Cr. App(DB) No.359 OF 1988 With Cr. App(DB) No. 362 of 1988 With CR App(DB) No. 431 of 1988 ******** (Against the judgment and order of conviction dated 25th of June, 1988 passed by the 4th Additional Sessions Judge, Patna in Sessions Trial No. 488 of 1982). ********** 1. Rajendra Singh, son of Shri Prem Priya Singh 2. Ram Babu Singh, son of Shri Rajendra Singh 3. Lal Babu Singh, son of Shri Rajendra Singh 4. Shyam Babu Singh, son of Shri Rajendra Singh. All residents of village Kathautiyakala Police Station-Maner, District-Patna. Accused-------------(Appellants) (In Cr. App(DB) No. 359 of 1988) 1. Udai Singh 2. Rakesh Singh Both sons of Devendra Singh, residents of village Kathautia, Police Station Maner, District-Patna. Accused……….(Appellants) (In Cr. App(DB) No. 362 of 1988) Devendra Singh, son of Prem Priya Singh, resident of village- Kathautia, P.S.-Maner, District-Patna. …….Accused………….Appellants (In Cr. App(DB) No. 431 of 1988) Versus The State of Bihar (Respondents) (In all the three appeals) 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ************* For the Appellants : Mr. Ramakant Sharma, Sr. Adv. : Mr. Yogesh Chandra Verma, Sr. Adv. : Mr. Narendra Kumar Singh, Adv. : Mr. L. K. Sharma, Adv : Mr. Rajni Kant Singh, Adv : Mr. Angad Kumar, Adv For the State : Miss Shashi Bala Verma, APP *********** S.K. Sharma & D.K. Singh, JJ. The seven appellants through the aforesaid three appeals, have challenged the judgment and order of conviction and sentence dated 25th of June, 1988 passed by learned 4th Additional Sessions Judge, Patna in Sessions Trial No. 488 of 1982, whereby and whereunder Devendra Singh has been convicted under Section 302 of the I.P.C. and Section 27 of the Arms Act and sentenced to undergo imprisonment for life for offence under Section 302 of the I.P.C., however no separate sentence was awarded under Section 27 of the Arms Act, whereas Shyam Babu Singh, Uday Singh, Rajendra Singh, Lal Babu Singh, Ram Babu Singh, Rakesh Singh have been convicted under Section 302/149 of the I.P.C. and sentenced to undergo imprisonment for life. Before considering the grounds taken in 3 appeal, we will examine the prosecution case which started rolling with the fardbeyan of Chandeshwar Singh(P.W. 1) recorded on 01.08.1981 at 9:00 A.M. by S.I. Rup Narayan of Danapur P.S., to the effect that on 31.07.1981 at about 8:00 P.M., the informant along with his two brothers Baleshwar Singh( the deceased) and Arun Singh(P.W. 3) and one Jai Prakash Pandey went to the house of Nageshwar Singh in village Kathautia, on the eve of „Pahiropana‟(paddy sowing). But after taking food at night, the informant and others could not return due to rain and stayed in the house of Nageshwar Singh. It is claimed by the informant that they were sleeping on the Machan(bamboo bed) but at about 12:00 in the midnight, Baleshwar Singh( the deceased) came down, as he was feeling hot on the Machan and slept downstairs at the Veranda. In the morning on 01.08.1988 at 5:30 A.M, Baleshwar Singh, informant and others woke up for going home but as soon as the door was opened by the informant and others, the informant saw Devendra Singh, Shyam Babu Singh, Uday Singh, Rajendra Singh, Lal Babu Singh, Ram Babu Singh, Rakesh Singh(all appellants) variously armed, along with three to four unknown 4 persons entering into the house of Nageshwar Singh. When the informant‟s brother, Baleshwar Singh, protested their act, then Devendra Singh who was armed with a double barrel gun fired on the face of Baleshwar Singh, as a result of which he got badly injured and fell down. Thereafter, Uday Singh fired from the country made pistol which hit on the back of Ashok Kumar Singh(P.W. 2). Thereafter, the informant and others went back to the Machan(bamboo bed), when they saw accused taking Baleshwar Singh towards their house. In the meantime, Nageshwar Singh(not examined) fired from his licensee gun and then the accused persons left the injured Baleshwar Singh and fled away. It is claimed by the informant that the occurrence was seen by Ashok Kumar Singh(P.W. 2), Arun Singh(P.W. 3), Jai Prakash Pandey(not examined), Nageshwar Singh(not examined) and many others. Thereafter, with the help of the villagers, the informant and others took the injured Baleshwar Singh who was in an unconscious state, to Danapur Hospital, but as soon as they reached near the Military Cant, Baleshwar Singh died. The reason for the occurrence has been assigned by the informant 5 as old land dispute between Nageshwar Singh and the accused persons and also because Nageshwar came in valid and legal possession of the land, one day prior to the occurrence which led to the commission of the offence. It is also stated that injured Ashok Singh was also admitted in Danapur hospital. On the basis of the aforesaid fardbeyan, Maner P.S. Case No. 4 of 1981 was registered under Sections 302, 307, 324/34 of the I.P.C. and Section 27 of the Arms Act. The accusation was found true during investigation and accordingly chargesheet was submitted which led to the taking of the cognizance. Charges under Section 302/149 of the I.P.C. were framed against Rajendra Singh, Shyam Babu Singh, Uday Singh, Lal Babu Singh, Ram Babu Singh and Rakesh Singh, whereas against Devendra Singh charges were framed under Section 302 of the I.P.C. Charge was framed against Uday Singh under Section 307 of the I.P.C., whereas