Ram Piyare vs The State

Surendra Vikram Singh Rathore, J.—1. Mr. Shiv Shanker Singh, learned counsel for the appellant and Mr. Umesh Verma, learned Additional Government Advocate were heard.

Under Challenge in the instant criminal appeal is the judgment and order dated 31.03.1982 passed by learned V Additional Sessions Judge, Lucknow, in Sessions Trial No. 92 of 1975, arising out of Case Crime No. 526 of 1974, Police Station Krishna Nagar, District Lucknow under Sections 148, 302/149, 307/149 IPC whereby the appellant Ram Piyare @ Piyare was convicted for the offence under Section 302/149 IPC and was sentenced to undergo imprisonment for life and for the offence under Section 307/149 IPC he was sentenced to undergo rigorous imprisonment for a period of seven years and for the offence under Section 148 IPC he was sentenced to undergo rigorous imprisonment for a period of two years. All the sentences were directed to run concurrently.

However, by the same judgment co-accused persons namely Heera Lal, Sant Prasad and Amar Nath were acquitted of the charges levelled against them.

In the FIR, six accused persons were named. During course of trial accused Usman, Sunder and Phool Singh who were named in the FIR were murdered and because of their death the case was abated against them. However, the other two accused persons namely Shiv Kumar and Rup Narain absconded and they have not faced trial. Three unknown persons were also charge-sheeted after investigation and they were acquitted from the charges levelled against them as the allegation against them was only to provide motorcycle and to hide the same after the incident.

The incident of this case is out come of a gang war. Complainant Subhash Bhandari on one side and the appellant and his party on the other side. In brief, the case of the prosecution was that the present appellant Ram Piyare @ Piyare, Shiv Kumar, Ram Chander were residents of village Anaura, District Lucknow, and all the three were of the same party and friends of Ram Chander. Aforesaid Ram Chander was murdered a little prior to this incident. Kunj Bihari and others of the same village Anaura were facing trial for the murder of Ram Chander. Subhash Bhandari had his agricultural farm at Sarojini Nagar, Lucknow. Aforesaid Kunj Bihari and other used to visit his farm and accused Ram Piyare and Shiv Kumar got suspicion of the complicity of Subhash Bhandari in the murder of Ram Chander. Even on the assurance given by Subhash Bhandari of his innocence Ram Piyare and his associates were not satisfied. Subhash Bhandari used to ply mini buses with his office at Charbagh in 1974 and one Jalil was looking after the affairs of Subhash Bhandari. Accused Usman was the secretary of the Bus union at Charbagh. Some altercation took place between Usman and Jalil giving rise to proceedings under Section 107 and 116 Cr.P.C. Thus Usman also got annoyed with Subhash Bhandari.

It was the background of this incident. On the day of occurrence Dr. K.P. Pant had come to see the ailing mother of Subhash Bhandari in his house situated in Sarojini Nagar in the morning. Dr. Pant took breakfast at the house of Subhash Bhandari and also checked up his mother. Thereafter Subhash Bhandari took him on the motorcycle bearing No. USS 3388 for dropping him at his house in Mahanagar. When Subhash Bhandari alongwith Dr. K.P. Pant reached on his motorcycle in front of the API factory at Kanpur Road at 11:30 a.m. one ambassador car occupied by Usman, Sunder Yadav, Shiv Kumar Yadav, Phool Chand Yadav and its driver came from back and over took his motorcycle on the right side and stopped the motorcycle. At the same time, one Jawa motorcycle, driven by Rup Narain and present appellant Ram Piyare as its pillion rider armed with DBBL gun, came from behind and stopped on the left side of the motorcycle of Subhash Bhandari and his way was blocked. Aforesaid Usman, Sunder and Phool Kumar, Shiv Kumar and Ram Piyare were armed with various fire arms like pistols, revolvers, gun etc. Subhash Bhandari left his motorcycle to escape from there. All the aforesaid persons shot fires from their respective weapons with intent to kill Subhash Bhandari and Dr. K.P. Pant. The shots hit Dr. Pant due to which he fell down instantaneously. Subhash Bhandari started running from the place of occurrence in nearby Jwar field leaving his motorcycle on the place of occurrence. He was also chased by the accused persons and they fired shots at him but he managed to save his life.

