Raj Deo And 4 Ors. vs State Of U.P. on 8 January, 2025

January 14, 2025

Allahabad High Court

Raj Deo And 4 Ors. vs State Of U.P. on 8 January, 2025

1. Heard Shri U.P.Singh, learned counsel for the appellants, Shri U.C. Verma, learned A.G.A. for the State, Shri Vijai Shankar Tripathi, learned counsel appearing for the complainant/informant and perused the record.

2. This criminal appeal has been preferred by the appellants, namely, Raj Deo, Ram Singar, Ram Vishal, Ram Bodh and Surya Bhan under Section 374(2) of the Cr.P.C. against the judgment and order of the trial court dated 05.03.2001 passed by IIIrd Additional Sessions Judge, Sultanpur in Sessions Trial No. 222 of 1992 (State vs. Raj Deo and others), arising out of Case Crime No. 263 of 1991, under Sections 147, 148, 302/149 I.P.C., Police Station Lambhua, District Sultanpur, whereby the appellant- Ram Vishal has been convicted for committing offence under Section 148 and 302/149 I.P.C. and rest of the appellants have been convicted for committing offence under Section 147 and 302/149 I.P.C. and have been sentenced with maximum term of rigorous life imprisonment’ pertaining to offence under Section 302/149 I.P.C. with fine of Rs. 5000/- along with default clause.

3. Shri U.P. Singh, learned counsel representing the appellants submits that appellant no.1/Raj Deo and appellant no.4/Ram Bodh had died on 13.02.2015 and 09.07.2012 respectively during the pendency of this appeal. This submission of learned counsel for the appellant has also been corroborated by the report of the C.J.M., Sultanpur of date 30.09.2019. Vide order of date 13.03.2024 passed by this Court, the proceedings of this appeal have already been abated with regard to appellant no.1/Raj Deo and appellant no.4/Ram Bodh. Thus, the instant appeal survives only for appellants no.2, 3 and 5, namely, Ram Singar, Ram Vishal and Surya Bhan.

4. The necessary facts required for disposal of the instant appeal appears to be that, an F.I.R. was lodged by the informant Raj Mani at Police Station Kadipur at 19:25 hours on 10.09.1991 alleging that his nephew Ramjas S/o Babban Mishra was returning from Lambhua market at about 5:00 pm. after purchasing spare parts of a tractor on bicycle and he was intercepted by the accused persons Raj Deo, Ram Singar, Ram Vishal, Ram Bodh and Surya Bhan at Lambhua-Durgapur road, who were armed with ‘lathi-danda’ and Axe (kulhari) and assaulted him brutally whereby he sustained grievous injuries. On an alarm being raised, Radhey Shyam S/o Badri, Ram Jiyawan S/o Lal Mohan, Mahendra S/o Raj Mani and Ram Baran Tiwari S/o Ram Abhilakh arrived at the scene of the crime and challenged the assailants. The deceased, who at that point of time was injured, was taken to the hospital on a ‘rickshaw’ by Ram Baran and Mahendra Kumar and at the time of his admission in the hospital he was bleeding heavily.

5. On the basis of this written information, an F.I.R. at Case Crime No. 263 of 1991, under Sections 147, 148, 323 and 308 I.P.C. was registered at Police Station Kadipur, District Sultanpur, substance of which was entered in the General Diary of the police station.

6. The deceased Ram Jas, who at that point of time was injured, was examined by doctor R.P. Singh on 10.09.1991 at 6:45 pm. at C.H.C., Lambhua, Sultanpur and he noted following injuries on his person.

(1) Contusion at right side of the parietal region 4cm x 3cm. Reddish in colour 6cm above the right ear. Bleeding from the right nose is present. Patient is drousy. Right pupil is semi dilated.

(2) Contusion at left upper arm 7cm x 2cm .2cm below from left shoulder joint reddish in colour.

(3) Abraded contusion at posterior aspect of the right elbow joint 4cm x 2cm. Oozing of the blood is present.

(4) Multiple contusions all over the back of the Patient in area of chest region size 14cm x 2cm. Each reddish in colour.

(5) Lacerated wound on the right leg 6cm x 2 cm x bone deep. Fresh bleeding present.

Opinion:- All the injuries are fresh caused by blunt object. Patient kept under observation because he is having head injury x-ray skull, right elbow joint and right leg advised.

7. During the course of treatment, the injured Ram Jas died and information pertaining to his death was sent to the concerned police station whereon the investigation of the case was amended in Section 302 of the I.P.C. The inquest of the body of the deceased was prepared and after necessary paper work the dead body of the deceased was sent in sealed condition for postmortem.

8. The postmortem of the body of the deceased was performed by Doctor S.M.M. Naqvi at district hospital Sultanpur on 11.09.1991 at 12:00 noon. The body of the deceased was found of good built. Rigor mortis was present in all four limbs, no signs of decomposition were found.

Following ante-mortem injuries were noted by the doctor at the time of postmortem:-

(i) Abraded contusion 7.5 cm. x 5 cm. on right side of head.

(ii) Abrasion 1 cm. x 0.8 cm. on right zygomatic process.

(iii) Multiple abrasions on Posterior Lateral aspect of upper limb up to palm.

(iv) Multiple contusions on Posterior aspect of left upper limb up to palm.

(v) Lacerated wound 0.5 cm. x 0.5 cm. muscle deep on right elbow joint.

(vi) Multiple contusions crossing each other in an area of 30 cm. x 13 cm. on right side back of chest 7 cm. away from mid line.

(vii) Contusions 11 cm. x 1.5 cm. on right side of back 8 cm. away from mid line.

(viii) Multiple contusions crossing each other 28 cm. x 13 cm. over right side of right hip.

(ix) Multiple abrasions in an area of 04 cm. x 01 cm. on right side of chest 7 cm. below from right nipple at 8’o clock position.

(x) Multiple contusions crossing each other 26 cm. x 8 cm. on front aspect of right thigh 05 cm. below Rt. illiac crest.

(xi) Multiple contusions 8 cm. x 5 cm. on mid of left thigh.

(xii) One stitched wound 5 cm. on right leg 7 cm. below right knee joint.

(xiii) Abrasion 2 cm. x 0.5 cm. on mid of right leg.

(xiv) Lacerated wound 2 cm. x 0.5 cm. muscle deep on lower part of right leg 5 cm. below knee.

(xv) One abrasion 1.5 cm. x 0.8 cm. on the right leg.

(xvi) One lacerated wound 1 cm. x 0.5 cm. muscle deep on right toe.

(xvii) Abrasion 2.5 cm. x 1 cm. at medial aspect of left leg 3 cm. below left knee.

(xviii) One lacerated wound 3 cm. x 1 cm. x muscle deep on right foot 9 cm. below the knee joint.

(xix) One lacerated wound 3 cm. x 1 cm. muscle deep on left leg 6 cm. below above injury.

