Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Participation Of All The Accused In Criminal Act By Doing Some Overt Act Is Not Necessary To Attract Section 34 Of Indian Penal Code.
JUDGEMENT TITLE : Ram Naresh Vs. State Of U.P On 29/08/2008 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 552 OF 1982
CORAM : Hon'ble Sushil Harkauli,J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED


Criminal Appeal No. 552 Of 1982


Ram Naresh And Others.................. Appellants.

Versus
State Of U.P. .................................... Respondent.



Hon'ble Sushil Harkauli, J.
Hon'ble Vijay Kumar Verma, J.

(Delivered By Hon'ble Vijay Kumar Verma, J.)

By Means Of This Appeal Preferred Under Section 374(2) Of The Code Of Criminal Procedure (in Short, 'the Cr.P.C.'), The Judgement And Order Dated 18.02.1982 Passed By The 4th Addl. Sessions Judge, Etah In S.T. No. 24 Of 1982 (State Vs. Ram Naresh And Others) Has Been Challenged, Whereby Convicting The Appellant-accused Ram Naresh Under Section 364, 302, 323 Read With Section 34 Of The Indian Penal Code (in Short, 'the I.P.C.'), He Has Been Sentenced To Undergo Rigorous Imprisonment For Ten Years, Imprisonment For Life And Two Months' Rigorous Imprisonment Respectively And Further Convicting The Appellant-accused Rameshwar @ Collector Under Section 364, 302 And 323 Both Read With Section 34 I.P.C., He Has Been Sentenced To Undergo Rigorous Imprisonment For Ten Years, Imprisonment For Life And Two Months' Rigorous Imprisonment Respectively And Also Further Convicting The Appellant-accused Suleman Under Section 364, 302 Read With Section 34 I.P.C. And Section 323 I.P.C., He Has Been Sentenced To Undergo Rigorous Imprisonment For Ten Years, Imprisonment For Life And Two Months' Rigorous Imprisonment Respectively. All The Sentences Have Been Directed To Run Concurrently.
2.The Incident Resulting In The Death Of Pooran S/o Ram Dayal And Abducting The Complainant Ram Larhetey @ Taini And Causing Injuries To Him Occurred In The Intervening Night Of 9/10-08-1981 At About 1.30 A.m. In Village Nagla Kothi Situated Within The Limits Of P.S. Patiali, District Etah. The First Information Report Was Lodged At P.S. Patiali On 10.08.1981 At 10.00 A.m. By The Complainant Ram Larhetey @ Taini S/o Mulu Ahir Resident Of Village Nagla Kothi.
3.The Case Of The Prosecution, As Appearing From The First Information Report Ext. Ka-2 And Statement Of The Complainant Ram Larhetey (P.W. 2), In Brief, Is That About 5-6 Days Ago, A Theft Was Committed In The House Of Chandra Pal Singh, Cousin Brother Of The Complainant. This Theft Was Committed By Ram Naresh And Rameshwar @ Collector Of Village Nagla Kothi And Suleman Resident Of Village Mohni Gali. The Written Report Of That Theft Was Scribed By Latoori Singh, Brother Of The Complainant, Due To Which The Accused Ram Naresh, Rameshwar And Suleman Felt Annoyed And One Day Before The Instant Incident, They Had Declared That They Have To See Latoori. When The Complainant Said That His Brother Is Not At Fault, The Accused Persons Had Threatened Him Also. It Is Alleged That In The Intervening Night Of 9/10-08.1981, When The Complainant Ram Larhetey Was Sleeping In His House In Front Of Chhappar And His Father Was Also Sleeping Adjacent To Him, The Accused Ram Naresh And Rameshwar @ Collector Armed With Guns And Suleman Along With One Unknown Person Having Lathies In Their Hands Came In The Gher Of Complainant At About 1.30 A.m. In The Night And Flashed Torch Lights, Due To Which The Complainant And His Father Awakened. The Accused Persons Inquired From The Complainant And His Father About Latoori, On Which His Father Told That Latoori Has Gone To Aliganj. The Complainant Being Assured That The Accused Persons Have Come In Search Of His Brother, Began To Shout Loudly, On Which The Accused Ram Naresh Said That "yah Sala Bahut Shor Machata Hai, Ise Hi Bandh Lo." When The Accused Persons Caught Hold Of The Complainant, He Tried To Rescue, On Which Suleman And Unknown Person Gave Lathi Blows To Him. Thereafter, All The Four Accused Persons Catching Hold Of Ram Larhetey Brought Him On The Road From The Gher. On Hearing The Noise, Pooran, His Brother Bansuri Baj (P.W. 3), Than Singh And Some Other Persons Having Lathies Came There Flashing Torch Lights. When The Accused Persons Began To Carry Ram Larhetey Forcibly Towards Southern Side Of Village, Pooran Nat Said That, "iski Koi Galti Nahi Hai, Ise Kyon Liye Ja Rahe Ho." On This, The Accused Ram Naresh Exhorted To Shoot Pooran Saying, "yeh Sala Bahut Hamdard Banta Hai, Is Sale Ko Goli Mar Do." Thereafter The Accused Ram Naresh Himself Fired Shot On Pooran From Gun. Having Sustained Injuries, Pooran Rushed Away Towards The Gali. Thereafter, All The Accused Persons Carried Ram Larhetey Towards The Banjara Locality. On Hearing Hue And Cry, Chokhey, Pooran, Kanhai And Ram Swarup Came From Banjara Locality Raising Noise And Flashing Torches. On Arrival Of These Persons, Ram Larhetey Rescued Himself From The Accused Persons And Fled Away Towards His Village. When The Complainant Came To His Village, He Found Pooran Lying In Injured Condition Under Labherha Tree. He Was Alive At That Time, But When Arrangement Of Bullock Cart To Carry Him To The Police Station Was Being Made, He Succumbed To The Injuries Early In The Morning At The Time When The Cock Cries.
4.Latoori Singh, Brother Of The Complainant, Was Called From Aliganj. Thereafter, Leaving The Dead Body Of Pooran In Village, The Complainant Along With His Father Mulu Singh And Brother Latoori Singh Went To P.S. Patiali In Bullock Cart Of Sadanand And Lodged Oral Report There. P.W. 4, Harihar Singh Was Posted As Head Moharrir At P.S. Patiali. He Prepared Chik F.I.R. Ext. Ka-2 And Registered A Case Under Section 307/364/302 I.P.C. At Crime No. 127/81 On 10.08.1981 At 10.00 A.m. Against Ram Naresh, Rameshwar @ Collector, Suleman And One Unknown Person And Made Entry In G.D. No. 16 (Ext. Ka- 4). Letter Ext. Ka-5 For Medical Examination Of Ram Larhetey Was Prepared And Thereafter He Was Sent To Primary Health Centre, Aliganj, But Since No Medical Officer Was Available There, He Was Carried To Primary Health Centre, Jaithara, Where He Was Medically Examined On The Same Day At 8.30 P.m. By P.W. 6 Dr. Lajja Ram. The Following Injuries Were Found On The Person Of Ram Larhetey Vide Injury Report Ext. Ka-7:-
1) Lacerated Wound 2.5 Cm X .3 Cm X Muscle Deep Over The Left Side Of The Scalp 11 Cm From Left Ear. Margin Lacerated, Clotted Blood Around The Wound.
2)Complaint Of Pain Over The Left Side Of The Neck, No Mark Of External Injury Seen.
3)Abrasion With Contusion 3 Cm X .5 Cm In Size Over Left Side Of The Scapula, Hard Scabbed, Transversely Placed.
4) Abrasion .6 Cm X .4 Cm In Size Over The Back Of Right Side Of The Chest, Hard Scabbed.
5)Ovoid Swelling 1 Cm In Diameter Present At Central Part Of The Skull.
6)Complaint Of Pain Over The Back And Hip Jt.

5.Station Officer Of P.S. Patiali S.I. R. P. Mishra(P.W. 8) Was Present At The Police Station At The Time Of Registration Of F.I.R. He Took Up The Investigation In His Hands. After Recording The Statements Of Ram Larhetey @ Taini, Latoori Singh And Mulu Singh At The Police Station Itself, S. I. R. P. Mishra Along-with The Constables Mahesh Chandra (P.W. 5) And Suraj Pal Came In Village Naglakothi, Where He Conducted Inquest Proceedings On The Dead Body Of Deceased Pooran Singh, During Which Inquest Report Ext. Ka-8, Photo Lash Ext. Ka-9, Challan Lash Ext. Ka-10, Letter C.M.O. Ext. Ka-11, Letter R.I. Ext. Ka-12 And Seal Impression Ext. Ka 13 Were Prepared And Thereafter, The Dead Body In Sealed Condition Was Sent For Postmortem Examination Through The Constables Mahesh Chandra And Suraj Pal.
6.The Postmortem Examination On The Dead Body Was Conducted By Dr. O. P. Vaidya (P.W. 1) On 11.08.1981 At 2.00 P.m. According To The Postmortem Report Ext. K-1, The Following Ante-mortem Injuries Were Found On The Person Of The Deceased:-
1) Fire Arm Wound Of Entry 2 Cm X 2 Cm X Through & Through On The Back Of Right Forearm, 3 Cm Above The Wrist Joint In The Middle. No Blackening. Direction-forward & Slightly Upward.
2)Fire Arm Wound Of Exit 5 Cm X 5 Cm On Front Of Right Forearm, 5 Cm Above The Wrist Joint. All The Soft Tissues And Bones Including Vessels Were Grossly Damaged.
3)Multiple Fire Arm Wounds Of Entry Each ¼ Cm X ¼ Cm X Some Are Skin Deep & Some Are Cavity Deep In Right Iliac Fossa & Upper & Outer Portion Of Right Hip In An Area Of 20 Cm X 12. No Blackening, Direction-inward And Backward. On Further Exploration, (3) Pallets Were Recovered From The Muscles Of Hip.
On Internal Examination, Haematoma Was Found Present In The Layers Below Injury No. 3. Peritoneum Was Lacerated At Places. Cavity Contained About 12 Ounces Of Free And Clotted Blood. 13 Pallets Were Recovered From The Cavity. Small Intestine Was Lacerated At Places. Mesentry Was Lacerated And Vessels Were Also Lacerated. Large Intestine Contained Faecal Matter And Gases.
The Death Was Caused Due To Shock And Haemorrhage As A Result Of Ante Mortem Injuries. Duration Of Death Was About One And Half Day At The Time Of Post Mortem Examination.

