http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

CASE NO.: Appeal (crl.)  1072 of 2003

PETITIONER: Jai Shree Yadav                                            

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 12/08/2004

BENCH: N. Santosh Hegde, S.B. Sinha & A.K. Mathur

JUDGMENT: J U D G M E N T (With Crl. Appeal Nos. 1073  and  1074-1075 of 2003 )

SANTOSH HEGDE, J.

       All these appeals arise out of a common judgment of the  High Court of Judicature at Allahabad whereby the High Court  while allowing the appeal of two of the accused persons,  dismissed the appeal of 3 other accused persons all of whom  were convicted by the III Additional Sessions Judge, Deoria  (UP) of offences punishable under Sections 143, 148, 149, 504,  506, 307 and 302 IPC. Three of the accused whose appeals  were  dismissed  by  the High Court, have  preferred Criminal  Appeal Nos.1072-73 of 2003 and the State has preferred  Criminal Appeal Nos.1074-75 of 2003 against the acquittal of  two of the accused persons who were convicted by the trial  court for the above mentioned offences.  We will first take up Criminal Appeal Nos.1072-73 of  2003 for consideration which, as stated above, are the appeals  filed by the convicted accused.  The facts necessary for the disposal of these appeals,  briefly stated, are as follows :         It is the prosecution case that there was enmity between  one of the deceased Abid Ali and A-3 Jaishree Yadav, A-5  Daddan Yadav in regard to the auction and recovery of  Tehbazari of the area between village Tatil Tola and Nawalpur  crossing. A-6 Ram Pratap Yadav bore an enmity against the  deceased Abid Ali on account of a pending litigation relating to  a land in village Tatil Tola. A-1 Hafiz Khairul Bashr was on  inimical terms with the said deceased in relation to the fixation  of an electric pole on the chowk road. It is also the prosecution  case that on account of these enmities, these accused persons  were waiting for an opportunity to eliminate said deceased Abid  Ali. It is the further case of the prosecution that on 23.9.1993 at  about 5.50 p.m. deceased Abid Ali had come from Deoria, his  place of residence, in his private jeep and was sitting on a  Takhat in front of Pervez Book Stores, north of Nawalpur  crossing. At that moment, Raju @ Noor Alam (PW-6) who had  a shop selling sand and clay, came to deceased Abid Ali and  complained that A-3 Jaishree Yadav was raising a dispute with  him (PW-6) in regard to Tehbazari money. It is also the  prosecution case that PW-1 who was working as a teacher in a  School at Salempur of which the deceased Abid Ali was the  Manager, was then passing through the said place where the  said deceased was sitting and seeing him PW-1 came to talk to  the said deceased. This was at about 4.15 p.m. Prosecution also  states that PW-3 Arif Ali, son of deceased Abid Ali, who was a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

