1. This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant/accused namely Shiv Mangal Ahirwar, against the judgment
and conviction dated 20.04.2010, passed by Special Judge (S.C./S.T.) Chhatarpur in S.T. No.172/2006, whereby the appellant/accused has
been convicted for commission of offences punishable under Section 302/149 (three counts) of IPC and sentenced to undergo rigorous
imprisonment for life and a fine of Rs.1000/-, Section 325/ 149 of IPC and sentenced to undergo rigorous imprisonment for two years and a fine
of Rs.500/-, Section 148 of IPC and sentenced to undergo rigorous imprisonment for one year, with default stipulations.
2. The prosecution story in nutshell is that deceased Dileep and Babbu were real brothers. Deceased Rambabu was the son of Babbu. The
deceased and appellant and other co-accused persons are resident of village Khaira Kasar. There was previous enmity between appellant and
deceased persons on account of property dispute. On 15.03.2006 at about 5 O''clock in the evening, deceased Babbu, Dileep and Rambabu and
Bhola were sitting in front of their house. The villagers were celebrating Holi festival. Accused Manoj came there and sat with Babbu and Dileep.
After sometime, Guddi Bai, the sister of Manoj, came there and asked Manoj why he is sitting with the enemies. Manoj told her that he had come
to apply Gulal (Abir) to Babbu and Dileep on occasion of Holi. Thereafter, Guddi returned home and again came back with accused persons
Bharosa, Rajesh, Balesha, Pappu and Shivmangal. An oral altercation took place between Bhola and accused persons then they returned home
with Manoj. At around 7 O''clock in the evening, Bhola, Rambabu, Babbu and Dileep were sitting in front of their house, meanwhile, accused
persons Chingu, Bahiyadeen, Rajesh, Manoj, Bharosa, Valesha, Ballu and appellant Shivmangal armed with weapons like axe, ballam, lathi and
gun arrived there. Chingu fired a gun shot in the air and thereafter, appellant and other accused persons started beating Babbu, Dileep, Rambabu
and Bhola. Seeing the incident, Guddi Bai, Kallu Bai, Rani Bai and Shanti Bai tried to intervene and save the deceased persons then Guddi Bai and
Shanti Bai were beaten by appellant and other accused persons. Babbu, Dileep, and Rambabu sustained fatal injuries and they died on the spot.
After beating them, the appellant and other accused persons ran away. An intimation of the incident was received at Police Station Jujhar Nagar,
Roop Singh Chouhan Sub Inspector and SHO, visited village Khaira Kasar and on report of Bhola recorded Dehati Nalsi Ex.P-1 and Marg
Intimation Exs.P-29, P-30 and P-31. The inquest was initiated and Panchnama of dead body of Babbu, Dileep and Rambabu were prepared and
dead bodies were sent for postmortem to Community Health Center, Laundi. The police registered the FIR and during investigation, spot map
Ex.P-18 was prepared. Injured Bhola was sent for medical examination to Community Health Centre, Laundi, where Executive Magistrate
recorded his dying declaration. The co-accused persons Chingu, Bahiyadeen, Rajesh, Manoj, Bharosa, Valesha were arrested and a ballam was
seized at the instance of Chingu @ Sohanlal, a pharsa was seized at the instance of Bhaiyadeen, lathies were seized at the instance of Rajesh and
Manoj, a pharsa was seized at the instance of Babbu Ahirwar, a axe was seized at the instance of Bharosa, a ballam was seized at the instance of
Balesha. On 04.04.2006, the Investigating Officer seized a country made pistol of 315 bore with two live cartridges from appellant Balesha. The
seized articles were sent for examination to FSL. The statements of witnesses were recorded and after completion of investigation, the charge-
sheet has been filed against the co-accused presons Chingu, Bahiyadeen, Rajesh, Manoj, Bharosa, Valesha before the Court. A trial S.T. No.
172/2006 State Vs. Chingu and others was conducted before special Judge and they have been convicted and sentenced under alleged offences
vide judgment dated 10.10.2008. The present appellant Shivmangal remained absconded at the time of filing of charge-sheet. Later on he was
arrested and on 03.01.2008 a Pharsa was recovered and seized on the basis of his memorandum statement. Thereafter, the police filed
supplementary challan against the present appellant.
3. The trial Court framed the charges of offence under Sections 148, 302 in alternative 302/149 (three counts), Section 307 in alternative
307/149, 323 in alternative 323/149 IPC against present appellant. The appellants abjured guilt and pleaded innocence.