7.After Conducting Inquest Proceedings, The Investigating Officer Made Spot Inspection And Prepared Site Plan Ext. Ka-14. Blood Was Found Lying At Place 'A' Shown In The Site Plan, From Where Blood Stained And Simple Earth Were Collected And Fard Ext. Ka-15 Was Prepared. Statements Of Other Witnesses Were Recorded And After Completion Of The Investigation, Chargesheet Ext. Ka-17 Was Submitted Against The Appellants-accused.
8.On The Case Being Committed To The Court Of Session For Trial, Combined Charge Under Section 364 I.P.C. Against All The Accused And Separate Charges Under 323 Read With Section 34 I.P.C. And 302 I.P.C. Against The Accused Ram Naresh, Section 302 Read With Section 34 I.P.C. And 323 I.P.C. Against The Accused Suleman And Section 302/323 Both Read With Section 34 I.P.C. Against The Accused Rameshwar @ Collector Were Framed, To Which They Pleaded Not Guilty And Claimed To Be Tried.
9.The Prosecution In Order To Prove Its Case Examined Eight Witnesses In All. P.W. 1 Dr. D. P. Vaidya Had Conducted Post-mortem Examination On The Dead Body Of Deceased Pooran. He Has Proved Postmortem Report Ext. Ka-1. P.W. 2 Ram Larhetey Is The Complainant Of This Case. He Is Also The Injured. P.W. 3, Bansuri Baj And P.W. 7 Ram Swarup Are The Eyewitnesses Of The Occurrence. P.W. 4 Harihar Singh Is The Scribe Of Chik F.I.R. Ext. Ka-2 And G.D. Of The Registration Of The Case (Ext. Ka-4). He Has Proved These Documents Along With The Copy Of G.D. No. 20 Dated 06.08.1981 Ext. Ka-6 Through Which, A Case Under Section 380 I.P.C. Was Registered At Crime No. 126/81 At The Instance Of Chandra Pal Singh On The Basis Of The Written Report Scribed By Latoori Singh. P.W. 5 Constable Mahesh Chandra Had Carried The Dead Body Of The Deceased Pooran For Post Mortem Examination Along With The Constable Suraj Pal. P.W. 6 Dr. Lajja Ram Had Medically Examined Ram Larhetey At Primary Health Centre, Jaithara. He Has Proved Injury Report Ext. Ka-7. P.W. 8 S.I. R. P. Mishra Is The Investigating Officer, Who Has Proved The Papers Mentioned Herein-above.
10. In Their Statements Recorded Under Section 313 Cr.P.C., The Accused-appellants Denying Their Participation In The Incident Have Stated That Chandra Pal And Todi Have Got Them Falsely Implicated In This Case.
11. The Appellants-accused Did Not Lead Any Evidence In Their Defence.
12. The Learned Trial Court Placing Reliance On The Evidence Led By The Prosecution, Convicted And Sentenced The Accused-appellants As Mentioned In Para 1 Above. Hence, This Appeal.
13. We Have Heard Sri Brijesh Sahai, Learned Counsel For The Appellants And Sri R. K. Singh, Learned A.G.A. For The State And Perused The Entire Evidence On Record Carefully.
14. To Prove The Incident, In Which The Deceased Pooran Lost His Life And The Complainant Ram Larhetey @ Taini Was Abducted And Sustained Injuries, The Prosecution Has Examined Three Witnesses. P. W. 2 Ram Larhetey Is The Injured And Victim Of Abduction. Other Two Witnesses Bansuri Baj (P.W. 3) And Ram Swarup (P.W.7) Are The Eyewitnesses Of The Incident. Giving Cogent Reasons, The Learned Trial Court Has Placed Reliance On The Testimony Of These Witnesses For Convicting The Appellants-accused As Mentioned Herein-above. After Carefully Going Through The Statements Of These Witnesses, We Come To The Conclusion That The Learned Trial Court Has Not Committed Any Illegality In Placing Reliance On Their Testimony.
15.The First Information Report Was Lodged By The Complainant Ram Larhetey (P.W. 1). He Has Fully Supported F.I.R. Version In His Statement, Which Was Recorded On 15.02.1982. He Has Stated That About 5-6 Days Prior To The Incident Of Abduction And Murder, A Theft Was Committed In The House Of His Cousin Brother Chandra Pal Singh By The Accused Ram Naresh, Suleman And Rameshwar @ Collector, Report Of Which Was Scribed By His Brother Latoori Singh, Which Caused Annoyance To The Accused Persons And They Had Threatened To See Latoori Singh And When He Told The Accused Persons That His Brother Is Not At Fault, The Accused Had Given Threatening To See Him Also. It Is Further Stated By P.W. 2 That About Six Months Ago At About 1.30 A.m. In The Night, When He Was Sleeping In His Gher And His Father Mulu Was Also Sleeping There, They Awakened Due To Flashing Of Torch Lights And Saw That The Accused Ram Naresh And Rameshwar Armed With Guns And Suleman Along With One Unknown Person Having Lathies Were Flashing Torches. The Witness Has Further Stated That The Accused Persons Inquired About Latoori Singh, On Which His Father Told That Latoori Had Gone To Aliganj. It Is Further Stated By P.W. 2 That Having Considered That These Accused Have Come To Kill His Brother Latoori Singh, He Began To Raise Noise, On Which The Accused Ram Naresh Said That, "yehi Zyada Halla Machata Hai, Ise Hi Bandh Lo..". On This, The Accused Suleman, Rameshwar And Unknown Person Caught Hold Of Him And When He Tried To Rescue Himself, The Accused Suleman And Unknown Person Assaulted Him With Lathies And Thereafter All The Accused Brought Him On The Road From The Gher. This Witness Has Further Stated That On Hearing The Noise, The Witnesses Pooran, Bansuri Baj And Than Singh Came There Having Lathies And Torches And When He Was Being Carried Forcibly By The Accused Persons Towards Southern Side Of The Village, Pooran Asked The Accused Persons Why They Are Carrying Ram Larhetey, Who Is Not At Fault. On This, The Accused Ram Naresh Saying That "yeh Sala Bauhat Hamdard Banta Hai. Is Sale Ko Goli Mar Do." Fired Shot On Pooran From Gun. After Sustaining Fire Arm Injury, Pooran Fled Away Towards Gali. It Is Also Stated By P.W. 2 That When The Accused Persons Began To Carry Him Towards Nagla Of Banjaras, He Raised Noise, On Which Chokhey, Kanhai, Pooran And Ram Swarup Having Lathies And Torches Came From Their Nagla And On Their Arrival, He Rescued Himself From The Accused Persons And Rushed To His Village And When He Reached In The Village, He Saw The Injured Pooran Lying Under Labherha Tree. It Is Further Stated By The Witness That When They Were Making Arrangement For Bullock Cart To Carry Pooran To The Police Station, He Succumbed To The Injuries Early In The Morning At The Time When The Cock Cries And Thereafter Leaving The Dead Body Of Pooran In The Village, He Along With His Father And Brother Latoori Singh Went To P.S. Patiali In The Bullock Cart Of Sadanand And Lodged Oral Report There. Very Lengthy Cross Examination Has Been Made From P.W. 2 Ram Larhetey On Behalf Of The Accused Persons, But Nothing Material Could Be Elicited From Him. Being Injured, The Presence Of This Witness At The Time Of Alleged Incident Is Not Doubtful. He Has Fully Supported F.I.R. Version And His Testimony Is Worthy Of Credence.
16. The Testimony Of P.W. 2 Ram Larhetey Has Been Corroborated By P.W. 3 Bansuri Baj In His Statement Recorded In Trial Court On 15.02.1982. This Witness Has Stated That About 5-6 Months Ago At About 1.30 A.m. In The Night, When On Hearing Hue And Cry, He And His Brother Pooran Singh As Well As Than Singh Having Lathies And Torches Reached On The Road In Front Of Gher Of Mulu, They Saw The Accused Ram Naresh, Suleman, Rameshwar @ Collector And One Unknown Person Standing In The Gher Of Mulu. At That Time Ram Naresh And Collector Were Armed With Guns And Suleman And Unknown Person Were Having Lathies And Mulu And His Son Ram Larhetey @ Taini Were Also Present There In The Gher. It Is Further Stated By This Witness That The Accused Persons Were Catching Hold Of Ram Larhetey @ Taini, Who Was Assaulted By The Accused Suleman And His Unknown Accomplice By Lathies And Thereafter, All The Four Accused Brought Him On The Road And When Pooran Said That "iska Kya Kasur Hai, Ise Kyon Pakad Rahe Ho", The Accused Ram Naresh Saying "yeh Sala Bahaut Tarafdari Karta Hai." And Thereafter He Fired Shot On Pooran By Gun P.W. 3 Has Further Stated That Sustaining Fire Arm Injury, Pooran Rushed From There And Fell Down Near The House Of Mulu Under A Tree, From Where He Was Removed And Kept By Them Under The Labherha Tree. It Is Further Stated By The Witness That All The Four Accused Persons Carried Ram Larhetey With Them, But After Some Time, He Came Back And When They Were Making Arrangement Of Bullock Cart, Pooran Succumbed To The Injuries In The Morning At The Time When The Cock Cries. From This Witness Also, Lengthy Cross-examination Has Been Made By The Counsel For Accused Persons, But Nothing Material Could Be Elicited From Him. There Is No Reason To Disbelieve The Testimony Of This Witness Also, Which Inspires Confidence.
17. Although P.W. 7, Ram Swarup Has Also Supported Prosecution Version And He Has Corroborated The Testimony Of The Witnesses Ram Larhetey And Bansuri Baj In His Statement Recorded On 16.02.1982 In Trial Court, But If Due To Non-mention Of His Name As Witness In The F.I.R. And His Delayed Interrogation Under Section 161 Cr.P.C. By The Investigating Officer, His Testimony Is Ignored, Even Then The Case Of The Prosecution Is Fully Proved Beyond Reasonable Doubt On The Basis Of The Evidence Of P.W. 2 And P.W. 3, Whose Testimony Is Wholly Reliable, On The Basis Of Which It Is Fully Proved That On The Alleged Date, Time And Place, Murder Of The Deceased Pooran Was Committed By Causing Fire Arm Injuries To Him By The Appellant-accused Ram Naresh And All The Four Accused Had Abducted Ram Larhetey @ Taini And Injuries Were Also Caused To Him By Giving Lathi Blows By The Accused Suleman And Their Unknown Companion.
18.The Oral Evidence Led By The Prosecution Finds Corroboration From The Medical Evidence. We Have Already Mentioned The Injuries, Which Were Found On The Person Of Ram Larhetey @ Taini At The Time Of His Medical Examination On 10.08.1981 At 8.30 P.m. By Dr. Lajja Ram (P.W. 6), Who Has Stated In His Statement That The Injuries Of Ram Larhetey Are Possible To Be Caused By Means Of Lathi In The Intervening Night Of 9/10-8-1981 At About 1.30 A.m. Fire Arm Injuries Were Found On The Person Of Deceased Pooran At The Time Of Post-mortem Examination, Which Was Conducted By Dr. O. P. Vaidya (P.W. 1) On 11.08.1981 At 2.00 P.m. Dr. Vaidya Has Opined That Death Of The Deceased Was Possible To Be Caused At About 4-5 A.m. On 10.08.1981 And All The Three Ante-mortem Injuries Are Possible To Be Caused By One Fire Of Gun. Although This Witness Has Stated That Ante Mortem Injuries May Be Caused By Two Fires Also, But On This Ground, It Cannot Be Said That The Injuries Were Not Possible To Be Caused By One Fire, Because Dr. Vaidya Has Specifically Stated That In His Opinion There Is More Probability Of Causing These Injuries By One Fire, Although Possibility Of Causing These Injuries By More Than One Fire Also Cannot Be Ruled Out. As Such, There Is No Material Inconsistency In The Medical And Oral Evidence Of The Eyewitnesses And Medical Evidence Also Is Supporting Prosecution Version.
19.The Testimony Of P.W. 3, Bansuri Baj Has Been Assailed By The Learned Counsel For The Appellants On The Ground That His Testimony Could Not Be Relied Upon To Convict The Appellants, Because He Is The Real Brother Of Deceased Pooran. It Was Also Submitted By The Learned Counsel That In The Absence Of The Evidence Of Any Independent Witness, It Is Not Safe To Place Reliance On The Testimony Of P.W. 2 And P.W. 3 The Contention Of The Learned Counsel Was That Some Independent Witnesses Also Had Arrived At The Place Of Incident On Hearing Hue And Cry As Per F.I.R. Version, But Those Witnesses Have Been Withheld By The Prosecution And Hence, Conviction Of The Appellants Merely On The Basis Of Interested Witnesses Is Bad In Law. For This Contention, Learned Counsel For The Appellants Has Placed Reliance On The Case Of Naresh And Others Vs. State Of U.P. 2005 (51) ACC 356. We Are Not Impressed With This Contention.
20.We Have Already Held That The Testimony Of The Witnesses Examined By The Prosecution In Support Of Its Case Is Worthy Of Reliance And On The Basis Of Cogent, Consistent And Direct Testimony Of The Complainant Ram Larhetey @ Taini And P.W. 3 Bansuri Baj, It Is Fully Proved Beyond Reasonable Doubt That On The Alleged Date, Time And Place, Murder Of The Deceased Pooran Was Committed By Causing Injuries To Him By Firing Shot From Gun By The Accused-appellant Ram Naresh And The Complainant Ram Larhetey Was Abducted By All The Accused-appellants And Injuries Were Also Caused To Him By The Appellant-accused Suleman And Unknown Person, Who Were Having Lathies. Therefore, The Testimony Of The Witness Bansuri Baj Cannot Be Discarded On The Ground That He Is Real Brother Of The Deceased. The Law Is Well Settled That If The Testimony Of Any Witness Is Found Worthy Of Credence, Then His Testimony Cannot Be Brushed Aside On The Ground That He Is Related To The Deceased Or Victim.
21. In The Case Of Dalip Singh And Others Vs. State Of Punjab (AIR 1953 SC 364), It Has Been Laid Down As Under By The Hon'ble Apex Court:-
"A Witness Is Normally To Be Considered Independent Unless He Or She Springs From Sources Which Are Likely To Be Tainted And That Usually Means Unless The Witness Has Cause, Such As Enmity Against The Accused, To Wish To Implicate Him Falsely. Ordinarily A Close Relation Would Be The Last To Screen The Real Culprit And Falsely Implicate An Innocent Person. It Is True, When Feelings Run High And There Is Personal Cause For Enmity, That There Is Tendency To Drag In An Innocent Person Against Whom A Witness Has A Grudge Along With The Guilty, But Foundation Must Be Laid For Such A Criticism And The Mere Fact Of Relationship Far From Being A Foundation Is Often A Sure Guarantee Of Truth. However, We Are Not Attempting Any Sweeping Generalization. Each Case Must Be Judged On Its Own Facts.

