CRIMINAL APPEAL No.586 OF 2004 -------- Against the judgment of conviction dated 15.7.2004 and order of sentence dated 16.7.2004 passed by Sri Binoda Nand Jha Vineet”, Additional Sessions Judge, F.T.C.-IV, Motihari, in S.T. Case No.567 of 1992. ------- 1.VIRENDRA RAM SON OF NARAIN RAM 2. RAJ KUMAR @ BAHARAN RAM SON OF RAMDEO RAM Both resident of village Banjaria, P.S.-Banjaria, Dist.-East Champaran …….Appellants Versus STATE OF BIHAR ……..Respondent ------- For the appellants: Sarva Shri Syed Arshad Alam, Anjum Praveen and Gautam Kumar Yadav For the State: Shri Ashwini Kumar Sinha, Addl. Public Prosecutor P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HOB’BLE SHRI JUSTICE RAKESH KUMAR. -------- Dharnidhar Jha & Rakesh Kumar,JJ. These two appellants before us were tried by the presiding officer-cum-Additional Sessions Judge, F.T.C.-IV, Motihari, East Champaran for charge under section 302/149 of the Indian Penal Code along with three others, namely, Shankar Ram son of Rajendra Ram, Rameshwar Ram @ Ishwar Ram and Surendra Ram. In trial, plea of juvenility of accused Surendra Ram was accepted and his enquiry was transmitted to the appropriate authority. The trial was left in respect of remaining four accused persons out of whom accused Rameshwar Ram died and the trial as against him was dropped by the lower court by its order dated the 30th January, 2003, leaving three accused, Virendra Ram, Raj Kumar @ Baharan Ram, and Shankar Ram on the day of judgment dated 15.7.2004, which was passed in Sessions Trial No.567 of 1992. One of the three, namely, Shankar Ram had absented and the judgment of conviction was pronounced by the trial judge in his absence against two appellants and 2 on account of absence of Shankar Ram till date the sentence was passed only against two appellants on 16.7.2004 and both of them were directed to suffer rigorous imprisonment for life on account of being held guilty by order of conviction earlier passed on 15.7.2004. The appellants challenged their conviction and the sentence passed against them by preferring the present appeal. 2. The prosecution case emanates from Ext.4, the fardbeyan of Mala Devi (P.W.4) in which she stated that on 15.3.1992 when her husband, Shankar Ram (deceased) was at his Darwaja, the five accused persons were confronted by him by being asked as to why they were misbehaving with the women folk of the village and why they were insulting them. The deceased was further alleged to have stated to the accused persons that on being confronted by him, they were abusing not only the deceased, but also his wife (P.W.4). It is alleged that as soon as the deceased spoke the above words to the five accused persons they shouted and hurled abuses upon him. In the meantime, the accused Surnedra Ram (since absconding) came there from somewhere with a Gupti ( a long sharp pointed weapon which has sharp cutting edges on its two sides). The remaining accused persons also caught hold of the deceased by surrounding him and accused Surendra Ram pierced his Gupti in the chest of the deceased as a result of which the deceased fell down on the ground and was wreathing in pain. The occurrence was witnessed by Bharat Ram (P.W.3), Geeta Devi (P.W.1), Asha Devi (P.W.2) and many others, with the help of whom the informant brought her injured husband for treatment to Motihari Sadar hospital. The doctor declared him dead. 3. It was alleged by P.W.4 that the reason for the occurrence was that accused Surendra Ram and others used to cut insulting taunts upon the women 3 folk of the village and also used to hurl abusive and unparliamentary words on them, as a result of which the deceased had very often attempted to make them understand and had also chastised them. 4. The statement of P.W.4 was recorded at Sadar hospital, Motihari which has been marked, as indicated above, Ext.4 and on that basis first information report of the case Ext.6 was drawn up by P.W.8, Ram Lalit Singh on 15.3.1992, who himself took up the investigation of the case. 5. P.W.8 has stated in his evidence that after registering the case and taking up the investigation himself, he came to the place of occurrence at about 16.45 hours, i.e, 4.45 P.M. and inspected the place of occurrence which has been described by him in his evidence in paragraph-1. He did not find any blood at the place of occurrence which was a road situated in front of the house of the deceased, on account of the fact that huge number of persons, who had assembled there, had trampled over the same erasing the blood- marks. P.W.8 stated that the road where the occurrence had taken place, was a Kachcha road. He has stated in paragraph-5 of the evidence that it was a busy thoroughfare of the village. He took the evidence of different witnesses and after collection of materials which, in his opinion, were sufficient for sending up the accused persons for trial, he submitted the charge-sheet which ended up in the conviction of the appellants through the impugned judgment as indicated at the very outset of the judgment. 