4. The prosecution has examined 15 witnesses whereas the appellants had adduced no evidence in his defence.
5. The trial Court on appreciation of evidence relying upon the testimony of eyewitnesses Bhola (PW-1), Guddo Bai (PW-7), Shanti Bai (PW-3)
and Sangeeta (PW-4) arrived at the conclusion that the appellant being member of unlawful assembly in furtherance of common object of assembly
committed murder of deceased Rambabu, Dileep and Babbu and also caused grievous injuries to Bhola. The trial Court held the appellant guilty
for commission of offence punishable under Section 302/149 (three counts) and 325/149 and 148 of IPC and sentenced them as mentioned
hereinabove.
6. It is argued by learned counsel for the appellant that there was no evidence to prove enmity between the appellant and deceased persons. The
case of prosecution is not supported by independent witnesses. The witness Rani Bai, Guddo Bai, Shanti Bai and Sangeeta had admitted that they
arrived on the spot after the incident. Therefore, they cannot be treated as eyewitnesses and their testimonies become doubtful. The statements of
eyewitnesses were recorded after a long delay which is not explained properly. The complainant Bhola has categorically stated that there was dark
at the time of incident and he could not identify the assailants. He has been declared hostile. This creates doubt on testimony of other eye witnesses
also. There are material discrepancies found in the version of prosecution witnesses. The trial ?ourt on erroneous appreciation of evidence has
wrongly held the appellant guilty for commission of murder of deceased persons.
7. Heard arguments and perused the record.
8. It is not disputed that the deceased Babbu, Dileep and Rambabu had sustained fatal injuries at the time of incident and they died on the spot.
Investigating Officer Roop Singh Chouhan (PW-12) visited the scene of occurrence, and recorded Dehati Nalsi Ex.P-1 on the report of
complainant Bhola who had also received injuries. From the evidence of Roop Singh Chouhan (PW-12) it is found that he had initiated the inquest
by recording the Marg Intimation Ex.P-29, P-30 and P-31 in respect of death of Rambabu, Dileep and Babbu respectively and after preparing
Panchnama of dead body, sent the bodies for postmortem to Community Health Center Laundi.
9. Dr. J.P. Naik (PW-10) deposed that on 16.03.2006 at Community Health Center Laundi, he had conducted the postmortem of dead bodies of
deceased Rambabu, Dileep and Babbu Ahirwar. On examination of dead body of Rambabu, he found following injuries ;-
(i) Incised wound 6 x 3.5 cm over left parital region of scalp cutting the brain and brain material came out from the wound, clotted blood present at
the wound side.
It is opined by the Doctor that the injury was antemortem and cause of death is Coma due to damage of vital organ of brain. The statement of
doctor is duly corroborated by postmortem report Ex.P-7 given by him.
10. Dr. J.P. Naik (PW-10) deposed that on postmortem of Dileep, he found following injuries :-
(i) Stab wound 1.5 x 1.5 cm circular in shape over left side of chest.
(ii) Stab wound 1.5 x 1.5 cm circular in shape on left side of chest near injury No.1.
(iii) Exit wound size .5 cm circular in shape over left side scapula.
(iv) Exit wound .5 cm circular in shape over left side of back.
(v) Lacerated wound 2.5 x .5 x .5 cm on lower jaw.
(vi) Lacerated wound 2.5 x .5 x .5 cm over right eye.
(vii) Lacerated wound 1.5 x .5 x .5 cm on right side of nose.
(viii) Incised wound 3.5 x .5 x.5 cm on vertex region of scalp.
On internal examination, the lungs, liver and heart were found ruptured. It is opined by the doctor that death of the deceased was caused due to
injuries caused on lungs, liver and heart. The injuries are ante-mortem. The statement of doctor is duly corroborated by postmortem report Ex.P-
15.
11. Dr. J.P. Naik further deposed that on postmortem of dead body of Babbu Ahirwar, he found following injuries :-
(i) Stab wound 1.5 x 1.5 cm on left side of abdomen at epigestric region.
(ii) Stab wound 1.5 x 1.5 cm over right side of chest.
(iii) Incised wound 3.5 x .5 cm bone deep on left hand. The fracture of bone was visible.
(iv) Multiple incised wound over left leg cutting muscles and bones. The fracture of bone was visible.
On internal examination liver and lungs were found ruptured, the injuries are ante-mortem in nature and death was caused due to injuries sustained
by deceased. The evidence of doctor is duly corroborated by the postmortem report Ex.P-9.