22. Again In Masalti And Others V. State Of U.P., AIR 1965 SC 202, The Hon'ble Apex Court Observed As Under:-
"But It Would, We Think, Be Unreasonable To Contend That Evidence Given By Witnesses Should Be Discarded Only On The Ground That It Is Evidence Of Partisan Or Interested Witnesses............. The Mechanical Rejection Of Such Evidence On The Sole Ground That It Is Partisan Would Invariably Lead To Failure Of Justice. No Hard And Fast Rule Can Be Laid Down As To How Much Evidence Should Be Appreciated. Judicial Approach Has To Be Cautious In Dealing With Such Evidence; But The Plea That Such Evidence Should Be Rejected Because It Is Partisan Cannot Be Accepted As Correct."

23. The Above Decision Has Been Followed In Guli Chand And Others V. State Of Rajasthan 1974(3) SCC 698, In Which Vadivelu Thevar V. State Of Madras AIR 1957 SC 614 Was Also Relied Upon.
24. The Following Observations Made By The Hon'ble Apex Court In Israr Vs. State Of U.P. (2005 (51) ACC 113) In Para 12 Of The Judgement Are Also Worth Mentioning:-
".........Relationship Is Not A Factor To Affect Credibility Of A Witness. It Is More Often Than Not That A Relation Would Not Conceal The Actual Culprit And Make Allegations Against An Innocent Person. Foundation Has To Be Laid If Plea Of False Implication Is Made. In Such Cases, The Court Has To Adopt A Careful Approach And Analyse Evidence To Find Out Whether It Is Cogent And Credible."

25. The Above Position Has Been Highlighted Again In Galivenkataiah Vs. State Of A.P. 2008 (60) ACC 370, In Which Reference Has Been Made To Some Other Cases Also.
26. In Our Considered View, The Testimony Of The Witnesses Ram Larhetey @ Taini And Bansuri Baj Can Also Not Be Discarded Due To Non-examination Of Any Independent Witness, As Generally The People Avoid To Appear As Witness Even If They Have Witnessed The Incident. The Hon'ble Apex Court In The Case Of Appa Bhai And Another Vs. State Of Gujarat (AIR 1988 SC 696), In Para 11 Of The Judgement Has Observed As Under:-
"..................Experience Reminds Us That Civilized People Are Generally Insensitive When A Crime Is Committed Even In Their Presence. They Withdraw Both From The Victim And The Vigilante. They Keep Themselves Away From The Court Unless It Is Inevitable. They Think That Crime Like Civil Dispute Is Between Two Individuals Or Parties And They Should Not Involve Themselves. This Kind Of Apathy Of The General Public Is Indeed Unfortunate, But It Is There Everywhere Whether In Village Life, Towns Or Cities. One Cannot Ignore This Handicap With Which The Investigating Agency Has To Discharge Its Duties. The Court, Therefore, Instead Of Doubting The Prosecution Case For Want Of Independent Witness Must Consider The Broad Spectrum Of The Nugget Of Truth With Due Regard To Probability, If Any, Suggested By The Accused."

27. In The Case Of Krishna Mochi Vs. State Of Bihar (2002 SCC (Cri) 1220), The Hon'ble Apex Court In Para 31 Of The Judgement Has Made The Following Observations:-
"It Is A Matter Of Common Experience That In Recent Times There Has Been A Sharp Decline Of Ethical Values In Public Life Even In Developed Countries Much Less A Developing One, Like Ours, Where The Ratio Of Decline Is Higher. Even In Ordinary Cases, Witnesses Are Not Inclined To Depose Or Their Evidence Is Not Found To Be Credible By Courts For Manifold Reasons. One Of The Reasons May Be That They Do No Have Courage To Depose Against An Accused Because Of Threats To Their Life, More So When The Offenders Are Habitual Criminals Or High-ups In The Government Or Close To Powers, Which May Be Political, Economic Or Other Powers Including Muscle Power."