6. The defence as set up and as suggested by the accused persons to Mala Devi (P.W.4) in paragraph-26 of her evidence, was that she was carrying an illicit relationship with one Bharat Ram and, as suggested, she had been expelled by her in laws from her matrimonial house. It was further suggested that the informant in league with the said Bharat Ram got the deceased killed 4 and on account of some dispute with the accused persons falsely implicated them. As regards the statements of the appellants under section 313 of the Cr.P.C. they did not appear making any statement on the point of their defence. 7. The prosecution examined as many as nine witnesses in support of the charges whereas the solitary defence witness was examined in corroboration of the plea of alibi set up by co-accused Rameshwar Ram @ Ishwar Ram. We are not concerned with that plea because the trial in respect of that accused, was dropped due to his death. 8. As regards the prosecution witness Geeta Devi (P.W.1), Asha Devi (P.W.2), Bharat Ram (P.W.3) and Mala Devi (P.W.4), the informant of the case, have given eye witness account of the occurrence. As regards Ajay Kumar Trivedi (P.W.5), he is a witness of formal character having exhibited the protest petition filed by P.W.4 in the case. Upendra Mishra (P.W.6) is the Assistant Sub.Inspector of Police, who has recorded the fardbeyan (Ext.4) and has also prepared inquest report after holding inquest on the dead body. The inquest report has been marked as Ext.7 in the case. On consideration of the evidence of the witnesses the learned trial judge passed the impugned judgment. 9. Shri Syed Arshad Alam assisted by Shri Gautam Kumar Yadav, has been heard by us. It was contended that a very serious flaw appears to have occurred in the evidence of P.W.4 when she was stating the date of occurrence as 13.3.1992. It was contended that on this score alone the whole prosecution case should be thrown out. Learned counsel next contended that by no stretch of construction of the provision of an unlawful assembly acting in prosecution of common object, it could be held that conviction of the appellants with the 5 aid of section 149 of the Indian Penal Code was justifiable. Learned counsel placed reliance upon the case of Rajagopalswamy Konar and another Vs. State of T.N. (1995 S.C.C. (Cri.) 184). It was next contended that as per the witnesses the deceased was moved to hospital by a Rickshaw but the Rickshaw puller has not been examined and other witnesses who came to support the prosecution charges were all interested witnesses. It was next contended that there was a serious contradiction appearing in the evidence of the witnesses which was in complete conflict with the statements made in Ext.4, the first information report and, as such, the witnesses must be held wholly unreliable. Learned counsel in support of non-examination of independent persons and its effect on the prosecution charge has placed reliance upon the case of Habeeb Mohammad Vs. State of Hyderabad (A.I.R. 1954 S.C.-51) as also upon the case of Bir Singh and others Vs. State of U.P.(A.I.R.1978 S.C.-59) on the same point of non-examination of independent witnesses. The last contention was that girls or ladies who were allegedly insulted by being abused or in any other manner and whose modesty was attempted to be violated by the appellants, having not being examined on the said point, it was out right improper for the court below to hold that genesis of the occurrence had been established. It was contended that this court should take notice of non-examination of the said girls/ladies of the village and hold that the prosecution failed to establish the genesis of the occurrence and as such acquit the appellants. 