12. Dr. J.P. Naik (PW-10) further deposed that on 16.03.2006, he had examined Bhola Ahirwar and found following injuries :-
(i) Lacerated wound on vertex region of scalp size 3 x .5 x.25 cm.
(ii) A irregular swelling on left hand.
(iii) A irregular swelling on left knee.
(iv) A irregular swelling on left clevical bone.
(v) A irregular swelling on right Xygomatic bone.
It is opined by the doctor that the injuries are caused hard and blunt object. He has advised for X-ray of the patient. The statement of doctor is
corroborated by MLC report Ex.P-3.
13. The injured Bhola was further sent for X-ray to District Hospital Chhatarpur. Dr. M.P.N. Khare (PW-9) radiologist deposed that on
17.03.2006 at District Hospital Chhatarpur on X-ray of injured Bhola, a fracture of left ulna bone was found. This fact is corroborated by X-ray
report Ex.P-25.
14. Thus, from the postmortem report and the MLC report of Bhola, it is duly established that deceased Dileep, Rambabu and Babbu had
received fatal injuries at the time of incident and they died of the injuries sustained by them. Complainant Bhola had also received grievous injuries
at the time of incident. The findings of trial Court is accepted in this regard.
15. Now the question arises whether appellant and other co-accused persons have formed an unlawful assembly with common object to kill the
deceased Dileep, Rambabu and Babbu and thereafter being member of the assembly, they killed the deceased persons and caused grievous
injuries to Bhola.
16. The prosecution has examined Bhola (PW-1), Rani Bai (PW-8), Guddi Bai (PW-7), Shanti (PW-3) and Sangeeta (PW- 4) as eyewitnesses
to the incident. Bhola (PW-1) has not supported the prosecution case and has been declared hostile. He had stated that at the time of incident,
there was dark and he could not identify the assailants who had assaulted Dileep, Rambabu and Babbu and Bhola himself.
17. Guddi Bai (PW-7) in her statement deposed that on the date of incident at around 7:00 O''Clock in the evening she and her Jethani Shanti Bai
(sister-in-law) were doing domestic work in the house, the deceased Rambabu, Dileep, Babbu and Bhola were sitting outside in front of the house.
Meanwhile, appellant Shivmangal along with other co- accused persons Halku, Bharosa, Balesha, Bhaiyadeen, Bablu Manoj, Rajesh armed with
Ballam,. Pharsa, Lathi came there and assaulted Rambabu, Dileep and Babbu by there respective weapons. Babbu received injuries by ballam on
his hand, leg and chest. Rambabu received injury on his ear. Bhola was also assaulted by the accused persons. Babbu, Rambabu and Dileep had
expired on the spot. Appellant had surrounded the house, therefore, she could not go out of the house. Next day morning police came in the village
and made inquiry.
18. Shanti Bai (PW-6) also deposed in the similar way as Guddi Bai by stating that at the time of incident, she was present in the house. She heard
the noise of quarrel and came out of the house and saw the appellants Shiv Mangal and co-accused Bharosa, Rajesh, Bhaiyadeen Manoj Balesha,
Chingu, Halku were assaulting and beating Dileep, Babbu, Rambabu and Bhola. She tried to intervene them the accused persons assaulted her on
her hands. The assailants were armed with axe Ballam and Pharsa. Her sister-in-law Guddo Bai was also beaten by the assailants when she tried
to intervene. After killing Dileep Rambabu and Babbu the appellant and other accused persons left the spot.
19. Sangeeta (PW-4) is also an eyewitness. She is daughter of Babbu. Although, she was aged about 12 years at the time of incident but she had
categorically deposed that at the time of incident, her father Babbu, uncle Dileep, Rambabu and Bhola were sitting in front of the house,
meanwhile, appellant Shiv mangal along with co-accused Halku, chingu, Bhaiyadeen, Rajesh, Balesha, Bharosa, Bablu and Manoj armed with
Ballam, Pharsa, axe and lathi arrived there and started beating Babbu, Dileep, Rambabu and Bhola by their respective weapons. Her mother
Shanti Bai and Aunti Guddo Bai tried to intervene and they have been assaulted by the accused persons. Babbu Dileep and Rambabu sustained
fatal injuries and they died on the spot. Next day morning, Police came in the village and made inquiry.
