Dharmesh and Others vs State

Surendra Vikram Singh Rathore, J.—1. Shri Nagendra Mohan, learned counsel for the appellants assisted by Shri Nadeem Murtaza, Advocate, and Shri Umesh Verma, learned AGA for the State, were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 22.05.1982 passed by 3rd Additional Sessions Judge, Barabanki, in Sessions Trial No. 188 of 1981 arising out of Case Crime No. 14 of 1979, Police Station Zaidpur, District Barabanki, whereby the present appellants were convicted and sentenced as under:--

(i) 302 IPC read with Section 149 IPC - Imprisonment for life;

(ii) 324 IPC read with Section 149 IPC - Rigorous imprisonment for a period of three years, and

(iii) 148 IPC - Rigorous imprisonment for a period of two years. All the sentences were directed to run concurrently.

During pendency of the instant appeal, appellants Sri Kishan and Rajendra @ Rajendra Singh expired and their appeal was abated vide orders dated 04.12.2015 and 11.01.2016 respectively. One accused Pancham had died during pendency of the trial. Thus, at present only four appellants namely Dharmesh, Rameshwar, Ram Kishore and Vijai @ Vijai Singh are before us.

Instant appeal was earlier decided by a coordinate Bench of this Court vide its judgment and order dated 01.09.2007. By the said judgment, three appellants namely Ram Kishore, Vijai @ Vijai Singh and Rajendra @ Rajendra Singh were acquitted of the charges levelled against them because no specific role was assigned to them. However, the appeal of remaining three appellants namely Dharmesh, Rameshwar and Sri Kishan was dismissed.

Feeling aggrieved by the said judgment dated 01.09.2007, the convicted appellants preferred a Criminal Appeal No. 1432 of 2008 arising out of SLP (Criminal) No. 7193 of 2007 and Hon'ble the Apex Court vide judgment dated 08.09.2008 decided the same. Order of Hon'ble the Apex Court reads as under:--

"Leave granted.

We had issued notice in the matter on 03rd December 2007 as it was contended by counsel for the appellants that the impugned order passed by the High Court is perfunctory and the conviction of the appellants has been maintained without discussing any of the submissions made on behalf of the appellants.

On the previous date of hearing, the case was adjourned on a request made by the counsel for the respondent-State to get instructions as to why the impugned order be not set-aside and the case remitted to the High Court for a fresh decision. However, counsel for the respondent has not taken any instructions.

After going through the order impugned in this appeal, we are satisfied that the order of the High Court is perfunctory and the conviction of the appellants has been maintained without discussing the submissions made on their behalf.

The impugned order is accordingly set aside and the case is remitted to the High Court for passing a fresh order in accordance with law after hearing the parties concerned.

The appeal is allowed to the aforesaid extent."

In brief, the facts of the case were that one Ram Saran son of Ram Bilas was resident of village Itahuwa Purwa hamlet of Murliganj, Police Station Zaidpur, District Barabanki. His brother-in-law (Jeeja) Barati Lal lived in the same village. Barati Lal's brother Bashar who was blind and was not married had some agricultural land. Appellants Dharmesh, Vijai Singh and others of the same village wanted to purchase the agricultural land of Bashar. However, Barati Lal purchased half of the land of Bashar in the name of Chandresh Kunwar son of Ram Saran (complainant) and remaining half portion of the land of Bashar was purchased by Iqbal Narain and his brothers of village Fatehullahpur. Dharmesh and others nursed grudge because of this act of Barati Lal. They threatened Barati Lal several times and were in search of an opportunity to kill him. The land of Bashar was sold, as mentioned above, about 3-4 months prior to the incident of this offence which resulted into the murder of Barati Lal.

In this background, on 24.01.1979 at about 06.00 PM Ram Saran, Barati Lal, Smt. Khushala (wife of Barati Lal), Chandresh Kunwar, aged about 13 years, Nand Kishore and Sumitra, minor son and daughter of Ram Saran were sitting around evening fire to warm themselves. Appellants Dharmesh and Ram Kishore armed with guns, Pancham (died during trial), Rajendra (died during appeal) and Vijay Singh armed with country made pistols, Sri Kishan (died during appeal) and Rameshwar armed with Bankas reached there. Accused Pancham fired with his country made pistol at Barati Lal. Ram Saran nudged at Barati Lal and both of them ran towards west of the village raising alarm. They reached near irrigation drain of their field. In the meantime, the other persons of the village namely Chauhan, Bhullu, Raghubir, Daya Ram, Jagat Narain and several other persons reached there. Pancham again fired at Barati Lal due to which Barati Lal fell down. Ram Saran, in order to save Barati Lal tried to cover him by lying on him. Dharmesh fired at Ram Saran. Sri Kishan and Rameshwar started giving Banka blows to Barati Lal. Ram Saran in order to save his life ran away from there. He also received gunshot and Banka wounds and Barati Lal was done to death on the spot. Thereafter, the accused took to their heels feeling pressure of the witnesses.

First information report of this case was lodged on the same day by Ram Saran son of Ram Vilas at Police Station Zaidpur at 20:15 hours. Investigation followed, the inquest proceedings were conducted and the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted by Dr. S.K. Verma on 25.01.1979 at 02.30 PM and the following ante-mortem injuries were found on his person:--

(i) Incised wound 6 cm x 1.5 cm x bone deep on the frontal portion of scalp 4 cm above the left eyebrow. The frontal bone was cut corresponding to the injuries in vertical direction.

(ii) Incised wound 4 cm x 0.5 cm x bone deep on right frontal of scalp parietal bone underlying is cut in vertical direction. This wound was situated 5 cm above away from first injury.