28. Regarding The Testimony Of P.W. 2 Ram Larhetey @ Taini, It Was Submitted By Learned Counsel For The Appellants That Although Being The Injured Witness, His Presence At The Place Of Incident Is Not Doubtful, But Injuries On His Person Is No Guarantee That He Is Delivering The Truth. For This Submission, Reliance Has Been Placed On The Case Of Balak Ram Vs. State Of U.P. 1979 SCC Cri 837. There Is No Dispute Regarding The Observations Made By The Hon'ble Apex Court In The Case Of Balakram Vs. State Of U.P. (Supra), But As We Have Stated Above, The Testimony Of The Witness Ram Larhetey Is Wholly Reliable, Which Inspires Confidence And There Is No Such Infirmity In His Testimony, Due To Which He Can Be Said To Be Unreliable Witness. There Is No Material Contradiction In The Statements Of The Witnesses Examined By The Prosecution Regarding The Incident In Which Murder Of Pooran Was Committed And After Abduction Of Ram Larhetey, Injuries Were Caused To Him. The Complicity Of The Appellants-accused In The Said Incident Has Been Fully Established Beyond Reasonable Doubt On The Basis Of Oral Evidence Of Witnesses Examined By The Prosecution, Which Finds Corroboration From Medical Evidence. Therefore, The Observations Made By The Hon'ble Apex Court In The Case Of Balakram Vs. State Of U.P. (supra) Are Not Helpful In Instant Case To The Appellants-accused.
29. Much Emphasis Was Laid By The Learned Counsel For The Appellants That F.I.R. Of This Case Is Ante-timed And Was Prepared After Inquest Proceedings. It Was Contended In This Regard By The Learned Counsel That Name Of The Witnesses And Accused As Well As The Weapon Carried By Them Are Not Mentioned In The Inquest Report, Which Shows That F.I.R. Was Not In Existence, When Inquest Report Was Prepared. It Was Further Submitted In This Regard That Name Of The Person, Who Gave The Information Of The Incident At The Police Station, Has Not Been Mentioned In The Concerned Column Of Inquest Report And This Fact Also Shows That At The Time Of Holding The Inquest Proceedings, It Was Not Certain As To Which Person Would Lodge The F.I.R. And For This Reason, Name Of The Person, Who Gave Information Of The Incident At Police Station, Is Not Mentioned On The First Page Of The Inquest Report Ext. Ka-8 In Column Concerned. It Was Also Submitted That In The Challan Lash Ext. Ka-10, The Time Of The Death Of Deceased Is Not Mentioned In The Concerned Column And This Also Shows That F.I.R. Was Prepared After The Inquest Proceedings And It Was For This Reason That Time Of Death Is Not Mentioned In The Challan Lash Ext. Ka-10 In The Concerned Column. Next Submission Made By The Learned Counsel In This Regard Was That Copies Of The Chik F.I.R. And G.D. Of Registration Of Case Were Not Sent With The Inquest Report, As These Papers Are Not Included In The List Of Enclosures Given At The End Of The Inquest Report. The Contention Of The Learned Counsel Was That Had The F.I.R. Been Lodged Prior To The Inquest Proceedings, Then The Copies Of The Chik F.I.R. And G.D. Of Registration Of Case Would Have Been Annexed With The Inquest Report And Since These Papers Are Not Included In The List Of Enclosures Given At The End Of The Inquest Report, The Only Inference That Can Be Drawn Is That F.I.R. Was Not In Existence At The Time Of Preparing The Inquest Report. In Support Of These Contentions, The Learned Counsel For The Appellants Has Drawn Our Attention Towards The Case Of L/N.K. Meharaj Singh Vs. State Of U.P. 1994 (31) ACC 437.
30. The Learned A.G.A. On The Other Hand Placing Reliance On The Case Of Radha Mohan Singh @ Lal Saheb And Others Vs. State Of U.P. J.T. 2006(1) SC 482 Submitted That It Is Not The Requirement Of Law To Mention The Names Of The Witnesses And Accused In The Inquest Report. It Was Also Submitted By Learned A.G.A. That Details Of The Weapons Or Manner Of Assault Is Also Not Required To Be Mentioned In The Inquest Report And Non-mentioning Of These Facts In The Inquest Report Would Not Be Fatal To The Prosecution. Regarding Non-mentioning Of The Time Of Death In The Challan Lash And Omission To Mention The Name Of The Person, Who Had Given Information About The Incident At The Police Station In The Concerned Column Of The Inquest Report, It Was Submitted By Learned A.G.A That Due To These Lapses On The Part Of The Investigating Officer, The Prosecution Case Cannot Be Brushed Aside And On This Basis, It Cannot Be Inferred That F.I.R. Was Prepared After Holding The Inquest Proceedings. Regarding The Omission To Include The F.I.R. And G.D. Of Registration Of The Case In The List Of Enclosures At The End Of Inquest Report, It Was Submitted By Learned A.G.A. That This Also Is The Lapse On The Part Of Investigating Officer, Because From The Statement Of P.W. 4 Hari Har Singh, It Is Fully Established That After Preparing The F.I.R. And G.D. Of Registration Of The Case, He Had Given Copies Of The G.D. And Chik F.I.R. To The Investigating Officer At The Police Station Itself, And If The Investigating Officer Did Not Annexe These Papers With Inquest Report And Also Failed To Include Them In The List Of Enclosures At The End Of Inquest Report, Then On This Ground, The Prosecution Case Cannot Be Brushed Aside. On The Point Of Latches Of Investigating Officer, The Learned A.G.A. Has Placed Reliance On The Cases Of Gopal And Others Vs. State Of U.P. 1999 (1) JIC 858 And Rambali Vs. State Of U.P. AIR 2004 SC 2329.
31. Having Taken Into Consideration The Aforesaid Submissions Made By The Learned Counsel For The Parties, We Find Force In The Submission Of The Learned A.G.A. That Due To Any Lapse Or Latches On The Part Of The Investigating Officer, The Case Of The Prosecution Cannot Be Brushed Aside. The Observations Made By The Two Judge Bench Of The Apex Court In The Case Of L/N.K. Meharaj Singh Vs. State Of U.P. (supra), Regarding Mentioning The Name Of Witnesses And Accused As Well As The Weapons In The Inquest Report, Are No More Binding Precedent And Hence Not Helpful To The Accused-appellants, As These Observations Have Been Specifically Over-ruled By Three Judge Bench Of The Hon'ble Apex Court In The Case Of Radha Mohan Singh Vs. State Of U.P. (supra) Vide Para 13 At Page 439 Of The Report.
32.It Is Settled Law Now That Mentioning Of The Name Of Accused Persons Or Weapons Carried By Them And Names Of The Eyewitnesses In The Inquest Report Is Not The Requirement Of Law. Inquest Report Is Confined To The Ascertainment Of The Apparent Cause Of Death And It Need Not Mention, Who Assaulted The Deceased And Who Were The Witnesses Of The Assault.
33. The Provision For Holding Of Inquest Is Contained In Section 174 Cr.P.C. And The Heading Of Section Is, 'Police To Enquire And Report On Suicide Etc.' Sub-Sections (1) And (2) Thereof Read As Under:-
174. Police To Enquire And Report On Suicide, Etc. (1) When The Officer In Charge Of A Police Station Or Some Other Police Officer Specially Empowered By The State Government In That Behalf Receives Information That A Person Has Committed Suicide, Or Has Been Killed By Another Or By An Animal Or By Machinery Or By An Accident, Or Has Died Under Circumstances Raising A Reasonable Suspicion That Some Other Person Has Committed An Offence, He Shall Immediately Give Intimation Thereof To The Nearest Executive Magistrate Empowered To Hold Inquests, And, Unless Otherwise Directed By Any Rule Prescribed By The State Government, Or By Any General Or Special Order Of The District Or Sub-divisional Magistrate, Shall Proceed To The Place Where The Body Of Such Deceased Person Is, And There In The Presence Of Two Or More Respectable Inhabitants Of The Neighbourhood, Shall Make An Investigation, And Draw Up A Report Of The Apparent Cause Of Death, Describing Such Wounds, Fractures, Bruises, And Other Marks Of Injury As May Be Found On The Body, And Stating In What Manner, Or By What Weapon Or Instrument (if Any), Such Marks Appear To Have Been Inflicted.
(2) The Report Shall Be Signed By Such Police Officer And Other Persons, Or By So Many Of Them As Concur Therein, And Shall Be Forthwith Forwarded To The District Magistrate Or The Sub-divisional Magistrate.

The Language Of The Aforesaid Statutory Provision Is Plain And Simple And There Is No Ambiguity Therein. An Investigation Under Section 174 Cr.P.C. Is Limited In Scope And Is Confined To The Ascertainment Of The Apparent Cause Of Death. It Is Concerned With Discovering Whether In A Given Case The Death Was Accidental, Suicidal And Homicidal Or Caused By Animal. It Is For This Limited Purpose That Persons Acquainted With The Facts Of The Case Are Summoned And Examined Under Section 175 Cr.P.C. The Details Of The Overt Acts Are Not Necessary To Be Recorded In The Inquest Report. The Question Regarding The Details As To How The Deceased Was Assaulted Or Who Assaulted Him Or Under What Circumstances He Was Assaulted Or Who Are The Witnesses Of The Assault Is Foreign To The Ambit And Scope Of Proceedings Under Section 174 Cr.P.C. Neither In Practice Nor In Law It Is Necessary For The Person Holding The Inquest To Mention All These Details.
34. In Podda Narayana V. State Of A.P. AIR 1975 SC 1252, It Was Held That The Proceedings Under Section 174 Cr.P.C. Have A Very Limited Scope. The Object Of The Proceedings Is Merely To Ascertain Whether A Person Has Died Under Suspicious Circumstances Or An Unnatural Death And If So What Is The Apparent Cause Of The Death. The Question Regarding The Details As To How The Deceased Was Assaulted Or Who Assaulted Him Or Under What Circumstances He Was Assaulted Is Foreign To The Ambit And Scope Of The Proceedings Under Section 174. Neither In Practice Nor In Law Was It Necessary For The Police To Mention Those Details In The Inquest Report. It Is, Therefore, Not Necessary To Enter All The Details Of The Overt Acts In The Inquest Report. Their Omission Is Not Sufficient To Put The Prosecution Out Of Court.
35. In Shakila Khader V. Nausher Gama AIR 1975 SC 1324, The Contention Raised That Non-mention Of A Person's Name In The Inquest Report Would Show That He Was Not A Eye-witness Of The Incident Was Repelled On The Ground That An Inquest Under Section 174 Cr.P.C. Is Concerned With Establishing The Cause Of Death And Only Evidence Necessary To Establish It Need Be Brought Out. The Same View Was Taken In Eqbal Baig V. State Of Andhra Pradesh AIR 1987 SC 923 That The Non-mention Of Name Of An Eye-witness In The Inquest Report Could Not Be A Ground To Reject His Testimony. Similarly, The Absence Of The Name Of The Accused In The Inquest Report Cannot Lead To An Inference That He Was Not Present At The Time Of Commission Of The Offence, As The Inquest Report Is Not The Statement Of A Person Wherein All The Names (accused And Also The Eye-witnesses) Ought To Have Been Mentioned.
36. The View Taken In Podda Narayana V. State Of A.P. (supra) Was Approved By A Three-judge Bench In Khujji @ Surendra Tiwari V. State Of Madhya Pradesh AIR 1991 SC 1853 And It Was Held That The Testimony Of Eye-witnesses Could Not Be Discarded On The Ground That Their Names Did Not Figure In The Inquest Report Prepared At The Earliest Point Of Time. The Nature And Purpose Of Inquest Held Under Section 174 Cr.P.C. Was Also Explained In The Case Of Amar Singh V. Balwinder Singh JT 2003(2) SC 1; 2003 (2) S.C.C. 518.