resident of that village, was also present there at that time. It is  the further case of the prosecution that at that time 8 persons  including A-1 Hafiz Khairul Bashr, A-2 Jaheed, A-3 Jaishree  Yadav, A-4 Manish Yadav, A-5 Daddan Yadav, A-6 Ram  Pratap yadav and two other unidentified persons came armed to  that place. Amongst them, A-1 and A-2 and the unidentified  persons were having country-made pistols (katta), A-3 and A-4  were carrying bombs and bags in their hands; A-5 and A-6 were  carrying a knife and an iron ’Dav’ respectively. Prosecution  further alleges that A-3 Jaishree Yadav questioned PW-6 as to  the propriety of his complaint to deceased Abid Ali. Other  accused questioned the authority of deceased Abid Ali to  meddle in a dispute between them and PW-6. It is stated the  deceased Abid Ali warned them by asking them to have control  over their language. At this stage the prosecution alleges A-1  exhorted the other accused to kill Abid Ali. Pursuant to the  same, A-3 and A-4 hurled bombs at Abid Ali because of which   Abid Ali received injuries and started running northwards to  save himself. Prosecution then alleges that all the accused  persons chased the deceased Abid Ali, hurling bombs and firing  pistol shots at him and in this process when Abid Ali reached  ’Palani’, of one Idris, one Mahmood Shah (deceased No.2), a  resident of the same village, tried to intervene, hence, the  accused hurled bombs and fired pistol shots at Abid Ali and  Mahmood Shah  in front of the shop of one Ram Nakshatra  consequent to which both Abid Ali and Mahmood Shah  succumbed to their injuries on the spot. During the first attack  on Abid Ali when he was sitting on the Takhat, PW-1 who was  nearby also suffered an injury on his shoulder. Prosecution also  alleges that there was a young boy who was also sitting on the  Takhat with deceased Abid Ali who also suffered some injuries.  PW-3 who was nearby ran after his father but he was not  attacked by the assailants.  The assailants after causing fatal  injuries to Abid Ali and Mahmood Shah ran away from the  place of incident shouting at and threatening the witnesses. PW- 3 who is an eye-witness to the incident, then went to Salempur  Police Station which is stated to be about 3-4 kms. away from  the place of incident with a written complaint scribed by his  brother-in-law and gave the same to PW-8 Ram Shiromani  Pandey who was the officer-in-charge of the Police Station who  registered a case at about 5.30 p.m. on 23.9.1993 and proceeded  to the place of incident with his staff. There he recorded the  statements of some witnesses and conducted the spot  Panchnama, inquest Panchnama of the dead body and recovered  certain empty cartridges, splinters of the bomb and one live  bomb found at the place. It is relevant to note herein that before  leaving for the place of the incident, PW-8 had sent a special  report to the Jurisdictional Magistrate through a Constable in  his Police Station to Deoria which is about 25-27 kms. from  Salempur. During the course of his visit to the spot and  preparation of the Panchnamas it is stated that senior officers on  coming to know of the double murder case through radio  transmitters, reached the spot. PW-8 after completing the  inquest sent the dead bodies to Deoria along with Police  Constable Durga Prasad PW-7 in a jeep around mid-night of  23/24.9.1993. It is stated that in view of the fact that on the way  the said jeep developed mechanical problems and the same  could be repaired only in the early hours of 24.9.1993, he  handed over the bodies at about 10 a.m. to PW-4 Dr. V.D.  Srivastava who conducted the post mortem on the dead bodies  of Abid Ali and Mahmood Shah on 24.9.1993 at 10.30 a.m. and  12.15 p.m. respectively. He noticed 11 injuries on different  parts of Abid Ali’s body with corresponding internal injuries. In  the opinion of PW-4 death of Abid Ali was due to shock and  haemorrhage as a result of ante-mortem injuries.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

       On the body of Mahmood Shah, PW-4 noticed 3 external  injuries which were multiple circular wounds and multiple  circular lacerated wounds. On internal examination, he found   corresponding injuries on various parts of the body. He also  recovered a large number of pellets, totalling 89 from the body  of Mahmood Shah and he opined that the death of Mahmood  Shah was also due to shock and haemorrhage as a result of ante- mortem injuries.

       Prosecution alleges that in spite of its best efforts, the  accused persons could not be traced until they surrendered  before the court. It is the case of PW-8 that PW-1 though  named in the FIR as an eye-witness was not available for  recording his statement and it is only after about 9-10 days  when he came back to the village and his statement could be  recorded; whereas PW-6’s statement was recorded on  24.9.1993 at about 6 a.m. It is also the case of the prosecution  that two of the unidentified persons were never traced, hence,  they could not be sent up for trial while the six named accused  persons were committed for trial by A.C.J.M., Deoria for  offences under sections 147, 148, 149, 504, 506, 507, 302 and  sections 4 and 5 of the Explosive Substances Act. But the trial  court framed charges only for offences under sections 143, 148,  302 read with section 149, section 307 read with 149, 504 and  506 IPC.

       In view of the fact that A-1 Hafiz Khairul Bashr was not  in a medically fit condition to face trial, his trial was separated  and the other 5 accused persons were tried by the III Additional  Sessions Judge, Deoria, for offences as stated above, in  Sessions Trial No.36 of 1994. The trial court after considering  the material produced by the prosecution, came to the  conclusion that accused 2 to 6 were guilty of the offences  charged against them hence convicted them under section 143  IPC to RI for 6 months, under section 148 IPC RI for 1 year and  for an offence punishable under section 302 read with section  149 life imprisonment and for an offence under section 307  read with section 149, 7 years’ RI and for an offence under  section 504 IPC 6 months’ RI and finally for an offence under  section 506 IPC, 6 months’ RI was awarded. The court also  directed all the sentences to run concurrently.