10. Responding to the above contentions, Shri Ashwini Kumar Sinha, learned Additional Public Prosecutor, drew our attention to the fact that it is a case of single blow and thereafter reading out the relevant part of the evidence and the first information report to us, has submitted that on the very basis of 6 Ext.4, fardbeyan, it may be unreasonable to hold that the solitary accused was acting in prosecution of common object. As regards the appellants it was contended by Mr. Sinha in all fairness that the blow on the deceased being solitary and assigned to co-accused Surendra Ram, the conviction of the appellants may not be sustainable by virtue of section 149 of the Indian Penal Code. 11. We first take up the argument on the quality of the witnesses produced by prosecution before the learned trial judge for scrutiny. On being taken through the evidence of four eye witnesses, i.e., P.Ws.1, 2, 3 and 4, we find that they have all stated that when the real occurrence of the deceased being caught by the accused persons either by his hand or around his waist, the eye witnesses were very much on lookers to it. It was never suggested to any of them that none of them was not present there. What has been suggested to each and every witness was that on account of being related to each of them as also on account of being on the side of Mala Devi (P.W.4), they had come together to depose falsely against the accused persons including the two appellants. The reason for false implication as assigned by the defence was that Mala Devi (P.W.4) was carrying on an illicit relationship with Bharat Ram (P.W.3) and in order to eliminating her husband, Bharat Ram (P.W.3), and Mala Devi (P.W.4) conspired together to get him killed. This fact appears suggested to Mala Devi (P.W.4) also. Not only that she appears to have been cross-examined in parageraph-11 of her evidence by being questioned that she was earlier married to one Mahendra Ram resident of village Mathiya Jerat and that she had married the deceased Shankar Ram after having deserted her first husband. A perusal of the reply given by the witness in paragraph-11 could point out that the whole defence was a pack of lies. The witness, P.W.4, 7 has stoutly denied that she ever knew Mahendra Ram. What respect P.W.4 had for her husband, the deceased, could also be gathered from the same paragraph. Mala Devi (P.W.4) volunteered that the deceased Shankar Ram was a literate person and because he was himself a highly respected person, so why should he marry an already married lady. As regards the deceased it has been stated by P.W.4 in her evidence in paragraph-1 that he was a clerk-cum- cashier in a nationalized bank, i.e., Allahabad Bank. Thus, the very suggestion of the defence gets repelled by the informant. 12. It may be a fact that P.W.1 to P.W.4 belonged to the same caste, but is not it also the fact that appellants also belong to that caste? Besides, what ill will the witnesses were nursing against an individual appellant or accused person so as to impelling the witnesses to flock together and conspire to make false statement against innocent persons? It is not denied by the defence that Shankar Ram was not murdered. As such, it owed an explanation as to why the witnesses should come together to falsely implicate the innocent persons and that too leaving aside the real culprits. Relatedness of the witnesses inter se or their relatedness to the deceased, to us, do not appear a disqualification of the witnesses so as to reject their otherwise acceptable testimony. We were looking for a reason or a flaw, as per the contention of the learned counsel, so as to leaving sufficient room in the testimony of the witnesses to say that they deposed falsely, but we must record our failing in isolating or identifying any charectaristic or frailty in the evidence of the witnesses so as to reject their testimony. We have very often held that mere relatedness is not interestedness. If a witness is so to be branded interested, the defence must show, by sufficient probability, that he had some compelling interest in the present litigation for any particular 8 reason to come to the witness box and depose falsely. We are not shown any such reason so as to discard the testimony of witnesses which, to us, appears quite consistent and trustworthy. These are the reasons upon which we reject the contention of learned defence counsel on the competence of the witnesses and those could be the reasons that we refuse to act as per the laws laid down by the Supreme Court in Habeeb Mohammad (supra) or in Bir Singh (supra). 