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CASE NO.: Appeal (crl.)  1183-1185 of 2004

PETITIONER: Radha Mohan Singh @ Lal Saheb & others

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 20/01/2006

BENCH: K.G. BALAKRISHNAN, ARUN KUMAR & G.P. MATHUR

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 1186 OF 2004

Kaushal Kishore Singh & another                 ... Appellants

Versus

State of U.P.                                                   ... Respondent

G.P. Mathur, J.

       These appeals by special leave have been preferred against the  judgment and order dated 9.7.2004 of Allahabad High Court by which  the appeal preferred by the appellants was dismissed and their  conviction under Sections 147, 148 and 323, 324 & 302 all read with  Section 149 IPC as recorded by the learned Sessions Judge and the  sentences awarded thereunder were affirmed.  The appellants were  awarded various terms of imprisonment on different counts including  sentence of imprisonment for life under Section 302 read with Section  149 IPC. 2.      According to the case of the prosecution the incident giving rise  to the present appeals took place in Village Sivpur Deeyar Nai Basti  in the district of Ballia.  The first informant PW-1 Ganesh Singh was  residing in the village while his elder brother Hira Singh (deceased)  was carrying on business in Calcutta.  Five days before the present  incident, which took place on 14.3.1979, accused Radha Mohan Singh  (A-1), Kaushal Kishore Singh (A-5) and some others had assaulted  Udai Narain.  PW-1 Ganesh Singh was a witness of the said incident  and his statement had been recorded under Section 161 Cr.P.C.  The  deceased Hira Singh had come to his village home two days before  the Holi festival which fell on 14.3.1979. A-1 and A-5 met the  deceased and asked him to forbid his younger brother PW-1 Ganesh  Singh from giving evidence against them in the criminal case relating  to the assault made upon Udai Narain.  The deceased, however, told  them that as his brother had seen the incident, he would appear as a  witness and would depose against them.  The accused felt annoyed  and threatened that they would teach him a lesson.  On 14.3.1979,  which was the Holi day, the first informant PW-1 Ganesh Singh and  his brother deceased Hira Singh went to the houses of some people in  the village for the purpose of ’Holi Milan’, as was customary.  By  evening time they were going on the pathway in front of the house of  Nand Kishore, when Radha Mohan Singh (A-1) armed with spear, Tej  Bahadur Singh (A-2) and Kapil Dev Singh (A-3) armed with lathis,  Devender Singh @ Mutuk Singh (A-4) armed with farsa and Kaushal

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Kishore Singh (A-5) armed with knife suddenly appeared there.  A-1  assaulted Hira Singh with the spear and A-4 assaulted him with farsa  and after receiving the injuries he fell down.  When PW-1 Ganesh  Singh tried to save him, A-2 and A-3 assaulted him with lathis.  Two  other persons who were also present there, namely, PW-3 Mohan  Yadav and PW-6 Ram Pyari tried to intervene and save them but they  were also assaulted by A-5 by knife and A-3 by lathi.  The accused  thereafter ran away from the seen of occurrence.  Hira Singh was  carried on a cot to the ’bandh’, which was at the outskirts of the  village and from there he was taken to the district hospital in a tempo  where he was medically examined at 9.00 P.M.  PW-1 Ganesh Singh  was medically examined at  9.50 P.M.  and the remaining two injured  PW-6 Ram Pyari and PW-3 Mohan Yadav were examined at 11.30  A.M. on the next day.  Ganesh Singh lodged a written report of the  incident at 10.30 P.M. on the same night at P.S. Kotwali giving a  complete version of the incident.  3.      After completion of investigation charge sheet was submitted  against all the five accused and the case was committed to the court of  sessions.  The learned Sessions Judge framed charges under Sections  147, 148 and 323, 324 and 302 all read with Section 149 IPC against  the accused persons.  The accused pleaded not guilty and came to be  tried.  In order to establish its case prosecution examined five eye  witnesses, namely, PW-1 Ganesh Singh, PW-3 Mohan Yadav, PW-4  Ramji Singh, PW-5 Nand Kishore and PW-6 Ram Pyari.  PW-1  Ganesh Singh, who is the first informant and had received injuries in  the incident, gave complete version of the incident in his deposition in  Court.  His testimony was fully corroborated by PW-4 Ramji Singh,  who was also named as an eye witness of the incident in the FIR.   PW-3 Mohan Yadav, an injured witness, supported the prosecution  case in his examination-in-chief and in cross-examination.  As his  cross-examination could not be completed it was continued on the  next day when he stated that on account of darkness he could not  identify anyone.  On the request of the learned State counsel, he was  permitted to be cross examined.  PW-5 Nand Kishore and PW-6 Ram  Pyari did not support the case of the prosecution and they were  declared hostile. 4.      The learned Sessions Judge, after thorough examination of the  evidence on record, held that the prosecution had succeeded in  establishing the charges leveled against all the accused and  accordingly convicted them under Sections 147, 148 and 323, 324 and  302 all read with Section 149 IPC and imposed sentence of various  terms of imprisonment including life imprisonment under Section 302  read with Section 149 IPC.  The appeal preferred by the appellants  was heard by a Division Bench consisting of Hon’ble S.K. Agarwal  and Hon’ble K.K. Misra, JJ.  There was a difference of opinion  between the two learned Judges.  Hon’ble S.K. Agarwal, J. was of the  opinion that the appeal should be allowed and the conviction of the  appellants and the sentences imposed thereunder were liable to be set  aside.  Hon’ble K.K. Misra, J. was of the opinion that the appeal was  liable to be dismissed and the conviction of the appellants and the  sentences imposed by the learned Sessions Judge deserved to be  upheld.  In view of difference of opinion the appeal was placed for  hearing before Hon’ble U.S. Tripathi J., who came to the conclusion  that the appeal deserved to be dismissed.  In accordance with the  opinion of the learned third Judge the appeal was dismissed and the  conviction and sentences imposed upon the appellants by the learned  Sessions Judge were affirmed by the High Court. 5.      During the pendency of the appeal in this Court Tej Bahadur  Singh (A-2) died and his appeal has accordingly abated.  6.      Dr. J.N. Dubey, learned senior counsel for A-4 and A-5, has  submitted that the incident had taken place in darkness and the  assailants could not be identified or seen by the prosecution witnesses  and, therefore, the conviction of the appellants cannot be sustained.   Learned counsel has submitted that PW-3 Mohan Yadav, who had  received injuries in the incident, had admitted the said fact in his

