Dukhi and ors Etc Vs State of U P - Citation 487314 - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 6) have categorically stated that appellants party, which reached on the spot with lethal weapons was aggressor and the deceased as well as other injured came to the spot empty handed. therefore, the prosecution witnesses named above are reliable and the manner of occurrence given by them is to be accepted. but it is not disputed that deceased as well as other injured sustained fire arm injuries and matawa was firing with gun. the deceased as well as injured shiv narain (p. 34. in this way, the evidence on record clearly shows that occurrence took place at a place alleged by the prosecution, the appellants side was aggressor and the occurrence took place as alleged by the prosecution. in the appeal before the apex court it was held that medical evidence clearly established that all other injuries other than the gun-shot injuries caused by a-1 were inflicted on a dead body. admittedly, ram kumar deceased sustained gun shot injuries as well as abrasions and contusions. objection by shiv narain the matawa a day before the occurrence on harbouring criminals at his house, clearly indicate that all members of unlawful assembly had knowledge that either shiv narain or whosoever came to his rescue would be murdered and it cannot be said, in the facts and circumstances of the case, that common object of unlawful assembly of which the appellants were member was only to cause grievous hurt to injured witnesses and murder of ram kumar was individual act of matawa regarding which the other accused had no knowledge.u.s. tripathi, j 1. the above two appeals have been preferred against the judgement and order dated 5-4-1980 passed by sri j.m. srivastava, the then learned iv additional sessions judge, fatehpur, in sessions trial no. 192 of 1979 and judgement and order dated 30-5-1984 passed by sri ramji lal, the then learned -additional sessions judge, fatehpur, in s.t. no. 90 of 1981 respectively, convicting the appellants of both the appeals under sections 147, 148, 302 read with 149, 307 read with 149, 323 read with 149, i.p.c. and sentencing each of the appellants dukhi, raghunath, ram prasad and jageshwar to imprisonment for life under section 302 read with 149 i.p.c.r.i. for a period of 5 years and fine of rs. 2000 - under section 307 read with 149 i.p.c. and r.i. for a period of six months under section 323 read with 149 i.p.c. appellant jageshwar. raghunath and ram prasad were further sentenced to undergo r.i. for a period of one year under section 148 i.p.c. and dukhi was further sentenced to undergo r.i. for a period of six months under section 147 i.p.c. all the sentences were ordered to run concurrently. appellant babu ram yadav was sentenced to imprisonment for life under section 302 read with 149 i.p.c. 5 years r.i. under section 307 read with 149 i.p.c. and 2 years r.i. under section 148 i.p.c.2. the prosecution stroy, briefly stated, was as under :-shiv narain (p.w.2) of both the appeals was original resident of village ghoorhupur, p.s. sajeti, district kanpur. he had his sasural at village nirkhi, p.s. jahanabad, district fatehpur. where he had got landed property and was residing there along with his family members for last 20 years. he was also pradhan of the village. chhote lal (p.w.2), the younger brother of shiv narain (p.w.2), was residing at his native village and often visited the house of his brother at nirkhi, ram kumar (22) deceased was the son of shiv naraift (p.w.2) and was prosecuting his law studies at kanpur. smt. tajeshwari (p.w.3.) was daughter of shiv narain (p.w.2). two days before the occurrence of this case, ram kumar deceased had come to his house. chhote lal (p.w. 1) had also come to village nirkhi a day before the occurrence. matwa (the accused, who died befor trial) was real brother of appellants dukhi and raghunath. babu ram yadav appellant was resident of village dhamina bujurg, p.s. sajeti district kanpur and jageshwar was resident of village uda-ngapur, p.s. jahanabad, district fatehpur.3. matawa used to harbour babu ram and jageshwar, who were members of gang of bhola dacoit. a day before the occurrence babu ram and jageshwar had come to the house of matawa. observing them shiv narain (p.w.2), being pradhan of the village, warned matawa not to call them (jageshwar and babu ram) to his house. on it matawa became annoyed and threatened to kill him.4. on the morning of 12-11-1976 at about 7 a.m. shiv narain (p.w.2) was going to call labourers. when he reaced in front of the house of devi charan gaderiya of his village, he observed matawa standing with gun by the side of the house of phaguni. observing shiv narain, matawa exhorted 'maro sale ko'. hearing his exhortation babu ram armed with gun, jageshwar armed with country made pistol, dukhi armed with lathi, raghunath armed with farsa and ram prasad armed with tabbal along with matawa, came in front of house of phaguni and surrounded shiv narain appellant dukhi. ram prasad and raghunath started inflicting injuries upon shiv narain with lathi. farsa and tabbal. shiv narain raised alarm. hearing his alarm his son ram kumar deceased, younger brother chhote lal (p.w.1) and daughter smt. tajeshwari (p.w.3) rushed to the spot. devi charan (p.w.4), vinod, ram swarup and others were standing in front of their respective houses. as soon as ram kumar deceased came near shiv narain (p.w.2) matawa fired on him with gun, which hit him and he fell down. other appellants also caused injuries with lathi and back side of tabbal on him. shiv narain tried to save his son, but in the meantime babu ram fired gun shot on him, which hit him and he fell down again. when smt. tajeshawari rushed to save him jageshwar fired with country made pistol on her due to which she also fell down sustaining injuries. vinod and other persons of the village rushed to the spot challenging the assailants and then the assailants ran towards south. while running they also fired, which hit ram das (p.w.6)5 ram kumar deceased was taken to his house. chhote lal (p.w.1) prepared report (ext. ka-1) at his house and came to police station jahanabad along with injured shiv narain. smt. tajeshwari and ram das and other villagers in a bullock cart. he lodged report of the occurrence at 9.20 a.m. chick f.i.r (ext. ka-13) was prepared by constable sheobhajan misra (p.w.9) who made an endorsement at g.d. report (ext. ka-20) and registered a case under sections 147, 148, 149, 307 and 302 i.p.c. against the appellants and matawa.6. the investigation of the case was taken up by sri ambika prasad shukla (p.w.7), who interrogated chhote lal (p.w.1), shiv narain (p.w.2), smt. tajeshwari (p.w.3) and ram das (p.w.6) at the police station and sent the injured persons to primary health centre. jahanabad for medical examination along with constable tirath raj shukal. since the doctor was not available, therefore they were taken to primary health centre, asauli, where they were medically examined between 1l.a.m and 12.10. p.m. by dx. s.k. gupta (p.w.5), who found following injuries on their persons :-injuries of shiv narain1. an incised wound 2 x 1/2 x bone deep on the left side of skull 4' above the left ear. margins clean cut, inverted and bleeding present.2. an incised wound 4' x v2' bone deep on the right side of skull 4 1/2' above the right ear. margins clean cut, inverted & bleeding present. kept under observation. advised x ray of skull a.p. lateral.3. an incised wound 1 1/2' x bone deep on the right side of skull 1/2 right to the injury no. 2. margins clean cut, inverted bleeding present.4. contusion 2' x 2' on the left lateral side of the chest 6' below the left axilla.5. contusion 3' x 4' on the lower part of the chest 1' behind the injury no. 4.6. an incised wound 3' x 1/4' x muscle deep on the web between the left thumb and middle finger. margins clean cut, inverted and bleeding present.7. 2 gun shot wound of entry 1/2 x 1/2 x through and through on the back of the left thigh, 5' above the left knee. margins lacerated, inverted and bleeding present. tattooing blackening and charring present. kept under observation. advised x ray of the left thigh. a.p. lateral.8. contusion 3' x 3' on the back of the left thigh 2' above the injury no. 7. palpable shot 1/4 x 1/4' present. kept under observation and advised x ray of the left thigh.9. 2 gun shot wounds of entry v2' x v2' x through and through on the back of outer side of the left thigh 2' below injury no. 7. margins lacerated, inverted and bleeding present. tattooing, blackening and charring present. kept under observation.10. multiple lacerated wounds of exit 1' x 1/4' x 3/4' xl' through and through in size on front of the lower part of left thigh. 1' above the left knee in an area of 6' x 6'. margins lacerated, inverted and bleeding present. no tattooing, blackening and charring present.11. lacerated wound 2' x 1/2 x muscle deep on the back and out side of the upper part of left leg. margins lacerated, inverted and bleeding present.12. gun shot wound of entry 1/2 x 1/2 through and through on the back and outer part of the left leg 1' below injury no. 11. margins lacerated, inverted and bleeding present. tattooing, charring, blackening present. kept under observation. advised x ray left leg.13. lacerated wound 6' x 4' x muscle deep (wound of exit) on the back of the lower part of the left leg. margins lacerated, inverted and bleeding (sever) present. no tattooing, blackening and charring present a shot 1/4 x 1/4' recovered from the muscle of the lower part of the ankle joint. kept under observation. advised x ray, left lower leg and ankle joint.14. lacerated wound 1 x 1/4' x muscle deep on the back of the left ankle. margins lacerated, inverted, bleeding present.15. lacerated wound 1' x 1/2 x bone deep on the outer side of the left ankle. margins lacerated, inverted and bleeding present.injuries no. 1, 3, 4, 5, 6, 8, 10, 11, 14 and 15 were simple. injuries 2, 7, 9, 12 and 13 were kept under observation and advised x ray.injuries 1, 2, 3 and 6 were caused by sharp edged weapon. injuries 4, 5, 11, 14, 15 were caused by blunt weapon and injuries 7, 8, 9, 10, 12 and 13 were by fire arms.injuries of smt. tajeshari1. incised wound 1' x 1/4' x bone deep on the right side of skull 1' above the forehead. margins clean cut, inverted and bleeding present.2. gun shot of entry 1/4' x 1/4' x bone deep on the back of the right hand 1/4 below the right index finger. margins lacerated, inverted and bleeding present. no tattooing, blackening present. kept under observation. advised x ray of right hand.3. contusion 2' x 2' on the outer back of the left fore arm 4' above the wrist red in colour.4. contusion 1' x 1' on the root of the left thumb.5. a gun shot wound of entry 1/2 x 1/2 x through and through on the inner side of right ankle. margins lacerated, inverted and bleeding present. no tattooing, blackening present. kept under observation. advised x ray of the right ankle.6. gun shot wound of exit 3/4' x 3/4' x through and through on the back of the right ankle. margins lacerated, inverted, bleeding present. no tattooing and blackening present.injuries no. 1, 3 & 4 were simple and injuries 2 and 5 were kept under observations.injury no. 1 was caused by sharp edged weapon, injuries no. 2, 5 and 6 were caused by fire arm and injury nos. 3 and 4 were caused by blunt weapon. duration fresh.injuries of ramdas1. a gun shot wound of entry 1/8' x 1/8' x muscle deep on the right side of forehead 1/2 above the right eye. margins lacerated, inverted and bleeding present. no tattooing or blackening present.2. a gun shot wound of entry, 1/8' x 1/8' x muscle deep in the upper part of the chest. margins lacerated, inverted and bleeding present. no tattooing or blackening present.3. a gun shot wound of entry 1/8' x 1/8' x skin deep on the front of the left shoulder. margins lacerated, inverted and bleeding present. no tattooing and blackening present.4. a gun shot wound of entry 1/8' x 1/8' x muscle deep on the outer side of the left arm 2' below the left shoulder. margins lacerated, inverted and bleeding present. no tattooing or blackening present.5. a palpable shot of 1/8' x 1/8' size on the middle of the left arm inner side present.6. a palpable shot 1/8' x 1/8' on the back of the upper part of the left arm 2' below the left axilla.7. a gun shot wound of entry 1/8' x 1/8' x muscle deep on the front of the middle arm 4' below the left shoulder. no tattooing and blackening present.8. a gun shot wound of entry 1/8' x 1/8' x muscle deep on the outer side of left fore arm 11/2 below the left elbow. margins lacerated, inverted and bleeding present. no tattooing and blackening present. all the injuries were simple and were caused by fire arm. fresh in duration.7. the investigating officer reached the spot and found dead body of ram kumar lying in front of his house. he appointed panches and prepared inquest report (ext. ka-5) and other relevant papers. he sealed the dead body and sent the same for postmortem. he also took into possession the blood stained clothes of deceased, sealed them and prepared recovery memo (ext. ka-9), inspected the place of occurrence and prepared site plan (ext. ka-10). on the place of occurrence the earth was found scratched. the investigating officer, thereafter, interrogated witnesses of inquest and searched the accused, but they were not traceable.8. autopsy on the dead body of ram kumar deceased was conducted on 13-11-1976 by dr. p.s. mishra (p.w.8), who found following ante-mortem injuries on the person of the deceased :-1. four gun shot wounds of entrance each measuring 1/2 x 1/2 cavity deep situated below left nipple on the right side chest lower part and one in epigastic region. margins were inverted and lacerated. no blackening and tattooing present.2. three gun shot wounds of entry 1/2 x 1/2 x chest cavity deep in the lower part of chest. one and two abdominal cavity deep on the out side. no blackening or tattooing present.3. one gun shot wound of entrance 1/2 x 1/2 x muscle deep on the outer side of left arm lower part