After a little while when these assailants had left the place of occurrence with their ambassador car and Jawa motorcycle then Subhash Bhandari came out from the said field near his motorcycle. By that time, several persons including prosecution witnesses Babu Lai, Satnam Singh, Kunwar Bahadur Singh and Pramod Kumar had also reached on the spot and by that time, Dr. K.P. Pant had succumbed to his injuries.

Subhash Bhandari immediately went to the police station and lodged the FIR of this case. After registration of the case the investigation proceeded and Investigating Officer Sri Jagbeer Singh who was the S.O. of the concerned police station Krishna Nagar took up the investigation. During investigation the Jawa motorcycle was recovered and Amar Nath and Sant Prasad were also arrested as they had delivered the said motorcycle for committing the aforesaid crime. Heera Lal was also arrested later on for having concealed this motorcycle. The trial was faced only by Ram Piyare present appellant, Amar Nath, Sant Prasad and Heera Lal.

The defence of Ram Piyare was that the murder of Ram Chander had taken place and the said murder case was launched against Kunj Bihari and others and rest of the prosecution case was denied by him. He has taken a plea that he was not present on the spot and has further stated that the said Ram Chander was himself accused in murder of Babu Lal and he had appeared as a witness in the said murder case. In another murder case of Omkar he had appeared as prosecution witness against Shiv Kumar accused and in proceedings under Section 107, 116 Cr.P.C. he and Subhash Bhandari were in the same party.

Postmortem on the body of the deceased was conducted by PW-12 Dr. K.K. Singhal, on 17.11.1974 at 5.23 p.m. and following ante-mortem injuries were reported in the postmortem:-

(1) Fire arm wound of entry 1 c.m. x 1 c.m. x through and through (Circular) margins lacerated and inverted on left outer arm middle 12 c.m. below axilla and 14 c.m. above left elbow.

(2) Firearm (exit wound) margins lacerated and averted 3 x 2 c.m. x through and through inner part of left arm, communicating with injury No. 1.

(3) Fire arm entrance would 1 1/2 c.m. x 1/2 c.m. x chest cavity deep, margins lacerated and inverted c.m. below axilla and 7 c.m. left to nipple, circular in shape.

(4) Fire arm exit wound (3 in number), margins lacerated and averted, first would measuring 2 c.m. x 1/2 c.m. chest cavity deep, 5 c.m. x away from right nipple, second measuring 1 c.m. x 1/2 c.m. x chest cavity deep and 1 c.m. below the first wound and third measuring 1 1/2 c.m. x 1 c.m. x cavity deep 1 1/2 c.m. above the middle wound, all the three wounds in irregular shape.

(5) Lacerated wound (firearm), its entry and exit wounds were merged 5 x 4 x 1 1/4 c.m. horizontal, on the front part of right arm middle.

(6) Fire arm wound of entry 3 x 3 c.m. x through and through just below root of left ear cutting neck and face, margins lacerated and inverted blackening and tattooing present, oval shape.

(7) Fire arm multiple lacerated exit wound 9 c.m. x 8 c.m. area, on right face, right nose, right cheek, right upper lip and right eye, communicating with wound No. 6.

In the opinion of the doctor, the injuries Nos. 1 to 5 being in horizontal position must have been caused with one fire and the injuries Nos. 6 and 7 with another fire.

On internal examination he found left parietal and left temporal bones broken in the length of 14 cms. frontal bones in the length of 7 cms. and right parietal frontal bone in the length of 11 cms. skull base bones were found broken in an area 20 c.m. x 12 spinal chord was found cut, second third, fourth, fifth, sixth and seventh ribs of left side chest and third, fourth fifth and sixth ribs of right side chest were found broken. Sternum was also fractured in the middle, voice box was also cut, 8 oz semi digested food was present in the stomach suggesting that the deceased had taken last meals within 1 1/2 to 4 hours before his death.

