Onkar & Anr vs State Of U.P

Onkar & Anr. ...Appellants

Versus

State of U.P. ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order

dated 23.8.2007 passed by the High Court of Allahabad in Criminal

Appeal No. 1096 of 1982, qua the appellants by which the judgment

and order of the Trial Court dated 16.4.1982 in Sessions Trial No.

277 of 1980, of their conviction under Section 302/149; 307 read

with Section 149 and Section 452 of Indian Penal Code, 1860

(hereinafter called `IPC') has been upheld and sentence awarded by

the Trial Court for life imprisonment for the offence under Section

302/149; seven years for the offence under Section 307/149; and

three years' rigorous imprisonment under Section 452 IPC has been

maintained.

2. Facts and circumstances giving rise to this appeal are as

under:

A. An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police

Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about

12 O'clock, Jalsur (PW.2) - complainant and his Uncle Onkar Singh

(deceased) were sleeping on the roof of their house in their village

Kidhara. The appellants came to the house of complainant

alongwith other accused persons. One Jagdish who was having a

shop in the outer room of the complainant's house, woke up after

hearing the sound of the movement of appellants and accused

persons and raised alarm and took to his heels. Jalsur (PW.2) and

his uncle Onkar Singh (deceased) also woke up. Onkar Singh

(deceased) climbed down from the roof towards Chabutara while

Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and

came out in the open and set fire to a "chappar" in front of his own

house. It was in the light of the fire made on account of burning of

"Chappar", that Jalsur (PW.2) saw the accused Bira, Tara, Onkar,

Rati Ram and some 7-8 unknown persons. The appellants were

armed with country made pistols and other assailants were armed

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with lathi, bhala and other lethal weapons. A scuffle took place

between the assailants and Onkar Singh (deceased) and he received

a gun shot injury on his chest and died. Some of the assailants

climbed down into the house of the informant and tried to break

open the doors of the rooms but on their failure to do so, they

opened fire on the doors and some of them entered the rooms

through ventilators. The firing caused injuries to the informant's son

Chandra Bose and daughter Tarwati. On seeing pressure mounting,

the culprits pushed the deceased (Onkar) into the fire of the

"Chappar" which had been set ablaze by the informant.

B. On the basis of the said FIR, investigation commenced and

I.O. N.P. Singh (PW.6) came at the place of occurrence and

collected seven empty shells of 12 bore cartridges alleged to have

been fired by the miscreants. He also recorded the statement of

witnesses. Site plan was prepared. Blood stained earth and sample

of ash of burnt Chappar was collected. The injured persons were

sent for medical examination and treatment. Dead body of Onkar

Singh was sent for post-mortem. The Investigating Officer arrested

Mohd. Shafi, Ahmad Syeed and Suresh on 25.3.1980 and other

accused persons subsequently. The Test Identification parade of four

accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd. Shafi

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was conducted and the accused were identified by the witnesses,

namely, Roshan Singh, Shishu Pal, Hukam Singh and Jalsur on

17.5.1980. The Investigating Officer filed chargesheet dated

14.1.1981 against 7 accused persons, namely, Bira, Tara, Onkar,

Mohd. Shafi, Omveer, Ahmad Sayeed and Suresh.

C. The Trial Court framed the charges on 14.1.1981 against all

the 7 accused persons under Sections 147, 302/149, 307/149 and 452

IPC. So far as the present appellants and accused Bira are

concerned, an additional charge was framed against them under

Section 148 IPC. To prove the case, prosecution examined large

number of witnesses including Jalsur (PW.2), Shishu Pal (PW.3) and

Bani Singh (PW.4) as eye-witnesses of the occurrence.

D. The accused persons, namely, Bira, Tara, Onkar and Omveer

when examined under Section 313 of the Code of Criminal

Procedure (hereinafter called Cr.P.C.) took the plea that they had

falsely been implicated because of their previous enmity as 5-6 years

prior to the incident, an attempt was made on the life of Shishupal,

uncle of the complainant Jalsur (PW.2) and in that case accused

Tara, his brother Mahabir and father Munshi faced trial and stood

convicted under Section 307 IPC and they served the sentence. It

was further submitted that Tara, Bira and Onkar were closely related

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to each other. In respect of another incident, Jalsur (PW.2) had filed

a complaint against Tara and Mahabir under Section 395 IPC but the

said case ended in acquittal. The other accused persons took the

defence that they had enmity with the police and had falsely been

implicated in the case.

E. After appreciating the evidence on record and considering all

other facts and circumstances of the case, the Trial Court vide

judgment and order dated 16.4.1982 convicted all the 7 accused

persons and awarded the sentence as mentioned hereinabove in S.T.