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cross-examination and two other eye witnesses, viz., PW-5 Nand  Kishore and PW-6 Ram Pyari had also not supported the prosecution  case in their examination-in-chief itself and in such a situation no  reliance could be placed on the testimony of the remaining eye  witnesses to uphold the conviction of the appellants.  7.      It is well settled that while hearing an appeal under Article 136  of the Constitution this Court will normally not enter into reappraisal  or the review of evidence unless the trial court or the High Court is  shown to have committed an error of law or procedure and the  conclusions arrived at are perverse.  The Court may interfere where on  proved facts wrong inference of law is shown to have been drawn (see  Duli Chand vs. Delhi Administration (1975) 4 SCC 649, Mst. Dalbir  Kaur and others vs. State of Punjab (1976) 4 SCC 158, Ramanbhai  Naranbhai Patel and others vs. State of Gujarat (2000) 1 SCC 358 and  Chandra Bihari Gautam and others vs. State of Bihar JT 2002 (4) SC  62).    Though the legal position is quite clear still we have gone  through the evidence on record in order to examine whether the  findings recorded against the appellants suffer from any infirmity.   The testimony of PW-1 Ganesh Singh, who is an injured witness, and  PW-4 Ramji Singh clearly establishes the guilt of the accused.   According to the case of the prosecution the incident took place  shortly after sunset.  The eye witnesses have deposed that after the  incident the deceased Hira Singh was carried on a cot to the ’bandh’,  which is on the outskirts of the village.  As no conveyance was  available, the first informant had to wait for quite some time and  thereafter a tempo was arranged on which the deceased was taken to  the district hospital where he was medically examined by PW-2 Dr.  Siddiqui at 9.00 P.M.  It has come in evidence that the village is at a  distance of six miles from police station Kotwali, Ballia.  The non- availability of any conveyance is quite natural as it was Holi festival.  Even PW-3 Mohan Yadav fully supported the prosecution case in his  examination-in-chief.  In his cross-examination, which was recorded  on the same date, he gave details of the weapons being carried by each  of the accused and also the specific role played by them in assaulting  the deceased and other injured persons.  As his cross-examination  could not be completed it was resumed on the next day and then he  gave a statement that he could not see the incident on account of  darkness.  His testimony has been carefully examined by the learned  Sessions Judge and also by two learned Judges of the High Court  (Hon’ble K.K. Misra,J. and Hon’ble U.S. Tripathi, J.) and they have  held that the witness, on account of pressure exerted upon him by the  accused, tried to support them in his cross-examination on the next  day.  It has been further held that the statement of the witness, as  recorded on the first day including his cross-examination, was truthful  and reliable. It is well settled that the evidence of a prosecution  witness cannot be rejected in toto merely because the prosecution  chose to treat him as hostile and cross-examined him.  The evidence  of such witness cannot be treated as effaced or washed off the record  altogether but the same can be accepted to the extent his version is  found to be dependable on a careful scrutiny thereof.   (See Bhagwan  Singh v. State of Haryana AIR 1976 SC 202, Rabinder Kumar Dey v.  State of Orissa AIR 1977 SC 170, Syed Akbar v. State of Karnataka  AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya  Pradesh AIR 1991 SC 1853). The evidence on record clearly shows  that the FIR of the incident was promptly lodged and the testimony of  PW-1 Ganesh Singh, PW-4 Ramji Singh and also PW-3 Mohan  Yadav finds complete corroboration from the medical evidence on  record.  We find absolutely no reason to take a different view.   8.      Dr. J.N. Dubey, learned senior counsel for A-4 and A-5 has  submitted that there was a difference of opinion between the two  learned judges who had heard the appeal and Hon. S.K. Agarwal, J.  was of the opinion that the prosecution had failed to establish the guilt  of the accused and they were entitled to be acquitted. In these  circumstances, the learned third Judge, to whom the appeal had been  referred, should have leaned in favour of the view taken by Hon. S.K.