20. Bhola (PW-1) deposed that at the time of incident, some 13-14 persons armed with deadly weapons came in front of the house and assaulted
Dileep, Rambabu, Babbu and Bhola. There was dark on the spot and he could not identify the assailants. Rambabu, Dileep and Babbu received
fatal injuries and they died on the spot. Next day morning police came in the village and he lodged Dehati Nalsi. This witness has not stated against
the present appellant and he has been declared hostile by the prosecution. It appears that this witness is trying to save the appellant and not telling
the truth.
21. Thus, from the statements of witnesses Guddi Bai (PW- 7) Shanti Bai (PW-3) and Sangeeta (PW-4) it appears that the appellant came in
front of the house of deceased Dileep and Babbu with other accused persons. They were all armed with deadly weapons like axe, ballam, lathi and
started beating Rambabu, Dileep, Babbu and complainant Bhola. The witnesses Shanti Bai (PW-3) and Sangeeta (PW-4) are wife and daughter
of deceased Babbu. Guddi Bai (PW-7) is sisterin- law of Shanti Bai. Therefore, their presence in the house of deceased Babbu is natural. They
came out of the house hearing the noise of quarrel. Since incident took place in front of the house, therefore, they have witnessed the incident.
When a large number of accused persons were assaulting the deceased persons by deadly weapons, it cannot be expected of women of the house
to intervene and save the deceased persons. Therefore, the testimonies of PW-3, PW-4 and PW-7 cannot be discarded only on the ground of
their relationship with deceased persons.
22. It has been contended by the counsel for the appellants that there is material discrepancies in the statements of the witnesses regarding the part
played by each one of the assailants. The witnesses are not able to describe against the individual act of each appellant therefore they can not be
relied upon. This argument can not be accepted. In case law Vyas Ram @Vyas Kahar v. State of Bihar AIR 2014 SC (Suppl) 143 Hon''ble
Supreme Court observed as under:-
That where a crowd of assailants, who were the members of an unlawful assembly proceed to commit a crime, in pursuance of the common
object of that assembly, it is often not possible for the witnesses to describe the actual part played by each one of them, and when a large crowd of
persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In that
case several weapons were carried by different members of the unlawful assembly, and an accused who was the member of such an assembly and
was carrying firearms was not permitted to take any advantage of the fact that he did not use those firearms, though other members of the
assembly used their respective firearms.
23. In the present case, the prosecution witnesses Guddi Bai (PW-7), Shanti (PW-3) and Sangeeta (PW-4) categorically stated about the
presence of present appellant among the other assailants who assaulted the deceased persons. There is no delay in lodging of the report. The three
persons of the family have been killed in the incident. Naturally the other members of family would be in the state of shock, grief and fear. It also
appears from the evidence of Rani Bai that the appellant had prevented them to go to police station for making report. The Dehati Nalsi Ex.P-1
was recorded in the morning when police arrived in the village. It is settled law that where the evidence of eye witness is cogent and acceptable, it
cannot be rejected for little discrepancies or on cryptic observation of general nature that it appears to be suspicious or in absence of strong reason
and also where it is corroborated by other circumstances of the case. Where a large number of persons involved in commission of crime it is
difficult for witnesses to describe the role played by each accused. The present appellant remained absconded soon after the incident and he was
arrested after two years. The conduct of appellant also indicates about his involvement with other accused persons. Thus, it is established from the
testimonies of witnesses Guddi Bai, Shanti and Sangeeta that the appellant was the member of unlawful assembly. The common object of the
assembly is to assault and kill the deceased persons. The three persons Dileep, Rambabu and Babbu have been killed in the incident.
24. Hon''ble Apex Court in case law Lalji Vs. State of U.P. (1989) (1) SCC 437 in para 9 and 10 observed as under :-
9...... Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial.
He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the
unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be
taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons
forming an unlawful assembly must do some overt act. When the accused persons assembled toghether, armed with lathis, and were parties to the
assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section
makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful
assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the
unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section
149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
10. Thus once the court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that
assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in
prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of
that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to
prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.
25. The testimonies of witnesses Guddi Bai, Ramkali and Sangeeta appears to be cogent reliable and trustworthy. The trial Court on proper
appreciation of evidence relied upon their version and held the appellants guilty for commission of offence punishable under Sections 148, 302/149
and 307/149 of IPC. We do not find any infirmity or perversity in the findings recorded by the trial Court.
26. Consequently, we do not find any merit in the present appeal and it is hereby dismissed. The appellants shall serve the sentence as awarded by
the trial Court. The bail-bonds of appellant Bhaiyadeen stands cancelled. He is directed to surrender before the trial court in order to undergo
remaining part of sentence awarded by trial Court.