In order to prove its case the prosecution has examined following witnesses. Brief details of their evidence is being narrated as under:-

(i) PW-1 Vijai Raj Singh, is the Head Moharrir who has prepared the chik report on the dictation of the complainant Subhash Bhandari and also made an entry of the registration of the case in the G.D. of the police station. He also took the blood stained clothes and shoes of complainant Subhash Bhandari in his custody and its separate memos were prepared. He has also stated that on return of Investigating Officer he deposited the motorcycle and the other articles recovered from the place of occurrence and this witness made entry of the same in the G.D. at 22:30 hours. He has also stated that the place of occurrence from the police station was at a distance of about two miles.

(ii) PW-2 Sri Ram Abhilakh Singh, constable is a formal witness who had taken the dead body from the place of occurrence to mortuary. He has stated that he received the dead body at about 2:00 p.m. and he took it on "Khadkhada" and took about two and half hours time to reach the mortuary. He had identified the dead body at the time of postmortem and he has also stated that he got the copy of the postmortem at 6:00 p.m. and thereafter he came back to the police station. He has stated that the postmortem was conducted on 17.11.1974 at 5:23 p.m.

(iii) PW-3 K.K. Mishra, is the clerk in the office of Dy. CMO he has stated that on 15.10.1975 constable Azaz Ahmad brought the recovered case property in sealed condition and the same was seen from his office after marking seal of his office to chemical examiner.

(iv) PW-4 Hari Prasad has stated that on the date of incident at about 11:00 a.m. he had seen near Scooter India Factory a green colour car and five accused persons including the present appellant Ram Pyare present there and they were saying that they shall kill Subhash Bhandari. He has stated that at that time no motorcycle was present there. This witness was declared hostile.

(v) PW-5 is Heera Lal. This witness has not supported the case of the prosecution and he has stated that he subsequently came to know about this incident.

(vi) PW-6 Babu Lal was a witness regarding the other accused persons whose name came into light during investigation regarding the motorcycle and its concealment. He has stated that Shiv Ram brothers of Krishna Kumar never asked his motorcycle. Therefore for the purpose of the instant appeal the evidence of this witness is of no avail.

(vii) PW-7 Shiv Ram Sonkar constable is also career of dead body.

(viii) PW-8 Satnam Singh is a witness of fact he has fully supported the case of the prosecution. He has also explained as to how he knows appellant Ram Pyare. He has also stated the registration number of the scooter on which he went with one Asthana at the place of occurrence. He has also furnished the reasons for his presence at the place of occurrence.

(ix) PW-9 Kunwar Bahadur Singh is also a witness of fact who has fully supported the case of the prosecution and has also assigned the specific weapons which were possessed by the accused persons. He has also given the registration numbers of vehicles which were present on the place of occurrence.

(x) PW-10 Ajai Mohan Kapoor is a witness of recovery made by the Investigating Officer from the place of occurrence so his evidence is of formal nature.

(xi) PW-11 Pramod Kumar is also a witness of fact he has also supported the case of prosecution.

(xii) PW-12 Dr. K.K. Singhal, has proved the postmortem report, details of which have already been mentioned in the earlier part of the judgment.

(xiii) PW-13 Mohammad Shareef has stated that a car of green colour was parked but he has not stated about the incident so this witness was declared hostile.

(xiv) PW-14 Jag Veer Singh is the Investigating Officer of this case.

(xv) PW-15 is the complainant Subhash Bhandari who has fully supported the case of the prosecution and has furnished details of the circumstances which led to this gruesome crime and has also given an eye witness account of the entire incident.

In defence no oral evidence was adduced on behalf of the appellant but nine documents consisting of certified copies of some judgments were filed on behalf of the appellant Ram Piyare @ Piyare to show that he was on inimical terms with Ram Chander and Shiv Kumar friend of Subhash Bhandari and also that administration has been against him for the last several years.

After appreciating the evidence on record, the trial court has convicted the appellant as above. Hence the instant appeal.

Admittedly in this case no appeal challenging the acquittal of the other accused persons has been preferred either by the State or by the complainant side.