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Agarwal, J. as a rule of prudence and should not have differed from  the findings recorded by His Lordship unless the same were perverse  or there were strong and weighty reasons for doing so.  We are unable  to accept the contention raised.   Section 392 Cr.P.C. lays down that  when an appeal under Chapter XXIX is heard by a High Court before  a Bench of judges and they are divided in opinion, the appeal with  their opinions, shall be laid before another Judge of that Court, and  that judge, after such hearing as he thinks fit, shall deliver his opinion  and the judgment and order shall follow that opinion. In Babu & Ors.  v. The State of Uttar Pradesh AIR 1965 SC 1467, Hidayatullah, J. (as  His Lordship then was) speaking for the Constitution Bench held that  Section 429 Code of Criminal Procedure, 1908 (which is same as  Section 392 Code of Criminal Procedure, 1973) contemplates that it is  for the third judge to decide on what point he shall hear arguments, if  any, and that postulates that he is completely free in resolving the  difference as he thinks fit.   In Hethubha v. State of Gujarat AIR 1970  SC 1266, it was held that the whole case is to be dealt with by the  third judge and not merely the difference between the two judges  comprising the Court of appeal and the third judge was free to resolve  the differences as he thought fit.  In State of Andhra Pradesh v. P.T.  Appaiah AIR 1981 SC 365, there was a difference of opinion between  two learned judges of the High Court on the nature of the offence  committed by the accused.   One learned judge held that the accused  did not intend to cause death and consequently the offence committed  by him was culpable homicide not amounting to murder punishable  under Section 304 Part I IPC.   The other learned judge held that the  offence committed by the accused fell under clause Thirdly of Section  300 IPC and the accused was liable to be convicted under Section 302  IPC.   The third learned judge, after examination of entire evidence on  record, came to the conclusion that the same was doubtful and  suspicious in character and accordingly acquitted the accused.   In  appeal filed by the State, it was contended before this Court that it was  not open to the learned third judge to have acquitted the accused when  both the learned Judges who heard the appeal initially were of  unanimous opinion that the accused was guilty of having committed  the offence and they had merely differed on the nature of offence  committed by the accused.  It was held that having regard to the  language used in Section 429 Code of Criminal Procedure, 1908, the  third judge to whom the case was referred did not over step the limits  of his jurisdiction in acquitting the accused merely because there was  concurrent finding of both the judges composing the Division Bench  that the accused was guilty of some offence or that the difference  between the two judges of the Division Bench was confined to the  nature of the offence only. 9.      A similar contention that the learned third judge should as a  rule of prudence or on the principle of judicial etiquette lean in favour  of the view taken by the learned judge who had recorded the opinion  for acquittal of the accused was expressly repelled by a three- Judge  Bench of this Court in Dharam Singh v. State of Uttar Pradesh 1964  (1) Crl.LJ 78 and it was observed as under : "All that S. 429 says is that the opinion of the two judges who  disagree shall be laid before another judge who, after giving  such hearing, if any, as he thinks fit, shall deliver his opinion  and the judgment or order shall be in accordance with such  opinion.  Now it is obvious that when the opinions of the two  judges are placed before a third judge he would consider those  two opinions and give his own opinion and the judgment has to  follow the opinion of the third judge.  Consequently on that  opinion is based the judgment of the court.   For all  practical  purposes the third judge must consider the opinions of his two  colleagues and then give his own opinion but to equate the  requirements with appeals against acquittals is not justified by  provisions of S. 429 or by principle of precedent.   