       It is against the said conviction and sentence of the trial  court, the convicted accused preferred 4 appeals before the  High Court of Judicature at Allahabad and the High Court by  the impugned judgment, confirmed the conviction and sentence  imposed on A-2 Jaheed, A-3 Jaishree Yadav, A-4 Manish  Yadav, while it allowed the appeals of A-5 Daddan Yadav and  A-6 Ram Pratap Yadav.

       Out of the 3 convicted accused, A-2 Jaheed has not  preferred any appeal hence his conviction and sentence has  become final, while A-3 Jaishree Yadav and A-4 Manish Yadav  have preferred the abovenoted criminal appeals. The State of  U.P. being aggrieved by the acquittal of A-5 Daddan Yadav and  A-6 Ram Pratap Yadav has preferred the connected criminal  appeal noted hereinabove.                            Shri Sushil Kumar, learned senior counsel appearing for the  appellants contended that the prosecution case ought not to have  been accepted by the courts below because of the serious infirmity  found in the investigation as also possible doubt as to the presence  of the eye-witnesses produced by the prosecution at the trial. He  submitted that though the prosecution has alleged that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

complaint of the incident in question was lodged at Salempur  Police Station at 5.30 p.m., the same cannot be believed for more  than one reason and according to him the FIR is a product of  deliberation and is anti-timed. Elaborating this contention, he  submitted that the special report in regard to the incident in  question reached the Jurisdictional Magistrate at Deoria only on  24.9.1993 and the actual time of receipt of this special report has  not been noted by the Jurisdictional Magistrate. It is his contention  that if really the FIR had come into existence as stated by the  prosecution and the complete details of the case and the facts as  found in the complaint and in the inquest report would have been  sent to the doctor who was to conduct post mortem but what in fact  was sent along with the dead body and the requisition for post  mortem was not really the true copy of the inquest report and the  complaint. He further submitted the fact that the dead body was  delivered to the doctor of Deoria at about 10 O’clock in the  morning on 24.9.1993  which also indicates the fact that the  incident in question must have come to the knowledge of the  police very late in the evening of 23.9.1993, hence, a detailed FIR  implicating the accused was prepared in deliberation with PW-3,  the son of the deceased Abid Ali much later than 5.30 P.M.. He  also pointed out that it has come on record that when radio  transmission messages were sent to the superior officers, names of  all accused were not mentioned obviously because same was not  known to the Investigating Officer at that time. From the material  on record, he pointed out that there were good reasons for PW-3 to  implicate the appellants, hence, deceased being a prominent person  the accused who were admittedly inimical towards him were  falsely implicated.         Further, he contended that the evidence of PW-1 ought not  to have been believed because he was closely connected with the  deceased Abid Ali in his illegal activities in managing the school.  It is also contended that it is highly improbable that a person who  witnessed the murder of the Manager of his school and with whom  he was closely connected would have disappeared from the place  of incident and appeared only after 10 days  to make his statement  before the police. The further contention of the learned counsel in  this regard was that the so called injury suffered by PW-1 is a  make believe one and if at all such injury was there the same must  have been a self-inflicted one to create evidence. In regard to PW- 3, the son of the deceased who is the complainant and also an eye- witness to the incident, learned counsel submitted that the  contradictions, omissions and improvements proved by the defence  in the cross-examination of this witness clearly established that this  witness is one who cannot be believed. At any rate this witness is  not a witness who could be termed as an absolutely reliable  witness on whose sole evidence a conviction could be based  without acceptable corroboration.         In regard to PW-6, the other eye-witness, learned counsel  submitted that this witness was not present at the time when the  police went to the spot of the incident nor was he present at the  time of inquest proceedings. His statement was recorded only on  the next day, hence, his evidence also could not have been  believed.         Learned counsel also pointed out that the medical evidence  is contradictory to the oral evidence led by the prosecution, hence,  the appellants are entitled to acquittal.         He supported the findings of the High Court that from the  prosecution case itself, it is clear that the accused Daddan Yadav  and Ram Pratap Yadav have not taken part in the incident in  question and they were implicated solely because there was some  enmity between them and the deceased Abid Ali, hence, the High  Court was justified in allowing their appeal.            The argument addressed by the learned counsel before us are  similar to the ones that were addressed by his counter parts in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