The main arguments of learned counsel for the appellants was that in the instant case the deceased had died because of fire arm injuries which were shot from the car. Thus the appellant was not responsible for the murder of Dr. K.P. Pant. The complainant Subhash Bhandari has not received any injury so the appellant cannot be convicted for the murder of Dr. K.P. Pant. He has also argued that some of the witnesses of prosecution have turned hostile, therefore, this fact also makes the evidence of the other witnesses unreliable. Witnesses were chance witnesses so their evidence was not reliable. It has also been argued that it has come in evidence that initially the complainant Subhash Bhandari was himself found to be suspected accused of this offence but subsequently present appellant and the other accused persons were falsely implicated and Subhash Bhandari was made the complainant of this case.

Learned Additional Government Advocate has submitted that after investigation police has filed charge-sheet, therefore, the point that initially suspicion was raised on Subhash Bhandari loses its significance. Apart from it, there is eye witness account of this incident and the presence of the appellant at the place of occurrence stands established. He had common object and was member of unlawful assembly. The incident has taken place on Lucknow Kanpur Road, so the persons passing thereby were the natural witnesses and all the witnesses of fact have furnished reasons for their presence at the place of occurrence, so their evidence cannot be discarded on the ground that they are chance witnesses.

The first ground of attack of the learned counsel for the appellant was that in the instant case initially it was the complainant Subhash Bhandari himself who was suspected by the police to have committed this offence. On the strength of evidence of PW-5 Heera Lal who has turned hostile and has stated that he heard about the incident subsequently and the person who gave him information, had told him that the murder has been committed by the Bhandari''s men. Apart from the evidence of this hostile witness there is absolutely no other evidence to suggest that Subhash Bhandari was the suspected author of this crime. The FIR of this case was lodged with promptness by Subhash Bhandari himself and his blood stained clothes and shoes were taken into custody on the same day at the time of registration of the case. His blood stained motorcycle was also taken into custody from the place of occurrence on the day of occurrence and the evidence of the eye witnesses shows that their statements under Section 161 Cr.P.C. were recorded on the same day. The Investigating Officer PW-14 Jag Veer Singh has also stated that the statements of witnesses under Section 161 Cr.P.C. were recorded on the same day. On the date of incident, the house of the appellant Ram Piyare @ Piyare was raided by him but he was absconding. So virtually there was absolutely no evidence to support this argument of the learned counsel for the appellant. There is no dispute to the fact situation that after the investigation charge-sheet was filed against the appellant and the other accused persons has no legs to stand.

Learned A.G.A. has placed reliance on the pronouncement of Hon''ble Apex Court in the case of Ram Naresh and Others V. State of Chhattisgarh reported in , (2012) 4 SCC 257 wherein the Hon''ble Apex Court in para 23 has observed as under:-

"The fact that at a given point of time, some person other than the accused were suspected to have committed the offence would lose its relevance once the investigation is completed, report under Section 173 Code of Criminal Procedure is filed before the Court of competent jurisdiction, of course, unless the Court, upon presentation of the report finds that some other person is also liable to be summoned as an accused or directs further investigation. In the present case, the possibility of PW 6, Dhaniram, having committed the crime is ruled out in view of the evidence collected during the investigation. It is nobody''s case before us that there is even an iota of evidence which points towards Bhupendra for commission of such an offence."

In view of the above legal position this ground of attack has no substance.