       There is no warrant for the contention that the opinion of

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the judge acquitting the accused has to be treated in the same  manner as the judgment of acquittal by the trial court and that  the judgment should show that all the findings and reasons  given in the opinion of the acquitting judge are mentioned in  the opinion of the third judge and indicate the reasons for  disagreeing with the opinion of the acquitting judge."    

Similar view has been expressed in Tanviben Pankajkumar Divetia v.  State of Gujarat 1997 (7) SCC 156 that the third judge is under no  obligation to accept the view of one of the judges holding in favour of  acquittal of the accused either as a rule of prudence or on the score of  judicial etiquette.  This being the settled legal position it is not  possible to accept the contention raised by the learned counsel for the  appellant.  10.     Shri R.K. Jain,  learned senior counsel appearing for A-1 and  A-3 has submitted that in the inquest report there was no mention of  the names of the accused or the weapons used by them in commission  of the crime and the nature of the injury sustained by the deceased had  also not been described and there was a general recital that the death  had occurred on account of injuries caused.  Emphasis has also been  laid on the fact that the time and date of lodging the FIR has been  mentioned as "10 p.m. on 15.3.79", though the prosecution has come  out with a case that the FIR had been lodged at "10 p.m. on 14.3.79".   Learned counsel has thus submitted that these features show that the  FIR had in fact not been lodged by the time the inquest was held and  the same has been anti-timed.  In our opinion the date of lodging the  report has been wrongly written in the inquest report as "15.3.79  samai 10 baje raat (15.3.79 at 10 p.m.)".   At the top of the inquest  report the crime number and the sections (Crime No.193/79 under  Section 147/148/149/323/302 IPC) have been mentioned.   The time  of commencement of the inquest is written as "7 a.m. on 15.3.79" and  the time of conclusion of the inquest is written as "8.30 a.m. on  15.3.79".   If the inquest had been concluded by 8.30 a.m. on 15.3.79,  there was no occasion for writing the time of lodging of the FIR as  "10 p.m. on 15.3.79" as the person preparing the inquest report could  not have written anything about an event which was yet to take place.  We have not the slightest doubt that the investigating officer holding  the inquest mentioned the date of lodging of the FIR as "15.3.79"  instead of "14.3.79" inadvertently or by mistake.  That apart, it is  important to note that during the course of cross-examination PW.7  Ram Shabad Singh, SI, who held the inquest on the body of the  deceased in the hospital, his attention was not drawn to the aforesaid  fact that the date and time of lodging of the FIR was mentioned as "10  p.m. on 15.3.79".  If the said discrepancy had been pointed out to him,  he could have given an explanation for the same.   No argument on  the basis of an alleged discrepancy, overwriting, omission or  contradiction in the inquest report can be entertained unless the  attention of the author thereof is drawn to the said fact and he is given  an opportunity to explain when he is examined as a witness in Court.   Therefore, in the present case it is impermissible to draw any  inference against the prosecution on the ground that the date of  lodging the FIR was wrongly mentioned in the FIR.  Regarding the  non-mention of exact nature of injuries, it may be mentioned here that  the deceased Hira Singh had been taken to the hospital where he was  given medical aid.  The inquest report mentions that there were two  injuries which had been bandaged after applying some red colour  medicine with cotton. 11.      Learned counsel has also submitted that as the names of the  accused or the weapons carried by them and the names of the eye  witnesses had not been mentioned in the inquest report, it clearly  showed that by the time the inquest report had been prepared, viz.,  8.30 a.m. on 15.3.79, the prosecution was not sure about its case and  the FIR had not come into existence.   In support of this contention  strong reliance has been placed on some observations made by a two- Judge Bench of this Court in Meharaj Singh v. State of U.P. 1994(5)

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SCC 188 in para 11 of the reports which read as under  : "..................................  It deserves to be noticed that in the  inquest report even the name of the accused has not been  mentioned.   It also does not contain the names of the eye- witnesses or the gist of the statement of the eye-witnesses.  It  does not reveal as to how many shots had been fired or how  many weapons had been used.   The inquest report is not signed  by any of the eye witnesses, although the investigating officer  has categorically asserted that Kamlesh and Shiv Charan were  present at the place of occurrence when he visited and he  recorded their statements.  If he had actually recorded their  statements, there is no reason why the details which we have  found missing from the inquest report should not have been  there. ....................................................."