with communicating gun shot wound of exit 3/4 x 3/4' x muscle deep on the inner side of right arm lower part. no blackening or tattooing present.4. three abrasion each measuring 3/4' x 1/2 gutter shaped on the outer side of right buttock 21/2' apart.5. abrasion 1' x 1/2' on the outer angle of left side face.6. abrasion 1/2 x 1/2 on the left scapula.7. contusion 2' x 1/2 on lower part front of left thigh.8. contusion 1 1/2 x 1' on the left side chest wall upper part.9. contusion 2' x 1/2 on the left arm.10. contusion 1' x 1/2' in front of left leg.11. constusion 2' x 1/2 on the lower part of left thigh.12. abrasion 1' x 1/2 on the outer side of knee joint.9. on internal examination walls and ribs were found rupturned on left side. pleura was ruptured on middle right side. right lung was ruptured in lower part. left lung was ruptured in upper part. pericardium was perforated.blood vessels were ruptured in chest. abdominal wall ruptured on right side of abdomen. peritoneum was ruptured on right side. gall bladder was perforated. kidney was perforated on right side. two gun shots were recovered from the injuries.10. in the opinion of doctor cause of death was shock and haemorrhage as a result of above injuries.11. accused matawa, ram prasad, dukhi and raghunath surrendered in the court on 22-11-1976 and jageshwar on 7-12-1976. accused babu ram remained absconding. on completion of investigation, the investigating officer submitted chargesheet on 15-12-1976 against matawa, ram prasad, dukhi, jageshwar and raghunath. accused matawa died during pendency of trial. appellants ram prasad, dukhi, raghunath and jageshwar were tried in s.t. no. 192 of 1977. they pleaded not guilty. the defence of above appellants was that prior to occurrence of this case, in the month of kartik, smt. ram mati daughter of dukhi had gone to harkundi mela along with other members of her family. while she was returning ram kumar deceased and narsingh teased her in the way. matadin alias matawa objected them and on it altercation had taken place. both ram kumar and narsingh had threatened matadin to see them. on the morning of 12-11-1976 at about 7 a.m. ram kumar deceased armed with licensed gun of his father, narsingh armed with gun, vinod armed with country made pistol and munnu and shiv narain armed with lathis raided the house of matadin alias matawa and ram kumar fired gun shot on him, when he was providing fodder to his she buffalo, which hit his she buffalo and he entered into his house. in the meantime narsingh and vinod also fired, which hit smt. gyanwati (d.w.2) sister-in-law (sali) of chheda lal, brother of dukhi, who was standing under the chappar. matadin alias matawa took out his licensed gun and fired in his self defence.12. the prosecution in support of its case examined chhote lal (p.w.1), shiv narain (p.w.2), smt. tajeshwari (p.w.3), devi charan (p.w.4) and ram das (p.w.6) as witnesses of fact, besides dr. s. k. gupta (p.w.5), ambika prasad shukla, i.o. (p.w.7), dr. s. p. mishra (p.w.8) and constable moharir sheobhawan mishra (p.w.9) as formal witnesses.13. the appellants examined ganga charan (d.w.1) and smt, gyanwati (d.w.2).14. learned additional sessions judge on considering evidence of the parties held that occurrence took place at the date, time, place and manner alleged by the prosecution and not at the place and manner suggested by the appellants. the appellants side was aggressor and defence version was false. that the prosecution successfully proved guilt of the appellants jageshwar, ram prasad, raghunath and dukhi for the offences punishable under section 147, 148, 302, 307/149 and 323/149 i.p.c. with these findings he convicted and sentenced them as mentioned above.15. appellant babu ram was challaned, as an absconder. however, he surrendered after decision of s.t. no. 192 of 1979. he was tried in s.t. no. 90 of 1981. he pleaded not guilty and contended that on the day of occurrence he was in his native village.16. the prosecution in support of its case examined chhote lal (p.w.1), shiv narain (p.w.2), smt. tajeshwari (p.w.3) as witnesses of fact, besides constable moharrir sheobhawan mishra (p.w. 4), ambika prasad shukla, i.o. (p.w.5) and dr. p.s. mishra (p.w.6). appellant babu ram did not adduce any evidence in his defence. the learned additional sessions judge on considering evidence of prosecution held that prosecution has succeeded in establishing its case against babu ram yadav beyond all reasonable doubt for the offences punishable under section 148, 302/149 and 307/149 i.p.c. with these findings he convicted and sentenced him as mentioned above.17. aggrieved with their conviction and sentences appellants dukhi, raghunath, ram prasad and jageshwar filed criminal appeal no. 771 of 1980 and appellant babu ram yadav filed criminal appeal no. 1578 of 1984.18. both the appeals arise out of same occurrence and therefore, are taken up together for decision.19. appellants dukhi and raghunath died during pendency of the appeal, which was confirmed by the enquiry report of chief judicial magistrate, fatehpur dated 17-11-2000. therefore, the appeal preferred by dukhi and raghunath stood abated.20. we have heard sri g.s. chaturvedi, learned senior counsel assisted by sri r.c. upadhyay for the appellants of criminal appeal no. 771 of 1980, sri s.l. yadav, learned counsel for the appellant of criminal appeal no. 1578 of 1984 and learned a.g.a. and have thoroughly gone through the evidence on record.21. the death and cause of death of ram kumar and injuries on the persons of shiv narain (p.w.2), smt. tajeshwari (p.w.3) and ram das (p.w.6) are not disputed by the appellants of both the appeals. the appellants have also not disputed the date and time of the occurrence i.e. 12-11-1976 at about 7 a.m. according to the prosecution on the morning of occurrence i.e. 12-11-1976 shiv narain (p.w.2) was going to fetch labourers. when he reached in front of house of devi charan gaderiya, accused matawa (since dead) was standing there with his gun observing him exhorted to kill him and chased him with his licensed gun. on his exhortation appellants babu ram armed with gun, jageshwar armed with country made pistol, dukhi and raghunath (since dead) armed with lathi and farsa and ram prasad armed with tabbal rushed, surrounded shiv narain near house of phaguni and started causing injuries with their respective weapons. on the alarm raised by-shiv narain, his brother chhote lal (p.w.1), his son ram kumar deceased and daughter tajeshwari (p.w.3) rushed to save him. babu ram and jageshwar started firing with gun and country made pistol. matawa fired on deceased, due to which he fell down. when shiv narain tried to reach his son, babu ram fired on him. when smt. tajeshwari rushed to save her father, jageshwar fired on him. ram das (p.w.6) also sustained injuries, when appellants fired while running.22. on the other hand, the case of the appellants, as contained in cross f.i.r. (ext. kha-2) lodged by suraj bali, s/o raghunath appellant, was that on the day of occurrence due to previous quarrel regarding teasing of smt. ram rati daughter of dukhi, ram kumar armed with gun, vinod armed with country made pistol, munnu and shiv narain armed with lathis, raided the house of matawa alias matadin at about 7 a.m. on the day of occurrence when matadin was providing fodder to his she buffalo. ram kumar fired on matadin, which hit his she buffalo. narsingh and vinod also fired, which hit smt. gyanwati (d.w.2) matadin took out his licesnsed gun and fired in self defence.23. therefore, it is to be considered as to whether the occurrence took place in the manner alleged by the prosecution or in the manner suggested by the appellants and accused matawa caused injuries to the deceased and other injured person in his self defence.24. the evidence of shiv narain (p.w.2) shows that a day before the occurrence, babu ram and jageshwar members of gang of bhola dacoit, had come to the house of matawa and he had asked matawa not to call them and other criminals. it had annoyed matawa, who threatened him to kill. the motive suggested by the appellants was that ram kumar deceased and narsingh had teased smt. ram rati daughter of dukhi who was returning from harkundi mela and on the objection of matawa they had threatened to kill him. ram kumar and jageshwar are residents of another village and according to prosecution they had participated in the occurrence, which took place on the next day. this shows that the objection of shiv narain to matawa regarding harbouring of those criminals was probable and in all probabilities matawa annoyed on the above objection of shiv narain. on the other hand there is no evidence regarding incident of teasing of ram rati by ram kumar and narsigh, as no witness was examined on this point and prosecution witnesses had repelled the suggestion to this effect.25. according to prosecution the occurrence took place in front of house of phaguni at place 'd' shown in the site plan (ext. ka-10), while according to appellants it took place in front of house of matawa. the ocular witnesses chote lal (p.w. 1), shiv narain (p.w.2), smt. tajeshwari (p.w.3) and ram das (p.w.6) have stated that occurrence took place at the said place. shiv narain (p.w. 2), smt. tajeshwari (p.w.3) and ram das (p.w.6) are injured witnesses and their presence on the spot was not disputed. the appellants have also not disputed their injuries. devi charan (p.w.4), who has not supported the prosecution story totally has also stated that appellants dukhi, raghunath and ram prasad were causing injuries upon shiv narain at the distance of 8-10 paces from his house. according to prosecution when shiv narain reached in front of house of devi charan gaderiya he observed matawa standing with gun, who exhorted other appellants to kill him. this witness has also admitted that matawa was standing in front of the house of phaguni from where he fired. the occurrence took place near house of phaguni which is towards north of house of this witness and therefore the witness was in a position to observe the occurrence. an attempt was made from the side of appellants that there had been a dispute between him and matawa in the year 1976, which was resolved by ganga charan (d.w.1) in a panchayat. but the witness denied any dispute regarding land between him and matawa and convening of panchayat. he denied any sort of enmity between him and matawa. a panchayatnama (ext. kha-4) was allegedly proved by ganga charan (d.w.1), but he admittedly was opponent of shiv narain (p.w.2) in the election of the pradhan and therefore had motive to depose falsely.26. ram das (p.w.6) is resident of another village bamuriyapur, p.w. chandpur, district fatehpur. he had no concern with the parties. according to evidence of the witness on the morning of occurrence he was coming to his house from village ajghaja, where his sister was married and when reached in village nirkhi, which lies in the way, observed matawa with gun, dukhi with lathi, raghunath with farsa and ram prasad with tabbal causing injuries upon shiv narain, ram kumar and others in front of house of devi charan gaderiya and he also sustained injuries in the said occurrence. the presence of injuries on his person was proved by dr. s.k. gupta (p.w.5) and he was also taken to police station, where his presence was noted in the general diary report (ext. ka-14). according to site plan, house of phaguni is situated after one house of the house of devi charan gaderiya and occurrence initiated on the rasta at place 'a' in front of the house of devi charan gaderiya and culminated on place 'd' in front of house of phaguni. ram das (p.w. 6) being independent witness of another village having no concern with the parties had no ground to depose in favour of or against either party and in these circumstances, his evidence carries weight. not only the witnesses of the prosecution, but smt. gyanwati (d.w.1) has also admitted in her cross-examination that marpit took place in front of house of phaguni. the house of phaguni is situated towards north of house of matawa after two houses and open land.27. it is true that deceased ram kumar and injured shiv narain and smt. tajeshwari sustained bleeding injuries and in all probability blood must have fallen on the spot. but the i.o. did not find blood on the spot. mere absence of blood on the spot does not falsify the prosecution case, as occurrence and injuries of injured are admitted. moreover, the investigating officer ambika prasad shukla (p.w.7) has offered explanation regarding absence of blood that when he reached on the spot he found earth of spot scratched. therefore, possibility that after the occurrence the persons of the family of the appellants or their associates scratched the earth to remove the blood cannot be easily ruled out. moreover, the place of occurrence was in the public way and it cannot be denied that after the occurrence several persons of the village reached there and the blood stains, in all probabilities, could have been diminished by the foot steps of the persons, who came there. as such, non recovery of blood from the spot does not rule out the place of occurrence alleged by the prosecution.28. from the above evidence it is amply proved that occurrence took place at the place alleged by the prosecution i.e. in front of house of phaguni and not at the place suggested by the appellants i.e. in front of house of matawa.29. the ocular witnesses chote lal (p.w.1), shiv narain (p.w.2),tajeshwari (p.w.3), devi charan (p.w.4) and ram das (p.w.6) have categorically stated that appellants party, which reached on the spot with lethal weapons was aggressor and the deceased as well as other injured came to the spot empty handed. as mentioned above shiv narain (p.w.2), smt. tajeshwari (p.w.3) and ram das (p.w.6) are injured witnesses and their presence on the spot cannot be doubted. the appellants have also admitted the presence of ram kumar deceased. chhote lal (p.w.1) who is the real brother of shiv narain (p.w.2) has also proved his presence on the spot, as according to his evidence, he