courts below. Both the courts below so far as the convicted  appellant before us are concerned have concurrently come to the  conclusion that these arguments cannot be accepted and have held  that the prosecution has established its case to the hilt to prove the  guilt of the convicted accused. It is in the backdrop of the  concurrent findings of the two courts below that we will now  examine the contentions advanced before us by the learned counsel  appearing for the accused whose guilt have been upheld  concurrently by two courts below.  It is the case of the prosecution that PW-3 Arif Ali who is a  resident of village Nawalpur within the limits of Salempur Police  Station came to the said police station on 23.9.1993 at 5.30 p.m.  and gave a written report Ext.Ka-2 to PW-8 the Officer-in-Charge  of the said police station. According to PW-8, he registered a crime  based on the said complaint of PW-3 at 5.50 p.m. on the same day,   which has been proved by the production of the general diary of  the police station Ex.Ka-8. He also submitted that he sent a special  report to the Jurisdiction Magistrate on 23.9.1993 at about 7 p.m.  through Constable Dheeraj. He further stated that from the entry in  the general diary, it is seen that Constable Dheeraj reported back to  the police station at about 8 a.m. on 24.9.1993 . He has denied that  the special report was not sent on 23.9.1993. A perusal of the entry  made by the Chief Judicial Magistrate, Deoria in the special report  shows that the same was received by him on 24.9.1993 but the  actual time of the report is not noted in the said entry, however it is  clear that the said report was received by him at his residence.  Based on this the learned counsel for the appellants had argued that  it is possible that this report might have reached later in the day on  24.9.1993, but this argument is not supported by any material on  record. On the contrary from the entry made in the general diary of  the police station, it is clear that Constable Dheeraj who was  entrusted with the job of delivering the special report to the  Magistrate had returned back to duty at Salempur Police Station at  8 O’clock on 24.9.1993. Bearing in mind that the distance between  Salempur Police Station and Deoria is about 28 to 29 kms. as seen  from the records it is clear that the special report has reached the  Jurisdiction Magistrate much earlier than 8 O’clock in the morning  of 24.9.1993. Though it would have been more appropriate and  less controversial if only the concerned Magistrate had noted the  actual time of receipt of the special report,  still on facts and  circumstances of this case as stated above, we are of the opinion  that the special report must have reached the Jurisdictional  Magistrate much earlier than 8 a.m.  Since by then the constable  who carried the report had come back to Salempur on 24.9.1993  which fits in with the prosecution case that the same was sent from  the police station in the evening of 23.9.1993 at about 7 p.m. So on  this count, it cannot be said that the FIR is anti timed.            The next contention in this regard is that the requisition  sent by PW-8 to PW-4, the doctor, to conduct post mortem did not  accompany all the particulars found in the inquest report and the  complaint like the particulars of the case, the weapon used and the  names of the accused persons etc. which according to the learned  counsel for the accused indicates that when the dead body was sent  for post mortem the investigating agency did not know the full  particulars of the case. We do not think that these omissions, if  any, would lead to the conclusion that the FIR is anti-timed. It is a  settled principle in law that though it is necessary to give the gist  of the information collected during the course of inquest  proceedings and from the material available in the FIR to the  doctor conducting the post mortem, it is not necessary to give all  the particulars as contained in either of the above said documents.  This is clear from the judgment of this Court in the case of  Mahendra Rai vs. Mithilesh Rai & Ors. (1997 10 SCC 605).  Learned counsel had next contended that it has come on  record that the incident in question was reported to the higher