and also the following observations made in para 12 :

"..................................... Even though the inquest report,  prepared under Section 174 Cr.P.C. is aimed at serving a  statutory function, to lend credence to the prosecution case, the  details of the FIR and the gist of statements recorded during  inquest proceedings get reflected in the report.  The absence of  those details is indicative of the fact that the prosecution story  was still in an embryo state and had not been given any shape  and that the FIR came to be recorded later on after due  deliberations and consultations and was then ante-timed to give  it the colour of a promptly lodged FIR.  In our opinion, on  account of the infirmities as noticed above, the FIR has lost its  value and authenticity and it appears to us that the same has  been ante-timed and had not been recorded till the inquest  proceedings were over at the spot by PW.8."

12.     The provision for holding of inquest is contained in Section 174  Cr.P.C. and the heading of the Section is Police to enquire and  report on suicide etc. Sub-sections (1) and (2) thereof read as under : 174.  Police  to enquire and report on suicide, etc. (1)  When  the officer in charge of a police station or some other police  officer specially empowered by the State Government in that  behalf receives information that a person has committed  suicide, or has been killed by another or by an animal or by  machinery or by an accident, or has died under circumstances  raising a reasonable suspicion that some other person has  committed an offence, he shall immediately give intimation  thereof  to  the  nearest  Executive  Magistrate  empowered to  hold inquests, and, unless otherwise directed by any rule  prescribed by the State Government, or by any general or  special order of the District or Sub-divisional Magistrate, shall  proceed to the place where  the body of such deceased person  is, and there, in the presence of two or more respectable  inhabitants of the neighbourhood, shall make an investigation,  and draw up a report of the apparent cause of death, describing  such  wounds, fractures, bruises, and other marks of injury as  may  be found  on the body, and stating in what manner, or by  what  weapon  or instrument (if any), such marks appear to  have been inflicted.   (2)  The report shall be signed by such police officer and  other  persons,  or  by  so  many of them as concur  therein,  and  shall   be forthwith  forwarded to the District Magistrate or the  Sub- divisional Magistrate.                       The language of the aforesaid statutory provision is plain and  simple and there is no ambiguity therein. An investigation under

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Section 174 is limited in scope and is confined to the ascertainment of  the apparent cause of death.   It is concerned with discovering whether  in a given case the death was accidental, suicidal or homicidal or  caused by animal and in what manner or by what  weapon  or  instrument the injuries on the body appear to have been inflicted.  It is  for this limited purpose that persons acquainted with the facts of the  case are summoned and examined under Section 175.   The details of  the overt acts are not necessary to be recorded in the inquest report.    The question regarding the details as to how the deceased was  assaulted or who assaulted him or under what circumstances he was  assaulted or who are the witnesses of the assault is foreign to the  ambit and scope of proceedings under Section 174.  Neither in  practice nor in law it is necessary for the person holding the inquest to  mention all these details.

13.        In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was  held that the proceedings under Section 174 have a very limited scope.   The object of the proceedings is merely to ascertain whether a person  has died under suspicious circumstances or an unnatural death and if  so what is the apparent cause of the death.   The question regarding  the details as to how the deceased was assaulted or who assaulted him  or under what circumstances he was assaulted is foreign to the ambit  and scope of the proceedings under S. 174.  Neither in practice nor in  law was it necessary for the police to mention those details in the  inquest report.  It is, therefore, not necessary to enter all the details of  the overt acts in the inquest report.  Their omission is not sufficient to  put the prosecution out of Court.  In Shakila Khader v. Nausher Gama  AIR 1975 SC 1324 the contention raised that non-mention of a  person’s name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest  under Section 174 Cr.P.C. is concerned with establishing the cause of  death and only evidence necessary to establish it need be brought out.   The same view was taken in Eqbal Baig v. State of Andhra Pradesh  AIR 1987 SC 923 that the non-mention of name of an eye-witness in  the inquest report could not be a ground to reject his testimony.    Similarly, the absence of the name of the accused in the inquest report  cannot lead to an inference that he was not present at the time of  commission of the offence as the inquest report is not the statement of  a person wherein all the names (accused and also the eye-witnesses)  ought to have been mentioned.   The view taken in Podda Narayana v.  State of A.P. (supra) was approved by a three-Judge Bench in Khujji  @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853  and it was held that the testimony of an eye-witness could not be  discarded on the ground that their names did not figure in the inquest  report prepared at the earliest point of time.  The nature and purpose  of inquest held under Section 174 Cr.P.C. was also explained in Amar  Singh v. Balwinder Singh 2003 (2) SCC 518.  In the said case the  High Court had observed that the fact that the details about the  occurrence were not mentioned in the inquest report showed that the  investigating officer was not sure of the facts when the inquest report  was prepared and the said feature of the case carried weight in favour  of the accused.   After noticing the language used in Section 174  Cr.P.C. and earlier decisions of this Court it was ruled that the High  Court was clearly in error in observing as aforesaid or drawing any  inference against the prosecution. Thus, it is well settled by a catena  of decisions of this Court that the purpose of holding an inquest is  very limited, viz., to ascertain as to whether a person has committed  suicide or has been killed by another or by an animal or by machinery  or by an accident or has died under circumstances raising a reasonable  suspicion that some other person has committed an offence.   There is  absolutely no requirement in law of mentioning the details of the FIR,  names of the accused or the names of the eye-witnesses or the gist of  their statement nor it is required to be signed by any eye-witness.   In  Meharaj Singh v. State of U.P. (supra) the language used by the  legislature in Section 174 Cr.P.C. was not taken note of nor the earlier