37. Thus It Is Well Settled By A Catena Of Decisions Of The Hon'ble Apex Court That The Purpose Of Holding An Inquest Is Very Limited, Viz., To Ascertain As To Whether A Person Has Committed Suicide Or Has Been Killed By Another Or By An Animal Or By Machinery Or By An Accident Or Has Died Under Circumstances Raising A Reasonable Suspicion That Some Other Person Has Committed An Offence. There Is Absolutely No Requirement In Law Of Mentioning The Details Of The FIR, Names Of The Accused Or The Names Of The Eye-witnesses Or The Gist Of Their Statement Nor It Is Required To Be Signed By Any Eyewitnesses.
38. Therefore, In View Of The Law Laid Down By The Hon'ble Apex Court In The Cases Mentioned Herein-above, Due To Non-mentioning The Names Of Witnesses And The Accused Persons As Well As The Weapons Carried By Them In The Inquest Report Ext. Ka-8, It Cannot Be Inferred That F.I.R. Was Not In Existence At The Time Of Holding The Inquest Proceedings.
39. As Regards The Omission To Mention The Time Of Death In Challan Lash And Name Of The Person, Who Had Given Information About The Incident At The Police Station In The Concerned Column Of Inquest Report And To Include The F.I.R. And G.D. Of Registration Of The Case In The List Of Enclosures Given At The End Of Inquest Report, These Are The Latches On The Part Of Investigating Officer, Due To Which The Case Of The Prosecution Cannot Be Brushed Aside. As Mentioned Earlier Also, It Has Come In The Testimony Of Head Constable Hari Har Singh (P.W. 4) That He Had Given The Copies Of The F.I.R. And G.D. Of The Registration Of The Case To The Investigating Officer At The Police Station Itself. Therefore, If Due To Negligence Or With The Intention To Help The Accused Persons, The Investigating Officer S.I. R. P. Mishra (P.W. 8) Did Not Send The Copies Of F.I.R. And G.D. Of Registration Of The Case With The Inquest Report, Then Benefit Thereof Cannot Be Extended To The Appellants. The Full Bench Of This Court In The Case Of Gopal Vs. State Of U.P. (supra) Held That Investigation Of The Case, If Faulty, Even Mischievous Or Collusive Should Not Be A Ground To Reject The Ocular Testimony Of The Witnesses. The Following Observations Of Para 12 Of The Judgement At Page 861 Are Worth Mentioning:-
"At The Very Outset, We Want To Say That It Is Very Easy To Find Fault With Anything. Even Accurate Computers Are Prone To Commit Faults And Mistakes. Not Only This, Human Mind Cannot Be Read. Sometimes It Works In The Direction That It Becomes Adamant To Help One Party And Tries Its Level Best To Spoil The Case. It Is Well Known, At Least By The Police Officers, Who Investigate The Case, Also Know That They Should Take Prompt Action And Should Immediately Record The Statement Of The Witnesses. They Should Not Make Cuttings And Over Writings Etc. In The Police Papers So As To Create Suspicion About The Sanctity Of The Papers. They Should Fairly Prepare The Inquest Report And Police Papers And Should Write The Case Diary With Accuracy And Correctly. These Preposition Of Law And Facts Cannot Be Doubted. But If The Police Officers Deliberately Sleep Over The Matter, Try To Spoil The Case And Do Not Record The Evidence Of The Witnesses Immediately, The Poor Dead Persons Who Have Been Killed Cannot Come Out To Say Why You Are Spoiling The Case. The Bereaved Family And The Witnesses Have Only To Remain Silent Spectators To What The Police Officers Do. If They Intervene, A Judicial Notice Of The Fact Can Be Taken That They Are Humiliated, Even Beaten And Implicated In False Cases. Fear Of Police Atrocities Keeps Them Mum."


40. In The Case Of Ram Bali Vs. State Of U.P. (supra), The Hon'ble Supreme Court Has Observed In Para 14 Of The Report At Page 2333 That If Primacy Is Given To Such Designed Or Negligent Investigation To The Omission Of Lapses By Perfunctory Investigation Or Omissions, The Faith And Confidence Of The People Would Be Shaken Not Only In The Law Enforcing Agency But Also In The Administration Of Justice. It Is Further Held That When The Direct Testimony Of The Eyewitnesses Corroborated By The Medical Evidence Fully Establishes The Prosecution Version, Failure Or Omission Or Negligence On The Part Of The IO Cannot Affect Credibility Of The Prosecution Version.

41. Therefore, We Are Unable To Accept The Contention Of Learned Counsel For The Appellants That F.I.R. Is Ante Timed And Was Prepared After Holding The Inquest Proceedings.

42. Regarding Ante-timing Of The F.I.R., It Was Further Contended By The Learned Counsel For The Appellants That The Constables Carrying The Dead Body For Post-mortem Examination Reached At The Head- Quarter On 11.08.1981 At 12.00 Noon, Which Shows That Delay In Carrying The Dead Body To Head-quarter Occurred Due To Non Lodging Of The F.I.R. Till The Morning Of 11.08.1981. We Are Not At All Impressed With This Argument. The Dead Body Was Carried By P.W. 5 Mahesh Chandra And Constable Suraj Pal. In His Statement Recorded In Trial Court On 15.02.1982, P.W. 5, Mahesh Chandra Has Explained The Reason Due To Which The Dead Body Reached On 11.08.1981 At The Head-quarter. During Cross-examination, The Witness Has Stated That They Had Carried The Dead Body By Cart Driven By Ox From Village Naglakothi Upto Aliganj, Where They Reached At About 5.30 P.m., But Since No Conveyance Was Available From Aliganj To Etah, Hence They Had To Stay There In Aliganj And In The Next Morning They Started From Aliganj To Etah, Where They Reached At About 10.00 A.m. And Got The Entry Made In The Police Line. The Trial Court Has Believed The Evidence Led By The Prosecution On This Point. There Is No Reason To Differ From The Findings Recorded By The Trial Court. Therefore, Having Regard To The Evidence Led By The Prosecution, On The Basis Of The Delay In Reaching The Dead Body At Etah Head-quarter, It Cannot Be Inferred That F.I.R. Was Prepared After Holding The Inquest Proceedings.

43. Regarding The F.I.R., It Was Further Submitted By The Learned Counsel For The Appellants That F.I.R. Was Lodged With Delay, Which Is Fatal To The Prosecution. It Was Also Submitted In This Regard That The F.I.R. Was Lodged After 1.30 P.m. On 10.08.1981, Because According To The Statement Of P.W. 2, Ram Larhetey (complainant), He Had Reached At P.S. Patiali On That Day At 1.30 P.m. And Hence, F.I.R. Could Not Be Lodged At 10.00 A.m. As Shown In The Chik F.I.R. For This Submission, Our Attention Was Drawn Towards Para 13 Of The Statement Of Complainant Ram Larhetey (P.W. 2), In Which He Has Stated That They Had Reached At P.S. Patiali At 1.30 P.m. It Is True That P.W. 2 Has Stated In Para 13 Of His Statement During Cross-examination That They Had Gone To P.S. Patiali By Bullock Cart And They Reached There At 1.30 P.m., But No Importance Can Be Given To The Time Stated By The Witness In Para 13 Of His Statement, Because The Witness Is Totally Illiterate As Is Evident From The First Sentence Of His Statement Made In Para 13. From The Statement Of This Witness Made In Para 12, It Is Revealed That He Has No Sense Of Figures. In Para 12 Of His Statement P.W. 2 Ram Larhetey Has Stated That In The Morning At 7.00 A.m. Sadanand Had Gone To Inform Latoori At Aliganj. It Is Further Stated By The Witness That Sadanand Came Back At 6.00 A.m. With Latoori From Aliganj. This Shows That The Witness Has No Knowledge Of Figures, Because If A Person Would Go At 7.00 A.m. From Village Naglakothi To Inform Latoori Singh At Aliganj, Then How He Could Come Back At 6.00 A.m. This Matter Has Also Been Considered By The Learned Trial Judge In The Impugned Judgement And We Find No Reason To Differ With The Findings Recorded By Him. The Inquest Report (Ext. Ka-8) Shows That Inquest Proceedings Were Started At 12.05 P.m. It Has Come In The Statement Of Investigating Officer S.I. R. P. Mishra That Before Departing From P.S. Patiali To The Place Of Incident, He Had Started The Investigation At The Police Station Itself And After Recording The Statements Of Ram Larhetey @ Taini, Latoori Singh And Mulu Singh And Sending The Injured Ram Larhetey For Medical Examination To P.H.C., Aliganj, He Proceeded To The Place Of Incident And After Reaching There, Conducted Inquest Proceedings. P.W. 4, Head Constable Hari Har Singh Also Has Stated That He Had Registered The Case On 10.08.1981 At 10.00 A.m. And Handed Over The Copies Of The Chik F.I.R. And G.D. Of Registration Of The Case To The Investigating Officer. Therefore, Keeping In View The Testimony Of Head Constable Hari Har Singh And Investigating Officer S.I. R. P. Mishra, There Remains No Room For Doubt That The F.I.R. Was Lodged On 10.08.1981 At 10.00 A.m. And Just Thereafter Investigation Was Started. The Incident Had Occurred After Mid-night In The Dacoity Affected Area Of District Etah. No Person Could Dare To Move In The Night In That Area. As Is Evident From The Statement Of The Complainant Ram Larhetey (P.W. 2), Latoori Singh Was Called From Aliganj And When He Came To Naglakothi, Then They Proceeded To P.S. Patiali By Bullock Cart Of Sadanand To Lodge The F.I.R. Therefore, No Delay Was Caused In Lodging The F.I.R.
44. Next Submission Made By The Learned Counsel For The Appellants Was That The Motive As Alleged In The F.I.R. Is Not Proved And Hence, On This Ground The Case Of The Prosecution Becomes Doubtful. For This Submission, The Learned Counsel Has Placed Reliance On The Case Of State Of U.P. Vs. Hari Prasad And Others AIR 1974 Supreme Court 1740. Having Gone Through The Record Carefully, We Find No Force In The Aforesaid Submission, The Motive Alleged In The F.I.R. Is That About 5-6 Days Prior To The Incident Of Abduction And Murder, A Theft Was Committed By The Accused Rameshwar, Ram Naresh And Suleman In The House Of Chandra Pal And Written Report Of That Incident Was Scribed By Latoori Singh, Brother Of The Complainant, Due To Which The Accused Persons Felt Annoyed With Him And One Day Before The Incident, They Had Declared That They Would See Latoori. It Is Also Alleged In The F.I.R. That When The Complainant Had Said That His Brother Is Not At Fault, The Accused Persons Had Threatened Him Also. Both These Facts Have Been Duly Proved By P.W. 2 Ram Larhetey In His Statement. From The Statement Of P.W. 4 Hari Har Singh, Who Is The Scribe Of Chik F.I.R. Of Case Crime No. 126/81 Under Section 380 I.P.C., Which Pertains To The Incident Of Theft Committed In The House Of Chandra Pal Singh, It Is Revealed That Written Report Of That Case Was Scribed By Latoori Singh. Therefore, It Cannot Be Said In This Case That Motive As Alleged In The F.I.R. Is Not Proved. Moreover, It Is A Case Of Direct Evidence. It Is Well Settled Principle Of Law That Where There Is Direct Reliable Evidence To Prove The Crime, The Matter Of Motive Looses Significance. In The Case Of Thaman Kumar Vs. State Of Union Territory Of Chandigarh, Reported In (2003) 6 SCC 380: (AIR 2003 Sc 3975), The Apex Court Has Observed As Under:-
"There Is No Such Principle Or Rule Of Law That Where The Prosecution Fails To Prove The Motive For Commission Of The Crime, It Must Necessary Result In Acquittal Of The Accused. Where The Ocular Evidence Is Found To Be Trustworthy And Reliable And Finds Corroboration From The Medical Evidence, A Finding Of Guilt Can Safely Be Recorded Even If The Motive For The Commission Of The Crime Has Not Been Proved."