(xx) Multiple abrasions in an area of 5 cm. x 4 cm. at medial aspect of left leg 4 cm. above left lateral malleolus.

(xxi) Contusions 3.5 cm. x 2 cm. on the base of left toe.

Internal Examination

On internal examination the scalp was found congested. Skull was found fractured on right side of parietal region subdural hematoma was found on the right side of cerebral hemisphere. The brain was found congested. Heart was found full of blood and was weighing 250 grams. The bladder was empty.

In the opinion of the doctor, the death of the deceased was caused due to ‘coma and shock’ as a result of ante-mortem injuries.

9. The investigating officer of the case also recorded the statement of the injured (deceased) Ram Jas under Section 161 Cr.P.C., wherein he stated that when on the relevant day and time when he was going to his house with the tractor part he was assaulted by the accused persons with ‘lathi-danda and ‘kulhari’ and accused Ram Vishal assaulted him with ‘kulhari’ while other accused persons assaulted him with ‘lathi’. It is also stated by him that Ram Vishal was assaulting him with the back of the ‘kulhari’ (not with the sharpen side of it).

10. The investigating officer prepared the site plan and also recorded the statement of various prosecution witnesses and after finding sufficient material submitted charge sheet against all the accused persons under Sections 147, 148, 302 and 323 I.P.C.

11. The trial court framed the charges under Section 148 and 302 read with Section 149 I.P.C. against appellant- Ram Vishal, while the charges under Section 147 read with Section 302/149 I.P.C. were framed against the other accused persons, namely, Raj Deo, Ram Singar, Ram Bodh and Surya Bhan, which, they denied and claimed trial.

12. The prosecution in order to prove its case has presented P.W.-1/Informant, P.W.-2/Ram Jiyawan Mishra, P.W.-3/Ram Baran Tiwari, P.W.-4/Mahendra Kumar Mishra (eye witness), P.W.-5/Dr. R.P. Singh (doctor who has examined the deceased when he was injured), P.W.-6/Dr. S.M.M. Naqvi (doctor who has conducted the postmortem), P.W.-7/S.I. Purushottam Mishra, who conducted the investigation and the first investigating officer, P.W.-8/Ramakant Sharma, who has filed charge sheet.

13. Apart from the above-mentioned oral evidence, the prosecution has also relied on documentary evidence e.g. written Tehrir, Exhibit-ka-1, panchnama, Exhibit-ka-2, statement of the deceased recorded under Section 161 Cr.P.C., Exhibit-ka-3, Injury report of the deceased, Exhibit-ka-5, Photo lash, Chitthi R.I., Chitthi C.M.O., Exhibit-ka-11, Letter to R.I., Exhibit-ka-12, Sample Seal, Exhibit-ka-13, Site Plan, Exhibit-ka-14, Chik F.I.R., Exhibit-ka-16, G.D. kayami, Exhibit-ka-17, postmortem report of the deceased, Exhibit-ka-7, charge sheet, Exhibit-ka-15.

14. After conclusion of the evidence of the prosecution, the statement of the appellants/accused were recorded under Section 313 Cr.P.C., wherein they denied all the evidence produced by the prosecution and claimed that they have been falsely implicated in this case.

15. The trial court after hearing learned counsel for the parties found the case of the prosecution proved beyond reasonable doubt and convicted the accused Ram Vishal under Section 148 I.P.C. and other co-accused persons under Section 147 I.P.C. while convicting all the accused persons under Section 302 I.P.C. with the help of Section 149 I.P.C. in the manner described in the 2nd paragraph of this judgment.

16. Learned counsel for the appellants while challenging the impugned judgment and order of the trial court, submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has passed the judgment of conviction only on the basis of ‘surmises and conjectures’.

While drawing the attention of this Court towards the testimony of four prosecution eye witnesses, it is submitted that if the evidence of these prosecution witnesses is perused in totality, it would emerge that they may not be the eye witness of the alleged crime and it is submitted that it is hard to digest that none of the prosecution witness has come forward to save the deceased and none of them has sustained any injury in the process while their close relative was being done to death in front of them.

It is further submitted that there were only five accused persons, as per the prosecution story, on the spot, while there were four prosecution witnesses and the accused persons were not armed with any deadly weapon. Therefore, the conduct of the witnesses in not making any attempt to save the deceased would suggest that they were not present at the spot and they have not seen any occurrence and a blind murder has been attributed to the appellants on the basis of prior enmity.

It is also submitted that even if the case of the prosecution is taken on its face value, it would emerge that the object of the unlawful assembly was not to cause the death of the deceased, as all the accused persons were carrying simple household articles which could be used as weapon also. It is highlighted that ‘kulhari’ and ‘lathi’ is a common article found in every household in village and, thus, the evidence of the prosecution would itself suggest that there was no common object of the alleged unlawful assembly to cause the death of the deceased.

It is further submitted that the trial court has committed an illegality in relying on the statement of the deceased recorded by the investigating officer under Section 161 Cr.P.C. and the manner in which the statement is shown to have been recorded, could not be believed as it has come in the evidence of the doctor that after sustaining the injury on his head, the deceased might have gone in ‘coma’ at once, thus, he could not be in a position to give any statement.

17. It is also submitted that when a weapon is stated to have been used by the accused person, it would deemed to have been used in its natural way and, thus, when it is stated that ‘kulhari’ has been used by appellant- Ram Vishal, the same would be deemed to have been used from its sharper side and no injury has been caused to the deceased, which could be attributed to ‘kulhari’ and, thus, there is major contradiction in the ocular and medical evidence. It is also argued with considerable force that Chhotelal who is shown to be coming with the deceased on bicycle has not been presented as a witness by the prosecution, rendering the case of prosecution as false.

It is next submitted that even if it is believed that the accused persons had formed an unlawful assembly, the object of the said assembly could only be to inflict minor injuries, as except the one injury sustained by the deceased on his head, other injuries have been found simple and the injury which has been sustained on head could only be attributed to the appellant Ram Vishal and, hence, it could not be said that the common object of the assembly was to cause the death of the deceased.

It is also submitted that the motive, which has been placed for the purpose of commission of crime, is very weak and there are major contradictions, embellishments, inherent weaknesses in the evidence of the prosecution witnesses and it was a case wherein the reasonable doubt was emerging out of the evidence of the prosecution tendered before the trial court and the trial court has committed a mistake in convicted the appellants. Thus, the impugned judgment and order of the trial court be set-aside and appellants be acquitted of all the charges framed against them.

18. Learned A.G.A. on the other hand submits that there was enmity existing between the two families which is an admitted fact. The deceased had gone on the relevant day to purchase a part of the tractor and it was known to the accused persons that he would return to his home and, thus, they laid a trap and waited for his return and when he was coming back to his home with Chhotelal he was assaulted by the accused persons/appellants who were armed with ‘lathi’ and ‘kulhari’.