had come to village nirkhi a day prior to the occurrence and rushed on the spot along with ram kumar deceased and smt. tajehswari on hearing shrieks of his brother shiv narain. the witness is informant and had taken the injured persons to the police station after the occurrence. his presence is noted in the general diary (ext. ka-14). he has denied the suggestion of the appellants that he was directly called at the police station jahanabad from his house situate at village ghuroupur. p.s. sajeti, district kanpur. the occurrence had taken place at about 7 a.m. and report of the occurrence was lodged at 9.20 a.m. on same day. considering the distance of the native village of chhote lal it cannot be said that he could be called from his house at police station jahanabad within such a short period of 2.15 hours. moreover, there was no occasion for calling chhote lal from his house only for lodging report, as the injured were taken to the police station along with other villagers and the injured persons were in a position to lodge the report. therefore,there is nothing on record to doubt the presence of chhote lal (p.w.1). the occurrence took place near the house of devi charan and his presence can also not be doubted. devi charan (p.w.4) is a natural witness. as mentioned above ram das (p.w.6) is resident of another village and had no concern with either party and he being injured witness, his evidence carries weight and fully supports prosecution version. therefore, the prosecution witnesses named above are reliable and the manner of occurrence given by them is to be accepted.30. smt. gyanwati (d.w.2), the sister in-law (sali) of chheda lal, brother of appellant dukhi and raghunath had also indirectly admitted the prosecution version regarding manner of occurrence and aggressorship of the appellants. no doubt in her examination-in-chief she stated that ram kumar armed with gun. vinod armed with country made pistol and shiv narain armed with lathi came near house of chaudhari and phaguni and ram kumar fired on matawa, which hit her. but in her cross examination she admitted that marpit took place in front of house of phaguni and shiv narain after coming from his house was proceeding towards rasta. ram kumar came to the spot after start of marpit. she heard three sounds of fire and had not seen any person firing. she had not seen matawa firing. she had also not seen farsa and lathi used on the spot. again she admitted that at the time of occurrence ram kumar was having lathi and shiv narain was empty handed. further she stated that narsingh was having tamancha. in an answer to a court question she admitted that she had not seen tamancha and had not seen any tamancha with narsingh. thus, according to own witness of the appellants ram kumar, shiv narain and narsingh were not having any fire arm. but it is not disputed that deceased as well as other injured sustained fire arm injuries and matawa was firing with gun. if the prosecution side was not armed with any fire arm, it could not be aggressor.31. moreover, the medical evidence also supports the case of the prosecution that appellants' side was aggressor. the deceased as well as injured shiv narain (p.w.2) and smt. tajeshwari (p.w.3) sustained incised wounds, blunt object injuries and fire arm injuries. it is not the case of the appellants that any one from their side or from prosecution side used sharp edged weapon, while there is specific evidence of the prosecution witnesses that two of the appellants namely raghunath and ram prasad were having farsa and tabbal.which they used in the occurrence. the presence of injuries of sharp edged weapon again supports the case of the prosecution and falsifies the case of appellants.32. according to appellants ram kumar, narsingh and vinod fired gun and country made pistol, but no injury was sustained by matawa while he was outside his house at the time of above firing. the absence of injury on matawa also belies the case of the appellants.33. it is true that smt. gyanwati (d.w.1) also sustained injuries in the same occurrence. the injuries on her person was proved by dr. s.k. gupta (p.w.5), who examined her at 12.10 on the day of occurrence and she sustained as many as 8 pellet injuries. but none of her injuries had blackening, tattooing or charring, which shows that the shots, which hit her were fired from a distance. therefore, the possibility that she sustained injuries from the shots fired by matawa, babu ram and jageshwar cannot be easily ruled out, as ram das (p.w.6) sustained injures in the same manner.34. in this way, the evidence on record clearly shows that occurrence took place at a place alleged by the prosecution, the appellants side was aggressor and the occurrence took place as alleged by the prosecution.35. the learned counsel for the appellants contended that only matawa was liable for murder of the deceased and appellants ram prasad jageshwar and babu ram are liable for the offence punishable under section 326 i.p.c. only because common object of the unlawful assembly was to kill shiv narain and not ram kumar. that matawa fired on ram kumar, which was his individual act and since killing of ram kumar was not the common object of unlawful asr sembly, the appellants ram prasad. jageshwar and babu ram are not liable for the murder of the deceased and are liable only for the injuries of sheo kumar, tajeshwari and ram das. assuming that the common object, which developed on the spot or about which of the member of unlawful assembly would have knowledge was to cause grievous hurt to ram kumar and others and not murder of ram kumar and therefore, from this aspect also the appellants ram prasad. jageshwar and babu ram cannot be held guilty for murder with the aid of section 149 i.p.c. they also placed reliance on cases of shambhu nath singh v. state of bihar air 1960 sc 725 and jairam v. state of madhya pradesh air 1993 sc 92.36. in the case of shambhu nath singh (supra) there was dispute regarding agricultural plot. on the day of occurrence prosecution witnesses were ploughing and levelling the land and were sowing paddy. at that time a crowd of persons including fourteen accused arrived on the scene. shambhu nath singh accused no. 1 was armed with gun and other accused were carrying weapons such as bhallas. gandasa and lathis. apprehending an assault. ramdeni kahar and mst. kukri son and wife respectively of baran kahar, implored the accused and not to assault baran kahar, but the accused paid no heed to their intercession. shambu nath singh fired several shots causing injuries to baran kahar and killing him on the spot. nanhu kahar also received gun shot injuries which resulted in his death. ramdeni kahar and mst. sukri also received injuries. the trial court held that on the day of incident baran kahar was in possession of the land in which rioting took place and the accused who were convicted had formed themselves into an unlawful assembly and had committed rioting and that the common object of the unlawful assembly was to commit an assault and that the members of unlawful assembly, because they were armed with diverse weapons must have known that grievous hurt was likely to be caused in prosecution of the common object. it accordingly, held the accused 1 to 8 and 14 guilty of offences under section 326 read with 149 i.p.c. for the act of first accused in causing gun shot injuries resulting in the death of baran kahar and his son nanhu kahar. the 1st accused shambhu nath singh was convicted for the offence under section 302 i.p.c. in the appeal before the apex court the applicability of section 149 i.p.c. was questioned and it was held that section 149 of indian penal code is declaratory of vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object, but 'members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of section 149 of the indian penal code may be different on different members of the same unlawful assembly.' in the said case the common object of the assembly as found by the courts below was to cause grievous hurt and death was caused by one of the members of the assembly. for causing the death it was found that members of the unlawful assembly were not responsible. but the conviction for the offence of causing grievous hurt in prosecution of the common object of the unlawful assembly was maintained.37. in jairam's case (air 1993 sc 92) (supra) p.w.1 tulsiram was sitting in his bada on a cot in front of his house. his brother radheyshyam was also sitting and they were making bidis. all of sudden, (accused) a-1 came there armed with a double barrel gun and other accused persons came there armed with katarnas, sticks etc. and accused harisingh was armed with a sword a-1 fired a gun shot towards p.w.1 who cried for help. at this his elder brother bhagwandas soni the deceased ran out of the house a-1 again fired a second shot on the deceased who fell down. then father and mother of tulsiram. p.w.1 also came out of the house. then all the accused persons ran away. while the deceased was being carried in bullock cart and other witnesses also walking behind, all the accused came near the cart and a-1 said that deceased was alive and he should be finished. so saying he fired the gun and p.w.3 received some injuries. it is then alleged that the deceased was pulled out from the bullock cart and was thrown on the ground and he was attacked with farsa. katarna etc. and with a sword by harisingh accused. the trial court acquitted the accused. the high court reversed the acquittal and convicted all the accused under section 302/149 i.p.c. in the appeal before the apex court it was held that medical evidence clearly established that all other injuries other than the gun-shot injuries caused by a-1 were inflicted on a dead body. even if we accept the evidence of the eye-witnesses it may be that under a mistaken impression that the deceased was' still alive, those injuries were caused.... in view of the medical evidence it becomes difficult to hold that the accused can be convicted for offence of murder though they inflicted injuries only on a dead person. in view of the matter it cannot be said that the ingredients of section 300 are attracted. so far as the first part of the occurrence is concerned, even according to the prosecution case, none of these accused did anything by way of word or deed in which case it cannot be said that they were members of the unlawful assembly with the common object of committing murder and shared the same along with a-1. regarding second part of the occurrence this only shows that common object of unlawful assembly was to cause at least hurt or grievous hurt because of the incised injuries caused to p.w.10 and. also that a-1 who was also a member of the unlawful assembly, fired his gun, about which the other members must be attributed the knowledge. in the result a-1 was convicted under section 302 i.p.c. and sentenced to imprisonment, for life. the conviction of the other accused under section 302/149 i.p.c. and sentence of imprisonment for life thereunder were set aside. instead they were convicted under section. 326, 149 i.p.c. and sentenced to 7 years r.i.38. we have thoroughly considered above cases and the facts and circumstances of the present case. it is clear from the evidence on record that all the appellants including matawa had laid ambush near the house of phaguni. matawa and babu ram were having gun, jageshwar was having country made pistol. ram prasad was having tabbal. raghunath was having farsa and dukhi was having lathi. matawa with his licensed gun was standing near house of devi charan gaderiya and observing shiv narain, exhorted other appellants to kill him and on his exhortation the appellants came out and surrounded him and started causing injuries. on his alarm his son ram kumar, brother chhote lal and daughter smt. tajeshwari also came. when ram kumar tried to save him. matawa fired on him. admittedly, ram kumar deceased sustained gun shot injuries as well as abrasions and contusions. as many as three persons of the unlawful assembly were armed with fire arms. the medical evidence of dr. p.s. mishra (p.w.8) shows that gun shot injuries of deceased would have been caused by different shots and not by single shot. lying ambush armed with fire arms and lethal weapons in the back ground of previous incident i.e. objection by shiv narain the matawa a day before the occurrence on harbouring criminals at his house, clearly indicate that all members of unlawful assembly had knowledge that either shiv narain or whosoever came to his rescue would be murdered and it cannot be said, in the facts and circumstances of the case, that common object of unlawful assembly of which the appellants were member was only to cause grievous hurt to injured witnesses and murder of ram kumar was individual act of matawa regarding which the other accused had no knowledge. the facts of the cases relied on are totally different and distinguishable with the facts of the present case. therefore, the appellants ram prasad, jageshwar and ram babu are also liable for murder of ram kumar, murderous assault on sheo kumar and hurt on tajeshwari and ram das with the aid of section 149 i.p.c. and they were rightly convicted under ss. 148, 302/149, 307/149 and 323/149 i.p.c. their appeal thus have no force.39. appeal preferred by dukhi and raghunath stands abated. the appeals preferred by ram prasad, jageshwar and babu ram are accordingly, dismissed and their convictions and sentences under ss, 148, 302/149, 307/149 and 323/149 i.p.c. are confirmed.40. the appellants ram prasad, jageshwar and ram babu are on bail granted by this court. they shall surrender before chief judicial magistrate, fatehpur within 15 days from today to serve out the sentence, failing which the chief judicial magistrate, fatehpur shall issue non bailable warrants against above appellants to secure their arrest and sending them to jail to serve out their respective sentences.41. office is directed to send a copy of this judgment of chief judicial magistrate, fatehpur for compliance and report within a month.