13. We want now to consider whether non-examination of the female- folk of the village has really created any void in the prosecution case and thereby has given sufficient reason for this court to hold that the very genesis of the prosecution case has not been established, as was submitted by the learned counsel for the appellants. Each and every witness, right from P.W.1 to P.W.4 has stated in his/her evidence that one day prior to the occurrence the accused persons had teased or insulted the women-folk of the village by writing abusive and filthy words on a particular wall and had attempted to outrage their modesty, particularly, of one girl Sangeeta. This evidence has come through P.W.1 in paragraph-3 and parageraph-9 as also in the evidence of P.W.2 in paragraph-3 and paragraph-6. P.W.3 has stated the above fact in paragraph-4 in quite some details and she was cross- examined on the above fact in paragraphs-8 and 9 of her evidence, besides making some other statements in that connection in paragraph-10 also. As regards Mala Devi (P.W.4) she had given evidence in paragraph-1. The above evidence of the witnesses is very clear. We do not have any reason to discard the testimony of the witnesses for any particular reason when we have already held the witnesses reliable and their evidence acceptable. Besides, the witnesses have spoken to the fact in their examination-in-chief, 9 have also spoken quite clearly in cross-examination part of their evidence and their evidence in totality, had the effect as to what was the real reason for the occurrence. Non-examination of Sangeeta about whom some filthy words had been written on some walls, might be an issue for constructing an argument around it. But, when we read the evidence of the witnesses we find that her non-examination was not having such a blot on the prosecution case that the whole of its case be rejected. The witnesses have given clear picture about the background under which the occurrence had taken place. The real reason for which the offence was committed appears to us duly corroborated and established by the prosecution. 14. It could be the right place, in our opinion, to answer the contention or non-examination of Rickshaw puller whose name has come in the evidence of P.W.4 in paragraph-23. They were Bharat Ram and Prem Ram. Bharat Ram has been examined as P.W.3. There was no question put to that witness on that aspect of the story. Prem Ram had not been produced in court. We reiterate time tested principle of criminal jurisprudence that the witnesses have never to be multiplied or counted. They have simply to be weighed. This principle is enshrined in section 134 of the Evidence Act which reads that no particular number of witness is required to prove a fact. Besides taking the deceased to the hospital is not a fact in issue. The fact in issue is as to whether the accused persons had participated in the manner as alleged in commission of the offence and had thereby caused the death of the deceased. We are not called upon through this appeal to decide as to how the deceased was transported to the hospital. We are simply called upon to record our approval or disapproval of the findings recorded by the learned trial judge on the proof/non-proof of the charges. The deceased was taken to hospital is 10 established by an act recorded by a public servant in discharge of his public duty of recording the fardbeyan at Sadar Hospital, Motihari. If one could peruse Ext.4 (fardbeyan), one could find that it was recorded by a public servant, A.S.I. Upendra Mishra (P.W.6) in discharge of his public function. Section 114(e) of the Evidence Act raises an inference of regularity in performance of judicial or official acts. The very document Ext.4 is evidence of that particular fact. Moreover, this fact has not been challenged either before us or before the lower court. Thus, we find that non-examination of rickshaw puller could not be permitted to be argued in the light of the examination of P.W.3 and even if it could be argued, the same appears inconsequential. 15. As regards the charge of committing murder in prosecution of common object an unlawful assembly by any of the members of such assembly, this brings us to consider whether evidence of the witnesses established the manner of occurrence. We cannot do better than to note in one line that a string of consistency runs through the whole gamut of the evidence of four eye witnesses. There is no contradiction appearing in the evidence of any one of the witnesses which may indicate that they were wavering in giving evidence on the manner of occurrence. Each and every witness has stated by naming each individual accused as to how he either caught hold of the hands of the deceased, or caught the deceased by his waist and how accused Surendra Ram pierced the Gupti in his chest. Some contradictions were sought to be proved as may appear from the evidence of witnesses, specially, P.W.4 and that of the .I.O., Ram Lalit Singh (P.W.8). On perusal of his evidence in paragraph-9 at page-50 of the paper book what we gather is that the defence was attempting to contradict the witness Bharat Ram 11 (P.W.3) or Mala Devi (P.W.4) only on the manner of catching hold of the deceased