It is further submitted that from the start, it is the case of the prosecution that accused/appellant Ram Vishal has assaulted the deceased on his head with the blunt side of the ‘axe’ and the medical evidence corroborates this fact.

It is also submitted that the deceased has sustained as many as 21 injuries and having regard to the manner in which the assault has been made, the only conclusion that could be drawn is that the object of the unlawful assembly was to cause the death of the deceased.

It is next submitted that there are no major contradictions in the evidence of the prosecution eye witnesses. They were natural witnesses and their testimony could not be doubted only on the score that they are related to the deceased as they were natural witnesses. The spot has been fixed by the witnesses and, thus, no illegality has been committed by the trial court in convicting the appellants.

Learned A.G.A. representing the State has placed reliance on the following law reports:

(1) Ram Bharosey Vs. State of U.P. reported in 2010 CRI.L.J. 871.

(2) Suresh Dattu Bhojane Vs. State of Maharashtra reported in (2024) 7 SCC 15.

(3) Gurmej Singh and others Vs State of Punjab reported in AIR 1992 SC 214.

(4) Lalji and Others Vs. State of U.P. reported in (1989) 1 SCC 437.

19. Before proceeding further, in the direction of appreciating the evidence of the prosecution witness(s) vis-a-vis the submissions raised by learned counsel for the appellants, it is in the interest of justice to recollect the evidence of the prosecution witnesses.

P.W.-1/Raj Mani Mishra, who is the informant of this case, is not the eye witness of the incident and his evidence is only with regard to the fact that he had sent the deceased to purchase a part of the tractor and thereafter he had gone to his agricultural field situated in Village Chaukia where he was informed by his servant about the incident and, thereafter, he is stated to have arrived at the scene of crime where he was informed about the fact that his brother has been taken to the hospital and thereafter he arrived at the hospital and the whole incident has been narrated to him by his son Mahendra Kumar Mishra/P.W.-4.

P.W.-2/Ram Jiyawan Mishra, has claimed himself to be the eye witness of the incident and according to him, he at the relevant point of time was in his sugarcane field, when he heard an alarm raised by the deceased he immediately arrived and has witnessed the whole incident. He has given detailed account of the incident in terms that all accused persons were assaulting the deceased in front of his eyes and accused persons Raj Deo, Ram Singar, Surya Bhan and Ram Bodh were possessing ‘lathi’ while accused Ram Vishal was having a ‘kulhari’ in his hand and also that it was Ram Vishal who had assaulted the deceased from the blunt side of the accused on his head. According to him, the deceased was taken to the hospital by P.W.-3/Ram Baran Tiwari and P.W.-4/Mahendra Kumar Mishra.

P.W.-3/Ram Baran Tiwari has also claimed to have seen the incident, as at the relevant point of time he was going to Lambhua on a rickshaw and when he arrived near the scene of crime, he saw the accused persons assaulting the deceased and except Ram Vishal who is possessing a ‘kulhari’, the other accused persons were armed with ‘lathi and Ram Vishal assaulted the deceased with the blunt side of the ‘axe’ on his head while the other persons assaulted the deceased with ‘lathi’. He also claimed to have scolded the accused persons pertaining to the assault given by them to the deceased. He also stated to have taken the deceased to hospital on his rickshaw with the help of P.W.-4/Mahendra Mishra and also that the investigating officer (daroga ji) has taken the statement of the deceased (who at that point of time was injured) in the presence of the doctor and thereafter the deceased had died that very night.

P.W.-4/Mahendra Kumar Mishra is the paternal cousin of the deceased. He has also claimed to have seen the incident, as at the relevant point of time he was in his field and it was there he heard alarms raised by the deceased as the deceased was returning from Lambhua to his home. He also stated to have seen the assault made by the accused Ram Vishal with ‘kulhari’ from its blunt side on the head of the deceased while the other accused persons were assaulting with ‘lathi’ possessed by them. He also claimed to have taken the deceased to the hospital with the help of P.W.3/Ram Baran Tiwari and also that the deceased had regained consciousness in the night and his statement was recorded by the investigating officer.

P.W.-5 is the Dr. R.P. Singh, who has examined the injuries sustained by the deceased when he was injured and these injuries have been recorded in this statement at an appropriate place.

P.W.-6/Dr. S.M.M. Naqvi has stated to have conducted the postmortem of the deceased at 12:00 pm. on 11.09.1991 and also proved the postmortem report and according to him the death of the deceased was caused on account of ‘shock and hemorrhage’ as a result of antemortem injuries.

P.W.-7/S.I. Purushottam Mishra is the first investigating officer of the case who has proved to have recorded the statement of the deceased under Section 161 Cr.P.C. and proved a copy of the same available on record as Exhibit-ka-8. He also stated to have prepared necessary papers for the postmortem of the deceased including inquest report and also to have sent the body of the deceased for postmortem.

P.W.-8/S.H.O. Ramakant Sharma is the third investigating officer of this case, who has taken the charge of the investigation, as earlier investigating officers, namely, Purushottam Mishra and Shri Ashutosh Sharma were transferred to some other police station. He has proved the lodging of the F.I.R. as well as the signatures and the proceedings done by the earlier investigating officer S.I. Purushottam Mishra and Shri Ashutosh Sharma.

20. Having heard learned counsel for the parties and having perused the record, it is evident that the case of the prosecution in nutshell was that on 10.09.1991 at about 5:00 pm. in the evening the deceased was returning to his home after purchasing a part of the tractor, which had gone out of order and when he arrived at ‘Lambhua-Durgapur road’, the appellants armed with ‘lathi-danda’ and ‘kulhari’ were waiting for him and started assaulting him with ‘lathi-danda’ and ‘kulhari’. The ‘kulhari’ (axe) has been used by the appellant- Ram Vishal from its blunt side. On an alarm raised, the witnesses Radhey Shyam, Ram Jiyawan, Mahendra, Ram Baran Tiwari had arrived at the scene of crime and had taken the deceased, who at that point of time was injured, to the hospital on a ‘rickshaw’ and during the course of treatment the deceased has succumbed to the injuries.