Judgment:

U.S. Tripathi, J

1. The above two appeals have been preferred against the judgement and order dated 5-4-1980 passed by Sri J.M. Srivastava, the then learned IV Additional Sessions Judge, Fatehpur, in Sessions Trial No. 192 of 1979 and judgement and order dated 30-5-1984 passed by Sri Ramji Lal, the then learned -Additional Sessions Judge, Fatehpur, in S.T. No. 90 of 1981 respectively, convicting the appellants of both the appeals under Sections 147, 148, 302 read with 149, 307 read with 149, 323 read with 149, I.P.C. and sentencing each of the appellants Dukhi, Raghunath, Ram Prasad and Jageshwar to imprisonment for life under Section 302 read with 149 I.P.C.R.I. for a period of 5 years and fine of Rs. 2000 - under Section 307 read with 149 I.P.C. and R.I. for a period of six months under Section 323 read with 149 I.P.C. Appellant Jageshwar. Raghunath and Ram Prasad were further sentenced to undergo R.I. for a period of one year under Section 148 I.P.C. and Dukhi was further sentenced to undergo R.I. for a period of six months under Section 147 I.P.C. All the sentences were ordered to run concurrently. Appellant Babu Ram Yadav was sentenced to imprisonment for life under Section 302 read with 149 I.P.C. 5 years R.I. under Section 307 read with 149 I.P.C. and 2 years R.I. under Section 148 I.P.C.