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decisions of this Court were referred to and some sweeping  observations have been made which are not supported by the statutory  provision.   We are, therefore, of the opinion that the observations  made in paras 11 and 12 of the reports do not represent the correct  statement of law and they are hereby over-ruled.   The challenge laid  to the prosecution case by Shri Jain on the basis of the alleged  infirmity or omission in the inquest report has, therefore, no substance  and cannot be accepted.   14.     Learned counsel for the appellants have lastly submitted that  the appellants had no motive to commit the murder of Hira Singh  deceased as it was PW.1 Ganesh Singh who was an eye-witness to the  assault made by A-1 and A-5 upon Udai Narain five days earlier and  they wanted him (PW.1) not to give evidence against them in the said  case.   So the real animosity was with Ganesh Singh.  The deceased  Hira Singh was no doubt the elder brother of Ganesh Singh but he was  living away from the village and was carrying on business in Calcutta.   He had come to his village on the occasion of Holi festival and it was  then that A-1 and some other co-accused had asked him to forbid his  brother (PW.1) not to give evidence to which he had given a reply that  being a witness to the incident he would give evidence in Court.   Thus, the only act attributed to the deceased was his refusal to  persuade his younger brother not to give evidence against A-1 and A- 5 regarding the incident of assault made upon Udai Narain.  There  was no guarantee that Ganesh Singh would not have given evidence  against them even after Hira Singh had dissuaded him from doing so  more so when he was living away from the village.  Learned counsel  has further submitted that so far as A-2, A-3 and A-5 are concerned,  they did not cause any injury to the deceased and the second injury on  the body of the deceased was a small incised wound which was only  skin deep and it was a superficial injury.   It has thus been urged that  the conviction of the remaining accused for the offence under Section  302 with the aid of Section 149 IPC, other than the one who caused  the stab wound on the chest which proved fatal, is illegal and deserves  to be set aside. 15.     In this connection it is necessary to refer to the injuries caused  to the deceased and the injured.  PW.10 Dr.Prem Prakash, Medical  Officer, District Hospital, Ballia performed post-mortem examination  on the body of the deceased Hira Singh and found the following ante- mortem injuries on his person : 1.      Stitched wound 3 cm long on the left side of chest 1 cm  below the clavicle and 5 cm left to the mid line.  On the  removal of stitches, it is found that there is a stab wound  3 cm x 2 cm x chest cavity deep on the left side of chest 1  cm below the clavicle and 5 cm left to the mid line.   Margins of wound are well defined.  Wound is directed  downwards and towards the right side.

