20 August 2004
Supreme Court
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STATE OF U.P. Vs KISHAN CHAND .

Bench: B.N. AGRAWAL,H.K.SEMA
Case number: Crl.A. No.-000029-000029 / 1999
Diary number: 12695 / 1998
Advocates: Vs KAMAKSHI S. MEHLWAL


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CASE NO.: Appeal (crl.)  29 of 1999

PETITIONER: State of U.P.

RESPONDENT: Kishan Chand & Ors.

DATE OF JUDGMENT: 20/08/2004

BENCH: B.N. AGRAWAL & H.K. SEMA  

JUDGMENT: J U D G M E N T

SEMA,J.

       Nine accused were put on trial before the Addl. Sessions  Judge.  During the pendency of the trial, one accused died, therefore,  eight accused have faced the trial.  At the end of the trial, the trial  court acquitted accused nos. 6, 7, and 8 of all the charges. No appeal  was preferred by the State against their acquittal.    The five accused  (respondents herein) namely Kishan Chand, Rama Shankar, Ram  Chandra, Gauri Shankar and Chhotey Lal were convicted under  various Sections of Law as follows:-

Accused Kishan Chand was sentenced to undergo life  imprisonment under Sections 302/34 and 302/149 I.P.C. Six months  R.I. under Section 323 I.P.C. One years R.I. under Section 148 I.P.C.  and 5 years R.I. under Section 307 read with Section 149 I.P.C. and  5 years R.I.  

Accused Rama Shankar was sentenced to undergo life  imprisonment under Section 302 I.P.C. One year R.I. under Section  148  I.P.C.  5 years R.I. under Section 307/149 I.P.C. and 6 months  R.I. under Section 323 read with 34 I.P.C.  

Accused Ram Chandra son of Bala Sukh and Gauri Shanker  were sentenced to undergo life imprisonment under Section 302 read  with Section 34 I.P.C. and Section 302 read with Section 149 I.P.C.   Six months R.I. under Section 323/34 I.P.C.  One year R.I. under  Section 149 and 5 years R.I. under Section 307 read with Section  149 I.P.C.         Accused Chhotey Lal was sentenced to undergo one year R.I.  under Section 148 I.P.C.  Life imprisonment under Section 302/149  I.P.C. and five years R.I. under Section 307/149 I.P.C. The  sentences, however, were directed to run concurrently.   

On appeal, being preferred by the accused persons, the High  Court by the impugned order acquitted them of all the charges  levelled against them.  Hence, this appeal by special leave, has been  preferred by the State of U.P.                     Briefly stated the facts are as follows:-

       The accused and the complainants are all residents of Harish  Purwa, P.S. Sachendi District Kanpur.  On 3.8.1974 at about 5.30  p.m. the accused formed an unlawful assembly in the dharmashala of  Shridhar in village Hariram ka Purwa and in furtherance of common

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object murdered Sheo Ram and Mool Chand and caused injuries to  PW1- Shridhar and PW8 - Mizazi Lal.  The first information report  lodged by PW3-Ram Swarup disclosed that on the fateful day at  about 5.30 p.m. Chhotey Lal (PW2) son of Tulsi was singing on the  eve of Raksha Bandhan in the dharmashala of Shridhar.  Ashok  Chand,  Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand his  son Ramoo and others were also there.  In the meantime, accused  Kishan Chand son of Hem Raj, Rama Shankar son of Chhotey Lal,  Ram Chandra son of Sada Sukh,  Gauri Shankar son of Hem Raj and   Chhotey Lal armed with gun, country made pistols and hockey-sticks  reached there.  Immediately thereafter, accused Kishan Chand gave  a hockey blow to Shridhar.  Thereupon, the deceased Mool Chand  asked him not to quarrel on the festival day.  Accused Rama Shankar  fired at him. Thereafter, accused Kishan Chand fired at Shridhar who  fell down after sustaining injuries.  Accused Ram Chandra was at the  roof and instigated the accused to kill the informant and others. At his  instigation accused Chottey Lal, Kishan Chand, Rama Shankar,  Gauri Shankar and Ram Chandra became more furious and started  firing indiscriminately from their gun and country made pistols.  In the  process, Shridhar (PW-1) and Mizazi Lal (PW-8) had also received  injuries.  In the said incident, Sheo Ram and Mool Chand died on the  spot.            In course of the trial, the prosecution relied upon the testimony  of eyewitnesses PW1-Shridhar, PW2-Chottey Lal, PW3-Ram Swarup  and PW8-Mizazi Lal.   Counsel for the State, contended that the Trial  Court, was justified in placing reliance on the eye witnesses account  of PWs 1, 2, 3 and 8 and the High Court was clearly in error in  disbelieving the eyewitnesses account of prosecution witnesses  resulting in acquittal of accused on the basis of perverse finding.          