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

authorities through radio transmission and an application filed by  the defence to produce the records pertaining to this transmission  has been rejected by the trial court and according to the material  available on record the said transmission had not given the names  of all the accused concerned to the senior officers which also  indicated the fact that the FIR in question has come into existence  after the radio transmission was made. We are unable to accept this  argument either. We think the trial court has given good reasons  for not allowing the application for summoning the records  pertaining to radio transmission of police communication, at any  rate the accused having not challenged the said order, the same has  become final. That apart it should be noted that the messages  transmitted to higher authorities of an incident in question is only  an information sent about a crime that has occurred which does not  require all the particulars of the crime to be stated. In the instant  case obviously because one of the deceased was a prominent  person of the area concerned, the higher authorities were informed  through radio transmission that his murder has taken place and in  such communication, in our opinion, it is not necessary that the  names of all the persons or other particulars as stated in complaint  ought to have been mentioned or that non mentioning of such  particulars in such communication gives rise to an inference that at  the time when the transmission was made the investigating agency  was not in the know of the names of all the accused. Both the  courts below have considered these aspects of the defence case as  to anti-timing of the FIR and have rejected the same and we are in  agreement with the findings of the courts below, hence, we reject  this contention of the learned counsel for the appellants in regard  to anti-timing of the FIR.       The next contention of the learned counsel for the  appellant is that the evidence of PW-1 Ram Kripal Singh ought  not to have been relied upon by the two courts below. It is  argued that this witness was closely connected with deceased  Abid Ali and was hand in glove with him in the mis-  management of the School and it is because of this nexus that  he has come forward to give evidence inspite of the fact that he  was not present at the time of the incident. It was also submitted  that the so called injury suffered by this witness was so  superficial that it cannot be said to have been caused by the  flying splinter of the bomb that exploded. Learned counsel also  contended that the evidence of PW-5 Dr. A.K. Upadhyay who  treated this witness is highly artificial and cannot be accepted  primarily because of the fact that the injury suffered by the  witness was not recorded in the medico-legal register of the  dispensary. It is the further contention on behalf of the  appellants in regard to PW1 that if really he was an eye witness  to the incident he would not have disappeared for nearly 10  days in spite of his familiarity with deceased Abid Ali. It was  also alleged that the explanation given by this witness as to his  non-availability  to the Police for almost 10 days is hard to  believe.

There is no doubt that this witness was closely connected  with the deceased Abid Ali in view of the fact that he was a  teacher in the School of which said deceased was the Manager.  By this it cannot be presumed that this witness has volunteered  to be a false witness to the incident. It is a fact that the injury  suffered by this witness is of minor nature but PW-5 who  treated the said injury has stated that on 23.9.93 evening PW1  had come to him for treatment of an injury suffered by him.  He  has also stated that though the injury was simple in nature, he  had treated the same and the said injury could have been caused   by a flying splinter of a bomb. It is a fact that the doctor did not  enter this injury in the medico-legal register but PW-5 the  doctor has given an explanation that since the witness did not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

want to make a Police case out of the same he recorded this  injury in the accident injury register.  It is also true that PW1 was not available to the Police for  nearly 10 days after the incident but the explanation given by  this witness is quite plausible that his family was afraid for his  safety hence he went to his in-laws’ place and remained there  and it is only when things settled down he decided to come out  and give a statement to the Police. The possibility of his fear of  retaliation is supported by the evidence of PW-8 I.O. who  stated that there was tension in the village and at the time of  funeral of the deceased he had to make Police bandobust which  indicates the possibility of PW-1’s apprehension and his  consequent non-availability to the investigating agency.  There  is one other aspect of this case which will have to be borne in  mind while considering the evidence of PW-1. His name has  been mentioned in the FIR as a person who was present at the  time the incident took place. It is also stated in the  FIR that in  the said incident PW-1 was injured. We have already noticed  that the prosecution has established that this complaint was  filed in the Salempur Police Station at 5.30 p.m. If really this  witness was not present at the time of incident in question we  do not think PW-3 would have included his name without even  knowing the whereabouts of this witness on that day and by  attributing an imaginary injury to him. In his examination in  chief this witness has clearly narrated the incident involving the  named accused persons as also the overt acts attributed to them.  Of course in the cross examination the defence has brought out  that this person is closely connected with deceased Abid Ali  therefore a suggestion was made that he was deposing falsely.  This suggestion has been denied by the appellant. In the cross  examination defence has brought about certain omissions,  contradictions and improvements in the evidence of this  witness. These shortcomings in the evidence of this witness will  have to be considered in the background of the fact that this  witness was subjected to nearly 217 questions over a period of  14 months i.e. his cross examination starting on 14.8.1994 and  ending on 28.11.1995. Both the courts below have taken  judicial notice of this fact, not only in regard to this witness but  in regard to other witnesses also and have come to the  concurrent conclusion that when a witness is subjected to such  lengthy arduous cross examination over a lengthy period of  time there is always a possibility of the witnesses committing  mistakes which can be termed as omissions, improvements and  contradictions therefore those infirmities will have to be  appreciated in the back ground of ground realities which makes  the witness confused because of the filibustering tactics of the  cross examining Counsel.