(iii) Incised wound 11.5 cm x 3.5 cm x brain cavity deep on the right temporal and frontal region of scalp. The wound was situated horizontal just from the right eyebrow backwards the frontal and parietal bone underlying is fractured at many places the chips of bone were missing at places, dried clotted blood was present around the wound.

(iv) Incised wound 14 cm x 2.5 cm x bone and brain cavity deep on the right temporal region just below injury No. 3. The temporal bone underlying was fractured and chips were missing.

(v) Right ear was lacerated at multiple places.

(vi) Incised wound 9 cm x 3 cm x bone deep on right side just below the right ear. Mastoid bone was cut corresponding to the injury underlying muscles and blood vessels were cut. The wound was extended forward upto angle of mandible of right side.

(vii) Incised wound 14 cm x 4 cm x cervical vertebra deep on right side of neck just below the injury No. 6. The wound was situated horizontally. All the muscle and vessels were cut in the wound. Dried clotted blood was present. Trachea and oesophagus were not cut.

(viii) Incised wound 6 cm x 2 cm x bone deep on the left shoulder humerus (left side) head was exposed and cut in the injury in horizontal direction.

(ix) Incised wound 3 cm x 0.5 cm x muscle deep on the left hand thumb Palmer aspect.

(x) Incised wound 5 cm x 1 cm x muscle deep on the left middle finger lateral side.

(xi) Abrasion 4 cm x 2 cm just below the left knee joint on the left leg.

(xii) Gunshot wound in an area of 14 cm x 8 cm x muscle deep on the back of right shoulder multiple circular wounds of pellets in the size of 0.2 cm.

(xiii) Incised wound of 3 cm x 1 cm x bone deep on the Palmer aspect of right middle and ring finger in the middle region.

(xiv) Lacerated wound 2 cm x 0.5 cm x muscle deep on the middle aspect of right knee joint.

According to postmortem report, the duration of death was about one day old and cause of death was shock and haemorrhage because of injury Nos. 3, 4, 6 and 7 head and neck injury.

Ram Saran complainant was also medically examined on 25.01.1979 at 08.00 AM by Dr. Muneeruddeen (PW-4) at PHC Zaidpur, Barabanki, and following injuries were reported by the doctor on his person:--

(i) An incised wound 3.5 cm x 0.3 cm x scalp deep in left side of top of head 7.5 cm above left ear. Mild oozing was present. No fresh bleeding.

(ii) An abraded wound 0.8 cm x 0.1 cm 0.5 cm on left side of head 3.5 cm below and behind injury No. 1. Mild oozing was present.

(iii) A slanting incised wound 7.0 cm x 4.0 cm x muscle deep on outer aspect of left forearm 4.0 cm above process. Blood clots were present in the wound.

(iv) An abrasion 3.5 cm x 0.5 cm on inner aspect of left forearm 3.5 cm below injury No. 3. No fresh bleeding was present. No scab was present.

(v) An abrasion 3.5 cm x 2.0 cm on front aspect of left forearm 3.0 cm below elbow. No scab was present. No fresh bleeding was present.

(vi) Three abrasions 1.0 cm x 1.0 cm situated 2.0 cm apart on upper abdomen and left side of chest. The surround skin was reiterated.

PW-4 Dr. Muneeruddeen has opined in his evidence that all the injuries were simple in nature. Injury No. 1 and 3 were caused by sharp edged weapon. Injury No. 4, 5 & 6 could have been caused by firearm at the date and time as claimed by the prosecution.

After completing the investigation, charge sheet was filed against the appellants.

The defence of the appellants, as emerged from their statement under Section 313 Cr.P.C., and by suggestions given to the witnesses, was of total denial and their false implication due to enmity. It was suggested that Barati Lal was murdered while he was coming back from Zaidpur market in the night and this false case has been concocted because Barati Lal had executed a registered will in favour of Shiv Kumar son of Sarovar alias Amar Singh about five months prior to this incident.

In order to prove its case, the prosecution has examined PW-1 Complainant Ram Saran - injured eyewitness of this incident, PW-2 Chandresh Kunwar son of the injured and eyewitness of this incident, PW-3 Smt. Khushala - another eyewitness of this incident and wife of the deceased, PW-4 Dr. Muneeruddeen, who has medically examined the complainant Ram Saran, PW-5 Jagdamba Prasad Yadav, Sub Inspector, who has proved the Chik Report and GD of this case, PW-6 Ram Akashaibar Mishra, Sub Inspector - Investigating Officer of this case, PW-7 Rakesh Bahadur Singh - the carrier of the dead body, and PW-8 Sriram Verma, Pharmacist - who has proved the postmortem report of the deceased as secondary evidence because Dr. S.K. Verma had gone to some foreign country and there was no chance of his return in the near future. Apart from this, the other documents which were prepared during investigation were also proved. Certified copy of the sale-deed executed by Basar in favour of Chandresh Kunwar dated 25.10.1978 has been filed and certified copy of another sale deed by Basar in favour of Akbal Narain, Ram Naresh, Ramran has also been filed. Apart from it, certified copies of the order sheet of Original Suit No. 130 of 1979 filed by Smt. Khushala against Shiv Kumar for cancellation of will, alleged to have been executed by Barati Lal in favour of Shiv Kumar and certified copy of the plaint of the said original suit, have also been filed.

