IMPORTANT POINT
If the evidence of the eye witnesses examined in the case is found to be trustworthy to form safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness would not cause any infirmity in the prosecution case.

Headnote:Indian Penal Code, 1860-Sections 302/34 and 325/34-Convictions-Assault in a field killing one person-Eye witness being relation witness having strained relations with accused persons-Prompt FIR-Accused B and D caused injuries on person of deceased by lathis-Accused Rm and Rj armed with guns-Both of them fired shots at deceased-Their conviction u/s 302/34 maintained-Conviction of accused B and D u/s 302/34 set aside-They are convicted u/s 325/34 IPC.
       Held : The Sessions Court as also the High Court have dealt with the testimony of each of the witnesses examined in the case and chosen to place reliance on eye witness account of Shri Krishna and Ram Pal holding that their testimony could safely be relied on for founding the verdict of guilt. We find no reason to take a different view. Thus, we agree with the High Court and the Sessions Court in holding that in the occurrence Babu Ram and Deshraj caused injuries on the person of deceased Mangali by lathis. We also agree with the finding arrived at that Ram Swarup and Raja Ram were armed with guns and both of them fired shots at the deceased Mangali. One of the shots hit Mangali causing a wound of entry and a wound of exit. (Para 8)
       What is certain is that Babu Ram and Deshraj have not dealt any blow on the person of the deceased nor they are attributed with any overt act after the guns were fired. According to PW1 and PW 2 guns were fired at a point of time when assault by lathis was over. The two guns by the two accused persons are said to have been fired almost simultaneously. In short so far as the assault by Babu Ram and Deshraj is concerned it had come to an end before the guns were fired; howsoever negligible may be the intervening gap. There is no direct or circumstantial evidence available on record for drawing an inference that Babu Ram and Deshraj could have, while assaulting Mangali with lathis, anticipated that Ram Swarup and Raja Ram or any one of them would fire at Mangali and fatally injure him. We cannot hold Babu Ram and Deshraj accused-appellants sharing common intention with Ram Swarup and Raja Ram to cause the death of Mangali. They can be attributed only with the intention of causing grievous hurt to Mangali. The injuries caused by them have resulted in fractures on the body of the deceased. The medical evidence is clear and specific. None of the lathi injuries either individually or collectively were enough to cause the death of the victim. (Para 12)
       So far as Ram Swarup and Raja Ram are concerned, both were there armed with guns. Both have fired at the deceased Mangali and almost simultaneously. Shot by one of them has fatally hit the deceased. It is clear that both shared the common intention of causing the death of Mangali. (Para 17)

JUDGMENT

R.C. Lahoti, J.-Ram Swarup, Raja Ram, Babu Ram, Deshraj and Dularey Prasad, the five accused persons were tried on charges under Sections 302/149, 148 and 147 IPC. The Trial Court convicted Ram Swarup and Raja Ram for the offences under Sections 148 and 302/149 IPC and sentenced them to suffer two years rigorous imprisonment and imprisonment for life respectively. Babu Ram, Deshraj and Dularey were convicted under Sections 147 and 302/149 of IPC and sentenced respectively to one year s rigorous imprisonment and imprisonment for life. All the accused persons preferred an appeal before the High Court. The High Court has held the accused Dularey not to have participated in the incident at all and therefore there was no unlawful assembly of the accused persons. Accordingly, Dularey Prasad has been completely exonerated and acquitted. The conviction of all other accused persons insofar as referable to Sections 147, 148 and 302/149 IPC has been set aside. Instead Ram Swarup, Raja Ram, Babu Ram, Deshraj have been held guilty of an offence punishable under Section 302/34 of IPC and sentenced to imprisonment for life each. Feeling aggrieved by their conviction as ordered by the High Court, the accused Babu Ram and Deshraj have preferred Criminal Appeal No.255/2001 and Ram Swarup and Raja Ram have preferred Criminal Appeal No.256/ 2001, both by special leave.

2. The occurrence took place on 14.3.1980 at about 12.30 p.m. on the outskirts of village Baburahi, P.S. Shahabad, District Hardol of Utter Pradesh. Shri Krishna, PW 1 is the brother of late Mangali who died in the occurrence. It appears that tubewell operator Ram Autar (not examined) and Asharfi Lal, Tubewell Amin, PW3, accompanied by villagers Ram Pal, Shri Krishna and Mangali were taking a round of the village fields for making a survey of such fields as were irrigated from the tubewell in that season so as to make record of the same and levy irrigation charges. When they reached the field of accused Ram Swarup Mangali said that Ram Swarup s fields have been irrigated by tubewell whereas Ram Swarup denied the same. Other accused-appellants were present. Accused Deshraj and Babu Ram were armed with lathis. The deceased Mangali also had a lathi with him. The accused Ram Swarup and Raja Ram had licensed guns with them. On Ram Swarup accused vehemently denying his fields having been irrigated, a verbal exchange followed by hot words ensued between late Mangali and accused Ram Swarup. Dularey exhorted the accused persons whereupon appellant Deshraj and Babu Ram dealt lathi blows on Mangali. Mangali too wielded his lathi in his defence. Ram Autar and Asharfi Lal, PW3 being public servants and obviously not interested in involving themselves in the feud between the private parties thought it better to slip away from the scene and did so. Shri Krishna, PW1 tried to intervene and pacify the parties engaged in altercation. At this point of time appellants Ram Swarup and Raja Ram opened fire with their respective guns aiming at Mangali. Mangali sustained a fire arm injury and fell down. He died on the spot. The dead body was then removed by the villagers to the village.

3. Shri Krishna, PW 1 lodged first information report of the incident at about 2.30 p.m. at police station, Shahabad situated at a distance of little more than two miles from the village. The report was registered by Om Hari Sharma, Sub-inspector present at the police station. He registered a cognizable offence and commenced investigation. The dead body of the deceased was referred for post-mortem examination which was performed by Dr. U.D. Kapoor, PW5 on 15,3.1980 at 1 p.m.. The following injuries were found on the body of the deceased :

1. Firearm wound of entry:- of the size of 2.5 cm x 2.5 cm x cranial cavity deep, on the left side of forehead, 2 cm above the outer end of left eyebrow, margins of the wound arc lacerated and inverted. Blackening charring present.

2. One firearm

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2002 Supreme(SC) 749

IMPORTANT POINTIf the evidence of the eye witnesses examined in the case is found to be trustworthy to form safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness would not cause any infirmity in the prosecution case.

Cases Referred (3)

IMPORTANT POINT
If the evidence of the eye witnesses examined in the case is found to be trustworthy to form safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness would not cause any infirmity in the prosecution case.