2. The prosecution stroy, briefly stated, was as under :-

Shiv Narain (P.W.2) of both the appeals was original resident of village Ghoorhupur, P.S. Sajeti, district Kanpur. He had his sasural at village Nirkhi, P.S. Jahanabad, District Fatehpur. where he had got landed property and was residing there along with his family members for last 20 years. He was also Pradhan of the village. Chhote Lal (P.W.2), the younger brother of Shiv Narain (P.W.2), was residing at his native village and often visited the house of his brother at Nirkhi, Ram Kumar (22) deceased was the son of Shiv Naraift (P.W.2) and was prosecuting his law studies at Kanpur. Smt. Tajeshwari (P.W.3.) was daughter of Shiv Narain (P.W.2). Two days before the occurrence of this case, Ram Kumar deceased had come to his house. Chhote Lal (P.W. 1) had also come to village Nirkhi a day before the occurrence. Matwa (the accused, who died befor trial) was real brother of appellants Dukhi and Raghunath. Babu Ram Yadav appellant was resident of village Dhamina Bujurg, P.S. Sajeti District Kanpur and Jageshwar was resident of village Uda-ngapur, P.S. Jahanabad, District Fatehpur.

3. Matawa used to harbour Babu Ram and Jageshwar, who were members of gang of Bhola dacoit. A day before the occurrence Babu Ram and Jageshwar had come to the house of Matawa. Observing them Shiv Narain (P.W.2), being Pradhan of the village, warned Matawa not to call them (Jageshwar and Babu Ram) to his house. On it Matawa became annoyed and threatened to kill him.

4. On the morning of 12-11-1976 at about 7 A.M. Shiv Narain (P.W.2) was going to call labourers. When he reaced in front of the house of Devi Charan Gaderiya of his village, he observed Matawa standing with gun by the side of the house of Phaguni. Observing Shiv Narain, Matawa exhorted 'Maro Sale Ko'. Hearing his exhortation Babu Ram armed with gun, Jageshwar armed with country made pistol, Dukhi armed with lathi, Raghunath armed with Farsa and Ram Prasad armed with Tabbal along with Matawa, came in front of house of Phaguni and surrounded Shiv Narain Appellant Dukhi. Ram Prasad and Raghunath started inflicting injuries upon Shiv Narain with lathi. Farsa and Tabbal. Shiv Narain raised alarm. Hearing his alarm his son Ram Kumar deceased, younger brother Chhote Lal (P.W.1) and daughter Smt. Tajeshwari (P.W.3) rushed to the spot. Devi Charan (P.W.4), Vinod, Ram Swarup and others were standing in front of their respective houses. As soon as Ram Kumar deceased came near Shiv Narain (P.W.2) Matawa fired on him with gun, which hit him and he fell down. Other appellants also caused injuries with lathi and back side of Tabbal on him. Shiv Narain tried to save his son, but in the meantime Babu Ram fired gun shot on him, which hit him and he fell down again. When Smt. Tajeshawari rushed to save him Jageshwar fired with country made pistol on her due to which she also fell down sustaining injuries. Vinod and other persons of the village rushed to the spot challenging the assailants and then the assailants ran towards south. While running they also fired, which hit Ram Das (P.W.6)

5 Ram Kumar deceased was taken to his house. Chhote Lal (P.W.1) prepared report (Ext. Ka-1) at his house and came to police station Jahanabad along with injured Shiv Narain. Smt. Tajeshwari and Ram Das and other villagers in a bullock cart. He lodged report of the occurrence at 9.20 A.M. Chick F.I.R (Ext. Ka-13) was prepared by Constable Sheobhajan Misra (P.W.9) who made an endorsement at G.D. report (Ext. Ka-20) and registered a case under Sections 147, 148, 149, 307 and 302 I.P.C. against the appellants and Matawa.

6. The investigation of the case was taken up by Sri Ambika Prasad Shukla (P.W.7), who interrogated Chhote Lal (P.W.1), Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3) and Ram Das (P.W.6) at the police station and sent the injured persons to Primary Health Centre. Jahanabad for medical examination along with Constable Tirath Raj Shukal. Since the Doctor was not available, therefore they were taken to Primary Health Centre, Asauli, where they were medically examined between 1l.A.M and 12.10. P.M. by Dx. S.K. Gupta (P.W.5), who found following injuries on their persons :-

Injuries of Shiv Narain

1. An incised wound 2 x 1/2 x bone deep on the left side of skull 4' above the left ear. Margins clean cut, inverted and bleeding present.

2. An incised wound 4' x V2' bone deep on the right side of skull 4 1/2' above the right ear. Margins clean cut, inverted & bleeding present. Kept under observation. Advised X Ray of Skull A.P. lateral.

3. An incised wound 1 1/2' x bone deep on the right side of skull 1/2 right to the injury No. 2. Margins clean cut, inverted bleeding present.

4. Contusion 2' x 2' on the left lateral side of the chest 6' below the left axilla.

5. Contusion 3' x 4' on the lower part of the chest 1' behind the injury No. 4.

6. An incised wound 3' x 1/4' x muscle deep on the web between the left thumb and middle finger. Margins clean cut, inverted and bleeding present.

7. 2 Gun shot wound of entry 1/2 x 1/2 x through and through on the back of the left thigh, 5' above the left knee. Margins lacerated, inverted and bleeding present. Tattooing blackening and charring present. Kept under observation. Advised X Ray of the left thigh. A.P. lateral.

8. Contusion 3' x 3' on the back of the left thigh 2' above the injury No. 7. Palpable shot 1/4 x 1/4' present. Kept under observation and advised X Ray of the left thigh.

9. 2 Gun shot wounds of entry V2' x V2' x through and through on the back of outer side of the left thigh 2' below injury No. 7. Margins lacerated, inverted and bleeding present. Tattooing, blackening and charring present. Kept under observation.

10. Multiple lacerated wounds of exit 1' x 1/4' x 3/4' xl' through and through in size on front of the lower part of left thigh. 1' above the left knee in an area of 6' x 6'. Margins lacerated, inverted and bleeding present. No tattooing, blackening and charring present.

11. Lacerated wound 2' x 1/2 x muscle deep on the back and out side of the upper part of left leg. Margins lacerated, inverted and bleeding present.

12. Gun shot wound of entry 1/2 x 1/2 through and through on the back and outer part of the left leg 1' below injury No. 11. Margins lacerated, inverted and bleeding present. Tattooing, charring, blackening present. Kept under observation. Advised X Ray left leg.

13. Lacerated wound 6' x 4' x muscle deep (wound of exit) on the back of the lower part of the left leg. Margins lacerated, inverted and bleeding (sever) present. No tattooing, blackening and charring present a shot 1/4 x 1/4' recovered from the muscle of the lower part of the ankle joint. Kept under observation. Advised X Ray, left lower leg and ankle joint.

14. Lacerated wound 1 x 1/4' x muscle deep on the back of the left ankle. Margins lacerated, inverted, bleeding present.

15. Lacerated wound 1' x 1/2 x bone deep on the outer side of the left ankle. Margins lacerated, inverted and bleeding present.

Injuries No. 1, 3, 4, 5, 6, 8, 10, 11, 14 and 15 were simple. Injuries 2, 7, 9, 12 and 13 were kept under observation and advised X Ray.

Injuries 1, 2, 3 and 6 were caused by sharp edged weapon. Injuries 4, 5, 11, 14, 15 were caused by blunt weapon and injuries 7, 8, 9, 10, 12 and 13 were by fire arms.

Injuries of Smt. Tajeshari

1. Incised wound 1' x 1/4' x bone deep on the right side of skull 1' above the forehead. Margins clean cut, inverted and bleeding present.

2. Gun shot of entry 1/4' x 1/4' x bone deep on the back of the right hand 1/4 below the right index finger. Margins lacerated, inverted and bleeding present. No tattooing, blackening present. Kept under observation. Advised X Ray of Right hand.

3. Contusion 2' x 2' on the outer back of the left fore arm 4' above the wrist Red in colour.

4. Contusion 1' x 1' on the root of the left thumb.

5. A gun shot wound of entry 1/2 x 1/2 x through and through on the inner side of right ankle. Margins lacerated, inverted and bleeding present. No tattooing, blackening present. Kept under observation. Advised X Ray of the right ankle.

6. Gun shot wound of exit 3/4' x 3/4' x through and through on the back of the right ankle. Margins lacerated, inverted, bleeding present. No tattooing and blackening present.

Injuries No. 1, 3 & 4 were simple and injuries 2 and 5 were kept under observations.

Injury No. 1 was caused by sharp edged weapon, injuries No. 2, 5 and 6 were caused by fire arm and injury Nos. 3 and 4 were caused by blunt weapon. Duration fresh.

Injuries of Ramdas

1. A gun shot wound of entry 1/8' x 1/8' x muscle deep on the right side of forehead 1/2 above the right eye. Margins lacerated, inverted and bleeding present. No tattooing or blackening present.

2. A gun shot wound of entry, 1/8' x 1/8' x muscle deep in the upper part of the chest. Margins lacerated, inverted and bleeding present. No tattooing or blackening present.