or coming of Surendra Ram with Gupti. But, P.W.8 has stated that it was consistent evidence of the witnesses that Surendra Ram was seen with Gupti at the place of occurrence. Thus, what we find is that the defence attempted to raise a point of contradiction in the evidence of the witnesses not on the manner in which they were seen by the witnesses but what the defence thought, they would have come at the place of occurrence with weapon or might be a minor difference on being present with the weapon. Again, we do not see any inconsistency in the manner of presence of the accused and above all the manner in which he gave a blow to the deceased. There is absolutely no contradiction in the evidence of the witnesses as regards other accused catching hold of the deceased and Surendra Ram giving a blow to the deceased. The evidence does not suffer from any infirmity. The witnesses, whom we have held reliable, have given good reasons for being present at the scene of occurrence and their evidence appears having quite some ring of truth around it. The manner of occurrence appears fully corroborated. 16. This brings us to consider the contention of the learned counsel on the conviction of the appellants by virtue of section 149 of the Penal Code and applicability of the judgment of the Supreme Court in Rajagopalswamy Konar (supra). Learned Additional Public Prosecutor was also submitting, to us, by reading out the contents of the fardbeyan that accused persons did not appear to be moving with common object and acting in prosecution thereof. It was contended by drawing our attention towards the first information report which reads that after the deceased had confronted the accused persons about their acts of misbehaviour with the village women-folk. They had simply hurled 12 abuse by shouting them upon him. It was contended that thereafter appears the allegation against the solitary accused Surendra Ram of coming to the scene of occurrence after bringing Gupti from somewhere. It was contended by Sri Sinha, the learned Additional Public Prosecutor, that upto this stage the accused persons other than Surendra Ram did not appear doing any act and, as such, there is sufficient indication that none of the accused persons were sharing a common object with accused Surendra Ram and, as such, their assembly was not unlawful. It was contended that after that stage, i.e., when accused Surendra Ram had appeared with Gupti, other accused persons are alleged in the first information report to have surrounded the deceased whereafter accused Surendra Ram pierced his Gupti in the chest of the deceased. The story as extracted above is what appears in Ext.4 (fardbeyan). In order to coming to a right and just conclusion we shall have to revert back to the evidence of the witnesses. We do not make any reference to any particular witness because they are consistent on facts that when the deceased had put certain questions to them on their conduct of misbehaving with the women-folk of the village they, first, had abused him; then two accused persons caught hold two of his hands and two others caught his waist. Thereafter, the deceased was stabbed by Surendra Ram at his chest. So, the very acts of the accused persons of catching hold of the hands of the deceased and also his waist, to us, appear a clear act of immobilizing the deceased completely so that there was no hurdle and obstruction into the ultimate act by the accused Surendra Ram in stabbing him to death. Criminal law does not envisage that accused should be motivated to act in prosecution of common object from the very beginning. It is too well known to be reiterated that common object could develop at the very spot, instantaneously and sharing 13 thereof can be shown from the established facts or on individual act as spoken by the witnesses which were committed by different accused persons including two appellants which clearly shows that common object had developed right from the beginning of the occurrence and just after the accused persons had abused the deceased and they very well knowing as to what was to be done by one of the members of unlawful assembly, namely, Surendra Ram. Thus, we find the decision of the Supreme Court in the case of Rajagopalswamy (Supra) not applicable to the facts of the present case. 17. We might not be doing justice to the industry of the learned counsel for the appellants, if we do not record one of his serious arguments of none finding of blood at the place of occurrence by P.W.8. P.W.8 has stated that it was a busy thoroughfare of the village and further that people had assembled there in plenty and the blood which