45. In The Case Of State Of H.P. Vs. Jeet Singh Reported In (1999) 4 SCC 370 : (AIR 1999 SC 1293), The Apex Court Has Made The Following Observations:-
"No Doubt It Is A Sound Principle To Remember That Every Criminal Act Was Done With A Motive But Its Corollary Is Not That No Criminal Offence Would Have Been Committed If The Prosecution Has Failed To Prove The Precise Motive Of The Accused To Commit It. When The Prosecution Succeeded In Showing The Possibility Of Some Ire For The Accused Towards The Victim, The Inability To Further Put On Record The Manner In Which Such Ire Would Have Swelled Up In The Mind Of The Offender To Such A Degree As To Impel Him To Commit The Offence Cannot Be Construed As A Fatal Weakness Of The Prosecution. It Is Almost An Impossibility For The Prosecution To Unravel The Full Dimension Of The Mental Disposition Of An Offender Towards The Person Whom He Offended."


46. The Following Observations Regarding Motive Made By The Hon'ble Apex Court In The Case Of Nathuni Yadav And Others V. State Of Bihar And Another 1997 (34) ACC 576 Are Worth Mentioning:-
"Motive For Doing A Criminal Act Is Generally A Difficult Area For Prosecution. One Cannot Normally See Into The Mind Of Another. Motive Is The Emotion Which Impells A Man To Do A Particular Act. Such Impelling Cause Need Not Necessarily Be Proportionally Grave To Do Grave Crimes. Many A Murders Have Been Committed Without Any Known Or Prominent Motive. It Is Quite Possible That The Aforesaid Impelling Factor Would Remain Undiscoverable. Lord Chief Justice Chambell Struck A Note Of Caution In 'Reg V. Palmer' Thus: "but If There Be Any Motive Which Can Be Assigned I Am Bound To Tell You That The Adequacy Of That Motive Is Of Little Importance. We Know, From Experience Of Criminal Courts That Atrocious Crimes Of This Sort Have Been Committed From Very Slight Motives; Not Merely From Malice And Revenge, But To Gain A Small Pecuniary Advantage, And To Drive Off For A Time Pressing Difficulties."

47. In The Case Of Molu And Others V. State Of Haryana, AIR 1976 SC 2499, The Hon'ble Apex Court Has Held As Under In Para 11 Of The Report At Page 2505:-
"It Is Well Settled That Where The Direct Evidence Regarding The Assault Is Worthy Of Credence And Can Be Believed, The Question Of Motive Becomes More Or Less Academic. Sometimes The Motive Is Clear And Can Be Proved And Sometimes, However, The Motive Is Shrouded In Mystery And It Is Very Difficult To Locate The Same. If, However, The Evidence Of The Eye-witnesses Is Credit-worthy And Is Believed By The Court Which Has Placed Implicit Reliance On Them, The Question Whether There Is Any Motive Or Not Becomes Wholly Irrelevant."

48. Regarding Motive For Commission Of Crime, The Apex Court Has Observed As Under In The Case Of Suresh Chandra Bahri V. State Of Bihar AIR 1994 SC 2420 In Para 21 Of The Report At Page 2429:-
"Sometimes Motive Plays An Important Role And Becomes A Compelling Force To Commit A Crime And Therefore Motive Behind The Crime Is A Relevant Factor For Which Evidence May Be Adduced. A Motive Is Something Which Prompts A Person To Form An Opinion Or Intention To Do Certain Illegal Act Or Even A Legal Act But With Illegal Means With A View To Achieve That Intention. In A Case Where There Is Clear Proof Of Motive For The Commission Of The Crime It Affords Added Support To The Finding Of The Court That The Accused Was Guilty For The Offence Charged With. But It Has To Be Remembered That The Absence Of Proof Of Motive Does Not Render The Evidence Bearing On The Guilt Of The Accused Nonetheless Untrustworthy Or Unreliable Because Most Often It Is Only The Perpetrator Of The Crime Alone Who Knows As To What Circumstances Prompted Him To A Certain Course Of Action Leading To The Commission Of The Crime."


49. It Was Further Submitted By The Learned Counsel For The Appellants That The Accused Persons Were Previously Known To The Complainant And Other Witnesses, But Even Then They Were Not Concealing Their Faces At The Time Of Alleged Incident, Which Makes The Case Of The Prosecution Doubtful. The Contention Of The Learned Counsel Was That Known Persons Would Not Come To Commit Such Crime In The Night Without Concealing Their Identity. We Are Not Impressed With This Submission Also. Heinous Offences Are Committed In The Day And Night By The Known Persons Without Covering Their Faces. The Accused Persons Had Not Come To Commit Dacoity Or Robbery, But After Making Declaration To See Latoori Singh, They Had Come In Search Of Him On The Alleged Date And Time And When He Was Not Found In The Gher, The Aforesaid Offences Were Committed By Them. Therefore, The Case Of The Prosecution Is Not Rendered Doubtful Merely Because The Accused Persons Were Not Concealing Their Faces At The Time Of Incident.
50. It Was Also Submitted By The Learned Counsel For The Appellants That Statement Of The Witness Ram Swarup Was Recorded With Great Delay By The Investigating Officer And Hence, His Testimony Does Not Carry Any Weight. We Have Already Stated Above That If The Statement Of P.W. 7 Ram Swarup Is Ignored, Even Then The Complicity Of The Accused-appellants In The Aforesaid Incident Is Fully Established On The Basis Of The Statements Of P.W. 2 Ram Larhetey And P.W. 3 Bansuri Baj.
51. Regarding The Conviction Of The Appellants For The Offence Punishable Under Section 364 I.P.C., It Was Contended By Their Counsel That The Offence Under Section 364 I.P.C. Will Not Be Made Out In This Case, As There Is Nothing On Record To Show That Intention Of The Appellants In Carrying The Complainant Ram Larhetey With Them Was To Commit His Murder. We Find No Force In This Contention. It Is Very Difficult To Read The Mind Of Culprits And Prosecution Can Not Lead Evidence In All Cases To Show The Intention And Motive Of The Accused In Committing The Crime. From The Statements Of P.W. 2 Ram Larhetey And P.W. 3 Bansuri Baj, This Fact Is Established Beyond Reasonable Doubt That The Accused Persons Were Carrying Ram Larhetey With Them, But When Some Persons From Banjara Locality Came On Hearing Hue And Cry, He Got Himself Rescued From The Accused-appellants And Came To His Village. The Accused Persons Certainly Were Not Carrying The Complainant With Them To Give Any Reward To Him. The Intention Of The Appellants-accused In Committing The Abduction Of The Complainant Might Be Either To Commit His Murder Or So Disposed Of Him As To Put In Danger Of Being Murdered. Murder Of Pooran Was Committed Merely On His Asking The Accused Persons As To Why They Are Carrying Ram Larhetey, Who Is Not At Fault. This Fact Shows That The Appellants Were Not Carrying The Complainant With Any Good Intention. Therefore, In Our Opinion, The Learned Trial Court Has Not Committed Any Illegality In Convicting The Appellants For The Offence Punishable Under Section 364 I.P.C.
52. Drawing Our Attention Towards The Cases Of Jagtar Singh Vs. State Of Punjab AIR 1993 SC 463 And Virsa Singh Vs. State Of Punjab AIR 1958 SC 465, It Was Contended By The Learned Counsel For The Appellants That Offence Punishable Under Section 302 I.P.C. Also Is Not Made Out In This Case, As Single Shot Was Fired By Ram Naresh On The Deceased. It Was Also Submitted In This Regard That There Was No Intention On The Part Of Appellant Ram Naresh To Cause The Death Of Deceased Pooran And Shot Was Fired On The Deceased All Of A Sudden Without Any Premeditation And If The Entire Case Of The Prosecution Is Accepted To Be True, The Case Would Not Travel Beyond Section 304 Part II I.P.C. This Contention Of The Learned Counsel Is Totally Fallacious.
53. The Cases Of Jagtar Singh Vs. State Of Punjab And Virsa Singh Vs. State Of Punjab (supra) Are Not At All Relevant In This Case, Because In Those Cases, Single Blow By Knife And Spear Respectively Causing The Death Of Victim Were Given, Whereas In Instant Case Ante-mortem Injuries Sufficient In The Ordinary Curse Of Nature To Cause Death Were Caused To The Deceased By Firing.
54. Section 299 I.P.C. Defines Culpable Homicide As Under:-
"299 Culpable Homicide. - Whoever Causes Death By Doing An Act With The Intention Of Causing Death, Or With The Intention Of Causing Such Bodily Injury As Is Likely To Cause Death, Or With The Knowledge That He Is Likely By Such Act To Cause Death, Commits The Offence Of Culpable Homicide.

Murder Is Defined Under Section 300 I.P.C. Which Reads Thus:-
300 Murder - Except In The Cases Hereinafter Excepted, Culpable Homicide Is Murder, If The Act By Which The Death Is Caused Is Done With The Intention Of Causing Death, Or-
secondly- -----------------------
Thirdly - If It Is Done With The Intention Of Causing Bodily Injury To Any Person And The Bodily Injury Intended To Be Inflicted Is Sufficient In The Ordinary Course Of Nature To Cause Death, Or-
Fourthly- ------------------

Illustration 'C' To Section 300 I.P.C. Is Also Relevant In This Regard, Which Reads Thus:-
(c) A Intentionally Gives Z A Sword-cut Or Club Wound Sufficient To Cause The Death Of A Man In The Ordinary Course Of Nature. Z Dies In Consequence. Here, A Is Guilty Of Murder, Although He May Not Have Intended To Cause Z's Death.