In defence, no oral evidence has been given. However, on behalf of appellant Dharmesh certified copy of the first information report of case crime No. 22 of 1976 against Pancham and others under Section 302 IPC, Police Station Zaidpur, regarding the murder of his own father Manohar, was filed on the basis of which ST No. 189 of 1976 was pending. The occurrence of that case had taken place on 01.03.1976. Copy of the first information report of case crime No. 41 of 1977 lodged by Ram Nath son of Bharosey against Pitai and others was filed and Sessions Trial No. 408 of 1977 was pending on the basis of this first information report. Apart from it, certified copies of the statements of appellant Dharmesh in ST No. 189 of 1976 dated 26.07.1978 and also the statement of Amar Singh dated 26.02.1979 were also filed. So statement of Amar Singh in the said murder case was recorded subsequent to the incident of the instant case.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the instant criminal appeal.

Before proceeding further, the inter-se relationship between the appellants may be stated. Dharmesh and Rameshwar are real brothers. Vijai and Ram Kishore are cousins and Sarovar (not an accused in this case) is the uncle of accused Vijai. There is no direct relationship between Dharmesh and Vijai Singh appellants.

Learned counsel appearing on behalf of the appellants who were earlier acquitted by this Court has argued that neither the State nor the complainant had filed any appeal against the judgment, therefore, these appellants were not party before the Hon'ble Apex Court so the judgment passed by Hon'ble the Apex Court whereby the entire judgment passed by a coordinate Bench of this Court was set-aside, was not binding on them. It has also been argued that the incident of this case was about 37 years old and keeping in view the fact that no specific role has been assigned to the appellants who were earlier acquitted, they deserves to be granted benefit of doubt as they have not taken any active part in the incident and have neither caused any injury to the deceased nor to the complainant Ram Saran. Regarding other appellants, who were convicted earlier, it has been argued that the origin of the first information report of this case is under shadow of doubt. Delayed medical examination of the complainant also creates doubt regarding the correctness of the prosecution story. Regarding PW-2, it has been argued that his statement was not recorded on oath. Regarding PW-3 Smt. Khushala, it has been argued that she has not witnessed the main incident. The evidence of PW-1 Ram Saran has been challenged on the ground that he has given several contradictory statements during investigation and he himself is the complainant even then he has denied several facts mentioned in the first information report. So he cannot be treated to be a wholly reliable witness and the learned trial court has committed illegality in relying upon his evidence. Hence the appeal should be allowed.

Learned AGA has argued that in the instant case this Court is not sitting in appeal against the judgment passed by Hon'ble the Apex Court. Since the entire judgment has been set-aside, therefore, the entire appeal has to be re-considered by this Court in accordance with settled principles of law. It has been argued that PW-1 is an injured witness. His presence on the scene of occurrence cannot be denied. He has fully supported the case of the prosecution and has assigned specific roles to the accused persons. Other two witnesses of fact have also supported first part of the incident. There is nothing on record to disbelieve his presence on the scene of occurrence and there is nothing on record to support the defence theory that Barati Lal was murdered, while he was coming back from Zaidpur market in the night, by some unknown persons. It has also been argued that deceased was the real Jeeja of the complainant, who was murdered in his presence. At that time, he must have been in the state of shock and therefore simply because he could not recollect as to what was mentioned in the first information report would not adversely affect his evidence. On the contrary, it goes on to show that he was not tutored and whatever he was stating before the court was truth, what he had witnessed at the place of occurrence. Thus, no interference is called for in the instant appeal.

The first point to be considered in this case is the effect of acquittal of three accused persons by the earlier judgment of this Court. Perusal of the judgment of Hon'ble the Apex Court shows that Hon'ble the Apex Court has not considered whether the acquittal of the three accused persons was justified and entire judgment has been set-aside. Here the question arises whether it would have effect of sub silentio or not. We pondered on the point and find that decision passed sub silentio means in the technical sense that when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

After comprehending its connotation we have delve whether setting aside acquittal of three respondents appellants before us, would amount to decision sub silentio or not. What we find that had correctness of the acquittal of the three respondents before the Apex Court, was a point necessary to set aside the conviction of the appellants by the Apex Court, the decision of the Apex Court could not have been treated to be sub silentio, however, we notice that such was not the factual position, the State had not challenged the acquittal of the respondents before the Apex Court. Only the convicted appellants had approached the Apex Court and the Apex Court after taking note of the factual matrix and evidence available in support of the allegations found the impugned judgment unsustainable. It is true that acquittal of the three respondents before the Apex Court was not in issue nor it was argued before the Apex Court but the judgment of the Apex Court reveals that the whole of the judgment was not found satisfactory and it was set-aside.

For this reason, we find that acquittal of the three appellants, who had appealed against their conviction before this Court and were acquitted by the Division Bench vide judgment dated 01.09.2007 is no longer in existence. On the basis of the authority sub silentio the judgment of the Apex Court cannot be avoided and taking into consideration the observation made by the Apex Court in the case of Satendra Prasad Jain and others v. State of U.P. and others [, 1993(4) SCC 369]. Paras 94(3) and (2), we hold that the appeal in hand has to be decided a fresh and the judgment dated 01.09.2007 of the Division Bench would bear no relevance on the decision of the appeal. Since the entire judgment has been set-aside and this Court has been directed to pass afresh order, the entire appeal is before us.