3. A gun shot wound of entry 1/8' x 1/8' x skin deep on the front of the left shoulder. Margins lacerated, inverted and bleeding present. No tattooing and blackening present.

4. A gun shot wound of entry 1/8' x 1/8' x muscle deep on the outer side of the left arm 2' below the left shoulder. Margins lacerated, inverted and bleeding present. No tattooing or blackening present.

5. A palpable shot of 1/8' x 1/8' size on the middle of the left arm inner side present.

6. A palpable shot 1/8' x 1/8' on the back of the upper part of the left arm 2' below the left axilla.

7. A gun shot wound of entry 1/8' x 1/8' x muscle deep on the front of the middle arm 4' below the left shoulder. No tattooing and blackening present.

8. A gun shot wound of entry 1/8' x 1/8' x muscle deep on the outer side of left fore arm 11/2 below the left elbow. Margins lacerated, inverted and bleeding present. No tattooing and blackening present. All the injuries were simple and were caused by fire arm. Fresh in duration.

7. The Investigating Officer reached the spot and found dead body of Ram Kumar lying in front of his house. He appointed panches and prepared inquest report (Ext. Ka-5) and other relevant papers. He sealed the dead body and sent the same for postmortem. He also took into possession the blood stained clothes of deceased, sealed them and prepared recovery memo (Ext. Ka-9), inspected the place of occurrence and prepared site plan (Ext. Ka-10). On the place of occurrence the earth was found scratched. The Investigating Officer, thereafter, interrogated witnesses of inquest and searched the accused, but they were not traceable.

8. Autopsy on the dead body of Ram Kumar deceased was conducted on 13-11-1976 by Dr. P.S. Mishra (P.W.8), who found following ante-mortem injuries on the person of the deceased :-

1. Four gun shot wounds of entrance each measuring 1/2 x 1/2 cavity deep situated below left nipple on the right side chest lower part and one in epigastic region. Margins were inverted and lacerated. No blackening and tattooing present.

2. Three gun shot wounds of entry 1/2 x 1/2 x chest cavity deep in the lower part of chest. One and two abdominal cavity deep on the out side. No blackening or tattooing present.

3. One gun shot wound of entrance 1/2 x 1/2 x muscle deep on the outer side of left arm lower part with communicating gun shot wound of exit 3/4 x 3/4' x muscle deep on the inner side of right arm lower part. No blackening or tattooing present.

4. Three abrasion each measuring 3/4' x 1/2 gutter shaped on the outer side of right buttock 21/2' apart.

5. Abrasion 1' x 1/2' on the outer angle of left side face.

6. Abrasion 1/2 x 1/2 on the left scapula.

7. Contusion 2' x 1/2 on lower part front of left thigh.

8. Contusion 1 1/2 x 1' on the left side chest wall upper part.

9. Contusion 2' x 1/2 on the left arm.

10. Contusion 1' x 1/2' in front of left leg.

11. Constusion 2' x 1/2 on the lower part of left thigh.

12. Abrasion 1' x 1/2 on the outer side of knee joint.

9. On internal examination walls and ribs were found rupturned on left side. Pleura was ruptured on middle right side. Right lung was ruptured in lower part. Left lung was ruptured in upper part. Pericardium was perforated.

Blood vessels were ruptured in chest. Abdominal wall ruptured on right side of abdomen. Peritoneum was ruptured on right side. Gall bladder was perforated. Kidney was perforated on right side. Two gun shots were recovered from the injuries.

10. In the opinion of Doctor cause of death was shock and haemorrhage as a result of above injuries.

11. Accused Matawa, Ram Prasad, Dukhi and Raghunath surrendered in the Court on 22-11-1976 and Jageshwar on 7-12-1976. Accused Babu Ram remained absconding. On completion of investigation, the Investigating Officer submitted chargesheet on 15-12-1976 against Matawa, Ram Prasad, Dukhi, Jageshwar and Raghunath. Accused Matawa died during pendency of trial. Appellants Ram Prasad, Dukhi, Raghunath and Jageshwar were tried in S.T. No. 192 of 1977. They pleaded not guilty. The defence of above appellants was that prior to occurrence of this case, in the month of Kartik, Smt. Ram Mati daughter of Dukhi had gone to Harkundi mela along with other members of her family. While she was returning Ram Kumar deceased and Narsingh teased her in the way. Matadin alias Matawa objected them and on it altercation had taken place. Both Ram Kumar and Narsingh had threatened Matadin to see them. On the morning of 12-11-1976 at about 7 A.M. Ram Kumar deceased armed with licensed gun of his father, Narsingh armed with gun, Vinod armed with country made pistol and Munnu and Shiv Narain armed with lathis raided the house of Matadin alias Matawa and Ram Kumar fired gun shot on him, when he was providing fodder to his she buffalo, which hit his she buffalo and he entered into his house. In the meantime Narsingh and Vinod also fired, which hit Smt. Gyanwati (D.W.2) sister-in-law (Sali) of Chheda Lal, brother of Dukhi, who was standing under the Chappar. Matadin alias Matawa took out his licensed gun and fired in his self defence.

12. The prosecution in support of its case examined Chhote Lal (P.W.1), Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3), Devi Charan (P.W.4) and Ram Das (P.W.6) as witnesses of fact, besides Dr. S. K. Gupta (P.W.5), Ambika Prasad Shukla, I.O. (P.W.7), Dr. S. P. Mishra (P.W.8) and Constable Moharir Sheobhawan Mishra (P.W.9) as formal witnesses.

13. The appellants examined Ganga Charan (D.W.1) and Smt, Gyanwati (D.W.2).

14. Learned Additional Sessions Judge on considering evidence of the parties held that occurrence took place at the date, time, place and manner alleged by the prosecution and not at the place and manner suggested by the appellants. The appellants side was aggressor and defence version was false. That the prosecution successfully proved guilt of the appellants Jageshwar, Ram Prasad, Raghunath and Dukhi for the offences punishable under Section 147, 148, 302, 307/149 and 323/149 I.P.C. With these findings he convicted and sentenced them as mentioned above.

15. Appellant Babu Ram was challaned, as an absconder. However, he surrendered after decision of S.T. No. 192 of 1979. He was tried in S.T. No. 90 of 1981. He pleaded not guilty and contended that on the day of occurrence he was in his native village.

16. The prosecution in support of its case examined Chhote Lal (P.W.1), Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3) as witnesses of fact, besides Constable Moharrir Sheobhawan Mishra (P.W. 4), Ambika Prasad Shukla, I.O. (P.W.5) and Dr. P.S. Mishra (P.W.6). Appellant Babu Ram did not adduce any evidence in his defence. The learned Additional Sessions Judge on considering evidence of prosecution held that prosecution has succeeded in establishing its case against Babu Ram Yadav beyond all reasonable doubt for the offences punishable under Section 148, 302/149 and 307/149 I.P.C. With these findings he convicted and sentenced him as mentioned above.

17. Aggrieved with their conviction and sentences appellants Dukhi, Raghunath, Ram Prasad and Jageshwar filed Criminal Appeal No. 771 of 1980 and appellant Babu Ram Yadav filed Criminal Appeal No. 1578 of 1984.

18. Both the appeals arise out of same occurrence and therefore, are taken up together for decision.

19. Appellants Dukhi and Raghunath died during pendency of the appeal, which was confirmed by the enquiry report of Chief Judicial Magistrate, Fatehpur dated 17-11-2000. Therefore, the appeal preferred by Dukhi and Raghunath stood abated.

20. We have heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri R.C. Upadhyay for the appellants of Criminal Appeal No. 771 of 1980, Sri S.L. Yadav, learned counsel for the appellant of Criminal Appeal No. 1578 of 1984 and learned A.G.A. and have thoroughly gone through the evidence on record.

21. The death and cause of death of Ram Kumar and injuries on the persons of Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3) and Ram Das (P.W.6) are not disputed by the appellants of both the appeals. The appellants have also not disputed the date and time of the occurrence i.e. 12-11-1976 at about 7 A.M. According to the prosecution on the morning of occurrence i.e. 12-11-1976 Shiv Narain (P.W.2) was going to fetch labourers. When he reached in front of house of Devi Charan Gaderiya, accused Matawa (since dead) was standing there with his gun observing him exhorted to kill him and chased him with his licensed gun. On his exhortation appellants Babu Ram armed with gun, Jageshwar armed with country made pistol, Dukhi and Raghunath (since dead) armed with lathi and Farsa and Ram Prasad armed with Tabbal rushed, surrounded Shiv Narain near house of Phaguni and started causing injuries with their respective weapons. On the alarm raised by-Shiv Narain, his brother Chhote Lal (P.W.1), his son Ram Kumar deceased and daughter Tajeshwari (P.W.3) rushed to save him. Babu Ram and Jageshwar started firing with gun and country made pistol. Matawa fired on deceased, due to which he fell down. When Shiv Narain tried to reach his son, Babu Ram fired on him. When Smt. Tajeshwari rushed to save her father, Jageshwar fired on him. Ram Das (P.W.6) also sustained injuries, when appellants fired while running.

22. On the other hand, the case of the appellants, as contained in cross F.I.R. (Ext. Kha-2) lodged by Suraj Bali, S/o Raghunath appellant, was that on the day of occurrence due to previous quarrel regarding teasing of Smt. Ram Rati daughter of Dukhi, Ram Kumar armed with gun, Vinod armed with country made pistol, Munnu and Shiv Narain armed with lathis, raided the house of Matawa alias Matadin at about 7 A.M. on the day of occurrence when Matadin was providing fodder to his she buffalo. Ram Kumar fired on Matadin, which hit his she buffalo. Narsingh and Vinod also fired, which hit Smt. Gyanwati (D.W.2) Matadin took out his licesnsed gun and fired in self defence.