Now we come to the evidence of eye witnesses. PW-4, though he has been declared hostile, but law is settled on the point that even if a witness is declared hostile even then his evidence does not stand wiped out from the record and the same can be used for the purpose of corroboration to the extent so far as it supports the case of prosecution. PW-4 has stated that he had seen the car parked near Sarojini Nagar canal and has also proved the presence of present appellant Ram Piyare at that time. Though he has not stated that motorcycle was parked there but inspite of that presence of appellant Ram Piyare @ Piyare along with other members of unlawful assembly, immediately prior to this incident on the same road stands corroborated by the evidence of this witness. PW-8 Satnam Singh is an eye witness and he has fully supported the case of prosecution and has explained the reasons for his presence at the place of occurrence and has also proved the presence of other eye witnesses. He has stated that all the accused persons were known to him and when he reached near run way of Aerodrum at that time one motorcycle which was being driven by Roop Narayan and Ram Piyare appellant was the pillion rider of this motorcycle armed with double barrel gun over took him. At this relevant point of time, this witness was coming on scooter alongwith one Asthana after booking the scooter at the Scooter India Limited. Thus this witness has given the explanation of his presence at the place of occurrence. He has stated that a green colour ambassador car was parked on the right side and from the car shots were being fired he stopped his scooter at the API Factory and the Jawa motorcycle was also parked near the car. Appellant Ram Piyare was standing on the ground and was firing with his double barrel gun and Roop Narayan was exhorting to kill him. This incident had taken place at a distance of 60-65 paces towards Lucknow from the place where he was standing. He has stated that Subhash Bhandari was running towards Jwar field and his face was towards Kanpur. He was being chased by Shiv Kumar, Usman, Phool Chand, Roop Narayan and Ram Piyare (appellant) who were firing on Subhash Bhandari. Shiv Kumar, Ram Piyare and Sunder were armed with gun, Usman armed with revolver and Phool Chand was armed with pistol and Subhash Bhandari was running in a zig-zag manner and after covering some distance he entered into Jwar field. He was chased upto the mend of said field and thereafter accused persons came back. This witness has also given registration number of car and motorcycles and all the reasons as to how he reached at the place of occurrence. He has undergone a long cross-examination but nothing material could be extracted in his cross examination to make his evidence unreliable. Likewise PW-9 Kunwar Bahadur Singh has also stated that the incident had taken place after two days of Deepawali. This witness has also furnished the reasons for his presence at the place of occurrence. He has stated that he was going on motorcycle to Lucknow to see "Movie" prior to this he went to "Gauri Shahkari Sangh" to inquire about the arrival of the fertilizer and when he was coming back from there then he saw the incident. In his evidence he has furnished the details of the incident just like firing from the car, chasing Subhash Bhandari by the accused persons and firing on him and also the death of Dr. K.P. Pant. This witness has stated that his statement was recorded on the same day on the spot by the police. He has furnished the number of motorcycles on which he was present on the place of occurrence. Lengthy cross examination was made to this witness challenging his presence on the spot but this witness has categorically supported the case of the prosecution and nothing could be extracted in his cross-examination to lend support to the defence. Likewise PW-11 Pramod Kumar has also fully supported the case of the prosecution and has assigned the specific role of chasing Subhash Bhandari by the appellants. This witness has also successfully undergone the test of cross examination and there is nothing in his evidence to bring his testimony within the category of not reliable. PW-15 is the complainant Subhash Bhandari himself. He has furnished the background of this crime and has fully supported the case of the prosecution. He is the best witness of this incident. He has also stated that during the pendency of the trial the three named accused persons namely Usman, Phool Chand and Sunder Lal have been murdered and Shiv Kumar was absconding. Perusal of the evidence available on record shows that after the incident all the accused persons were absconding and the process under Sections 82 and 83 against them were obtained by the Investigating Officer and were executed by SI M.A. Hussaini. The accused Shiv Kumar, Ram Piyare and Phool Chand surrendered in some other case in Kanpur. In District Jail Kanpur their statements under Section 161 Cr.P.C. were recorded by the Investigating Officer on 22.11.1974. The Investigating Officer has also denied the suggestion that Subhash Bhandari was kept under detention for a period of two days at the police station.

The evidence of all these eye witnesses has been challenged on the ground that these witnesses are chance witnesses. The incident of this case has taken place on Lucknow, Kanpur road. On highway the persons using the said highway are the most natural witnesses and all the witnesses have explained the reasons for their presence at the place of occurrence. Thus these witnesses cannot be categorized to be chance witnesses.

Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness.

Hon''ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in , (2010) 3 SCC 56 has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and Others V. State of Haryana reported in , 1983 (3) SCC 327 which reads as under:-

"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression ''chance witnesses''. 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 brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses''. The expression ''chance witnesses'' is borrowed from countries where every man''s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man''s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ''chance witnesses'' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

(underlined by us)

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in , (2005) 9 SCC 650 and the Hon''ble Apex Court has observed in para 8 which is reproduced as under:-

"Coming to the plea of the accused that PW-3 was ''chance witness'' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as ''chance witnesses'' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. 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 passersby 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."