PW-3’s evidence was challenged by the defence in the  courts below as well as before this Court on the ground that he  is a partisan and biased witness being the son of the deceased  Abid Ali. This fact of course is not disputed by the witness  because it is the case of the prosecution itself that the deceased  Abid Ali was inimical to accused persons for various reasons  mentioned hereinabove. PW1’s  presence at the place and time  of the incident was challenged by learned counsel for the  accused before us primarily on the ground that if really he was  present at the time of incident he would have tried to protect his  father and there was no material to show that any such thing  was done by this witness. It was also pointed out from his  evidence that though his father was profusely bleeding the  clothes of this witness were not blood stained which indicated  that he never even touched the body of his father which is an  unnatural conduct on the part of a son present at the time of the  murder of his father. This witness when cross examined in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

regard, admitted that since his father had died already he did not  carry the body of his father nor did he touch the body of his  father. In our opinion different people react differently to a  given situation and from the fact that this witness did not  choose to fall on the body of his father or carry his dead body  from where it was lying, by itself cannot be a ground to reject  his evidence. We have already accepted the fact that the  complaint in question was lodged by this witness soon after the  incident in question and PW-8 in his evidence has spoken to the  complaint being lodged by this witness and he being present  throughout the investigation proceedings at the spot on that day.  His presence at the place of incident also cannot be treated as a  chance presence inasmuch as he is a resident of that village  though his father stays in Deoria. Learned counsel for the  appellant submitted that it is an admitted fact that this witness  has stated that he is an educated person and according to this  witness the complaint in question was not written down by him  but by his brother-in-law which is also an unnatural conduct  indicating that he might not have been present at the time of  incident. We do not think this could also be a ground to suspect  the presence of this witness at the time and place of incident.  This witness in his evidence has stated that since his brother-in- law was available who was also a literate he dictated the  complaint to him which was scribed by his brother-in-law and  we do not find anything unnatural in this conduct either. Next  ground of attack in regard to this evidence of this witness is that  he has not stated all the motives stated in his evidence before  the court in the complaint. In other words the complaint did not  contain details of the motives as spoken to by this witness in his  evidence before the court. We do not think that this also could  be a ground to reject the evidence of this witness. In the  complaint this witness has specifically stated A-3 and A-4 had  enmity with his father in regard to the auction of Tehbazari of  Nawalpur chowk. He has further mentioned in the complaint  that so far as accused Ram Pratap Yadav is concerned his father  had a litigation pertaining to a particular land and so far as  Hafiz Khairul Bashr is concerned his father had a dispute  pertaining to the erection of an electric pole. He has also  mentioned in the complaint about an altercation PW-6 had with  A-3 and A-4 in regard to the payment of Tehbazari in regard to  which PW-6 had made a complaint to his father on the fateful  day.   In this background we hardly find any force in the  argument of learned counsel for the accused that this witness  has made improvement in his evidence from what he had stated  in his complaint. Of course during the course of his cross  examination he has elaborated the nature of enmity that his  father had with these accused persons but then that could hardly  be a reason to contend that what is stated in the complaint is  either different from what is stated in the evidence in regard to  the motive or the witness has made improvement in regard to  the motive of the accused to commit the crime. Apart from the  above challenge to the evidence of this witness, learned counsel  for the accused pointed out certain contradictions, omissions  and improvements found in his cross examination but then this  again will have to be considered as considered by the courts  below, in the background of the fact that the cross examination  of this witness was also spread over a period nearly 6 months  and he was subjected to nearly 480 questions. In this  background for the reasons already stated above, as held by the  two courts below we do not think these contradictions,  improvements and omissions would affect the credibility of this  witness either. The next witness cited by the prosecution as an eye- witness to the incident is PW-6 Raju alias Noor Alam. He is  also a resident of Nawalpur who in his evidence stated that on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