2.      Incised wound 0.5 cm x 0.2 cm x skin deep on the left  side of chest in mid axillary line 16 cm behind the axilla  and 24 cm left to the mid line.                      The internal examination showed that both the pleurae had  punctured.   The right lung had a punctured wound 1.5 cm x 1 cm x  large tissue deep and the left lung had a punctured wound 2 cm x 1 cm  x through and through in upper lobe.  The doctor has opined that  injury no.1 had been caused by a sharp pointed weapon whose both  the edges were sharp and the blade of the weapon would have been  about 3 cm wide.  The weapon had punctured up to the depth of about  7-8 cms. and the injury was not possible by a weapon whose blade  was more than 3 cm in width.  The doctor has further opined that  injury no.1 was sufficient in the ordinary course of nature to cause  death.   No internal damage had been caused by the second injury as it  was skin deep only.  PW-1 Ganesh Singh was medically examined in  the Distt. hospital at 9.50 P.M. on 14.3.1979 and he was found to have  sustained a lacerated wound on the right parietal region, a contusion  with swelling on the right parietal region besides two contusions \026 one

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each on the right shoulder and the left knee joint.  Two other persons,  who received injuries, namely PW-6 Ram Pyari and PW-3 Mohan  Yadav were medically examined in the same hospital on the next day  at 11.30 A.M.  Ram Pyari was found to have sustained an abrasion on  the head and swelling in the left hand, while Mohan Yadav had  sustained two lacerated wounds on the fingers of left hand.  The  injuries of all the three injured were simple in nature.

16.     The medical evidence shows that the deceased had died on  account of stab wound which had been inflicted on the chest (injury  no.1).   Two accused, namely, Radha Mohan Singh (A-1) who was  armed with spear and Devender Singh @ Mutuk Singh (A-4) who was  armed with  pharsa are alleged to have assaulted the deceased.  Pharsa  is a sharp weapon having a long blade while spear is a sharp pointed  weapon.   It is, therefore, obvious that injury no.1, which is a stab  wound, was caused by Radha Mohan Singh (A-1).   The pharsa does  not appear to have been wielded with any amount of force or with an  intention to cause injury as the incised wound is a very small and  superficial one being only 0.5 cm x 0.2 cm x skin deep in dimension.   The possibility that the deceased received this injury when he fell  down on the pathway cannot be entirely ruled out.  The remaining  accused are not alleged to have assaulted the deceased but are alleged  to have assaulted Ganesh Singh, Ram Piari and Mohan and the  injuries on their person were found to be simple in nature.   Having  regard to these facts the nature of offence committed by the accused  has to be determined.   17.     So far as A-1 is concerned, his case is fully covered by clause  Thirdly of Section 300 IPC as it can be reasonably inferred that he  intended to cause bodily injury to the deceased by aiming the blow on  the left side of the chest and the injury was found to be sufficient in  the ordinary course of nature to cause death.   Therefore, he is clearly  liable to be convicted under Section 302 IPC. Learned Sessions Judge  had framed charge under Section 302 read with Section 149 IPC  against all the accused including A-1.   In view of Section 464 Cr.P.C.  it is possible for the appellate or revisional court to convict an accused  for an offence for which no charge was framed unless the Court is of  the opinion that the failure of justice would in fact occasion.  In order  to judge whether a failure of justice has been occasioned it will be  relevant to examine whether the accused was aware of the basic  ingredients of the offence for which he is being convicted and whether  the main facts sought to be established against him were explained to  him clearly and whether he got a fair chance to defend himself.  In  Dalbir Singh v. State of U.P. 2004 (5) SCC 334, this question has  been examined by a three Judge Bench to which one of us (G.P.  Mathur,J.) was a party and aforesaid principle has been laid down.     In the present case the witnesses examined on behalf of the  prosecution, whose testimony has been relied upon, clearly deposed  that A-1 was armed with a spear and he assaulted the deceased with  the said weapon.   In his examination under Section 313 Cr.P.C. a  specific question in this regard was put to A-1.   Therefore, A-1 was  made aware of the basic ingredients of the offence and the main facts  sought to be established against him were explained to him.   Thus, he  can be convicted under Section 302 IPC for having committed the  murder of Hira Singh.            18.     The question arises whether the conviction of the remaining  accused under Section 302 read with Section 149 IPC is legally  sustainable.  The scope of Section 149 I.P.C. was explained in Mizaji  v. State of U.P. AIR 1959 SC 572, which decision has been followed  in many later cases, in the following manner :  "The first part of section 149 IPC means that the offence  committed in prosecution of the common object must be one  which is committed with a view to accomplish the common  object.   It is not necessary that there should be a preconcert in  the sense of a meeting of the members of the unlawful assembly

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as to the common object; it is enough if it is adopted by all the  members and is shared by all of them.  In order that the case  may fall under the first part, the offence committed must be  connected immediately with the common object of the unlawful  assembly of which the accused were members.   Even if the  offence committed is not in direct prosecution of the common  object of the assembly, it may yet fall under Section 149 if it  can be held that the offence was such as the members knew was  likely to be committed.   The expression ’know’ does not mean  a mere possibility, such as might or might not happen.   Though  it can be said that when an offence is committed in prosecution  of the common object, it would generally be an offence which  the members of the unlawful assembly knew was likely to be  committed in prosecution of the common object that does not  make the converse proposition true; there may be cases which  would come within the second part but not within the first.    The distinction between the two parts of Section 149 Indian  Penal Code cannot be ignored or obliterated.   In every case it  would be an issue to be determined whether the offence  committed falls within the first part of Section 149 as explained  above or it was an offence such as the members of the assembly  knew to be likely to be committed in prosecution of the  common object and falls within the second part."