The next point to be considered in the instant case is the first information report. According to the defence, the first information report was not lodged at the time as alleged by the prosecution and it was ante-timed. The incident of this case is alleged to have taken place on 24.01.1979 at about 06.00 PM and the first information report of this case was lodged at 2015 hours. The distance from the police station to the place of occurrence, as per Chik FIR, was about 1 1/2 miles. The submission of learned counsel for the appellants was that in the inquest report this distance was mentioned as 2 kilometers. We are of the considered opinion, this narration of the distance has no adverse affect on the case of the prosecution because in the year 1958 the metric system was introduced but the record of the police stations was not accordingly changed. The Investigating Officer, who was an educated person, if has written the same distance in kilometers then it cannot be any ground to disbelieve that the first information report was not registered at the time as alleged because in the inquest report the time of registration of first information report and the name of the complainant were correctly mentioned without any cutting or overwriting. In other annexures which were prepared along with the inquest report, the case crime number of the case was correctly mentioned. It transpires from the material available on record that the Investigating Officer, while after registration of the case was coming to the place of occurrence then he recovered two empty cartridges at 21:25 hours on the same day and prepared its memo (Ext. Ka-7) in the presence of two witnesses namely Ishwardeen and Dilip Singh. This recovery memo also contains the correct details of the case without any cutting or overwriting. So this fact also supports that the first information report was lodged at the time as alleged by the prosecution. Thereafter the Investigating Officer came to the place of occurrence and here he again recovered two empty cartridges from the place of occurrence. Two big wads, two small wads, blood stained artificial tooth with lower jaw, in two parts, blood stained lighter, blood stained and plain earth were also recovered and were separately sealed. However, one common recovery memo of all these recoveries made from the place of occurrence (Ext. Ka-12), was prepared. On 25.01.1979, two pellets and jersey of PW-1, which had cut marks were also taken into custody. So all these facts establish that in this case the police had promptly taken action and the first information report was lodged with promptness. Learned counsel for the appellants has submitted that PW-1 Ram Saran has stated that he was immediately taken from police station to the hospital which was situated at about three furlong but his medical examination was done in the morning. This fact has been explained by PW-1 the complainant in his cross examination that when he reached the hospital at that time the doctor was not present in the hospital and the hospital compounder did not permit him to go back without his medical examination. His medical examination and treatment took place in the following morning. So a reliable explanation has been furnished regarding the delay in the medical examination. Though the doctor has stated that he had examined Ram Saran when he was produced before him and he has also denied his absence in the night. But in our considered opinion it cannot be a ground to discard the case of the prosecution. If the doctor, without sanction of leave from the competent authority had left the hospital then he will never say that he was not present at the hospital because that would go against him. Since PW-1 Ram Saran is an injured witness who claims that he had received injuries in this incident and the nature of injuries sustained by him are not of such nature that can be said to be self inflicted or manufactured. So simply because his medical examination took place in the following morning, it cannot be held that the first information report was not in existence at the time as alleged by the prosecution. Accordingly, we are of the considered view that the first information report of this case came into existence at the time as claimed by the prosecution.

Law expects a prompt first information report because it eliminates all the chances of coming up of a coloured version. On this point, reliance may be placed on the pronouncement of Hon'ble the Apex Court in the case of Nanhe v. State of Uttar Pradesh reported in , 1973 (3) SCC 317.

A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in , (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:--

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in , (1972) 3 SCC 393 the Supreme Court observed as under:--

"............first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in , (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

Now coming to the evidence of the witnesses. According to the case of the prosecution, Sri Kishan and Rameshwar were armed with Bankas, Rajendra, Vijai and Pancham were armed with country made pistols (Kattas) and Dharmesh and Ram Kishore were armed with guns. Admittedly, accused Pancham has expired during trial and Sri Kishan and Rajendra have expired during pendency of the instant appeal. Therefore, two accused persons, who were armed with Kattas have already expired and out of two accused persons, who were armed with Bankas, Sri Kishan has already expired. Accused Dharmesh and Ram Kishore are alleged to be armed with guns. However, the role of firing on the complainant has been assigned to Dharmesh while the role of firing on the deceased has been assigned to Pancham. Role of causing injuries to deceased with Banka was assigned to Rameshwar and Sri Kishan (dead). The submission of learned counsel for the appellants to disbelieve the evidence of PW-1 was that in the first information report, he has mentioned that the first fire which was shot by Pancham did not hit him and hit the pillar of the house. In the first information report, it was mentioned that he in order to protect Barati Lal covered him by lying on him but he has denied this fact in his evidence before the trial court. He has also argued that it was mentioned in the first information report that after the incident the complainant went to Fatullapur where he became unconscious and thereafter he was taken to the police station where the first information report was lodged while according to his evidence before the court he has stated that he first went to his house and after staying there for few minutes, he came back to the place of occurrence along with his sister and other ladies. He stayed at the place of incident for few minutes and thereafter he went to the police station.