23.9.1993 he had an argument with A-5 Daddan Yadav and A-3  Jaishree Yadav in relation to the payment of Tehbazari for  having sold some sand to them. He stated that he made a  complaint to the deceased Abid Ali who had come to that  village on that day and at that time the accused persons came  armed with bombs, kattas and other sharp-edged weapons and  attacked the deceased with the same and the deceased having  suffered injuries, started running towards North and at a place  near ’Palani’ the accused persons shot at him as also at  Mahmood Shah who came to the aid of the deceased Abid Ali  consequent to which these victims died. The challenge to the  evidence of this witness by the appellant is primarily based on  the fact that he is a partisan witness and in his witness too a  large number of contradictions, improvements and omissions  were established during the cross-examination. We must notice  that the name of this witness is also mentioned in the complaint  and even the fact that there was an altercation between A-3  Jaishree Yadav and A-4 in payment of Tehbazari is also  mentioned in the complaint which indicates that this witness  was present at the time of the incident. In his examination in  chief he has clearly stated the attack on the deceased by the  accused persons and we are not prepared to reject this evidence  on the ground that there have been some contradictions,  omissions and improvements in his evidence. Even this witness  was subjected to lengthy cross-examination over a long period  of time and as held by the two courts below, in such type of  cross-examination some improvements, contradictions and  omissions are bound to occur which if not found fatal to the  evidence given in the examination in chief would not in any  manner affect the evidentiary value of the witness given in the  examination in chief. Another argument addressed on behalf of the appellants  to be noticed is that there was considerable delay in sending the  dead bodies for post mortem. According to the learned counsel,  though a complaint in regard to the incident in question was  lodged at about 5.30 p.m., the dead bodies reached the hospital  at Deoria only at about 9.30 a.m. on 24.9.1993, therefore, this  also indicates that the complaint in question had not been  lodged, as alleged by the prosecution. It is true that the dead  bodies reached the hospital at Deoria only at about 9.30 a.m.  the next day but from the evidence of PW-8, the Investigating  Officer, it is clear that he despatched the dead bodies to the  hospital between 11 and 12 in the night of the incident through  PW-7, Constable Durga Prasad, who took the dead bodies in   jeeps but because of the fact that one of the jeeps broke down  on the way at a distance of about 13-14 kms. from Salempur,  hence, they were not able to proceed further that night until the  jeeps were repaired in the morning. In this situation, the bodies  reached the hospital only at about 9.30 a.m. In our opinion, the  explanation given by PW-7 in regard to the delay in delivery of  the dead bodies for post mortem cannot be rejected. Therefore,  the contention that the delay in delivering the dead bodies  indicates that the First Information Report was anti-timed,  cannot be accepted.  

It was also sought to be argued that there is contradiction  between medical evidence and oral evidence.  We having  perused the same, find from the evidence of the post mortem  report and the evidence of PW-4 Dr. V.D. Srivastava that the  prosecution has established that both the deceased had died of  shock and haemorrhage due to the injuries caused to them and  those injuries are such injuries as could be caused by the  explosion of a bomb, by the use of Kattas and sharp-edged  weapons. We really do not find any reason whatsoever why this  doctor should give false evidence to support the prosecution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

case. This witness was also subjected to nearly 170 questions  over a period of a year i.e. between 18.5.1995 and 2.6.1996. In  such circumstances we are in agreement with the findings of the  two courts below that the prosecution has established its case  beyond all reasonable doubt as against the accused persons held  guilty by the trial court and the High Court.

This leaves us to consider the merit of Crl. Appeal  Nos.1074-75 of 2003 preferred by the State against the acquittal  of A-5 Daddan Yadav and A-6 Ram Pratap Yadav. In regard to  these two accused persons the High Court has concurred with  the finding of the trial court that they were present and were  members of the party of the accused persons when the crime in  question was committed. The trial court accepted the evidence  that Ram Pratap Yadav abused deceased Abid Ali while others  attacked the deceased. Similarly, the trial court also accepted  the evidence that A-5 had carried a ’Dav’ and attacked the  deceased due to which a corresponding incised wound was  found in the body of the deceased. The trial court also found as  a matter of fact that all the accused persons before it including  A-5 Daddan Yadav and A-6 Ram Pratap Yadav were members  of an unlawful assembly with a common object of causing the  death of deceased. Therefore, they were also convicted along  with other accused persons for an offence punishable under  section 302 read with section 149 among other offences. The  High Court did not give a finding that these accused persons  were not the members of an unlawful assembly and accepts the  fact that they were present at the time of the incident but rather  surprisingly proceeds to give a finding in the following terms :

"\005 A perusal of the FIR shows that no role  has been assigned to appellants Daddan and  Ram Pratap. There is no allegation in it that  they had used knife and ’Dav’ in the  incident. From the post mortem report Ext.  Ka-3, also the use of Dav is excluded. Thus,  the complicity of appellant Ram Pratap in  the incident is ruled out. He had wrongly  been convicted under Sections 143, 148,  302/149, 307, 504, 506 IPC. So far as  appellant Daddan is concerned, he is said to  have been armed with a knife. Neither in the  FIR, nor in the ocular evidence, there is any  mention that he used his knife on any of the  deceased or to injure Ram Kripal. In these  circumstances, his participation in the  incident is also ruled out and his conviction  cannot be justified."