On this point reference may be made to the pronouncement of Hon''ble Apex Court in the case of Hiralal Pandey and Other V. State of Uttar Pradesh reported in , (2012) 5 SCC 216 wherein the Hon''ble Apex Court has observed in para 27 as under:-

"We do not also think that the evidence of PW-2 could have been discarded on the ground that he was only a chance witness. The incident took place when the deceased were traveling on a motorcycle on the road and PW-2 was also coming on the same road on his cycle when he saw the incident. This Court has held in Thangaiya v. State of T.N. (supra) that if a murder is committed in a street only passers-by will be witnesses and their evidence cannot be brushed aside or viewed with suspicion on the ground that they were mere chance witnesses. Moreover, PW-2 has been named in the FIR as one of the persons who were coming on a cycle from Dhata side and as one of the persons who shouted at the Appellants not to fire."

(underlined by us)

Since this incident has taken place on Lucknow Kanpur road so the passersby are the natural witnesses. All the witnesses of fact have furnished the reason for their presence at that time with their reliable evidence. So their evidence cannot be discarded saying that they are chance witnesses.

Learned counsel for the appellant has also argued that because of the group rivalry the intention of the appellant and the other accused persons would be only to murder Subhash Bhandari and there was no enmity with Dr. K.P. Pant. So the offence would not travel beyond the purview of Section 304 part I IPC because they had no prior intention to kill Dr. K.P. Pant. This argument has been strongly refuted by the learned A.G.A. and he has drawn our attention towards Section 301 IPC which reads as under:-

"Section 301 IPC Culpable homicide by causing death of person other than person whose death was intended--If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

Hon''ble Apex Court in the case of Jagpal Singh V. State of Punjab reported in , 1991 Cr.L.J. SC 597 has observed that accused is punishable for murder under doctrine of transfer of malice under Section 301 IPC when he aimed at one person and kill another person. So in the instant case, even if it is assumed that the object of the unlawful assembly was to murder Subhash Bhandari but in prosecution of the said common object of such unlawful assembly death of Dr. K.P. Pant has been caused even then by virtue of Section 301 IPC, the offence would be only under Section 302 IPC and it would not minimize the offence. For the murder of Subhash Bhandari he was also chased by all including the appellant. Since he entered into Jwar field so he could not be chased thereafter by the appellants. This conduct of the appellant and others appears to be very natural because keeping in view the background of this incident and the group rivalry the accused persons must be of the view that Subhash Bhandari must be armed with some weapon. So they must be apprehending danger to their life, in case they enter into the jwar field Subhash Bhandari can fire on them. So the prosecution story on this aspect was very natural that the appellants and the other accused persons did not enter into the said Jwar field and came back to the place of occurrence and thereafter went away on their respective vehicles. Only thereafter Subhash Bhandari complainant of this case came out from the field and thereafter leaving dead body under the supervision of the witnesses he went to lodge the report which was lodged with promptness at the police station. His clothes and shoes were also blood stained so the same were taken into custody by the Head Moharrir PW-1 who has prepared the chik report and G.D. of this case. So the presence of Subhash Bhandari on the place of occurrence stands established by the prompt FIR and his blood stained clothes. Apart from this, his motorcycle was also recovered from the place of occurrence and its blood stained seat cover was also taken into custody during investigation on the same day. Therefore, the prosecution evidence is so clinching and the eye witness account of the incident given by four witnesses is so natural that they cannot be disbelieved.

Last submission of the learned counsel for the appellant was that in the instant case according to the admitted case of the prosecution, the deceased Dr. K.P. Pant died because of the firing which was made from the persons who were sitting in the car. Admittedly present appellant was on motorcycle and was not in the car. So he cannot be assigned the common object of committing murder. But we are not the least satisfied with this submissions of the learned counsel for the appellants. In order to attract the applicability of Section 149 IPC it is not required under law that any specific overt act in prosecution of the common object of the said assembly must be committed by each of the person. The only requirement to attract the applicability of Section 149 IPC is that he was member of unlawful assembly and he shared common object and he knew that such offence is likely to be committed.

Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of State of Rajasthan V. Shiv Charan reported in , (2013) 12 SCC 76 and Hon''ble Apex Court has observed in para 19 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."