It is true that some of the facts mentioned in the first information report have been disowned by the complainant but what impact it would have on the case of the prosecution has to be considered in the background of the entire case of the prosecution. It is correct to say that it was not mentioned in the first information report that the first fire hit on the pillar of the house but its contrary is also true that it was also not mentioned in the first information report that the said fire hit Barati Lal. Law is settled that the first information report is not supposed to be an encyclopedia of the entire case of the prosecution. Here it is pertinent to mention that it was nowhere mentioned in the first information report that the first fire shot by Pancham at the place where these persons were warming themselves hit anyone. So simply because it was not mentioned that the first fire hit the pillar of the house has absolutely no value particularly when the Investigating Officer who has prepared the site plan of this case on 25.01.1979 has found two fire marks on the pillar of the house. Therefore, non-mentioning of the fact that the fire did not hit Barati Lal and it hit the pillar of the house cannot be said to be damaging to the prosecution in any manner. It is true that according to the first information report, he from the place of occurrence came to Fatullapur and told about the incident and thereafter went to the police station. All these narrations were subsequent to the incident. After the incident where the complainant went or where from he went to the police station cannot be said to be very material. Apart from it, it cannot be said that the prosecution had any purpose to change its earlier version, so but we found substance in the submission of learned AGA that it reflects that the witness was not tutored. The question to be decided by this Court is whether Barati Lal was murdered in the manner as alleged by the prosecution and whether the complainant Ram Saran sustained injuries in the same incident as claimed by the prosecution. So any variation or contradiction on other points not touching the facts of the incident ought not to be attached so much importance to disbelieve the eyewitness account of the injured witness whose presence on the place of occurrence cannot be denied. As concluded earlier the first information report of this case came into existence promptly, which also gives strength to the evidence of PW-1, an injured eyewitness of this incident. We have gone through the evidence of PW-1. He has given all the details of the prosecution case and has correctly stated about the specific roles played by each accused in this incident. The role of firing on Barati Lal with his katta at both the places was assigned to Pancham (since dead) and the role of firing on the injured himself was assigned to appellant Dharmesh. Though appellant Ram Kishore was also armed with gun but there was no allegation that he used the gun to cause injury or to cause death of anyone on the complainant side. PW-1 in his statement has stated that Pancham opened the first fire which did not hit him and thereafter he and Barati Lal ran away from there. Thereafter Pancham again fired from his country made pistol which hit Barati Lal. When he went to save Barati Lal then Dharmesh fired at him which hit him and thereafter the appellants armed with Bankas started giving blows. He has stated that appellant Rameshwar gave blows of Banka to him. When a witness gives evidence regarding such a murderous assault wherein seven accused persons are taking part, armed with deadly weapons and the incident takes place in a big area by chasing the deceased and injured then it becomes virtually impossible for the witness to see and recollect all the facts in correct sequence as it occurred. Therefore, certain contradictions in reproduction of the incident by the witnesses are bound to occur. The memory of a witness cannot be equated or cannot be compared with a video recorder. Even the law does not expect that all the witnesses of fact must give evidence in a parrot like manner.

PW-2 Chandresh Kunwar and PW-3 Smt. Khushala have also supported the case of the prosecution but only with regard to the incident which took place on the place where these persons were sitting and were warming themselves. They have stated that all the accused persons came together armed with deadly weapons. Both the witnesses have specified the weapons possessed by each accused and one of them namely Pancham fired with his country made pistol on Barati Lal which did not hit Barati Lal and hit the pillar of the house. Thereafter the complainant Ram Saran and Barati Lal ran together to save their lives but they were chased by all the seven accused persons. These two witnesses namely Chandresh Kunwar and Smt. Khushala have not stated that they had seen that part of the incident wherein these persons namely Barati Lal was murdered and complainant Ram Saran received injuries. According to the site plan, the distance between two places was about 142 paces. PW-2 Chandresh Kunwar was a witness of tender age. He was not administered oath but perusal of his evidence shows that he has given vivid description of the incident that took place where they were warming themselves. Likewise PW-3 Smt. Khushala, who happens to be the wife of Barati Lal, has also supported the case of the prosecution but in spite of being the witnesses of one part of the incident, both the witnesses made no effort to claim that they have also seen the remaining part of the incident in which Barati Lal was done to death and complainant Ram Saran sustained injuries. It has also come in evidence of these two witnesses that at the time of the incident it was sunset but there was sufficient light. It is an admitted case of the prosecution that at the time of the incident there was sufficient light and the Court can take notice of the fact that even after sunset there remains sufficient light for a considerable period. So this incident had taken place at the time of sunset when there was sufficient light. So the evidence of PW-1 Ram Saran, who happens to be an injured witness, in our considered view, was wholly reliable. He has stated as to how the incident had taken place and Barati Lal was murdered and how he received injuries and by what weapons.

Submission of learned counsel for the appellants was that in the instant case, no independent witness has been examined by the prosecution to support its case and only related witnesses have been produced, therefore, their evidence cannot be treated to be wholly reliable. Admittedly, in the instant case PW-1 Ram Saran is brother-in-law (Sala) of the deceased, PW-2 Chandresh Kunwar is son of the complainant and PW-3 Smt. Khushala is the sister of the complainant and wife of the deceased. As per version of the first information report several other persons had assembled at the place of occurrence but not even a single such witness could be examined by the prosecution. In the facts of the instant case, the incident had started from a place just in front of the house of the deceased and in the same house the complainant and other witnesses were residing. So virtually inmates of the house who were present there when the incident had started while they were warming themselves were the most natural witnesses of this incident. Now the question arises whether the evidence of such natural witnesses should be discarded because other independent witnesses have not come forward in support of the case of the prosecution. We are of the considered view that the prosecution evidence has to be evaluated keeping in view the ground realities. In the present day world people avoid to become a witness of any incident as they consider it as a civil dispute between two parties. We will not have to travel a long way to find out the reasons for this apathy of the public. Though it is very unfortunate but it is a ground reality and we can not ignore it. People avoid to become a witness because they do not want to invite the enmity with the criminals and this apprehension cannot be said to be baseless due to absence of any effective measures or effective system available for the safety and security of the witnesses. Such apathy of the public has been considered by Hon'ble the Apex Court in the case of Shiv Ram v. State of U.P. reported in , 1998 SCC 149 wherein Hon'ble the Apex Court was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

In another case Appa v. State of Gujarat, AIR 1988 SC 698 Hon'ble Apex Court observed that "Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused". Therefore, the evidence of the witnesses in the facts of the instant case cannot be discarded simply because of the reason that the independent witnesses have not come forward to support the case of the prosecution. Keeping in view the high handed manner in which this offence has been committed, it was a natural decision of the independent witnesses to avoid to become a witness of this offence because they have seen the result of execution of sale deeds of the property of Bashar through Barati Lal which resulted into his murder.