23. Therefore, it is to be considered as to whether the occurrence took place in the manner alleged by the prosecution or in the manner suggested by the appellants and accused Matawa caused injuries to the deceased and other injured person in his self defence.

24. The evidence of Shiv Narain (P.W.2) shows that a day before the occurrence, Babu Ram and Jageshwar members of gang of Bhola dacoit, had come to the house of Matawa and he had asked Matawa not to call them and other criminals. It had annoyed Matawa, who threatened him to kill. The motive suggested by the appellants was that Ram Kumar deceased and Narsingh had teased Smt. Ram Rati daughter of Dukhi who was returning from Harkundi mela and on the objection of Matawa they had threatened to kill him. Ram Kumar and Jageshwar are residents of another village and according to prosecution they had participated in the occurrence, which took place on the next day. This shows that the objection of Shiv Narain to Matawa regarding harbouring of those criminals was probable and in all probabilities Matawa annoyed on the above objection of Shiv Narain. On the other hand there is no evidence regarding incident of teasing of Ram Rati by Ram Kumar and Narsigh, as no witness was examined on this point and prosecution witnesses had repelled the suggestion to this effect.

25. According to prosecution the occurrence took place in front of house of Phaguni at place 'D' shown in the site plan (Ext. Ka-10), while according to appellants it took place in front of house of Matawa. The ocular witnesses Chote Lal (P.W. 1), Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3) and Ram Das (P.W.6) have stated that occurrence took place at the said place. Shiv Narain (P.W. 2), Smt. Tajeshwari (P.W.3) and Ram Das (P.W.6) are injured witnesses and their presence on the spot was not disputed. The appellants have also not disputed their injuries. Devi Charan (P.W.4), who has not supported the prosecution story totally has also stated that appellants Dukhi, Raghunath and Ram Prasad were causing injuries upon Shiv Narain at the distance of 8-10 paces from his house. According to prosecution when Shiv Narain reached in front of house of Devi Charan Gaderiya he observed Matawa standing with gun, who exhorted other appellants to kill him. This witness has also admitted that Matawa was standing in front of the house of Phaguni from where he fired. The occurrence took place near house of Phaguni which is towards north of house of this witness and therefore the witness was in a position to observe the occurrence. An attempt was made from the side of appellants that there had been a dispute between him and Matawa in the year 1976, which was resolved by Ganga Charan (D.W.1) in a panchayat. But the witness denied any dispute regarding land between him and Matawa and convening of Panchayat. He denied any sort of enmity between him and Matawa. A Panchayatnama (Ext. Kha-4) was allegedly proved by Ganga Charan (D.W.1), but he admittedly was opponent of Shiv Narain (P.W.2) in the election of the Pradhan and therefore had motive to depose falsely.

26. Ram Das (P.W.6) is resident of another village Bamuriyapur, P.W. Chandpur, District Fatehpur. He had no concern with the parties. According to evidence of the witness on the morning of occurrence he was coming to his house from village Ajghaja, where his sister was married and when reached in village Nirkhi, which lies in the way, observed Matawa with gun, Dukhi with lathi, Raghunath with Farsa and Ram Prasad with Tabbal causing injuries upon Shiv Narain, Ram Kumar and others in front of house of Devi Charan Gaderiya and he also sustained injuries in the said occurrence. The presence of injuries on his person was proved by Dr. S.K. Gupta (P.W.5) and he was also taken to police station, where his presence was noted in the General Diary Report (Ext. Ka-14). According to site plan, house of Phaguni is situated after one house of the house of Devi Charan Gaderiya and occurrence initiated on the rasta at place 'A' in front of the house of Devi Charan Gaderiya and culminated on place 'D' in front of house of Phaguni. Ram Das (P.W. 6) being independent witness of another village having no concern with the parties had no ground to depose in favour of or against either party and in these circumstances, his evidence carries weight. Not only the witnesses of the prosecution, but Smt. Gyanwati (D.W.1) has also admitted in her cross-examination that marpit took place in front of house of Phaguni. The house of Phaguni is situated towards north of house of Matawa after two houses and open land.

27. It is true that deceased Ram Kumar and injured Shiv Narain and Smt. Tajeshwari sustained bleeding injuries and in all probability blood must have fallen on the spot. But the I.O. did not find blood on the spot. Mere absence of blood on the spot does not falsify the prosecution case, as occurrence and injuries of injured are admitted. Moreover, the Investigating Officer Ambika Prasad Shukla (P.W.7) has offered explanation regarding absence of blood that when he reached on the spot he found earth of spot scratched. Therefore, possibility that after the occurrence the persons of the family of the appellants or their associates scratched the earth to remove the blood cannot be easily ruled out. Moreover, the place of occurrence was in the public way and it cannot be denied that after the occurrence several persons of the village reached there and the blood stains, in all probabilities, could have been diminished by the foot steps of the persons, who came there. As such, non recovery of blood from the spot does not rule out the place of occurrence alleged by the prosecution.

28. From the above evidence it is amply proved that occurrence took place at the place alleged by the prosecution i.e. in front of house of Phaguni and not at the place suggested by the appellants i.e. in front of house of Matawa.

29. The ocular witnesses Chote Lal (P.W.1), Shiv Narain (P.W.2),Tajeshwari (P.W.3), Devi Charan (P.W.4) and Ram Das (P.W.6) have categorically stated that appellants party, which reached on the spot with lethal weapons was aggressor and the deceased as well as other injured came to the spot empty handed. As mentioned above Shiv Narain (P.W.2), Smt. Tajeshwari (P.W.3) and Ram Das (P.W.6) are injured witnesses and their presence on the spot cannot be doubted. The appellants have also admitted the presence of Ram Kumar deceased. Chhote Lal (P.W.1) who is the real brother of Shiv Narain (P.W.2) has also proved his presence on the spot, as according to his evidence, he had come to village Nirkhi a day prior to the occurrence and rushed on the spot along with Ram Kumar deceased and Smt. Tajehswari on hearing shrieks of his brother Shiv Narain. The witness is informant and had taken the injured persons to the police station after the occurrence. His presence is noted in the general diary (Ext. Ka-14). He has denied the suggestion of the appellants that he was directly called at the police station Jahanabad from his house situate at village Ghuroupur. P.S. Sajeti, District Kanpur. The occurrence had taken place at about 7 A.M. and report of the occurrence was lodged at 9.20 A.M. on same day. considering the distance of the native village of Chhote Lal it cannot be said that he could be called from his house at police station Jahanabad within such a short period of 2.15 hours. Moreover, there was no occasion for calling Chhote Lal from his house only for lodging report, as the injured were taken to the police station along with other villagers and the injured persons were in a position to lodge the report. Therefore,there is nothing on record to doubt the presence of Chhote Lal (P.W.1). The occurrence took place near the house of Devi Charan and his presence can also not be doubted. Devi Charan (P.W.4) is a natural witness. As mentioned above Ram Das (P.W.6) is resident of another village and had no concern with either party and he being injured witness, his evidence carries weight and fully supports prosecution version. Therefore, the prosecution witnesses named above are reliable and the manner of occurrence given by them is to be accepted.

30. Smt. Gyanwati (D.W.2), the sister in-law (Sali) of Chheda Lal, brother of appellant Dukhi and Raghunath had also indirectly admitted the prosecution version regarding manner of occurrence and aggressorship of the appellants. No doubt in her examination-in-chief she stated that Ram Kumar armed with gun. Vinod armed with country made pistol and Shiv Narain armed with lathi came near house of Chaudhari and Phaguni and Ram Kumar fired on Matawa, which hit her. But in her cross examination she admitted that marpit took place in front of house of Phaguni and Shiv Narain after coming from his house was proceeding towards rasta. Ram Kumar came to the spot after start of marpit. She heard three sounds of fire and had not seen any person firing. She had not seen Matawa firing. She had also not seen Farsa and lathi used on the spot. Again she admitted that at the time of occurrence Ram Kumar was having lathi and Shiv Narain was empty handed. Further she stated that Narsingh was having Tamancha. In an answer to a Court question she admitted that she had not seen Tamancha and had not seen any Tamancha with Narsingh. Thus, according to own witness of the appellants Ram Kumar, Shiv Narain and Narsingh were not having any fire arm. But it is not disputed that deceased as well as other injured sustained fire arm injuries and Matawa was firing with gun. If the prosecution side was not armed with any fire arm, it could not be aggressor.

31. Moreover, the medical evidence also supports the case of the prosecution that appellants' side was aggressor. The deceased as well as injured Shiv Narain (P.W.2) and Smt. Tajeshwari (P.W.3) sustained incised wounds, blunt object injuries and fire arm injuries. It is not the case of the appellants that any one from their side or from prosecution side used sharp edged weapon, while there is specific evidence of the prosecution witnesses that two of the appellants namely Raghunath and Ram Prasad were having Farsa and Tabbal.which they used in the occurrence. The presence of injuries of sharp edged weapon again supports the case of the prosecution and falsifies the case of appellants.

32. According to appellants Ram Kumar, Narsingh and Vinod fired gun and country made pistol, but no injury was sustained by Matawa while he was outside his house at the time of above firing. The absence of injury on Matawa also belies the case of the appellants.