21. So far as the submission of learned counsel for the appellants with regard to the uses of axe/kulhari by accused-appellant Ram Vishal and also that there are contradictions in the medical and ocular testimony is concerned, it is to be recalled that though, in the first information report, it has been stated that the appellants have assaulted the deceased with ‘lathi-danda’ and ‘kulhari’, however, the statement of the injured was recorded by the investigating officer while he was admitted in the hospital and he in his statement recorded under Section 161 Cr.P.C. has categorically stated that the other co-accused persons had assaulted him with ‘lathi’ while the appellant Ram Vishal was carrying a ‘kulhari’ and was assaulting him with the blunt side of the ‘kulhari’. This statement of the injured/deceased Ram Jas recorded while he was admitted in the hospital. After his death, it is admissible in evidence by virtue of Section 32 of the Indian Evidence Act as the same is related to the cause of his death. In this regard the law laid down by Hon’ble Supreme Court in Dharmendra Kumar Vs. State of Madhya Pradesh reported in MANU/SC/0566/2024 and in Harendra Rai Vs. The State of Bihar and Ors. reported in MANU/SC/0905/2023 may be recalled, which is reproduced as under:-

Honb’le Supreme Court in Dharmendra Kumar Vs. State of Madhya Pradesh reported in MANU/SC/0566/2024 has held as under :

“64. Before we proceed further, it would be apt to recapitulate Section 32(1) of the IEA, whereunder the statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, is relevant and admissible, irrespective of the fact that such person at the time of making the statement was not under expectation of death.

65. Section 161 Code of Criminal Procedure empowers the Police to examine orally any person who is acquainted with the facts and circumstances of the case under investigation. The Police may reduce such statement into writing also. Section 162(1) Code of Criminal Procedure, nonetheless, mandates that no statement made by any person to a Police Officer, if reduced to writing, be signed by the person making it, nor shall such statement be used in evidence except to contradict a witness in the manner provided by Section 145 of the IEA. However, Sub-section (2) of Section 162 Code of Criminal Procedure carves out an exception to Sub-section (1) as it explicitly provides that nothing in Section 162 shall be deemed to apply to any statement falling within the ambit of Clause (1) of Section 32 of the IEA. In other words, a statement made by a person who is dead, as to the cause of his death or to the circumstances of the transaction which resulted in his death, to a Police Officer and which has been recorded Under Section 161 Code of Criminal Procedure, shall be relevant and admissible, notwithstanding the express bar against use of such statement in evidence contained therein. In such eventuality, the statement recorded Under Section 161 Code of Criminal Procedure assumes the character of a dying declaration. Since extraordinary credence has been given to such dying declaration, the court ought to be extremely careful and cautious in placing reliance thereupon. There are a catena of decisions of this Court which lend support to the inter-play between provisions of the Code of Criminal Procedure and the IEA, as explained above.

67. The Constitution Bench in Laxman v. State of Maharashtra MANU/SC/0707/2002 : 2002:INSC:352 : (2002) 6 SCC 710 has authoritatively ruled that:

3. … ……..But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer.

… …

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a Rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

68. It is important in this case to appreciate that the Investigating Officer recorded the statement instantly, a day after the incident. He has categorically stated that the medical report did not mention that the condition of the declarant, Tularam, was serious in nature. More importantly, Tularam was able to convey his statement properly. Furthermore, on perusal of the statement, it is clear that the declarant Tularam was in a fit condition as not only did he properly explain the incident but has also markedly specified the role of the Appellant. That apart, the injuries found during the post-mortem examination conducted by P.W.13 and P.W.15 have duly corroborated the statement of deceased Tularam.

69. From the above discussion, it is manifest that the mere non- obtainment of a medical fitness certificate will not deter this Court from considering a properly recorded statement Under Section 161 Code of Criminal Procedure to be a dying declaration.”

Hon’ble Supreme Court in Harendra Rai Vs. The State of Bihar and Ors. reported in MANU/SC/0905/2023 has held as under :

“91. Now further issue crops up about the treatment of the FIR/Bayan Tahriri as dying declaration and in this respect various earlier pronouncements of this Court have clarified the position of law that the statement by an injured person recorded as FIR can be treated as a dying declaration and such a statement is admissible Under Section 32 of the Indian Evidence Act. It was also held that the dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation; a dying declaration can be the sole basis for conviction.

92. In the case of Munnu Raja and Anr. v. State of M.P. MANU/SC/0174/1975 : (1976) 3 SCC 104, the following observations are relevant:

Para 5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the FIR which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a FIR, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible Under Section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.

Para 6. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a Rule of law nor a Rule of prudence which has hardened into a Rule of law that a dying declaration cannot be acted upon unless it is corroborated…

***

Para 10. We are in full agreement with the High Court that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the Appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the Appellants falsely. They bore no ill-will or malice towards the Appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.

93. This Court in the case of Ram Bihari Yadav v. State of Bihar and Ors. MANU/SC/0302/1998 : (1998) 4 SCC 517, has discussed the law in paragraph 6 as follows:

Para 6. The law relating to dying declaration- the relevancy, admissibility, and its probative value- is fairly settled. More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. In this case, the thrust of the submission relates not to relevancy or admissibility but to the value to be given to Exh.2. A dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant Under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the Rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an Accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.

94. We may usefully reproduce the relevant paragraphs of the judgment of this Court in the case of Suresh Chandra Jana v. State of West Bengal and Ors., reported in MANU/SC/0997/2017 : (2017) 16 SCC 466, which reads as follows:

32. It would not be out of place to discuss the importance of dying declaration Under Section 32 of the Evidence Act. The principle underlying Section 32 of the Evidence Act is ‘Nemo moriturus praesumitur mentire’ i.e., man will not meet his maker with a lie in his mouth. Dying declaration is one of the exceptions to the Rule of hearsay. It is well settled that there is no absolute Rule of law ‘that the dying declaration cannot form the sole basis of conviction unless it is corroborated’. The Rule requiring corroboration is merely a Rule of prudence [refer Paniben (Smt.) v. State of Gujarat, MANU/SC/0346/1992 : (1992) 2 SCC 474; Munnu Raja and Anr. v. State of Madhya Pradesh, MANU/SC/0174/1975 : (1976) 3 SCC 104; State of U.P. v. Ram Sagar Yadav, MANU/SC/0118/1985 : (1985) 1 SCC 552; Ramawati Devi v. State of Bihar, MANU/SC/0135/1983 : (1983) 1 SCC 211]. Moreover, if the person making the dying declaration survives, then such statement would not be admissible Under Section 32 of the Evidence Act, rather such Statements may be admissible Under Section 157 of the Evidence Act [refer Gajula Surya Prakasrao v. State of A.P., MANU/SC/1809/2009 : (2010) 1 SCC 88]

33. In light of the importance the dying declaration holds in a criminal trial, the dereliction of duty in recording the dying declaration and the doctor’s ignorance of medico-legal jurisprudence is apparent from the material placed before us. My attention has been drawn to various judgments, which have addressed the aspects of dereliction of duty by the doctors and importance of medico-legal aspect in medical jurisprudence [refer State of Gujarat v. Hasmukh @ Bhikha Gova Harijan, MANU/GJ/0280/1995 : (1996) 1 Guj LR 292, Muniammal v. Supt. of Police, MANU/TN/0239/2008 and Indrajit Khandekar v. Union of India and Ors., MANU/MH/3171/2014 ]. It has to be remembered that every stakeholder in this criminal justice system is expected to act with a sense of fairness to bring out the truth so that punishment can be meted out to those who deserve. Although courts are provided with the duty to dispense justice, it cannot be denied that effective dispensation of justice by the courts in this country requires support of all the stakeholders. In light of the above, every stakeholder is expected to be aware of their responsibility and work towards achieving ends of the criminal justice system.”