19.      In Alauddin Mian v. State of Bihar AIR 1989 SC 1456 the  import of Section 149 IPC was explained as under : "....... This section creates a specific offence and makes every  member of the unlawful assembly liable for the offence or  offences committed in the course of the occurrence provided  the same was/were committed in prosecution of the common  object or was/were such as the members of that assembly knew  to be likely to be committed.   Since this section imposes a  constructive penal liability, it must be safely construed as it  seeks to punish members of an unlawful assembly for the  offence or offences committed by their associate or associates  in carrying out the common object of the assembly.   What is  important in each case is to find out if the offence was  committed to accomplish the common object of the assembly or  was one which the members knew to be likely to be committed.    There must be a nexus between the common object and the  offence committed and if it is found that the same was  committed to accomplish the common object every member of  the assembly will become liable for the same.  Therefore, any  offence committed by a member of an unlawful assembly in  prosecution of anyone or more of the five objects mentioned in  Section 141 will render his companions constituting the  unlawful assembly liable for that offence with the aid of  Section 149, it is not the intention of the legislature in enacting  Section 149 to render every member of an unlawful assembly  liable to punishment for every offence committed by one or  more of its members.   In order to invoke Section 149 it must be  shown that the incriminating act was done to accomplish the  common object of the unlawful assembly.   Even if an act  incidental to the common object is committed to accomplish the  common object of the unlawful assembly, it must be within the  knowledge of other members as one likely to be committed in  prosecution of the common object.   If the members of the  assembly knew or were aware of the likelihood of a particular  offence being committed in prosecution of the common object,  they would be liable for the same under Section 149."          20.      As mentioned earlier there was no such motive which could  have impelled the accused persons to commit the murder of Hira  Singh as he had merely declined to ask or persuade his younger  brother PW.1  Ganesh Singh from giving evidence against A-1 and  

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A-5 in the case relating to assault made upon Udai Narain.   The  statement of Ganesh Singh had already been recorded under Section  161 Cr.P.C.   The deceased was not himself a witness in the said case.    A-2, A-3 and A-5 did not cause any injury to the deceased.  The  incised wound on the body of deceased is of very small dimension and  is only skin deep, which shows that A-4 did not wield the farsa with  any intention or object to cause injury to deceased.  In view of these  features of the case, it cannot be held that the common object of the  unlawful assembly was to commit the murder of the deceased or that  the members of the unlawful assembly knew that murder is likely to  be committed in prosecution of the common object of the assembly.    However, as members of the unlawful assembly carried deadly  weapons, the knowledge that grievous injury may be caused can  certainly be attributed to them.   We are, therefore, of the opinion that  conviction of A-3, A-4 and A-5 under Section 302 read with Section  149 IPC deserves to be set aside and instead they are liable to be  convicted under Section 326 read with Section 149 IPC for which a  sentence of 7 years RI will meet the ends of justice.

21.       In the result, the appeal filed by Radha Mohan Singh @ Lal  Saheb is dismissed with the modification that his conviction is altered  from Section 302 read with Section 149 IPC to that under Section 302  IPC.   He is sentenced to imprisonment for life under the said Section.    The appeals filed by Kapil Deo Singh, Devendra Singh alias Mutuk  Singh and Kaushal Kishore Singh are partly allowed.  Their  conviction under Section 302 read with Section 149 IPC and the  sentence of imprisonment for life imposed thereunder are set aside.    They are instead convicted under Section 326 read with Section 149  IPC and for the said offence they are sentenced to undergo 7 years RI.    The conviction of all the appellants for the remaining offences as  recorded by the learned Sessions Judge and the sentences imposed  thereunder are affirmed.  All the sentences imposed upon the  appellants shall run concurrently. The appellants shall surrender  forthwith to undergo the sentences imposed upon them.    The Chief  Judicial Magistrate, Ballia (U.P.) is directed to take immediate steps  to take the appellants into custody.   After the appellants have been  taken into custody, their sureties and bail bonds shall stand  discharged.