Case No.277 of 1980. Aggrieved, all the 7 convicts preferred

Criminal Appeal No.1096 of 1982 before the High Court of

Allahabad.

F. During the pendency of the said appeal, Omveer, Ahmad

Sayeed and Suresh died and thus, their appeal stood abated. At the

time of hearing the appeal, it stood established that Bira was a child

on the date of occurrence and therefore, his conviction was

maintained but sentence was set aside giving benefit under the

provisions of Section 2(4) of the U.P. Children Act, 1951. The

appeal of remaining three convicts, namely, Tara, Onkar and Mohd.

Shafi stood dismissed vide impugned judgment. Mohd. Shafi did not

prefer any appeal.

Hence, this appeal only by two convicts.

5 3. Shri S.B. Upadhyay, learned Senior counsel appearing for the

appellants has submitted that injured witnesses, namely, Tarawati

and Chandra Bose have not been examined. Similarly, independent

eye-witnesses, namely, Roshan Singh and Hukum Singh whose

presence at the scene of occurrence had been witnessed by Jalsur

(PW.2) himself were not examined. Jagdish who had raised hue and

cry immediately after hearing the sound of coming of the accused

persons on the spot has also not been examined. Only close relatives

of Onkar Singh (deceased) have been examined. Therefore, the

prosecution withheld the material evidence in its possession. In the

facts and circumstances of the case, the provisions of Section 149

IPC were not attracted. The prosecution miserably failed to prove

that there was unlawful assembly constituted for the purpose of

executing a common object. The prosecution case itself had been

that the prime object was to commit dacoity and not murder of

Onkar Singh (deceased). In the deposition, Jalsur (PW.2) had made

a statement in the court that Rati Ram was involved in the killing of

Onkar Singh (deceased) and his name also finds place in the FIR

lodged by Jalsur (PW.2) but no chargesheet has been filed against

him. In view of the above, the appeal deserves to be allowed.

6 4. Per contra, Shri D.K. Goswami, learned counsel appearing for

the State has vehemently opposed the appeal contending that the

FIR had promptly been lodged within a period of 3 hours after mid-

night though the police station was at a distance of 3 miles from the

place of occurrence. The appellants had been named in the FIR.

Roles attributed to each of them had been explained. Motive had

also been mentioned. Injuries suffered by Tarawati and Chandra

Bose had also been given. Law does not proscribe reliance upon the

evidence of closely related witnesses. However, it requires that

evidence of such witnesses must be appreciated with care and

caution. Once the evidence is found reliable/trustworthy, it cannot

be discarded merely on the ground that the witness has been closely

related to the victim. The injuries found on the person of the

deceased as well as on Tarawati, Chandra Bose and Mohd. Shafi

corroborate the case of the prosecution and in such a fact-situation,

the provisions of Section 149 IPC have rightly been applied. The

issue of non-examination of the injured witnesses, namely, Tarawati

and Chandra Bose and of eye-witnesses, namely, Roshan Singh,

Hukum Singh and Jagdish has not been put to the Investigating

Officer in cross-examination who could have furnished the

explanation for their non-examination. Thus, the issue cannot be

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raised first time in appeal before this Court. The appeal lacks merit

and is liable to be dismissed.

5. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

6. Before we enter into the merits of the case, it may be relevant

to refer to the injuries caused to the victims.

(a) The post mortem examination of the dead body of Onkar

Singh, son of Sher Singh, was conducted by Dr. Pradeep Kumar

(P.W.7) on 23.3.1980 at about 5.15 a.m. and he found following ante

mortem injuries on his person:-

1. Gun shot wound of entry of left nipple 1" x 1" x chest

cavity deep, margins inverted, blackening and tattooing present

around the wound part of lung coming out of the wound.

2. Abrasion 3" x l" on the top of left shoulder.

3. Abrasion 1" x = on the right elbow.

4. Abrasion 2" x l" on the right iliac spine region.

5. Abrasion 1 = "x =" on left iliac spine region.

6. Abrasion 3 "x 1" on upper part of right leg.

7. Abrasion < "x <" on middle part of left leg.

8. Abrasion 2" x l" on the right side of back.

9. Superficial burn on left side of chest and abdomen.

8 On the internal examination, 3rd, 4th, 5th, 6th, 7th, ribs on the left

side were found fractured. In the right lung 800 ml of dark blood and

12 pellets were recovered. Left lung was lacerated and 8 pieces of

wadding were recovered. In large intestine gases and faecal matters

were found. In the opinion of the doctor, death had occurred due to

shock and haemorrhage due to ante mortem injuries and duration of

death was > day to one day.