22. In the instant appeal, the other witnesses, who have been examined before the trial court, namely, P.W.-1/Raj Mani Mishra (Informant), P.W.-2/Ram Jiyawan Mishra, P.W.-3/Ram Baran Tiwari, P.W.-4/Mahendra Kumar Mishra, have all in one voice have stated that it was Ram Vishal who was carrying a ‘kulhari’ and has used it with its blunt side while the other accused persons had assaulted the deceased with ‘lathi’.

In this regard, much emphasis has been given by learned counsel for the appellants with regard to the manner in which the statement of the deceased (who at that point of time was injured) has been recorded in order to show that it is highly doubtful that the deceased might have been in a position to give any statement. In this regard, the statement of P.W.-5/Dr. R.P. Singh is important, who at first examined the deceased/injured Ram Jas Mishra on 10.09.1991 at 6:45 pm. and he in his statement has specifically stated that the patient was admitted in the hospital and during the course of treatment he had regained his consciousness and was talking and when the deceased was in a condition of making conversation, the Sub Inspector of Police had visited the hospital and has made inquiry from the deceased and has also inquired from him about the incident. It has also stated by this witness while under cross-examination that when ‘daroga ji’ was recording the statement of the injured he had asked all others to remain outside and only he (daroga ji) and the injured person was present in the room wherein the statement of the injured was recorded. It has also been stated by this witness that the injured was not in the stage of ‘coma’, but drowsy.

In this regard, the statement of P.W.-3/Ram Baran Tiwari and P.W.-4/Mahendra Kumar Mishra, who had taken the deceased/injured to the hospital, is also important. These witnesses have stated that at about 1:15 am. in the intervening night ‘daroga ji’ had come to the hospital and had inquired about the incident from the injured/deceased Ram Jas and also recorded his statement and at that point of time Ram Jas was in his senses. It has also stated by him that his statement was also recorded by ‘daroga ji’. It has also stated by this witness that it was about at 3:00 am. in the night the condition of the injured deteriorated and he consequently died. P.W.-4/Mahendra Kumar Mishra had also stated that it was about at 12:00 in the night the deceased/injured had gained consciousness and he had also taken milk and at about 1-1:15 am. in the night ‘daroga ji’ had come and recorded the statement of the injured and it was in the hospital the statements of his father and uncle Ram Anjor and witness Ram Baran were also recorded and after the departure of the investigating officer the condition of the injured had deteriorated. Thus, the evidence of these witnesses clearly establishes that statement under Section 161 Cr.P.C. of the injured/deceased was recorded by the investigating officer in the intervening night of 10-11.09.1991. Therefore, factum of recording of statement of injured-deceased Ram Jas by the investigating officer has been proved by these witnesses, and in view of the fact that the statement related to the death of deceased it is admissible as dying declaration under Section 32 of Indian Evidence Act. Injured has also stated that other accused persons assaulted him with ‘lathi’ while Ram Vishal assaulted with the blunt side of ‘kulhari’ on his head. Admittedly P.W.-1/Raj Mani Mishra was not present at the spot when the alleged incident had occurred, however, the witnesses P.W.-2/Ram Jiyawan Mishra, P.W.-3/Ram Baran Tiwari, P.W.-4/Mahendra Mishra had claimed that they have seen the incident and they in one voice have stated that the appellant Ram Vishal had used ‘kulhari’ from its blunt side. Thus, having regard to the evidence available on record, in our opinion, it is established beyond reasonable doubt that the ‘kulhari’ from its blunt side was used by the appellant Ram Vishal and, therefore, there appears no contradictions in the oral and medical evidence tendered before the trial court.

23. It is also argued by learned counsel for the appellants that none of the prosecution witnesses had attempted to save the deceased and has sustained any injury in the process which suggest that these witnesses are planted witnesses and they have not seen any occurrence. In this regard, as has been stated earlier, P.W.-1/Raj Mani Mishra is admittedly not the eye witness of the crime. The prosecution has relied on the statement of P.W.-2/Ram Jiyawan Mishra, P.W.-3/Ram Baran Tiwari and P.W.-4/Mahendra Mishra, who claimed themselves to be the eye witnesses of the crime. The case of the prosecution is that when the deceased was returning after purchasing a part of the tractor he was assaulted by the appellants with ‘lathi’ and ‘kulhari’. It is also the case that the axe/kulhari was used by only appellant Ram Vishal while the other co-accused persons had assaulted with ‘lathi’. It is also the case of the prosecution that the appellants had laid a trap and they were waiting for the return of the deceased who had come on the bicycle of one Chhotelal. It is evident from the evidence of these prosecution witnesses that none of the witness was possessing either ‘lathi’ or any other weapon, as P.W.-2/Ram Jiyawan Mishra has stated to be present at his agricultural field; P.W.-3/Ram Baran Tiwari has stated to be going on a rickshaw to Lambhua and P.W.-4/Mahendra Kumar Mishra has also stated to be present at his agricultural field which was about 70-75 paces away from the incident. P.W.-2/Ram Jiyawan has stated to be in his sugarcane field and, thus, none of these witnesses was possessing any weapon or ‘lathi’, etc. They had not seen the appellants before the incident and it is the case of the prosecution that when an alarm was raised by the deceased, they came to know about the assault by the appellants. The incident is stated to have been caused in furtherance of a plan and, thus, all the appellants stated to have participated in the incident. P.W.-2/Ram Jiyawan Mishra has stated that when he at first saw the injured/deceased he had fallen on the ground and it was P.W.-4/Mahendra and P.W.-3/Ram Baran who had arrived at the scene of crime before him and he had seen the accused persons assaulting the deceased from the distance of 40-45 paces. P.W.-3/Ram Baran Tiwari has stated that he had scolded the appellants and asked the rickshaw puller to drive fast and when he was about 10-15 paces away the accused persons had fled away from the scene. P.W.-4/Mahendra Mishra had stated that when the assault started, he was attracted by the alarm raised by the deceased/injured and started running towards the scene of the crime raising alarm and witness Ram Baran Tiwari, Ram Jiyawan Mishra and Radhey Shyam had also started running towards the place of occurrence and when they were 10-15 paces away from the incident from the spot, the appellants/accused persons had turned away and it was at that moment the appellant Ram Vishal had given a blow on the head of the deceased by the blunt side of the ‘axe’/kulhari on the head of the deceased. The evidence of these witnesses clearly establishes that when the accused persons had assaulted the deceased they were not present at the spot and arrived at the scene only after hearing alarm of the deceased and when they were about 10-15 paces away the assault was over and, hence, there was no opportunity for these witnesses to have participated in the ‘marpeet’ or to make any attempt to save the deceased.