Learned counsel for the appellants has drawn our attention towards certain contradictions between first information report and the evidence of the complainant Ram Saran and also in the statement recorded under Section 161 Cr.P.C. We have carefully gone through all the contradictions. Except one, none other contradiction was regarding the manner of the incident, names of the accused persons, weapons held by the accused persons and the manner in which the incident was caused. It was argued that in the first information report it was mentioned by the complainant that in order to save Barati Lal he covered him by lying on him while no such statement was made by him during trial. Perusal of evidence of PW-1 shows that he had stated that when Barati Lal fell down he leaned over him. So if in that state of mental shock immediately after the incident, the complainant had explained it in some other words then the same cannot be made basis to disbelieve his evidence. On the contrary it goes on to show that he was not tutored. Apart from it by not saying so the prosecution could not, in any manner, gain any benefit because he has stated that because of the fear of the accused persons he ran away from the place of occurrence. Presence of this witness on the place of occurrence cannot be doubted as he has also received injuries on his head. Therefore, in our considered opinion such minor contradictions were not of any help to the defence, keeping in view the long time gap of three years after which the evidence of witnesses was recorded. Law is settled on the point that only such contradictions which goes to the root of the case have to be given importance and minor contradictions in the evidence of natural witnesses are bound to occur. On this point, reliance may be placed on the pronouncement of Hon'ble the Apex Court in the case of State of U.P. v. Naresh and others reported in , (2011) 4 SCC 324, wherein Hon'ble the Apex Court has held as under:--

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

Now coming to the medical evidence, in the instant case the first fire was shot by Pancham which did not hit Barati Lal. Thereafter they were running when the second fire was shot by Pancham. Corresponding firearm wound on the back of right shoulder was found on the body of the deceased. When the deceased Barati Lal fell down after receiving this injury then he was given blows of banka. Several incised wounds were found on the body of the deceased which provide full corroboration of the case of the prosecution by medical evidence. Likewise PW-1 Ram Saran has also received several injuries and the PW-4 Dr. Muneeruddeen has stated that injury Nos. 4, 5 and 6 could have been the result of fire arm injuries. These injuries are abrasions. No suggestion to this witness was given that such injuries cannot be caused by firearm.

Learned counsel for the appellants has also submitted that the deceased had received one lacerated wound also and keeping in view the manner in which this offence has been committed there was no occasion to receive any lacerated wound. The size of the lacerated wound of the deceased was 2 x 0.5 cm. So it was a very small wound. When a person is attacked and is lying on the ground then in such circumstances by natural reflex action, he keeps on changing his position to save his life and if in such process any blunt part of the banka comes into contact with the body then the same may result into such a lacerated wound. So in our considered opinion the prosecution was not obliged to explain such minor lacerated wound which was present on the body of the deceased.

Learned counsel for the appellants has also argued that the complainant Ram Saran had received abrasions which have not been explained as to how he sustained these injuries. It has come in the evidence of PW-1 that he was attacked by the accused persons. He ran from the place where he and other persons were warming themselves to the place where Barati Lal was killed and he was beaten, fired at and was given blows of banka by the accused persons. PW-1 Ram Saran had not fallen on the ground. He sustained injuries either while he was on the place of occurrence or while he was running to save his life. If blows are given to him with sharp edged weapon then possibility of coming into contact with the blunt object cannot be ruled out. Therefore, it will not in any manner adversely affect the case of the prosecution. Apart from it, PW-4 Dr. Muneeruddeen has stated that injuries No. 4, 5 and 6 could have been caused by firearm. In the cross-examination the challenge was that such injuries could not be caused when fire was shot from a distance of 4-5 paces. It was no where suggested that such injuries cannot be caused by fire. At the cost of repetition we would observe that in such an incident where several persons are taking part it becomes impossible for the witnesses to recollect each and every detail of the incident in correct sequence and also the correct distance. This incident had taken place in the year 1979 when it was very common to use self refilled cartridges. So we do not think that injury Nos. 4, 5 and 6 to PW-1 Ram Saran could not be the result of firearm.

Learned counsel for the appellants has also laid great emphasis on the inter-se enmity of the accused persons and on this basis it has been argued that in view of this inter-se enmity there was no possibility that these persons would have joined hands in the commission of this offence. It was contended that accused Pancham was facing criminal trial for the offence of murder of the father of appellant Dharmesh. In support of this submission learned counsel for the appellants has drawn our attention towards the documents filed on behalf of the defence which are certified copies of the first information report and the statements given by the witnesses in ST No. 189 of 1976. Learned trial court has considered this point in detail in paragraph No. 13 of its judgment. We concur with the view taken by the learned trial court on this point. Apart from reasons given by the learned trial court, we are also of the view that in rural area villagers themselves settle their dispute in the case of heinous offence pending between them. So simply because a sessions trial of murder of father of Dharmesh was pending against Pancham, it cannot be presumed that they could not join hands together. The incident of murder of the father of Dharmesh had taken place in the year 1976 while incident of this case had taken place in the year 1979. So much water must have flown during such long period to pacify the enmity.