(b) Dr. D.P. Singh (P.W.1) of PHC Harduwaganj had examined

the injuries of Tarwati, daughter of Jalsur (PW.2) on 23.3.1980 at

1.15 p.m. and following injuries were found by him:-

1. Lacerated circular pellet wound 1/8" x 1/8"' x muscle deep on

the anterior aspect of scalp exactly in the midline of head.

2. Lacerated circular wound 1/8" x 1/8" x muscle deep on the

left side of scalp away from the midline and 2 >" above the left

eye brow.

3. Lacerated circular wound 1/8" x 1/8" x muscle deep on the

right of scalp, 1" behind the injury No.3.

The injuries, in the opinion of the doctor, were simple and

were caused by fire arm and it was half day old.

(c) Chandra Bose, son of Jalsur (PW.2) was examined by Dr.

D.P. Singh (PW.1) on 23.3.1980 at 1.20 p.m. and the following

injuries were found by him:-

9 1. Lacerated circular wound 1/8" x 1/8" x muscle deep on the

right side of face, 1 =" in front of the lower angle of right

mandible.

2. Lacerated circular wound 1/8" x 1/8" x muscle deep on

the right side of scalp. 4 =" above the base of right ear and 1 ="

away from mid line.

3. Lacerated circular wound 1/8" x 1/8" x muscle deep on the

left side of scalp. =" away from mid line and 2 = " above the

left eye brow.

4. Lacerated circular wound 1/8" x 1/8" x muscle deep on the

left side of scalp 1" behind the injury no.3.

All the injuries were simple in nature and were caused by fire

arm and their duration was about half a day old.

(d) Dr. D.P. Singh (PW.1) examined the injuries of Mohd. Shafi

on 26.3.1980 at 11.15 a.m. and the following injuries were found on

his person:-

1. Circular wound 1/8" x 1/8" x muscle deep on the front aspect

of right forearm 4" below the level of right elbow joint.

2. Multiple circular wound 1/8" x 1/8" x muscle deep on the front

and lateral aspect of right upper arm 12 in numbers in an area 8"

x 5" between the shoulder and elbow joint.

3. Three circular wounds 1/8" x 1/8" x muscle deep each in an

area of 3 = x 2" on the right shoulder joint.

4. Multiple circular wounds 1 /8" x 1/8" x muscle deep, 5 in

numbers, extending in a linear fashion starting from 3 =" above

the right nipple to the lower part of 9th rib at a place 6 =" away

from mid line of back.

10 In the opinion of the doctor, all the injuries were simple and

were caused by fire arm. Duration of these injures was found to be 3

= days which is corresponding to the date of incident.

7. The prosecution has examined 3 eye-witnesses. According to

Jalsur (PW.2), the victims' side had earlier filed criminal cases

against some of the accused persons. In one case, they had been

convicted and in another case they had been acquitted. In so far as

this incident is concerned, Jalsur (PW.2) has fully supported the case

of the prosecution. This witness deposed that accused Bira was

having a gun and the present appellants were having country made

pistols and the other accused were armed with lathi and ballom etc.

In order to save himself from the assailants, Jalsur (PW.2) jumped in

the house of his uncle and Onkar Singh climbed down from the roof.

The accused had a scuffle with Onkar Singh who suffered a gun shot

injury. The accused also tried to break the door of the room of

Onkar Singh and when the door was not broken, they fired the shot

at the door and bullets from the ventilation of the home due to which

Chandra Bose and Tarawati, son and daughter of Jalsur (PW.2)

suffered fire injuries. In this incident, Mohd. Shafi also got

injured. His evidence is totally corroborated by Shishu Pal (PW.3)

and Bani Singh (PW.4).

11 It is a settled legal proposition that evidence of closely

related witnesses is required to be carefully scrutinised and

appreciated before resting of conclusion the convict/accused in a

given case. In case, the evidence has a ring of truth, is cogent,

credible and trustworthy it can be relied upon. (Vide: Himanshu v.

State (NCT of Delhi), (2011) 2 SCC 36; and Ranjit Singh & Ors.

v. State of Madhya Pradesh, (2011) 4 SCC 336).

There is nothing on record to show that at the time of

cross-examination of the Investigating Officer (PW.6), any of the

accused had put him a question as to why the other witnesses have

not been examined.

8. Injuries reports so referred to hereinabove stood proved by Dr.

D.P. Singh (PW.1) and Dr. Pradeep Kumar (PW.7) in the court and

they corroborate the prosecution version. In spite of the fact that the

accused Mohd. Shafi got injured but no grievance has ever been

raised by him in this regard. The Trial Court has rightly taken note

of it and reached the correct conclusion that it supports the case of

the prosecution and establish the presence of Mohd. Shafi at the

place of occurrence and he participated in the crime. Mohd. Shafi

himself could not explain as under what circumstances such injuries

have been caused to him.