Reference on this point may be made to the pronouncement of Hon''ble Apex Court again in the case of Krishnappa and Others V. State of Karnataka reported in , (2012) 11 SCC 237 and Hon''ble Apex Court has observed in paras 20 and 21 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., reported in , (1989) 1 SCC 437; Allauddin Mian v. State of Bihar, reported in , (1989) 3 SCC 5; Ranbir Yadav v. State of Bihar, reported in , (1995) 4 SCC 392]. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 Indian Penal Code. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. [State v. Krishan Chand, reported in , (2004) 7 SCC 629; Deo Narain v. State of Uttar Pradesh, reported in , (2010) 12 SCC 298]."

In the case of Bharat Soni and Others V. State of Chhattisgarh reported in , (2012) 12 SCC 657 and Hon''ble Apex Court has observed in para 13 as under:-

"Having noticed the essential features of the evidence tendered by the prosecution witnesses we may now proceed to examine the liability of the accused Appellants, all or any of them, on the principle of vicarious or constructive liability Under Section 149 of the Indian Penal Code. The aforesaid provision of the Indian Penal Code is in the following terms:

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.

An assembly of five or more persons having as its common object any of the five objects enumerated Under Section 141 of the Indian Penal Code is deemed to be an unlawful assembly. Membership of an unlawful assembly is itself an offence punishable Under Section 143 whereas other species of the said offence are dealt with under Sections 143 to 145 of the Indian Penal Code. Similarly Sections 146 to 148 of the Indian Penal Code deals with the offence of rioting which is defined to be use of force or violence by any member thereof. Section 149 makes every member of an unlawful assembly liable for offence that may be committed by any member of the unlawful assembly in prosecution of the common object of that assembly or for commission of any offence that the members of the assembly knew to be likely to be committed in prosecution of the common object of the assembly.

Section 149 Indian Penal Code, therefore, engrafts a principle of vicarious or constructive liability inasmuch as a person would be guilty of an offence, though he may not have directly committed the same if as a member of an unlawful assembly he had shared a common object with the other members to commit such an offence or if he knew that such offence was likely to be committed in prosecution of the common object of the assembly of which he was a member.

The purport and effect of the provisions of Section 149 Indian Penal Code has received the consideration of this Court on more than one occasion. Without referring to any particular or specific precedent available on the point, it would suffice to say that determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew that the offence that was committed was likely to be committed is. essentially a question of fact that has to be made 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 and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration.

In Dani Singh v. State of Bihar the meaning of the word "common object" had been considered by this Court. The relevant part of the discussion may be summarized up below:

11...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....

12...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....

13...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...

In a recent decision of this Court in Kuldip Yadav v. State of Bihar reported in , (2011) 5 SCC 324 to which one of us (Justice Sathasivam) was a party, the principle of constructive liability Under Section 149 Indian Penal Code had once again received an elaborate consideration. In paragraph 39 of the judgment it was held that:

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 lawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object."

This point came for consideration again in the case of Gurmail Singh V. State of Punjab reported in , (2013) 4 SCC 228 and the Hon''ble Apex Court has observed in para 49 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."

This point came for consideration again in the case of Subal Ghorai V. State of West Bengal reported in , (2013) 4 SCC 607 and the Hon''ble Apex Court has observed in paras 42 to 45 as under:-

"We must now deal with the submission that all the accused cannot be convicted for murder with the aid of Section 149 of the Indian Penal Code because the prosecution story that all the accused were armed with weapons and they attacked the deceased is based on omnibus statements of the eyewitnesses. In order to deal with this submission, we have reproduced the material portions of the evidence of the eyewitnesses. It is now necessary to refer to the judgments of this Court which have been relied upon by the counsel on this point so that the evidence of the witnesses can be examined in their light.

In Lalji this Court observed that Section 149 of the Indian Penal Code makes every person who is the member of an unlawful assembly at the time of committing of the offence guilty of that offence. It 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 this assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. 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, because everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined and it is not necessary that all the persons forming an unlawful assembly must do some overt act. It was further observed that once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of the 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 offence was a member of the same assembly is to be held guilty of that offence. This Court further observed that 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. On the facts of the case before it, this Court held that after having held that the Appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence, it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of Section 149 of the Indian Penal Code, the High Court erred in examining which of the members only actively participated and in acquitting those who, according to the court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 of the Indian Penal Code."