We are unable to agree with the above finding of the  High Court on facts and circumstances of the case. It is the  prosecution case right from the stage of the complaint that these  two accused persons had enmity with the deceased Abid Ali.  They along with four other named accused and two other  unnamed accused came together armed and remained members  of the unlawful assembly till the attack on the deceased was  over. This part of the prosecution case is accepted even by the  High Court. If that be so, assuming for argument’s sake that  there is no material to show that these two accused persons took  any part in the attack, that by itself would not take away the  liability of these persons from being members of an unlawful  assembly unless the High Court had given a specific finding  either that they were not the members of the unlawful assembly  at all or at any particular point of time they ceased to be the  members of the said unlawful assembly. The High Court did

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

not give any such finding. On the contrary, it proceeds as if the  members of an unlawful assembly who do not commit any  overt act are exonerated of the liability of being a member of an  unlawful assembly. The trial court has held that the common  object of the unlawful assembly was to attack and kill Abid Ali  but in the process they also killed Mahmood Shah and  convicted the accused on that basis. The High Court, as stated  above, has nowhere held that these two accused persons, who  are respondents in the State appeal before us, were not the  members of the unlawful assembly or that they did not share the  common object of that assembly.  In our opinion on the facts of  this case such a finding could not have been arrived at because  evidence in this case shows these accused also had the motive,  they were present throughout  and escaped together.  Once  these facts are accepted it is difficult to exclude these accused  from the liability under section 149 I.P.C.  The trial court even found that these two accused persons  also carried deadly weapons and some of the injuries found on  the dead body could be attributed to the weapons carried by  them. Of course, the High Court differs with the trial court in  this regard that there was no corresponding injury which could  be attributed to the weapon carried by these appellants but that  by itself, in our opinion, is not sufficient to extricate these two  accused persons from the charge of being members of an  unlawful assembly which attacked and killed Abid Ali and  Mahmood Shah. It is trite law that a person who is a member of  an unlawful assembly even if he does not commit any overt act  but shares the common object of such an unlawful assembly,  will be liable for the consequences of the same. We do not think  that this principle in law requires any precedent to be relied  upon but if need be, the same could be found in the judgment of  this Court in the case of Yunis alias Kariya v. State of M.P.  (2003 1 SCC 425) wherein this Court has held that "Even if no  overt act is imputed to a particular person, when the charge is  under Section 149 IPC, the presence of the accused as part of an  unlawful assembly is sufficient for conviction. The fact that the  accused was a member of the unlawful assembly is sufficient to  hold him guilty."

In view of the above principle in law, since the trial court  has found these respondent-accused guilty of being members of  an unlawful assembly with the common object of causing the  murder of the deceased, and the High Court having not differed  from the said finding, it erred in acquitting these respondent- accused solely on the ground that there is no evidence to show  that they had taken part in the actual assault. In our opinion,  assuming that the High Court was correct in coming to the  conclusion that these respondent-accused have not taken part in  the attack even then they having come together with the other  accused armed, and having been members of the unlawful  assembly and having shared the common object, they will be  guilty of an offence punishable under section 302 read with  section 149 IPC.   

For the reasons stated above, we are not in agreement  with the finding of the appellate court in regard to the reasons  given by it as to the acquittal of Daddan Yadav, Ram Pratap  Yadav, hence, the State appeal has to succeed.  For all these reasons, we dismiss Crl. Appeal Nos. 1072- 1073/2003 and allow Crl. Appeal Nos.1074-75/2003 of the  State, set aside the judgment of the High Court and restore that  of the trial court. The respondents in the said appeal, if on bail,  shall surrender to their bail bonds and serve out the sentence  awarded to them by the trial court.    

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12