12 9. The courts below have reached the correct conclusion that it is

highly improbable that the witnesses would screen and spare the real

assailants and falsely enroped the appellants and others only because

of old enmity. Had it been so, there could have been no reason to

involve at least four other accused persons in the crime, particularly,

Mohd. Shafi, Suresh, Ahmad Sayeed and Omveer.

Admittedly, he lodged the FIR most promptly within a

period of 3 hours of the incident at 2.50 A.M. though the police

station was at a distance of 3 miles from the place of occurrence. So

far as the present appellants are concerned, they have specifically

been named.

The other co-accused who were not the residents of the

village where the offence has been committed, had been duly

identified in Test Identification Parade as well as in court by all the

three eye-witnesses.

10. We do not find any force in the submission made by Shri

Upadhyay, learned Senior counsel that in the facts and

circumstances of the case provisions of Section 149 IPC were not

attracted, for the reason, that this court has been very cautious in the

catena of judgments that where general allegations are made against

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a large number of persons the court would categorically scrutinise

the evidence and hesitate to convict the large number of persons if

the evidence available on record is vague. It is obligatory on the

part of the court to examine that if the offence committed is not in

direct prosecution of the common object, it may yet fall under

second part of Section 149 IPC, which states that if the offence was

such as the members knew was likely to be committed. Further

inference has to be drawn as to the number of persons involved in

the crime; how many of them were merely passive witnesses; what

arms and weapons they were carrying alongwith them. Number and

nature of injuries is also relevant to be considered. "Common

object" may also be developed at the time of incident.

(See : Ramachandran & Ors. v. State of Kerala (2011) 9 SCC

257).

11. In Chandra Bihari Gautam & Ors. v. State of Bihar, AIR

2002 SC 1836, this Court while dealing with a similar case held as

under:

"Section 149 has two parts. First part deals with the

commission of an offence by a member of unlawful

assembly in prosecution of the common object of

that assembly and the second part deals with the

liability of the members of the unlawful assembly

who knew that an offence was likely to be committed

in prosecution of the object for which they had

assembled. Even if the common object of the

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unlawful assembly is stated to be apprehending

Nawlesh Singh only, the fact that the accused

persons had attacked the house of the complainant

at the dead of the night and were armed with deadly

weapons including the guns, and used petrol bombs

proves beyond doubt that they knew that in

prosecution of the alleged initial common object

murders were likely to be committed. The knowledge

of the consequential action in furtherance of the

initial common object is sufficient to attract the

applicability of Section 149 for holding the members

of the unlawful assembly guilty for the commission

of the offence by any member of such assembly. In

this case the appellants, along with others, have

been proved to have formed unlawful assembly, the

common object of which was to commit murder and

arson and in prosecution of the said common object

they raided the house of the informant armed with

guns and committed offence. The Courts below

have, therefore, rightly held that the accused

persons formed an unlawful assembly, the common

object of which was to commit murder of the

informant and his family members and in

prosecution of the said common object six persons

were killed. The appellants were also proved to

have hired the services of some extremists for the

purposes of eliminating the family of the

complainant."

(See also: Ramesh v. State of Haryana, AIR 2011 SC 169)

12. The witnesses have deposed that not a single article was

looted nor any attempt had been made to commit dacoity, rather it

has been specifically stated that all the assailants/miscreants

declared that no one would be left alive and had been exhorting one

another to eliminate all. All the assailants came together and

participated in the crime in which Onkar Singh was killed, Tarawati

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and Chandra Bose were injured. The assailants tried to break open

the door of the house but could not succeed, thus they fired from the

ventilator and that is why Tarawati and Chandra Bose got injured.

After commission of the offence a large number of persons gathered

at the place of occurrence. The assailants ran away. The offence

was committed at mid-night. Therefore, after reading the entire

evidence collectively inference can safely be drawn that the

assailants had an object to commit murder of persons on the victims'

side and they participated in the crime.

13. Thus, the graveness of charges against the appellants that they

in concert with other accused to achieve a common object entered

into the house of the complainant stood proved.

14. In view of the above, we do not find any force in the appeal.

Facts and circumstances of the case do not warrant any interference

in the matter. The appeal lacks merit and is, accordingly, dismissed.

................................J.

(Dr. B.S. CHAUHAN)

.............................

...J.

(T.S. THAKUR)

New Delhi,

January 18, 2012

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