Thus in the instant case, the appellant has not only shared the common object but he also took an active part in the commission of the offence. He went to the place of occurrence on motorcycle armed with dabble barrel gun simultaneously with other accused persons, he opened fire on Subhash Bhandari. He chased Subhash Bhandari firing on him alongwith other appellants. Thus he not only shared the common object of unlawful assembly but he actively participated in the prosecution of the said common object. So he cannot escape the liability by saying that the murder of Pant was the result of the fire shot by the accused persons who were firing from the car.

Learned counsel for the appellant has also drawn our attention towards certain minor contradictions in the evidence of the witnesses. But in the instant case, these minor variations in the evidence of natural witnesses were bound to occur. There were so many accused persons taking part in this incident and the incident has taken place in such a hurried manner that because of the difference of the power of observation and because of difference in the power of expression, every witness has given evidence in the manner in which it made an impact on his mental canvas. The motorcycle of Subhash Bhandari was obstructed by the car, immediately firing was opened and the appellant armed with his DBBL gun also reached there on motorcycle and has also obstructed the motorcycle of Subhash Bhandari. Leaving the motorcycle on the place of occurrence Subhash Bhandari ran to save his life in a zig-zag manner and he entered into the Jwar field and anyhow managed to save his life. It has also come in the evidence that Jwar crop and Arhar crop standing in the said field was of the height of a man. It was only because of chance that he could manage to enter into the field and save his life. Contradiction on the point as to wherefrom the accused persons came back is of no consequence. The witnesses were standing at a distance of about 60-65 paces from the place of main incident and because of running away of Subhash Bhandari this distance further enhanced. Therefore, such minor contradictions which does not go to the root of the case, does not adversely affect the case of the prosecution.

Hon''ble the Apex Court in the case of State of U.P. Vs. Naresh reported in , JT 2011 (3) SC 508 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."

A similar view has been reiterated by this Court in Tehsildar Singh & Anr. V. State of U.P., [, AIR 1959 SC 1012]; Pudhu Raja & Anr. V. State, Rep. By Inspector of Police, [, JT 2012 (9) SC 252]; and Lal Bahadur v. State (NCT of Delhi), [, (2013) 4 SCC 557)]

Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."

As stated earlier, the incident of this case has taken place in a very quick succession and large number of accused persons have taken part in this incident. So in such type of offences witnesses are not expected to give specific role played by each of the accused. Inspite of that all the witnesses of this case have furnished a reliable evidence regarding the manner of incident and because of few minor contradictions their evidence cannot be disbelieved. Reliance on this point may be placed on the pronouncement of Hon''ble Apex Court in the case of State of U.P. V. Jhinkoo Nai reported in , (2001) 6 SCC 502. Para 7 of the said judgment is reproduced as under:-

"Further, when several persons simultaneously attack with common intent, no distinction between causing the fatal and non-fatal wounds could be drawn while allocating the guilt. Negativing similar contention this Court in H.P. Thakore vs. State of Gujarat reported in , 1977 Cri.L.J. 352 succinctly observed:

".. when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissected the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man''s tab falls on a less or more vulnerable part of the person of the victim if of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. See Amir Hussain v. State of U.P. reported in , 1975 Cri.L.J. 1874 Maina Singh V. State of Rajasthan reported in Lord Summer''s classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse ''They also serve who only stand and wait a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."

(Emphasis supplied)

Hon''ble Apex Court in the case of Shardul Singh V. State of Haryana reported in , 2002 (8) SCC 372 has observed that there cannot be a prosecution case with a cast iron perfection in all respect and it is obligatory for the court to analyze, shift and assess the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate judicial scrutiny adopting and objective and reasonable apprehension of the same.

In view of the discussion made above, we are of the considered view that the prosecution was successful in proving this case beyond reasonable doubt and the learned trial court has not committed any error of fact or law in convicting the appellant Ram Piyare @ Piyare. Thus this appeal sans merits deserves to be dismissed and is hereby dismissed. Appellant Ram Piyare @ Piyare is on bail. His bail is cancelled and sureties discharged. He shall be taken into custody forthwith to serve out his sentence.

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