IMPORTANT POINT
When a witness is subjected to lengthy arduous cross examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions, therefore, those infirmities will have to be appreciated in the background of ground realities.

Headnote:Indian Penal Code, 1860-Sections 143, 148, 149, 302, 307, 504 and 506-Unlawful Assembly-Vicarious liability-Conviction for offences under-Appeal-Enmity between one of the deceased and A3, A5, A6, A1-Prosecution case that deceased 1, Manager of a school of which PW 1 was a teacher, was talking to PW 6 when 8 persons including A1, A2, A3, A4, A5, A6 and two other unidentified persons came armed to that place-A1, A2 and unidentified persons were having country made pistols, A3 and A4 were carrying bombs and bags in their hands, A5 and A6 carrying a knife and an iron Dav respectively-A3 questioned PW6 and deceased and when deceased warned them to have control over their language, A1 allegedly exhorted the other accused to kill deceased-A3 and A4 hurled bombs at deceased and all other accused started chasing him when deceased was running to save himself-Deceased 2, a resident of same village, tried to intervene when accused hurled bombs and fired pistol shots at both the deceased-Deceased died at the spot-Accused could not be traced until they surrendered before the Court-PW1 though named in the FIR as an eye witness was available for recording his statement after about 9-10 days-Trial Court convicted 5 accused persons-High Court confirmed conviction of A2, A3 and A4-A5 and A6 acquitted-Appeals-Whether FIR is anti timed-(No)-Whether High Court was justified in acquitting two of the accused persons-(No).
       Held : From the entry made in the general diary of the police station, it is clear that Constable Dheeraj who was entrusted with the job of delivering the special report to the Magistrate had returned back to duty at Salempur Police Station at 8 O clock on 24.9.1993. Bearing in mind that the distance between Salempur Police Station and Deoria is about 28 to 29 kms. as seen from the records it is clear that the special report has reached the Jurisdiction Magistrate much earlier than 8 O clock in the morning of 24.9.1993. Though it would have been more appropriate and less controversial if only the concerned Magistrate had noted the actual time of receipt of the special report, still on facts and circumstances of this case as stated above, we are of the opinion that the special report must have reached the Jurisdictional Magistrate much earlier than 8 a.m. Since by then the constable who carried the report had come back to Salempur on 24.9.1993 which fits in with the prosecution case that the same was sent from the police station in the evening of 23.9.1993 at about 7 p.m. So on this count, it cannot be said that the FIR is anti timed. (Para 15)
       It is a settled principle in law that though it is necessary to give the gist of the information collected during the course of inquest proceedings and from the material available in the FIR to the doctor conducting the post mortem, it is not necessary to give all the particulars as contained in either of the above said documents. (Para 16)
       It is also true that PW 1 was not available to the Police for nearly 10 days after the incident but the explanation given by this witness is quite plausible that his family was afraid for his safety hence he went to his in-laws place and remained there and it is only when things settled down he decided to come out and give a statement to the Police. The possibility of his fear of retaliation is supported by the evidence of PW-8 I.O. who stated that there was tension in the village and at the time of funeral of the deceased he had to make Police bandobust which indicates the possibility of PW-1 s apprehension and his consequent non-availability to the investigating agency. There is one other aspect of this case which will have to be borne in mind while considering the evidence of PW-1. His name has been mentioned in the FIR as a person who was present at the time the incident took place. It is also stated in the FIR that in the said incident PW-1 was injured. We have already noticed that the prosecution has established that this complaint was filed in the Salempur Police Station at 5.30 p.m. If really this witness was not present at the time of incident in question we do not think PW-3 would have included his name without even knowing the whereabouts of this witness on that day and by attributing an imaginary injury to him. (Para 20)
       In such circumstances we are in agreement with the findings of the two courts below that the prosecution has established its case beyond all reasonable doubt as against the accused persons held guilty by the trial court and the High Court. (Para 24)
       It is the prosecution case right from the stage of the complaint that these two accused persons had enmity with the deceased Abid Ali. They along with four other named accused and two other unnamed accused came together armed and remained members of the unlawful assembly till the attack on the deceased was over. This part of the prosecution case is accepted even by the High Court. If that be so, assuming for argument s sake that there is no material to show that these two accused persons took any part in the attack, that by itself would not take away the liability of these persons from being members of an unlawful assembly unless the High Court had given a specific finding either that they were not the members of the unlawful assembly at all or at any particular point of time they ceased to be the members of the said unlawful assembly. The High Court did not give any such finding. On the contrary, it proceeds as if the members of an unlawful assembly who do not commit any overt act are exonerated of the liability of being a member of an unlawful assembly. The trial court has held that the common object of the unlawful assembly was to attack and kill Abid Ali but in the process they also killed Mahmood Shah and convicted the accused on that basis. The High Court, as stated above, has nowhere held that these two accused persons, who are respondents in the State appeal before us, were not the members of the unlawful assembly or that they did not share the common object of that assembly. In our opinion on the facts of this case such a finding could not have been arrived at because evidence in this case shows these accused also had the motive, they were present throughout and escaped together. Once these facts are accepted it is difficult to exclude these accused from the liability under section 149 I.P.C. (Para 26)

