http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (crl.)  97 of 2000

PETITIONER: Hori Lal & Anr.

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Two 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.   

       The 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.   

       Appellants 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.   

       Babu 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.   

       Enmity 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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.   

       The 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 \026 P.W.8.  The  prosecution in support of his case examined the first informant Harpal Singh  besides Balbir Singh \026 P.W.3 and Smt. Roopwati \026 P.W.4.  Virendra Singh  \026 P.W.2 was examined, however, he was later declared hostile.  The  Investigating Officer, Durga Prasad Sharma examined himself as P.W.5.   

       Appellants 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.   

       Dr. Nafis A. Siddiqui, learned counsel appearing on behalf of the  appellants raised the following contentions before us :

       (i)     The First Information Report was entertained without assigning  any crime number to it.   

       (ii)    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.                            (iii)   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.                     (iv)    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 anti-timed.    

       (v)     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.

       (vi)    The post mortem report would show that one of the injuries

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

(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.

       (vii)   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.   

       (viii)  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.    

       (ix)    No case has been made out for inferring that the appellants and  other accused had common object in commission of the offence.   

       Mr. Ashok K. Srivastava, learned counsel appearing on behalf of the  State, on the other hand, supported the impugned judgment.

       The learned Sessions Judge as also the High Court analysed the  evidences brought on records by the prosecution very minutely.   

       The 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.

       The 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 prosecution story.

       We 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.

        Medical evidence, in our opinion, supports the prosecution case.   Injuries 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.

       We, therefore, do not find any reason to differ with the findings of the  learned Sessions Judge and the High Court.   

       Motive 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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

Ram Autar had shifted to Gopalganj in the State of Bihar and Ram Swarup  shifted to Mainpuri.

       All the three eye-witnesses, thus, fully supported the prosecution case.

       The 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 appellants.   

       We may 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

vs. The State of Bihar [AIR 1965 SC 277] was noticed.

       No principle of law has been laid down therein.  The decision was  rendered in the fact situation obtaining in those cases.

       Sections 141 and 142 of the Indian Penal Code read as under :

       "141. Unlawful assembly.\026 An assembly of five  or more persons is designated an ’unlawful assembly’, if  the common object of the persons composing that  assembly is \026         First \026 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 \026 To resist the execution of any law, or of  any legal process; or         Third \026 To commit any mischief or criminal  trespass, or other offence; or         Fourth \026 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 \026 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.         Explanation \026 An assembly which was not  unlawful when it assembled, may subsequently become  an unlawful assembly."

       "142. Being member of unlawful assembly.\026  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."     

       Common object would mean the purpose or design shared by all the  members of such assembly.  It may be formed at any stage.

       Whether in a given case the accused persons shared common object or  not, must be ascertained from the acts and conduct of the accused persons.   The surrounding circumstances are also relevant and may be taken into  consideration in arriving at a conclusion in this behalf.

       It is 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.   

       However, if an offence is committed in furtherance of such common  object, the same would come within the purview of second part.

       In the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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 :

"If 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 :

       "Both 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.

       The 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.

       However, the presence or absence of unburnt or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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.

       In Russell A. Gregory’s "Identification of Disputed Documents,  Fingerprints and Ballistics", 3rd Edition, at page 117, it is stated :   

"The 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.   

       For the reasons aforementioned, in our considered view, there is no  merit in this appeal.  It is dismissed accordingly.

       The 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.