       Per contra counsel for the accused-respondents would contend  that the so-called eyewitnesses are interested witnesses.  PW2- Chottey Lal, PW3-Ram Swarup, being the brothers of the deceased,  their testimony is not reliable and the High Court was justified in  disbelieving their testimony.   He would further contend that there was  an enmity between the parties and the witnesses deposed falsely  against the accused because of animosity.  Counsels on both the  sides have taken pain in taking us through the entire judgment of the  High Court.  To say the least, the High Court did not assign any  reason much less ostensible reason for discarding the testimony of  the eyewitnesses account.            The submission of the counsel for the accused that the  testimony of PWs cannot be acted upon, as they are the interested  witnesses is to be noted only to be rejected.  By now, it is well-settled  principle of law that animosity is a double-edged sword.  It cuts both   sides. It could be a ground for false implication and it could also be a  ground for assault.  Just because the witnesses are related to the  deceased would be no ground to discard their testimony, if otherwise  their testimony inspires confidence. In the given facts of the present  case they are but natural witnesses.  We have no reason to  disbelieve their testimony.   Similarly, being the relatives, it would be  their endeavour to see that the real culprits are punished and  normally they would not implicate wrong persons to the crime, so as  to allow the real culprits to escape unpunished.            That apart PW1-Shridhar and PW-8 Mizazi Lal are both  independent and injured witnesses.  The testimony of an injured  witness has its own relevance and efficacy.   The fact that the  witnesses sustained injuries at the time and place of occurrence  lends support to their testimony that the witnesses were present  during the occurrence.  The injured witnesses were subjected to  lengthy cross-examination but nothing could be elicited to discredit  their testimony.

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       Counsel for the accused contended that the prosecution fails to  establish which of the accused caused fatal injuries.  This submission  is misconceived.   The convictions were recorded under Sections 302  with the aid of Section 34 and under Section 302 with the aid of  Section 149.  It is a well established principle of law that when the  conviction is recorded with the aid of Section 149, relevant question  to be examined by the court is whether the accused was a member of  unlawful assembly and not whether he actually took active part in the  crime or not.  The Constitutional Bench of this Court in Masalti   Vs.   State of U.P., 1964 (8) S.C.R. 133 at page 148 SCR held:-            "What has to be proved against a person who is  alleged to be a member of an unlawful assembly is that  he was one of the persons constituting the assembly and  he entertained along with the other members of the  assembly the common object as defined by s.141, I.P.C.   Section 142 provides that whoever, being aware of facts  which render any assembly an unlawful assembly,  intentionally joins that assembly, or continues in it, is said  to be a member of an unlawful assembly.  In other words,  an assembly of five or more persons actuated by, and  entertaining one or more of the common objects specified  by the five clauses of s. 141, is an unlawful assembly.   The crucial question to determine in such a case is  whether the assembly consisted of five or more persons  and whether the said persons entertained one or more of  the common objects as specified by s.141."

Further at page 149 SCR it is said:-   "In fact, s.149 makes it clear that if an offence is  committed by any member of an unlawful assembly in  prosecution of the common object of that assembly, or  such as the members of that assembly knew to be likely  to be committed in prosecution of that object, every  person who, at the time of the committing of that offence,  is a member of the same assembly, is guilty of that  offence; and that emphatically brings out the principle that  the punishment prescribed by s.149 is in a sense  vicarious and does not always proceed on the basis that  the offence has been actually committed by every  member of the unlawful assembly."   

Counsel for the respondents, strenuously urged that from the  evidence of the prosecution witnesses accused Ram Chandra was at  the roof and instigated the accused to finish the prosecution party and  as such it cannot be said that the accused formed an unlawful  assembly to perpetrate the crime.  We are unable to countenance  with this submission of the counsel. Firstly, an assembly, which was  not unlawful assembly when it assembled, may subsequently become  an unlawful assembly.  Secondly, common object of the unlawful  assembly can be gathered from the nature of the assembly, arms  used by them and the behaviour of the assembly at or before scene  of occurrence.  It is an inference to be deduced from the facts and  circumstances of each case.     In the instant case, the prosecution  evidence disclosed that it was a Raksha Bandan day when the  singing was going on, the accused appeared at the scene with gun  and country made pistols and hockey-sticks, attacked the prosecution  party and started firing indiscriminately resulting in the death of Sheo  Ram and Mool Chand.   Deduced from the surrounding facts and  circumstances of this case, it is clear that the accused did form an  unlawful assembly and in furtherance of that common object of the  unlawful assembly, crime has been perpetrated.   

The next contention of the counsel for the respondents that the  non-explanation of the injuries sustained by the accused caused

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prejudice to the accused, also deserves to be rejected. The  prosecution has explained that at the time of arrest the accused tried  to flee and in that process sustained some injuries being beaten by  the arresting party. The injuries sustained by the accused were  simple in nature.  This apart, it is well-settled principle of law that non- explanation of injuries sustained by the accused by the prosecution  would not vitiate the trial, if the prosecution evidence against the  accused is so strong on the basis of which alone the conviction can  be recorded.   As already noted, in the present case, out of four  eyewitnesses two are independent and stamped witnesses.

There is yet another contention of the counsel for the  respondents, which deserves outright rejection.  Counsel would  contend that after the reconstruction of the case record the  statements made by the accused-respondents under Section 313  Cr.P.C. have not been properly considered by the Trial Court and  prejudice thereby has been caused to the accused-respondents.  We  have gone through the judgment of the Trial Court which would show  that the statements made by the accused under Section 313 have  been quoted in verbatim and the same have been considered by the  Trial Court in great detail.  Before the High Court, it was not the case  of the accused that the reconstruction of the record has not been  done properly.  Conversely, the High Court in the order dated  7.10.1994 has recorded the total satisfaction that the reconstructed  record is proper.  

In the premises aforesaid, we are clearly of the view, that the  High Court fell in error in acquitting the accused resulting in grave  miscarriage of justice.  The impugned order of the High Court is,  accordingly, set-aside.  The conviction recorded by the Trial Court is  hereby restored.  The accused-respondents Kishan Chand, Rama  Shankar, Ram Chandra,  Gauri Shankar, and Chhotey Lal  are  directed to be taken into custody forthwith. Compliance report within  three weeks. The appeal is, accordingly, allowed.