24. It is also to be recalled that different witnesses’ behave in different ways, there is no straight-jacket formula for the witness to behave in a stereotypical manner and if the behavior of the witnesses is not in the line of the defence set up by the accused persons it could not make any dent in the story of the prosecution. Thus, simply on the score that the witnesses have not sustained any injury or did not make any attempt to save deceased, the case of the prosecution could not be seen with suspicion.

25. It is also argued with considerable force that all the witnesses are related to the deceased and the informant and there are various material contradictions, improvements and embellishments in the evidence of these witnesses and it emerges that these witnesses may not be the eye witnesses of the incident and they are planted witneses. The manner in which the evidence of the witnesses of fact or to say the eye witnesses is to be appreciated is now no more res integra and the same has been set at rest by a number of judgments propounded by the Hon’ble Supreme Court. However, each criminal case is having its own facts and circumstances and own blend. Therefore, no straight-jacket formula could be evolved for universal application and it will depend upon the factual matrix of each and every case having regard to the nature of the testimony given by the witnesses, the basis of which it could be assumed as to whether the witness of fact who are claiming themselves to have seen the incident are truthful, reliable and may be acted upon.

12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held:

“5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a “highly interested” witness because she “is the wife of the deceased”……For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ‘interested’. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents.”(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473).

13. In Sachchey Lal Tiwari v. State of U.P. MANU/SC/0865/2004 : AIR 2004 SC 5039, while dealing with the case this Court held:

“7….Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.”

14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased.”

In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011, It was held as under :-

“14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).

In view of the law laid herein above, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses.”

26. It is therefore settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with deceased is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence of such witness to find out whether he is a natural witness and whether in the facts and circumstances of the case his evidence is cogent and credible.

Hon’ble Supreme Court Of India in Mahendran and Ors. Vs. State of Tamil Nadu and Ors. Reported in MANU/SC/0257/2019 in para 38 of the report held as under :-

“38. ………….. The argument that the entire case set up is based on falsehood and thus not reliable for conviction of the Appellants, is not tenable. It is well settled that the maxim “falsus in uno, falsus in omnibus” has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera’s case, wherein the Court held as under:

15 . To the same effect is the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : (1974) 3 SCC 277 and Lehna v. State of Haryana, MANU/SC/0075/2002 : (2002) 3 SCC 76. Stress was laid by the Accused- Appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of “falsus in uno, falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an Accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an Accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other Accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of Rule of law. It is merely a Rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory Rule of evidence”. (See Nisar Alli v. State of U.P. MANU/SC/0032/1957 : AIR 1957 SC 366) Merely because some of the Accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the Accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab MANU/SC/0122/1955 : AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound Rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. MANU/SC/0254/1972 : (1972) 3 SCC 751 and Ugar Ahir v. State of Bihar MANU/SC/0333/1964 : AIR 1965 SC 277.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. MANU/SC/0093/1952 : AIR 1954 SC 15 and Balaka Singh v. State of Punjab MANU/SC/0087/1975 : (1975) 4 SCC 511.) ……….”

27. Now the evidence of three prosecution eye witnesses, namely, P.W.-2/Ram Jiyawan Mishra, P.W.-3/Ram Baran Tiwari and P.W.-4/Mahendra Kumar Mishra is to be appreciated in the background of the aforementioned settled principles. It appears to be an admitted situation that P.W.-1/Raj Mani Mishra /informant has not seen the incident and he was informed about the incident by P.W.-4/Mahendra and it is thereafter he had gone to the hospital. P.W.-2/Ram Jiywawan stated that he at the relevant point of time was in his sugarcane field, which is situated nearby the place of occurrence and after hearing screams of the deceased, he rushed to the spot and had seen the appellants assaulting the deceased with ‘lathi’ and also that it was Ram Vishal who had assaulted the deceased with the blunt side of ‘kulhari’ on his head and when he has arrived at the scene of crime, the accused persons had turned away. It is also stated that the deceased at that point of time had lost his consciousness. P.W.-3/Ram Baran Tiwari has stated that he at the relevant point of time was going on a ‘rickshaw’ to Lambhua and when he was about 100 paces towards west of the culvert he had seen the appellants assaulting the deceased with ‘lathi’ and ‘kulhari’. He also stated that the accused Ram Vishal had assaulted the deceased with the blunt side of the ‘kulhari’ on his head. It has also stated by him that when he saw appellants assaulting the deceased, he had shouted at them and rushed towards the spot and when he was about 10-15 paces away from the spot the accused persons had fled away towards North. The injured Ram Jas had lost its consciousness. He also stated that he with the help of Mahendra and Ram Jiyawan had placed the injured/deceased Ram Jas on the rickshaw and he was taken to hospital where he was admitted. P.W.-4/Mahendra Kumar Mishra is the cousion brother of the deceased. He stated that at the relevant point of time he was in his agricultural field, which is situated about 70-75 paces away from the spot and he had seen the deceased going on the bicycle of Chhotelal from Lambhua to his home. He also stated that accused persons/appellants had emerged from a pit situated by the side of the road and dragged the deceased from the bicycle and thereafter assaulted him with ‘lathi’ and it was accused/appellant Ram Vishal who had assaulted the deceased with the blunt side of the ‘kulhari’. He also stated that he and other witnesses were about 10-15 paces away from the spot when the appellants had fled away. Thus, all these witnesses in one voice have stated the manner of commission of the offence and the role played by the accused Ram Vishal and other co-accused persons by stating specifically that all other accused persons were carrying ‘lathi’ while the accused Ram Vishal was carrying a ‘kulhari’ and at first those who were possessing ‘lathi’, assaulted the deceased and thereafter accused Ram Vishl has assaulted the deceased on his head by the blunt side of ‘kulhari’.

28. The postmortem report of the deceased would reveal that he had sustained as many as 21 injuries and all these injuries are either contusions, lacerated wounds, abrasions, stitched wounds and on the opening of the body, the skull was found fractured at right parietal region, which was beneath the injury no.1 sustained by the deceased on the right side of his head. The membrances were found congested and clotting was found along with Sub-dural hematoma’ and in the opinion of the doctor, the deceased had died due to ‘shock, hemorrhage and coma’ as a result of antemortem injuries.