It has been argued that the dead body of the deceased was taken on the tractor of Sarovar who was uncle of appellant Vijai Singh and Sarovar had also accompanied the dead body to Barabanki. PW-2 Chandresh Kunwar has stated that, the police reached about 2 - 2 1/2 hours after taking away of the dead body. He has also stated that Keshav had also gone with the dead body. Keshav happens to be the real brother of appellant Vijai Singh and Sarovar happens to be the real uncle of Vijai Singh. Simply because the dead body was sent by the police by the tractor of Sarovar it cannot be presumed that appellant Vijai Singh was not involved in this incident. The statement of PW-2, who was not administered oath, that the dead body was sent first and thereafter the police reached at the place of occurrence is against the evidence on record. Dead body was sent after inquest and there is also evidence of carrier of the dead body. Apart from it, this witness was a child at the time of incident. So the possibility that he remained inside the house and could not know as to what proceeding had taken place where the dead body was lying cannot be ruled out. So this statement of PW-2 Chandresh Kunwar does not in any manner adversely affect the case of the prosecution. PW-3 Smt. Khushala has stated that after the postmortem the dead body was brought by Sarovar, Ishwardeen and Keshav but as discussed earlier this point is of no consequence. Subsequent events how these things happened cannot be a ground to disbelieve the otherwise reliable testimony of the witnesses because Smt. Khushala whose husband was murdered must have been in a state of shock and must be surrounded by other ladies of the village to console her and similar would have been the position of PW-2. So all these points which were not related with the main incident directly cannot be made a ground to disbelieve the otherwise reliable prosecution story. PW-3 Smt. Khushala has stated that at the time of incident the sky was clear. There was no fog. She has also stated that after the incident when she came to know about the alleged will of deceased Barati Lal then she had filed a suit in Barabanki. Thus, these two witnesses have supported the first part of the incident. From the evidence of all the three witnesses what transpires is that all the seven accused persons, who were armed with deadly weapons like guns, bankas and country made pistols, came together at the place of occurrence, accused Pancham fired at Barati Lal and when the fire did not hit Barati Lal and Barati Lal and Ram Saran were running to save their lives, they were chased for a distance of about 142 paces and thereafter Barati Lal was fired at by Pancham. When he fell down receiving the gunshot injury then he was given blows of banka and appellant Dharmesh fired on the complainant Ram Saran causing him injuries and Ram Kishore gave him banka blows.

It is a case of direct evidence, hence, motive part loses its significance. Motive is virtually a thought that remains embedded in the mind of the accused persons. The victim side can only guess as to what would have been the reason for the accused persons to commit the offence. So law does not give much value to the motive in cases of direct evidence. Even otherwise in the facts of the instant case, there was a will of Barati Lal in favour of Shiv Kumar, which would come into operation only after the death of Barati Lal and not before. Since property of Bashar was sold by Barati Lal so the accused persons must have apprehended the transfer of his own property (subject matter of alleged will of Barati Lal) may not be transferred because that would make the will a nullity. So the motive with which the prosecution has come forward cannot be said to be without substance.

Submission of learned counsel for the appellants who were acquitted on the ground that no role was assigned to them therefore their acquittal was valid, we are not the least impressed with this argument because Hon'ble the Apex Court has set aside the judgment passed previously by a coordinate Bench of this Court and Hon'ble the Apex Court has directed this Court to pass afresh order in accordance with law after hearing the parties concerned. So the entire matter is before us. It is not a case where the accused persons were fastened liability with the aid of Section 34 IPC because in order to initiate the mischief Section 34 IPC some overt act is necessary. It was also not a case of free fight. So simply because no role was assigned some of the accused, they cannot escape their liability, if the prosecution proves that they were the members of unlawful assembly and shared common object of such unlawful assembly. Before proceeding further we would like to discuss the legal position on this point. Sections 141 and 149 IPC on reproduction read as:--

"141. Unlawful assembly. - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-

First. - To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

Second. - To resist the execution of any law, or of any legal process; or

Third. - To commit any mischief or criminal trespass, or other offence; or

Fourth. - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation. - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."

"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."

Perusal of aforementioned two sections makes it abundantly clear that whenever an offence, in prosecution of the common object of unlawful assembly, is committed by a member of such unlawful assembly and any member of such unlawful assembly knows that such an offence may be committed or is likely to be committed in prosecution of that common object then every member of such unlawful assembly shall be liable for punishment with the aid of Section 149 Cr.P.C.

Hon'ble the Apex Court has considered this legal point in several cases. In the case of State of Haryana v. Shakuntla reported in , (2012) 5 SCC 171, Hon'ble the Apex Court in paragraphs 34, 35 and 36 has held as under:--

"34. In the case of Ramchandran and Ors. v. State of Kerala (2011) 9 SCC 257, a Bench of this Court dealt, at some length, with the scope and object of Section 149 Indian Penal Code. It was held that Section 149 Indian Penal Code essentially has two ingredients, one, that the offence must be committed by any member of unlawful assembly consisting of five or more members and second, such offence must be committed in prosecution of the common object Under Section 149 Indian Penal Code of that assembly or such as the members of that assembly knew was likely to be committed in prosecution of the common object. Clarifying the expression "common object", the Bench further said that it is not necessary that there should be a prior concert in the sense of a meeting of minds of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if it is then adopted by all the members and is shared by all of them.

In the case of Waman (supra) , (2011) 7 SCC 295, the Court also stated that in order to attract Section 149 Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. It must be within the knowledge of other members that the offence is likely to be committed in prosecution of the common object, and if such requirement is satisfied, then they would be held liable Under Section 149 Indian Penal Code.

