, accordingly, set-aside. The
conviction recorded by the Trial Court is hereby restored. The
accused-respondents Kishan Chand, Rama Shankar, Ram Chandra, Gauri Shankar, and
Chhotey Lal are directed to be taken into custody forthwith. Compliance report
within three weeks. The appeal is, accordingly, allowed.
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