against Devendra Singh and Uday Singh, charge was also framed under Section 27 of the Arms Act. The prosecution has tried to substantiate its case with the testimony of four witnesses, of 6 which Chandeshwar Singh(P.W. 1) is the informant, P.W. 2 Ashok Kumar Singh is the injured, P.W. 3 is Arun Singh. P.Ws. 1, 2 and 3 claim themselves to be the eye witnesses. P.W. 4, Gouri Shankar Singh, is the I.O. of the case. Dr. Sidheshwar Prasad Singh(C.W. 1) has been examined as Court witness, who conducted the postmortem on the dead body of the deceased. Learned Trial Court, relying on the evidence of prosecution witnesses, came to the conclusion that the charges under Section 307 of the I.P.C. and Section 27 of the Arms Act have not been proved against Uday Singh, since the doctor who examined the injuries of Ashok Kumar Singh have not been examined, hence the injury has not been proved. But the other charges against all the seven appellants were found proved and accordingly, the judgment of conviction was recorded. This Court has to see whether the claim of P.W.s 1, 2 and 3 being the eye witnesses has been found true beyond shadow of reasonable doubt, or their testimony, or the evidence of the doctor creates serious doubt about the credibility of the prosecution witnesses. 7 So far as the manner of the occurrence is concerned, it is the consistent case of the eye witnesses that it was Devendra Singh who fired at Baleshwar Singh causing serious injuries, whereas the firing made by Uday Singh hit Ashok Kumar Singh(P.W. 2). The fardbeyan reflects that the firing was made on the face of the deceased, but it does not stipulate the specific portion of the face nor describes the nature of the injuries. P.W. 1, in para 1 of his evidence, has stated that Devendra Singh fired from his double barrel gun which hit Baleshwar adjacent to the right eye, while P.W. 2, in para 1 of his evidence, has also stated that Devendra Singh fired from double barrel gun, as a result of which Baleshwar Singh got injured. P.W. 2 has not stated the specific part of the body where the victim received injuries. P.W. 3, in para 6, has stated that the firing made by Devendra Singh hit on Baleshwar Singh‟s head, above the eye but this witness has not specified the side/part of the head or the eye. The evidence of the doctor, the Court witness No. 1, reflects that right upper half of the face with the right eye, right side of the forehead and right half of the skull, including right parietal and 8 portion of temporal bone was completely blown off, while in para 6 he has assessed the area being blown off to the extent of 10” (inches). Admittedly, as per the prosecution version three shots were fired, one by Devendra Singh hitting the deceased, other by Uday Singh hitting P.W. 2, while one shot was fired by Nageshwar Singh towards the accused persons but the evidence of Court Witness No. 1 suggests that no bullet was found in the body of the deceased Baleshwar Singh, whereas the I.O. has neither found any cartridge at the P.O. or any mark of the gun shot on the wall or at the place of the occurrence. Though, in para 4 of his evidence, P.W. 4 suggests that the blood was collected but the same was never sent for chemical examination, hence the prosecution has failed to prove that the blood which was collected, was the blood of deceased Baleshwar Singh. In our view the injuries were such which ought to have been figured in the F.I.R. itself, because deceased received only one injury, but surprisingly in the F.I.R., even the part of the body where the deceased received injury has not been mentioned. So far as the evidence of P.W.s are 9 concerned, P.W. 1 in para 20 of his evidence has specifically stated that no portion of the body of the injured was blown off. Similar is the evidence of P.W. 2, in para 16, where it is specifically stated that neither the part of skull nor any part of the body was found near the Veranda, whereas P.W. 3, in para 27, has stated that 2 to 3 inches of muscle, with bone, came out but it was still hanging with the injured portion of the body and he found the right eye intact. Whereas, the doctor‟s evidence suggests that the right eye along with the temporal area were completely blown off. Moreover, so far as the dimension of the injuries are concerned, it is suggested to be 2 to 3 inches by P.W. 3 and 10 inches, as suggested by the doctor which is a considerable contradiction. Hence, this inconsistency creates serious doubt about the credibility of the prosecution witnesses. It is now well settled by a series of decisions rendered by the Apex Court that while appreciating the variance between the medical evidence and the ocular evidence, oral evidence of the eye-witness has to be given primacy, as the medical evidence is basically opinionative. But when the 10 Court finds inconsistency between two, to the extent that medical evidence substantially negates the ocular evidence then the same is appreciated in a different perspective and the prosecution has to prove that the injuries have been caused with the weapon with which and the manner in which, they are alleged to have been used. It is the fundamental principle that when the prosecution has a definite or positive case, it must prove the whole of that case. The conflict between the oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be, where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on the portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference can not be drawn in the three categories of apparent 11 conflict in oral and medical evidence as stated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by victim, the opportunity available to the witnesses to witness the occurrence, viz. their distance, light, visibility and many other similar factors have to be taken into consideration, in judging the reliability of ocular testimony. It is true that the medical evidence does not completely negate the ocular version of the prosecution case but in the fardbeyan, since no particular portion, where the injuries were caused was referred and the consistent testimony of P.W.s 1 and 2 that no portion was blown off, the credibility of such ocular evidences gets clouded when the medical evidence suggested that part of the face was blown off. The aforesaid inconsistency also clouds the manner of occurrence and in such circumstance, the testimony of such ocular evidence has to be scanned very cautiously. 12 So far as the manner of the occurrence is concerned, it is the case of P.W. 1 in para 1 of his evidence that the victim Baleshwar Singh was dragged from Veranda towards the house of the accused persons. The extent of dragging is 2 to 3 „laggies‟(measuring scale made of bamboo), whereas P.W. 3 in para 6 has stated that the victim was carried towards North and the accused persons left the injured only when firing was resorted to by Nageshwar Singh. This part of the manner of occurrence gets nullified by the evidence of the I.O., P.W. 4 in para 22 where he admits that he did not find trail of blood between the courtyard to the boundary wall. Moreover the I.O. has not found any trampling mark/marks near the P.O. as stated in para 13. The I.O. has found blood, as deposed in para 3, only in the courtyard(Angan) and near the wall, hence this inconsistency creates serious doubt about the manner of the occurrence, as alleged by the prosecution witnesses. Even by assuming the version of P.W. 3 to be correct, that the victim was lifted and then taken towards the house of the accused persons, in such circumstance, blood would definitely have scattered in the entire area, wherever 13 the victim would have been carried, as the injury was of considerable magnitude. The specific case of the prosecution in the fardbeyan was that P.Ws. 1, 2 and 3, one Jay Prakash Pandey and the deceased were sleeping on the Machan(bamboo bed) on the first floor of the house when the deceased came down at midnight and slept on the Veranda. P.W. 1 in para 1 has stated that after Baleshwar Singh received injuries they all went back to the alleged Machan to save themselves. Similar is the evidence of P.W. 2, in paragraph No. 1, and P.W. 3, in para 6, whereas the I.O., P.W. 4, in para 13, has stated that there was no Machan(bamboo bed) on the first floor nor any bed was found there. This further impeaches the credibility of the eye witnesses as well as the veracity of their deposition and it lends credence to the defence version that P.Ws. 1, 2, and 3 were not present, when the occurrence took place. This part of the evidence, particularly of P.W. 2, creates serious doubt in view of the fact that he claims in para 1 of his evidence that after receiving injuries on the back he went back to the Machan, then in that circumstance right from the P.O. to the Machan, trail 14 of the blood ought to have been found by the I.O. So far as the place of the occurrence is concerned, in the F.I.R. the place where Baleshwar Singh received injuries has not been specifically mentioned, whereas P.W. 1 in para 1 has stated that deceased Baleshwar Singh was sitting on the cot at the Veranda and after receiving the injuries he fell down from the cot, in the courtyard whereas P.W. 1 in para 20, has stated that the victim received injuries while sitting on the cot and his back was 4 to 5 feet away from the wall. P.W. 2 in para 1 has stated that Baleshwar Singh was sitting on the cot in the Veranda facing North and after receiving the gun shot injuries, he fell down from the cot whereas P.W. 3 in para 20 has stated that Baleshwar Singh was killed in the same Veranda where they took their meals in the previous night and they were sleeping above that Veranda. In para 6 of his evidence, P.W. 3 has stated that the victim was sitting on the cot. The evidence of P.W. 4 suggests that he neither found any blood nor any cot in the Veranda, rather the blood was found in the courtyard, hence the absence of blood or cot on the Veranda or any blood stains on the walls of the Veranda conclusively suggests that the deceased did 15 not receive any injury at the Veranda, hence it not only creates doubt about the manner of occurrence suggested by the eye witnesses but also clearly suggests that the place of occurrence has not been proved by the prosecution as claimed by the eye witnesses. Except Devendra Singh who has been convicted under Section 302 I.P.C. others have been convicted under Section 302 I.P.C. with the aid of Section 149 I.P.C. It is contended by Mr. Rama Kant Sharma, learned senior counsel for appellants that there is nothing on record to suggest that other appellants were sharing the common object with the main accused Devendra Singh. Now the core question which arises for consideration is as to whether the rest of the appellants, except Devendra, who had not committed any overt act must be held to be a part of unlawful assembly sharing the common object with the main accused. Under Chapter-VIII of the Penal Code, Section 141 defines unlawful assembly “to be the assembly of five or more person”. They must have the common object inter alia to commit any mischief 16 or criminal trespass, or other offence. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, would be a member thereof. Section 143 of the Penal Code provides punishment for being member of the unlawful assembly. If an offence is committed by any member thereof in prosecution of the common object of that assembly, or such as the members of that assembly knew that an offence would be likely to be committed in prosecution of that object. Whether assembly is unlawful or not, thus would depend on the various factors specified in or the other clauses contained in Section 141 of the Indian Penal Code. Constructive liability of a person on the ground of being a member of unlawful assembly can be fastened for an act of offence committed by one or more member of that assembly if they had formed a common object. The distinction between the common object and the common intention is that for common object no prior concert is required as the common object can be formed at the spur of the moment by all the members of the assembly. However, the existence of the common object of the unlawful assembly has to be 17 ascertained in the light of the facts and circumstances of each case. Section 149 of the I.P.C. creates specific and distinct offence. There are two essential ingredients thereof, in commission of offence by any member of unlawful assembly. Such offence must have been committed in prosecution of the common object of that assembly or must be such as member of that assembly knew to be likely to be committed. In the present case it is alleged that Devendra Singh was armed with double barrel gun whereas Uday Singh was armed with country made pistol and others were armed with lathi and bhala. In the fardbeyan, it is only alleged that Devendra was armed with double barrel gun, Uday Singh was armed with country made pistol while others were armed with lathi and bhala, whereas P.W. 1 in para 1, P.W. 2 in para 1 and P.W. 3 in para 5 have stated that Devendra was armed with double barrel gun, Uday Singh was armed with country made pistol and others were armed with lathi and bhala. So far as the role played by the Uday Singh is concerned, which has been discussed by the learned Trial Court also, it can not be said with 18 certainty that Uday Singh was armed with country made pistol. Whereas, it has not been specifically stated about the other appellants, as to who was armed with lathi and who was armed with bhala and this fact has to be considered in view of the fact, that overt act has been alleged only against Devendra Singh to the effect that he fired single shot on the deceased Baleshwar Singh, hence it is not a case where it can be assumed that the common object, which of course can develop on the spot also, was developed on spot because it is the consistent case of the prosecution right from the fardbeyan that the accused persons had no enmity with the prosecution side, as there was enmity with Devendra Singh and Nageshwar Singh, as delivery of possession of the land was made in favour of Nageshwar Singh and this fact has been admitted by P.W. 1 in para 9 as there was no litigation between informant and the appellants. P.W. 1 in para 3 has further clarified that there was land dispute between Nageshwar Singh and Devendra Singh, hence it is apparent that there was no enmity between Baleshwar Singh and the accused persons and if at all there was any enmity, the same was between Nageshwar Singh and 19 Devendra Singh. Moreover, it is not the case of the prosecution that the accused persons were knowing that Baleshwar Singh along with his brothers and others were staying at night in the house of Nageshwar Singh, hence there was no question of any unlawful assembly sharing the common object from before, as it appears that Devendra Singh alone fired at the deceased, while others made no overt act. The question is, as to whether the other accused persons if they were armed and were part of such unlawful assembly, could be treated to be sharing the common object. In the case of Baladin and others versus State of Uttar Pradesh, reported in AIR 1956 SC- 181, it has been held that in order to invoke the provisions of Section 149 of the Penal Code, it is necessary therefore for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The principle for application of Section 149 I.P.C. as recorded in para 19 of the said judgments reads as follows:- 20 “The evidence as recorded in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis etc. This kind of omnibus evidence naturally has to be very closely scrutinized in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question”. The Court therefore observed that the Court has to examine the case of each individual accused to satisfy itself that mere spectators who had not joined the assembly and who were unaware of its motive had not been branded as members of the unlawful assembly who committed the offence.” The aforesaid observation in that case was further diluted in the case of Masalti VS. State of Uttar Pradesh, reported in AIR 1965