29. It is true that all the witnesses of fact in this case are related to the informant and deceased but as has held in the cases cited herein-before the Hon’ble Supreme Court in a number of Judgments has held that the testimony of these related witnesses may not be discarded only on this score and the duty of the Court is to appreciate the evidence of these witnesses with same caution in its mind. We have perused the evidence of these three eye witnesses, namely, P.W.-2/Ram Jiyawan, P.W.-3/Ram Baran Tiwari and P.W.-4/Mahendra Mishra. Except P.W.-3/Ram Baran Tiwari, who stated that he at the relevant point of time was going on a ‘rickshaw’ from Lambhua and was about 100 paces away from the place where the incident had taken place, other two witnesses, namely, P.W.-2/Ram Jiyawn Mishra and P.W.-4/Mahendra Mishra are the natural witnesses as they at the relevant point of time stated to be in their agricultural field, which is normal and natural at that time of the day.

30. Perusal of the evidence of these three witnesses of fact would reveal that though there are minor contradictions in the evidence of these witnesses but their testimony is firm and trustworthy on the core of the prosecution story.

31. It is to be recalled that it is not expected from the witnesses to give a video-graphic account of the incident in a ‘parrot like manner’. If the evidence of the witnesses is being recorded after lapse of some time, minor contradictions are bound to occur and these contradictions, in our considered opinion, put the testimony of such witnesses in the category of reliable witnesses, as emerging of minor contradictions is quite natural and it fortifies the belief that they are not tutored witnesses. After giving our thoughtful consideration to the evidence of these witnesses, we have not found any major infirmity, embellishments or contradictions in their evidence and in our considered opinion the evidence of these witnesses is having a ring of truth around it and could have been accepted and, thus, the trial court has not committed any illegality by relying on the evidence of such truthful witnesses.

32. Learned counsel for the appellants submits that there are contradictions in the oral account of the incident vis-a-vis medical evidence and highlighted that the deceased was also medically examined, when he was alive, by Dr. R.P. Singh and, thereafter, when he died, his postmortem was conducted by P.W.-6/Dr. S.M.M. Naqvi and while in the life time injury report, only five injuries have been found, in his postmortem report, 21 injuries have been found and this is a contradiction and benefit of which must go to the accused persons/appellants.

33. On perusal of the record in the background of the submissions advanced by learned counsel for the appellants, it would emerge that the deceased was taken to the hospital and was admitted on 10.09.1991 and it was at 6:45 pm. his injuries were examined and recorded by P.W.-5/Dr. R.P. Singh, who appeared before the trial court and stated that the injured/deceased had sustained five injuries. These five injuries have been found on the head, left hand, right elbow-joint, multiple contusions on the back in an area of 14 cm. x 02 cm. and a lacerated wound at the front side of the right leg. The contusions, which have been found on the left side of the back, were in an area of 7 cm. x 2 cm. After the death of the deceased when his body was subjected to postmortem and the same was conducted by P.W.-6/S.M.M. Naqvi and about 21 injuries of different nature were found on his body, the details of which has already been given at the appropriate place in this judgment and there is no need to repeat the same.

34. It is to be understood that when a severely injured person whose condition is not stable is admitted in the hospital, the prime concern for a doctor is to save his life and there is difference between the caution adopted by the doctors while noticing the injuries during the lifetime of an accused person and the caution exercised while subjecting the body of the deceased to postmortem. Whenever there is contradiction in the evidence of life time injury report and postmortem report, due weightage should be given to the injuries or the facts recorded in the postmortem report.

35. It is also to be understood that the deceased has sustained multiple contusions criss-crossing each other which might have been considered by P.W.-5/Dr. R.P. Singh as one injury while the same has been described in the postmortem report individually. Moreover, many of these injuries are abrasions, which might have missed the attention of P.W.-5. Also, this discrepancy in their statements has not been put to both the doctors who have been examined as P,W.-5 and P.W.-6/ and in our considered opinion, the same cannot be given much importance as the postmortem report of the deceased is commensurate and in the line of the oral evidence given by the three witnesses of fact and except injury no.1 sustained on the head of the deceased, all these injuries may be caused by ‘lathi’ and from the inception the case of the prosecution is that accused Ram Vishal had assaulted the deceased on his head with the blunt side of the ‘kulhari’, which is also corroborated by the medical evidence. Thus, we do not find any contradiction of medical evidence with the ocular version of the incident.

36. Finally, it is submitted by Shri U.P. Singh, learned counsel for the appellant that even if the case of the prosecution is believed as it is, there was no common object to commit the death of the deceased, as even by accused Ram Vishal, the natural side of the ‘axe’/kulhari was not used while the other accused persons were armed with ‘lathi’, which is not a deadly weapon and, thus, the trial court has committed an illegality in convicting the appellants for committing the murder of the deceased under Section 302 I.P.C.

37. It is to be recalled that instant appeal is a case where the accused persons were waiting for the return of the deceased and when the deceased arrived at the scene of crime on the bicycle of Chhotelal, he was pulled down and assaulted with ‘lathi-danda’ and kulhari. The formation of an unlawful assembly and its common object could only be known by the manner in which the members of such assembly have committed the offence and the weapons carried by them and direct evidence of such common object is seldom available.

Hon’ble Supreme Court Of India in Chanakya Dhibar (Dead) Vs. State of West Bengal and Ors., MANU/SC/1096/2003 while dwelling on the scope of section 149 IPC has held as under :-

“11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine 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 in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it, a common object may be formed by express agreement after mutual constitution, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.

12. ‘Common object’ is different from a “common intention” as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.

13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that he offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word ‘knew’ used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of ‘might have been known’. Positive knowledge is necessary. 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, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 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 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. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikarange Gowda and Ors. v. State of Mysore, MANU/SC/0116/1956 : 1956CriLJ1365 .”

In Lalji v. State of U.P. MANU/SC/0283/1989 it was observed that:

“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.””

16. Hon’ble Supreme Court in Roy Fernandes vs State of Goa and Ors. Reported in MANU/SC/0072/2012 while eloborating the scope of section 149 of the penal code has held as under :-

“19. In Gajanand and Ors. v. State of Uttar Pradesh MANU/SC/0173/1954 : AIR 1954 SC 695, this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai v. Emperor MANU/BH/0073/1945 : AIR 1946 Pat 242:

“Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.

20. This Court then reiterated the legal position as under:

The question is whether such knowledge can be attributed to the Appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The Appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu’s left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 Indian Penal Code. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the Appellants, much less that they would be used in order to cause death.

21. In Mizaji and Anr. v. State of U.P. MANU/SC/0040/1958 : AIR 1959 SC 572 this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of Indian Penal Code was, therefore, attracted and the conviction of the members of the assembly for murder legally justified. This Court analysed Section 149 in the following words:

6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section 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 pre-concert in the sense of a meeting of the members of the unlawful assembly 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. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.

22. In Shambhu Nath Singh and Ors. v. State of Bihar MANU/SC/0214/1959 : AIR 1960 SC 725, this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2002 (8) SCC 381 and Bishna Alias Bhiswadeb Mahato and Ors. v. State of West Bengal MANU/SC/1913/2005 : 2005 (12) SCC 657 similarly explain and reiterate the legal position on the subject.”