55. The Post Mortem Report Ext. Ka-1 Of Deceased Pooran Shows That Three Ante-mortem Fire Arms Injuries Were Found On His Person At The Time Of Post-mortem Examination. Injury No. 1 Is Fire Arm Wound Of Entry, Whereas Injury No. 2 Was Fire Arm Wound Of Exit. Injury No. 3 Was Multiple Fire Arm Wounds Of Entry. Dr. O. P. Vaidya (P.W. 1), Who Conducted Post-mortem Examination Has Opined That Anti-mortem Injuries On The Person Of Deceased Were Ordinarily Sufficient To Cause Death. There Is No Reason To Disbelieve This Statement Of Dr. Vaidya, As No Cross-examination Has Been Made From Him On This Point. Assuming For The Sake Of Argument That The Accused Ram Naresh Had Not Intended To Cause The Death Of Deceased, But At The Time Of Firing Shot On Him, He Certainly Had Intended To Cause Bodily Injuries To Him And Since The Injuries Caused To The Deceased By Him Were Sufficient In The Ordinary Course Of Nature To Cause Death, Hence In Our Considered View, The Case Is Squarely Covered By Clause 'thirdly' Of Section 300 I.P.C.
56. Illustration 'C' Of Section 300 I.P.C. Shows That If Any Person Intentionally Causes Such Bodily Injury To Another Person, Which Is Sufficient To Cause Death In The Ordinary Course Of Nature And If As A Result Of That Injury, The Person Dies, Then The Assailant Would Be Guilty Of Murder, Although He May Not Have Intended To Cause His Death. In Instant Case Also, The Accused-appellant Ram Naresh Fired On The Deceased Pooran By Gun, Thereby Causing Such Ante-mortem Injuries To Him, Which Were Sufficient To Cause Death In The Ordinary Course Of Nature And In Consequence Of Those Injuries, Pooran Died Shortly Thereafter. Any Of The Exceptions Of Section 300 I.P.C. Is Not Applicable In This Case. Therefore, The Appellant-accused Ram Naresh In This Case Would Be Guilty Of Murder, Although He Might Not Have Intended To Cause His Death.
57. Placing Reliance On The Case Of Suresh And Another Vs. State Of U.P. 2001 SCC (Cri) 601, It Was Further Vehemently Contended By Sri Brijesh Sahai, Learned Counsel For The Appellants That Conviction Of The Appellants-accused Rameshwar And Suleman Under Section 302 I.P.C. With The Aid Of Section 34 I.P.C. Is Bad In Law, Because Murder Of The Deceased Pooran Was Not Committed In Furtherance Of The Common Intention Of All The Accused And It Was An Individual Act Of The Accused Ram Naresh For Which The Appellants-accused Suleman And Rameshwar Cannot Be Vicariously Held Liable. The Contention Of The Learned Counsel Was That When The Murder Of Pooran Is Said To Have Been Committed By The Appellant-accused Ram Naresh, Then Although The Appellants-accused Suleman And Rameshwar Are Said To Be Present There, But No Overt Act Was Done By Them Towards The Commission Of The Murder And Since There Was No Pre-plan To Commit The Murder Of Pooran, Hence The Accused-appellants Suleman And Rameshwar Could Not Be Convicted For His Murder With The Aid Of Section 34 I.P.C., As It Cannot Be Said In This Case That Murder Of Pooran Was Committed In Furtherance Of The Common Intention Of All The Accused. This Argument Of Sri Brijesh Sahai Prima Facie Seems Attractive, But It Is Not Legally Sound.
58. Section 34 I.P.C. Recognises The Principle Of Vicarious Liability In Criminal Jurisprudence. It Makes A Person Liable For Action Of An Offence Not Committed By Him But By Another Person With Whom He Shared The Common Intention. It Is A Rule Of Evidence And Does Not Create A Substantive Offence. The Section Gives Statutory Recognition To The Commonsense Principle That If More Than Two Persons Intentionally Do A Thing Jointly, It Is Just The Same As If Each Of Them Had Done It Individually.
59. Before Proceeding Further, It Would Be Proper To Refer Section 34 I.P.C., Which Reads Thus:-
34. Acts Done By Several Persons In Furtherance Of Common Intention.- When A Criminal Act Is Done By Several Persons In Furtherance Of The Common Intention Of All, Each Of Such Persons Is Liable For That Act In The Same Manner As If It Were Done By Him Alone.

60. Section 32 And 33 I.P.C. Would Also Be Relevant, Which Are Reproduced Below:
32. Words Referring To Acts Include Illegal Omissions.- In Every Part Of This Code, Except Where A Contrary Intention Appears From The Context, Words Which Refer To Acts Done Extend Also To Illegal Omissions.

33. "Act". "Omission".- The Word "act" Denotes As Well As A Series Of Acts As A Single Act; The Word "omission" Denotes As Well A Series Of Omissions As A Single Omission.

61.On Bare Reading Of Section 34 I.P.C. Prima Facie It Appears That Criminal Act Must Be Done By Several Persons, But It Is Settled Law By A Catena Of Decisions That For The Applicability Of Section 34 I.P.C. Overt Act On The Part Of All The Accused Is Not Necessary. To Apply Section 34 I.P.C. Criminal Act Must Be Shown To Have Been Done In Furtherance Of The Common Intention Of All. If It Is Proved That A Particular Offence Was Committed In Furtherance Of The Common Intention Of All The Accused, Then It Is Immaterial That One Or Other Accused Actually Did Not Participate In The Commission Of The Offence By Doing Some Overt Act.
62. In The Context Of Section 34 I.P.C., The Hon'ble Apex Court Has Made The Following Observations In The Case Of Suresh Vs. State Of U.P. (supra) In Para 24 Of The Report At Page 610:-
"Looking At The First Postulate Pointed Out Above, The Accused Who Is To Be Fastened With Liability On The Strength Of Section 34 I.P.C. Should Have Done Some Act Which Has Nexus With The Offence. Such An Act Need Not Be Very Substantial, It Is Enough That The Act Is Only For Guarding The Scene Of Facilitating The Crime. The Act Need Not Necessarily Be Overt, Even If It Is Only A Covert Act It Is Enough, Provided Such A Covert Act Is Proved To Have Been Done By The Co-accused In Furtherance Of The Common Intention. Even An Omission Can, In Certain Circumstances, Amount To An Act. This Is The Purport Of Section 32 I.P.C. So The Act Mentioned In Section 34 I.P.C. Need Not Be An Overt Act, Even An Illegal Omission To Do A Certain Act In A Certain Situation Can Amount To An Act, E.g. A Co-accused, Standing Near The Victim Face To Face Saw An Armed Assailant Nearing The Victim From Behind With A Weapon To Inflict A Blow. The Co-accused, Who Could Have Alerted The Victim To Move Away To Escape From The Onslaught, Deliberately Refrained From Doing So With The Idea That The Blow Should Fall On The Victim. Such Omission Can Also Be Termed As An Act In A Given Situation. Hence An Act, Whether Over Or Covert, Is Indispensable To Be Done By A Co-accused To Be Fastened With The Liability Under The Section."

It Is Further Held As Under In Para 40:-
"The Word "act" Used In Section 34 Denotes A Series Of Acts As A Single Act. What Is Required Under Law Is That The Accused Persons Sharing The Common Intention Must Be Physically Present At The Scene Of Occurrence And Be Shown Not To Have Dissuaded Themselves From The Intended Criminal Act For Which They Shared The Common Intention. Culpability Under Section 34 Cannot Be Excluded By Mere Distance From The Scene Of Occurrence."

63. In Barendra Kumar Ghosh V. King Emperor AIR 1925 PC 1, The Judicial Committee Dealt With The Scope Of Section 34 Dealing With The Acts Done In Furtherance Of The Common Intention, Making All Equally Liable For The Results Of All The Acts Of Others. It Was Observed:
"(T)he Words Of Section 34 Are Not To Be Eviscerated By Reading Them In This Exceedingly Limited Sense. By Section 33 A Criminal Act In Section 34 Includes A Series Of Acts And, Further, 'act' Includes Omission To Act, For Example, An Omission To Interfere In Order To Prevent A Murder Being Done Before One's Very Eyes. By Section 37, When Any Offence Is Committed By Means Of Several Acts Whoever Intentionally Cooperates In The Commission Of That Offence By Doing Any One Of Those Acts, Either Singly Or Jointly With Any Other Person, Commits That Offence. Even If The Appellant Did Nothing As He Stood Outside The Door, It Is To Be Remembered That In Crimes As In Other Things 'they Also Serve Who Only Stand And Wait'.

64. The Classic Case On The Subject Is The Judgement Of The Privy Council In Mahbub Shah V. Emperor AIR 1945 PC 118, In Which It Was Held:-
"Section 34 Lays Down A Principle Of Joint Liability In The Doing Of A Criminal Act. The Section Does Not Say 'the Common Intention Of All' Nor Does It Say 'an Intention Common To All'. Under The Section, The Essence Of That Liability Is To Be Found In The Existence Of A Common Intention Animating The Accused Leading To The Doing Of A Criminal Act In Furtherance Of Such Intention. To Invoke The Aid Of Section 34 Successfully, It Must Be Shown That The Criminal Act Complained Against Was Done By One Of The Accused Persons In The Furtherance Of The Common Intention Of All; If This Is Shown, Then Liability For The Crime May Be Imposed On Any One Of The Persons In The Same Manner As If The Act Were Done By Him Alone."

65. Approving The Judgements Of The Privy Council In Barendra Kumar Ghosh And Mahbub Shah Cases, A Three-Judge Bench Of Hon'ble Apex Court In Pandurang V. State Of Hyderabad AIR 1955 SC 217, Held That To Attract The Applicability Of Section 34 Of The Code, The Prosecution Is Under An Obligation To Establish That Before A Man Can Be Vicariously Convicted For The Criminal Act Of Another, The Act Must Have Been Done In Furtherance Of The Common Intention Of All.
66. In Shreekantiah Ramayya Munipalli V. State Of Bombay AIR 1955 Sc 287, The Hon'ble Apex Court Made The Following Observations:-
"It Is True There Must Be Some Sort Of Preliminary Planning Which May Or May Not Be At The Scene Of The Crime And Which May Have Taken Place Long Beforehand, But There Must Be Added To It The Element Of Physical Presence At The Scene Of Occurrence Coupled With Actual Participation Which, Of Course, Can Be Of A Passive Character Such As Standing By A Door, Provided That Is Done With The Intention Of Assisting In Furtherance Of The Common Intention Of Them All And There Is A Readiness To Play His Part In The Pre-arranged Plan When The Time Comes For Him To Act."