It is not possible to define the constituents or dimensions of an offence Under Section 149 simplicitor with regard to dictionary meaning of the words "unlawful assembly" or "assembly". An "assembly" is a company of persons assembled together in a place, usually for a common purpose. This Court is concerned with an "unlawful assembly". Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. The ingredients which need to be satisfied have already been spelt out unambiguously by us."

(Underlined by us)

Hon'ble the Apex Court in the case of Krishnappa v. State of Karnataka reported in , (2012) 11 SCC 237, in paragraph 20 has held as under:--

"It is now well settled law that the provisions of Section 149 Indian Penal Code will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 Indian Penal Code creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. [Lalji v. State of U.P. , (1989) 1 SCC 437; Allauddin Mian v. State of Bihar , (1989) 3 SCC 5, Ranbir Yadav v. State of Bihar , (1995) 4 SCC 392]".

(emphasis added)

Hon'ble the Apex Court in the case of State of Rajasthan v. Shiv Charan reported in , (2013) 12 SCC 76, in paragraph 19 has held as under:--

"The pivotal question of applicability of Section 149 Indian Penal Code has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 Indian Penal Code) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under second part of Section 149 Indian Penal Code if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of the land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable Under Section 149 Indian Penal Code. The court must keep in mind the distinction between the two parts of Section 149 Indian Penal Code, and, once it is established that unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to determine whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for Under Section 142 Indian Penal Code. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object. (Vide: Baladin and Ors. v. State of U.P. , AIR 1956 SC 181; Masalti v. State of U.P. , AIR 1965 SC 202; Chandra Bihari Gautam and Ors. v. State of Bihar , AIR 2002 SC 1836; Ramesh and Ors. v. State of Haryana , AIR 2011 SC 169; Ramachandran and Ors. Etc. v. State of Kerala , AIR 2011 SC 3581; Onkar and Anr. v. State of Uttar Pradesh , (2012) 2 SCC 273; Roy Farnandez v. State of Goa and Ors. , AIR 2012 SC 1030; and Krishnappa and Ors. v. State of Karnataka , AIR 2012 SC 2946)".

(Underlined by us)

Hon'ble the Apex Court in the case of Gurmail Singh v. State of Punjab and another reported in , (2013) 4 SCC 228, in paragraph 49 has held as under:

"Section 149 of the Indian Penal Code constructively criminalizes all members of an unlawful assembly if a member of that assembly commits an offence in prosecution of a common object of that assembly or if the members of that assembly knew likely to be committed in prosecution of that object. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been committed by a member of the unlawful assembly. Thirdly, the offence committed must be in prosecution of a common object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be committed in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the Indian Penal Code will come into play and cover every member of the unlawful assembly".

(Emphasis added)

Now the prosecution evidence has to be evaluated as to whether accused persons formed an unlawful assembly and shared common object. The evidence of the witnesses clearly establish that all the seven accused appellants who were armed with deadly weapons came together from their houses at the place where the deceased and other persons were warming themselves at the house of the deceased and one of them fired at Barati Lal. When the fire did not hit Barati Lal and Barati Lal ran along with the complainant Ram Saran then all the appellants chased them for a long distance of about 142 paces. So the only conclusion that can be derived from the above evidence would be that all the accused persons formed an unlawful assembly and the common object of the said unlawful assembly was to murder Barati Lal. In prosecution of the said common object of the unlawful assembly they armed themselves with deadly weapons, came together at the place of occurrence, Pancham fired at Barati Lal and when the deceased and complainant Ram Saran ran to save their lives then they were chased for a distance of 142 paces by all the accused persons with weapons in their hands and thereafter on the place of incident Barati Lal was shot at by Pancham and when he fell down then the accused persons who were armed with bankas gave banka blows to him and accused Dharmesh fired on the complainant causing him injuries and Ram Kishore caused him injuries with banka. Thus, the aforesaid fact situation which stands established by the prosecution evidence leads to the only conclusion that all the accused persons formed an unlawful assembly and the common object of the said unlawful assembly was to murder Barati Lal and all the accused persons continued to remain the members of the said unlawful assembly with deadly weapons in their hands till the common object of the unlawful assembly was fulfilled by them. Presence of other accused persons on the place of occurrence armed with deadly weapons gives a protection cover to the other accused persons and also an opportunity to the other members of the unlawful assembly to accomplish the common object without fear and without any interference by the other persons who had assembled. All the accused persons after committing the offence went together from the place of occurrence. The argument of learned counsel might have some force if at the place of first part of the incident Barati Lal would have been murdered. But once firing at Barati Lal when all the accused persons chased Barati Lal for a long distance then the conclusion is irresistible that every members of unlawful assembly knew that such an offence shall be or may be the result of such unlawful assembly but in spite of that they continued to be the member of that unlawful assembly. So in our considered view, the accused persons, who were not assigned any specific role of causing injuries, cannot escape the mischief of Section 149 IPC. Learned trial court, in our considered opinion, has properly appreciated the prosecution evidence and has rightly convicted the appellants.

Before concluding our judgment, we would also like to evaluate the defence version. The defence has come with a theory that the deceased Barati Lal was murdered while he was coming back from Jaidpur market in the night by some unknown persons but the said defence theory loses its all probable value because it does not explain, in any manner, the injuries sustained by the complainant Ram Saran. It is nowhere the suggestion of the defence that the complainant Ram Saran received injuries in any other incident or these are self-manufactured injuries. So, the defence taken by the appellants was not the least probable.

In view of discussions made above, we are of the considered view that this appeal sans merits, deserves to be dismissed and is hereby dismissed. Appellants are on bail. Their bail is cancelled. They shall be taken into custody to serve out their sentence.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.