17. Hon’ble Supreme Court Of India in Kuldip Yadav and Ors. Vs. State of Bihar, MANU/SC/0390/2011 while commenting on the scope of conviction with the aid of section 149 of penal Code has held as under :-

“Para 25-………149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-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.

26. The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established.

The above principles have been reiterated in Bhudeo Mandal and Ors. v. State of Bihar MANU/SC/0125/1981 : (1981) 2 SCC 755.

27. In Ranbir Yadav v. State of Bihar MANU/SC/0245/1995 : (1995) 4 SCC 392, this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.

28. In Allauddin Mian and Ors. Sharif Mian and Anr. v. State of Bihar MANU/SC/0648/1988 : (1989) 3 SCC 5, this Court held: …Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. 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 strictly 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 any one 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, IPC….

29. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and 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 IPC.

30. In Rajendra Shantaram Todankar v. State of Maharashtra and Ors. MANU/SC/0002/2003 : (2003) 2 SCC 257 : 2003 SCC (Crl.) 506, this Court has once again explained Section 149 and held as under:

14. Section 149 of the Indian Penal Code provides 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behavior of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 – either clause – is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act….” (Emphasis ours)

18. Hon’ble Supreme Court Of India in Manjit Singh Vs. The State of Punjab, MANU/SC/1195/2019 held as under :-

“14.4. In the case of Subal Ghoral v State of West Bengal, MANU/SC/0296/2013 (supra), this Court, after a survey of leading cases, summed up the principles as follows:

52. The above judgments outline the scope of Section 149 Indian Penal Code. We need to sum up the principles so as to examine the present case in their light. Section 141 Indian Penal Code defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 Indian Penal Code postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 Indian Penal Code provides for punishment for being a member of unlawful assembly. Section 149 Indian Penal Code provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of theperson falls within the ingredients of Section 149 Indian Penal Code, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 Indian Penal Code if they shared common object of the unlawful assembly.

53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 Indian Penal Code. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the Accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a Rule of caution.”

(emphasis supplied by us)

38. The appreciation of the evidence of the three witnesses of fact in the background of the aforesaid law would reveal that the accused persons had laid a trap as they were hiding in the pit situated by the side of the road and were waiting for the return of the deceased as he had gone earlier in the day to purchase a part of the tractor as his tractor had gone out of order. P.W.-1/Raj Mani Mishra in his statement has stated in clear terms the name of the part of the tractor which was required to be replaced and, thus, it is established that the accused persons were also in knowledge that the deceased would return to his home after purchasing the part of the tractor and the manner in which the deceased was pulled down from the bicycle and was assaulted by all the accused persons in a pre-concerted manner and keeping in view that about 21 injuries have been inflicted on the body of the deceased and the death of the deceased had occurred on account of cumulative effect of these injuries, it may safely be inferred that the object of this unlawful assembly was to commit the murder of the deceased. The fact that the accused Ram Vishal had assaulted the deceased with the blunt side of the ‘kulhari’/axe is not sufficient to infer that the common object of this assembly was not to commit the death of the deceased. The infliction of 21 injuries on vital parts on the body of the deceased, in our considered opinion, is sufficient to infer that the common object of the assembly was to cause the death of the deceased and all the members of this unlawful assembly were in knowledge of this common object or they were in knowledge that the murder of the deceased was likely to be the result of the action of one or more members of such assembly. As has been held in various cases the participation of an accused person, who is member of such an unlawful assembly is not a pre-condition for his conviction. It is sufficient that he was in knowledge of the common object of the unlawful assembly or was having sufficient knowledge that this offence is likely to be committed by such assembly and has not withdrawn himself from such assembly at an appropriate time. The conduct of the accused persons emerging out of the pit together and after commission of the incident running away together would suggest in manifest terms that they had hatched a plan to commit the murder of the deceased. Thus, the fact that after the deceased had been assaulted by the accused persons with ‘lathi’, it is thereafter the accused Ram Vishal assaulted the deceased on his head with the blunt side of the ‘axe’ would not be sufficient in itself to assume/presume that the common object of the assembly was not to cause the death of the deceased or to infer that it was only Ram Vishal who could be responsible for the death of the deceased. Once all the accused persons had formed an ‘unlawful assembly’ and they had acted in a concerted and well-planned manner and had inflicted around 21 injuries on vital parts of the body in furtherance of common object and at the cost of repetition, we reiterates that all these members of this unlawful assembly were in knowledge of the common object of the assembly, which was to cause/commit the murder to beat Ram Jas to death.

39. It is also to be recalled that when there is an intention to commit the murder of the deceased, it would always be a case of ‘first degree murder’ i.e. punishable under Section 302 I.P.C. Thus, we do not find any weight in this submission of learned counsel for the appellants.

Non-production of witness Chhotelal is also not a circumstance which would be sufficient to create a reasonable doubt in the story of the prosecution. Today no body wants to get himself involved in the affairs of others and invite difficulties for themself when we are not having any robust system for witnesses protection. Thus, the case of the prosecution is to be seen on the appreciation of evidence of witnesses who have been presented before trial court.

40. Having considered all the facts and circumstances of the case, we are of the considered opinion that the trial court has passed a well reasoned judgment based on the valid appreciation of evidence and all the attempts made by learned counsel for the appellants to show that the judgment of the trial court is perverse and is based on mis-appreciation of the evidence, do not carry any weight and in our considered opinion the evidence, which was produced before the trial court, has established the case of the prosecution beyond reasonable doubt. The spot where the incident had taken place, has been fixed by the three prosecution eye witnesses, they have given detailed account of the incident. The parties were having enmity from before the incident and it is an admitted fact and has not been denied by the accused persons. The formation of unlawful assembly by the accused persons has been well-established and though it is not necessary for a member of the unlawful assembly to take active part it is evident that all accused persons had participated in the ‘marpeet’ and keeping in view the fact that 21 injuries have been found on the person of the deceased, it could safely be inferred that the common object of this unlawful assembly was to commit the murder of the deceased by beating him to death and, thus, we do not find any force in the instant appeal and, thus, the appeal preferred by the appellants, namely, Ram Singar, Ram Vishal and Surya Bhan is, hereby, dismissed and impugned judgment and order of the trial court dated 05.03.2001 is affirmed.

41. The appellants- Ram Singar, Ram Vishal and Surya Bhan appear to be on bail. They will surrender within 30 days from today before the trial court concerned and shall serve the sentence, as imposed by the trial court.

42. It is clarified that if the accused/appellants do not surrender before the trial court within the time stipulated herein-before, the trial court will issue coercive process against them so that the sentence, as imposed by the trial court is served by them.

43. A copy of this order along with the record of the trial court be immediately sent to the trial court for compliance.

(Mohd. Faiz Alam Khan, J.) (Sangeeta Chandra, J.) Order Date:- 08.01.2025/Praveen

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