JUDGMENT

Santosh Hegde, J.-All these appeals arise out of a common judgment of the High Court of Judicature at Allahabad whereby the High Court while allowing the appeal of two of the accused persons, dismissed the appeal of 3 other accused persons all of whom were convicted by the III Additional Sessions Judge, Deoria (UP) of offences punishable under Sections 143, 148, 149, 504, 506, 307 and 302 IPC. Three of the accused whose appeals were dismissed by the High Court, have preferred Criminal Appeal Nos. 1072-73 of 2003 and the State has preferred Criminal Appeal Nos. 1074-75 of 2003 against the acquittal of two of the accused persons who were convicted by the trial court for the above mentioned offences.

2. We will first take up Criminal Appeal Nos. 1072-73 of 2003 for consideration which, as stated above, are the appeals filed by the convicted accused.

3. The facts necessary for the disposal of these appeals, briefly stated, are as follows:

It is the prosecution case that there was enmity between one of the deceased Abid Ali and A-3 Jaishree Yadav, A-5 Daddan Yadav in regard to the auction and recovery of Tehbazari of the area between village Tatil Tola and Nawalpur crossing. A-6 Ram Pratap Yadav bore an enmity against the deceased Abid Ali on account of a pending litigation relating to a land in village Tatil Tola. A-1 Hafiz Khairul Bashr was on inimical terms with the said deceased in relation to the fixation of an electric pole on the chowk road. It is also the prosecution case that on account of these enmities, these accused persons were waiting for an opportunity to eliminate said deceased Abid Ali. It is the further case of the prosecution that on 23.9.1993 at about 5.50 p.m. deceased Abid Ali had come from Deoria, his place of residence, in his private jeep and was sitting on a Takhat in front of Pervez Book Stores, north of Nawalpur crossing. At that moment, Raju @ Noor Alam (PW-6) who had a shop selling sand and clay, came to deceased Abid Ali and complained that A-3 Jaishree Yadav was raising a dispute with him (PW-6) in regard to Tehbazari money. It is also the prosecution case that PW-1 who was working as a teacher in a School at Salempur of which the deceased Abid Ali was the Manager, was then passing through the said place where the said deceased was sitting and seeing him PW-1 came to talk to the said deceased. This was at about 4.15 p.m. Prosecution also states that PW-3 Arif ali, son of deceased Abid Ali, who was a resident of that village, was also present there at that time. It is the further case of the prosecution that at that time 8 persons including A-1 Hafiz Khairul Bashr, A-2 Jaheed, A-3 Jaishree Yadav, A-4 Manish Yadav, A-5 Daddan Yadav, A-6 Ram Pratap Yadav and two other unidentified persons came armed to that place. Amongst them, A-1 and A-2 and the unidentified persons were having country-made pistols (katta), A-3 and A-4 were carrying bombs and bags in their hands; A-5 and A-6 were carrying a knife and an iron Dav respectively. Prosecution further alleges that A-3 Jaishree Yadav questioned PW-6 as to the propriety of his complaint to deceased Abid Ali. Other accused questioned the authority of deceased Abid Ali to meddle in a dispute between them and PW-6. It is stated the deceased Abid Ali warned them by asking them to have control over their language. At this stage the prosecution alleges A-1 exhorted the other accused to kill Abid Ali. Pursuant to the same, A-3 and A-4 hurled bombs at Abid Ali because of which Abid Ali received injuries and started running northwards to save himself. Prosecution then alleges that all the accused persons chased the deceased Abid Ali, hurling bombs and firing pistol shots at him and in this process when Abid Ali reached Palani , of one Idris, one Mahmood Shah (deceased No.2), a resident of the same village, tried to intervene, hence, the accused hurled bombs and fired pistol shots at Abid Ali and Mahmood Shah in front of the shop of one Ram Nakshatra consequent

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2004 Supreme(SC) 864

Cases Referred (2)