33. It is true that Smt. Gyanwati (D.W.1) also sustained injuries in the same occurrence. The injuries on her person was proved by Dr. S.K. Gupta (P.W.5), who examined her at 12.10 on the day of occurrence and she sustained as many as 8 pellet injuries. But none of her injuries had blackening, tattooing or charring, which shows that the shots, which hit her were fired from a distance. Therefore, the possibility that she sustained injuries from the shots fired by Matawa, Babu Ram and Jageshwar cannot be easily ruled out, as Ram Das (P.W.6) sustained injures in the same manner.

34. In this way, the evidence on record clearly shows that occurrence took place at a place alleged by the prosecution, the appellants side was aggressor and the occurrence took place as alleged by the prosecution.

35. The learned counsel for the appellants contended that only Matawa was liable for murder of the deceased and appellants Ram Prasad Jageshwar and Babu Ram are liable for the offence punishable under Section 326 I.P.C. only because common object of the unlawful assembly was to kill Shiv Narain and not Ram Kumar. That Matawa fired on Ram Kumar, which was his individual act and since killing of Ram Kumar was not the common object of unlawful asr sembly, the appellants Ram Prasad. Jageshwar and Babu Ram are not liable for the murder of the deceased and are liable only for the injuries of Sheo Kumar, Tajeshwari and Ram Das. Assuming that the common object, which developed on the spot or about which of the member of unlawful assembly would have knowledge was to cause grievous hurt to Ram Kumar and others and not murder of Ram Kumar and therefore, from this aspect also the appellants Ram Prasad. Jageshwar and Babu Ram cannot be held guilty for murder with the aid of Section 149 I.P.C. They also placed reliance on cases of Shambhu Nath Singh v. State of Bihar AIR 1960 SC 725 and Jairam v. State of Madhya Pradesh AIR 1993 SC 92.

36. In the case of Shambhu Nath Singh (supra) there was dispute regarding agricultural plot. On the day of occurrence prosecution witnesses were ploughing and levelling the land and were sowing paddy. At that time a crowd of persons including fourteen accused arrived on the scene. Shambhu Nath Singh accused No. 1 was armed with gun and other accused were carrying weapons such as bhallas. gandasa and lathis. Apprehending an assault. Ramdeni Kahar and Mst. Kukri son and wife respectively of Baran Kahar, implored the accused and not to assault Baran Kahar, but the accused paid no heed to their intercession. Shambu Nath Singh fired several shots causing injuries to Baran Kahar and killing him on the spot. Nanhu Kahar also received gun shot injuries which resulted in his death. Ramdeni Kahar and Mst. Sukri also received injuries. The Trial Court held that on the day of incident Baran Kahar was in possession of the land in which rioting took place and the accused who were convicted had formed themselves into an unlawful assembly and had committed rioting and that the common object of the unlawful assembly was to commit an assault and that the members of unlawful assembly, because they were armed with diverse weapons must have known that grievous hurt was likely to be caused in prosecution of the common object. It accordingly, held the accused 1 to 8 and 14 guilty of offences under Section 326 read with 149 I.P.C. for the act of first accused in causing gun shot injuries resulting in the death of Baran Kahar and his son Nanhu Kahar. The 1st accused Shambhu Nath Singh was convicted for the offence under Section 302 I.P.C. In the appeal before the Apex Court the applicability of Section 149 I.P.C. was questioned and it was held that Section 149 of Indian Penal Code is declaratory of vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object, But 'members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly.' In the said case the common object of the assembly as found by the courts below was to cause grievous hurt and death was caused by one of the members of the assembly. For causing the death it was found that members of the unlawful assembly were not responsible. But the conviction for the offence of causing grievous hurt in prosecution of the common object of the unlawful assembly was maintained.

37. In Jairam's case (AIR 1993 SC 92) (supra) P.W.1 Tulsiram was sitting in his Bada on a cot in front of his house. His brother Radheyshyam was also sitting and they were making bidis. All of sudden, (accused) A-1 came there armed with a double barrel gun and other accused persons came there armed with Katarnas, sticks etc. and accused Harisingh was armed with a sword A-1 fired a gun shot towards P.W.1 who cried for help. At this his elder brother Bhagwandas Soni the deceased ran out of the house A-1 again fired a second shot on the deceased who fell down. Then father and mother of Tulsiram. P.W.1 also came out of the house. Then all the accused persons ran away. While the deceased was being carried in bullock cart and other witnesses also walking behind, all the accused came near the cart and A-1 said that deceased was alive and he should be finished. So saying he fired the gun and P.W.3 received some injuries. It is then alleged that the deceased was pulled out from the bullock cart and was thrown on the ground and he was attacked with Farsa. Katarna etc. and with a sword by Harisingh accused. The Trial Court acquitted the accused. The High Court reversed the acquittal and convicted all the accused under Section 302/149 I.P.C. In the appeal before the Apex Court it was held that medical evidence clearly established that all other injuries other than the gun-shot injuries caused by A-1 were inflicted on a dead body. Even if we accept the evidence of the eye-witnesses it may be that under a mistaken impression that the deceased was' still alive, those injuries were caused.... In view of the medical evidence it becomes difficult to hold that the accused can be convicted for offence of murder though they inflicted injuries only on a dead person. In view of the matter it cannot be said that the ingredients of Section 300 are attracted. So far as the first part of the occurrence is concerned, even according to the prosecution case, none of these accused did anything by way of word or deed in which case it cannot be said that they were members of the unlawful assembly with the common object of committing murder and shared the same along with A-1. Regarding second part of the occurrence this only shows that common object of unlawful assembly was to cause at least hurt or grievous hurt because of the incised injuries caused to P.W.10 and. also that A-1 who was also a member of the unlawful assembly, fired his gun, about which the other members must be attributed the knowledge. In the result A-1 was convicted under Section 302 I.P.C. and sentenced to imprisonment, for life. The conviction of the other accused under Section 302/149 I.P.C. and sentence of imprisonment for life thereunder were set aside. Instead they were convicted under Section. 326, 149 I.P.C. and sentenced to 7 years R.I.

38. We have thoroughly considered above cases and the facts and circumstances of the present case. It is clear from the evidence on record that all the appellants including Matawa had laid ambush near the house of Phaguni. Matawa and Babu Ram were having gun, Jageshwar was having country made pistol. Ram Prasad was having Tabbal. Raghunath was having Farsa and Dukhi was having lathi. Matawa with his licensed gun was standing near house of Devi Charan Gaderiya and observing Shiv Narain, exhorted other appellants to kill him and on his exhortation the appellants came out and surrounded him and started causing injuries. On his alarm his son Ram Kumar, brother Chhote Lal and daughter Smt. Tajeshwari also came. When Ram Kumar tried to save him. Matawa fired on him. Admittedly, Ram Kumar deceased sustained gun shot injuries as well as abrasions and contusions. As many as three persons of the unlawful assembly were armed with fire arms. The medical evidence of Dr. P.S. Mishra (P.W.8) shows that gun shot injuries of deceased would have been caused by different shots and not by single shot. Lying ambush armed with fire arms and lethal weapons in the back ground of previous incident i.e. objection by Shiv Narain the Matawa a day before the occurrence on harbouring criminals at his house, clearly indicate that all members of unlawful assembly had knowledge that either Shiv Narain or whosoever came to his rescue would be murdered and it cannot be said, in the facts and circumstances of the case, that common object of unlawful assembly of which the appellants were member was only to cause grievous hurt to injured witnesses and murder of Ram Kumar was individual act of Matawa regarding which the other accused had no knowledge. The facts of the cases relied on are totally different and distinguishable with the facts of the present case. Therefore, the appellants Ram Prasad, Jageshwar and Ram Babu are also liable for murder of Ram Kumar, murderous assault on Sheo Kumar and hurt on Tajeshwari and Ram Das with the aid of Section 149 I.P.C. and they were rightly convicted under Ss. 148, 302/149, 307/149 and 323/149 I.P.C. Their appeal thus have no force.

39. Appeal preferred by Dukhi and Raghunath stands abated. The appeals preferred by Ram Prasad, Jageshwar and Babu Ram are accordingly, dismissed and their convictions and sentences under Ss, 148, 302/149, 307/149 and 323/149 I.P.C. are confirmed.

40. The appellants Ram Prasad, Jageshwar and Ram Babu are on bail granted by this Court. They shall surrender before Chief Judicial Magistrate, Fatehpur within 15 days from today to serve out the sentence, failing which the Chief Judicial Magistrate, Fatehpur shall issue non bailable warrants against above appellants to secure their arrest and sending them to jail to serve out their respective sentences.

41. Office is directed to send a copy of this judgment of Chief Judicial Magistrate, Fatehpur for compliance and report within a month.

Subject	Criminal
Court	Allahabad High Court
Decided On	Jan-18-2001
Case Number	Cri. Appeal Nos. 771 of 1980 and 1578 of 1984
Judge	J.C. Gupta and ;U.S. Tripathi, JJ.
Reported in	2001CriLJ2534
Acts	Indian Penal Code (IPC), 1860 - Sections 147, 148, 149, 300, 302, 307, 323 and 326
Appellant	Dukhi and ors. Etc.
Respondent	State of U.P.
Appellant Advocate	R.B. Sahai, ;R.K. Singh and ;R.C. Upadhyay, Advs.
Respondent Advocate	V.C. Katiyar, A.G.A.
Disposition	Appeal dismissed
Cases Referred	and Jairam v. State of Madhya Pradesh

Dukhi and ors. Etc. Vs. State of U.P. - Court Judgment