67. The Hon'ble Apex Court Again In Tukaram Ganpat Pandare V. State Of Maharashtra AIR 1974 SC 514 Reiterated That Section 34 Lays Down The Rule Of Joint Responsibility For Criminal Act Performed By A Plurality Of Persons And Even Mere Distance From The Scene Of Crime Cannot Exclude The Culpability Of The Offence. "Criminal Sharing, Overt Or Covert, By Active Presence Or By Distant Direction, Making Out A Certain Measure Of Jointness In The Commission Of The Act Is The Essence Of Section 34."
68. In Rambilas Singh V. State Of Bihar AIR 1989 SC 1593, The Hon'ble Apex Court Held As Under:-
"It Is True That In Order To Convict Persons Vicariously Under S. 34 Or S. 149 IPC, It Is Not Necessary To Prove That Each And Every One Of Them Had Indulged In Overt Acts. Even So, There Must Be Material To Show That The Overt Act Or Acts Of One Or More Of The Accused Was Or Were Done In Furtherance Of The Common Intention Of All The Accused Or In Prosecution Of The Common Object Of The Members Of The Unlawful Assembly."

69. Again A Three-Judge Bench Of Hon'ble Apex Court In State Of U.P. Vs. Iftikhar Khan 1973 SCC (Cri) 384, After Relying Upon A Host Of Judgements Of The Privy Council And Apex Court, Held That For Attracting Section 34, It Is Not Necessary That Any Overt Act Must Be Done By A Particular Accused. The Section Will Be Attracted If It Is Established That The Criminal Act Has Been Done By One Of The Accused Persons In Furtherance Of The Common Intention. If This Is Shown, The Liability For The Crime May Be Imposed On Any One Of The Person In The Same Manner As If The Act Was Done By Him Alone.
70. In Krishnan V. State Of Kerala 1996 SCC (Cri) 1375, The Hon'ble Apex Court Even Assuming That One Of The Appellants Had Not Caused The Injury To The Deceased, Upheld His Conviction Under Sections 302/34 Of The Penal Code Holding:
"Question Is Whether It Is Obligatory On The Part Of The Prosecution To Establish Commission Of Overt Act To Press Into Service Section 34 Of The Penal Code. It Is No Doubt True That The Court Likes To Know About An Overt Act To Decide Whether The Person Concerned Had Shared The Common Intention In Question. Question Is Whether An Overt Act Is Always To Be Established? I Am Of The View That Establishment Of An Overt Act Is Not A Requirement Of Law To Allow Section 34 To Operate Inasmuch As This Section Gets Attracted When 'a Criminal Act Is Done By Several Persons In Furtherance Of The Common Intention Of All' What Has To Be, Therefore, Established By The Prosecution Is That All The Persons Concerned Had Shared The Common Intention. Court's Mind Regarding The Sharing Of Common Intention Gets Satisfied When An Overt Act Is Established Qua Each Of The Accused. But Then, There May Be A Case Where The Proved Facts Would Themselves Speak Of Sharing Of Common Intention: Res Ipsa Loquitur."

71. In Surendra Chauhan V. State Of M.P. 2000 SCC (Cri) 772, The Hon'ble Apex Court Has Held That Apart From The Fact That There Should Be Two Or More Accused, Two Factors Must Be Established - (i) Common Intention, And (ii) Participation Of The Accused In The Commission Of The Offence. If A Common Intention Is Proved But No Overt Act Is Attributed To The Individual Accused, Section 34 I.P.C. Will Be Attracted As Essentially It Involves Vicarious Liability. Referring To Its Earlier Judgement, The Apex Court Has Held:
"11. Under Section 34 A Person Must Be Physically Present At The Actual Commission Of The Crime For The Purpose Of Facilitating Or Promoting The Offence, The Commission Of Which Is The Aim Of The Joint Criminal Venture. Such Presence Of Those Who In One Way Or The Other Facilitate The Execution Of The Common Design Is Itself Tantamount To Actual Participation In The Criminal Act. The Essence Of Section 34 Is Simultaneous Consensus Of The Minds Of Persons Participating In The Criminal Action To Bring About A Particular Result. Such Consensus Can Be Developed At The Spot And Thereby Intended By All Of Them."

72. In The Recent Judgements Of Hon'ble Apex Court In The Cases Of Anil Sharma And Others Vs. State Of Jharkhand AIR 2004 Supreme Court 2294; Israr Vs. State Of U.P. 2005 (51) ACC 481 (Supreme Court) And; Imtiaz And Another Vs. State Of U.P. 2007 (58) ACC 391 Also, It Is Held That To Attract Section 34 I.P.C., Overt Act On The Part Of All The Accused Persons Is Not Essential.
73.Keeping In View The Law Laid Down In The Cases Mentioned Herein-above, Let Us Now Analyse The Evidence To See Whether The Murder Of Pooran Was Committed In Furtherance Of The Common Intention Of All The Accused Persons Or It Was An Individual Act Of The Accused-appellant Ram Naresh. On The Basis Of The Evidence Led By The Prosecution, It Is Fully Proved That In The Intervening Night Of 9/10-08-1981, The Accused Persons Had Come In The Gher Of Complainant Ram Larhetey (P.W. 2) In Search Of His Brother Latoori Singh, Who Had Scribed The Written Report Of The Theft, Which Was Committed By The Appellants-accused In The House Of Chandra Pal Singh, Due To Which The Appellants Were Annoyed With Him And They Had Declared That They Would See Him. It Is Also Proved From The Evidence That When Latoori Singh Was Not Found In The Gher And The Complainant Ram Larhetey Began To Raise Noise, The Accused Ram Naresh Said That, "Yahi Jyada Halla Machata Hai, Ise Hi Bandh Lo". On This, The Accused Suleman, Rameshwar And Unknown Miscreant Caught Hold Of Ram Larhetey. On The Basis Of The Evidence Led By The Prosecution, This Fact Is Borne Out That On Raising The Noise By The Complainant Ram Larhetey, Common Intention To Abduct Him Was Developed On The Spot And In Furtherance Of That Common Intention, All The Accused Persons Were Carrying Ram Larhetey From His Gher. From The Evidence On Record, This Fact Is Also Established That On Hearing Hue And Cry, Pooran, His Brother Bansuri Baj (P.W. 3) And One Than Singh Came There On The Road Having Lathies And Torches And When The Accused Persons Began To Carry Ram Larhetey Forcibly Towards Southern Side Of Village, Pooran Said That Why They Are Carrying Him, He Is Not At Fault, The Accused Ram Naresh Said That, "Yeh Sala Bahut Hamdard Banta Hai, Is Sale Ko Gali Mar Do." Thereafter, Ram Naresh Himself Shot Fire On Pooran Due To Which He Sustained Injuries And Died Subsequently. Although The Criminal Act Of Committing The Murder Of Deceased Pooran Was Done By The Accused-appellant Ram Naresh Alone, But This Act Was Certainly Done In Furtherance Of The Common Intention Of All The Accused To Abduct Ram Larhetey. As Is Evident From The Rulings Cited Above, Overt Act On The Part Of All The Accused In The Commission Of Criminal Act Is Not Necessary To Attract Section 34 I.P.C. In The Classic Case Of Mahbub Shah Vs. Emperor (supra), The Privy Council Has Specifically Held That To Invoke The Aid Of Section 34 I.P.C. Successfully, It Must Be Shown That The Criminal Act Complained Against Was Done By One Of The Accused Persons In Furtherance Of The Common Intention Of All And If This Is Shown, Then Liability For The Crime May Be Imposed On Any One Of The Persons In The Same Manner As If The Act Was Done By Him Alone. Similar View Has Been Expressed By Hon'ble Apex Court In The Case Of State Of U.P. Vs. Iftikhar Khan (Supra). Therefore, In Our Considered Opinion, The Accused-appellants Suleman And Rameshwar Also Will Be Held Liable For The Murder Of Pooran, Which Was Committed By The Appellant Ram Naresh In Furtherance Of The Common Intention Of All Accused To Abduct Ram Larhetey. When The Appellant-accused Ram Naresh Exhorted To Shoot Pooran On His Saying That Why They Are Carrying Ram Larhetey, Who Is Not At Fault, The Appellants-accused Suleman And Rameshwar Could Have Alerted Pooran To Run Away From There To Save His Life, But They Deliberately Refrained From Dong So With The Idea That Pooran May Be Eliminated, So That They Could Carry Ram Larhetey Without Any Hindrance. Therefore, As Held By The Hon'ble Apex Court In Para 24 Of The Judgement In The Case Of Suresh And Another Vs. State Of U.P. 2001 SCC (Cri) 601 At Page 610, Such Omission On The Part Of The Appellants-accused Suleman And Rameshwar Is Tantamount To An Act. It Is Specifically Held By The Hon'ble Apex Court In Para 24 Of The Judgement That The Act Contemplated In Section 34 I.P.C. Need Not Necessarily Be Overt, And Even If It Is Only A Covert Act, It Is Enough, Provided Such A Covert Act Is Proved To Have Been Done By The Co-accused In Furtherance Of The Common Intention. It Is Also Held In This Case That Even An Omission Can In Certain Circumstances Amount To An Act. From The Law Laid Down In The Case Of Shreekantiah Ramayya Munipalli V. State Of Bombay AIR 1955 SC 287, It Is Clear That Participation Of The Accused Persons Can Be Of A Passive Character Such As Standing By A Door, Provided That Is Done With The Intention Of Assisting In Furtherance Of The Common Intention Of Them All And There Is A Readiness To Play His Part In The Pre-arranged Plan When The Time Comes For Him To Act. Therefore, Deliberately Refraining Themselves From Restraining The Accused-appellant Ram Naresh From Shooting The Deceased Is Tantamount To The Consent And Participation Of The Accused-appellants Rameshwar And Suleman In The Commission Of Murder Of The Deceased And Since His Murder Was Committed In Furtherance Of Commonly Intended Criminal Act Of Abducting Ram Larhetey, Hence In Our Considered Opinion, The Appellants-accused Suleman And Rameshwar Have Been Rightly Convicted By The Learned Trial Court For The Offence Punishable Under Section 302 With The Aid Of Section 34 I.P.C.
74. If During The Course Of Committing Some Offence, Which Was Commonly Intended By All The Accused Persons, Any Incidental Offence, Which Has Nexus With The Commonly Intended Offence, Is Committed By One Or More Persons, Then All The Persons Sharing Common Intention To Commit The Commonly Intended Criminal Act Would Be Vicariously Liable For The Incidental Offence Also, With The Aid Of Section 34 I.P.C., As The Said Offence Would Be Deemed To Have Been Committed In Furtherance Of The Common Intention Of All The Accused Persons. We Make Our Interpretation Of Section 34 I.P.C. More Clear By Giving An Example. Four Persons Having Fire Arm, Farsa And Lathies Entered Into The House Of 'A' With Common Intention To Commit Robbery. During The Course Of The Commission Of Robbery, On Hearing Noise Of 'A', Neighbours 'B' And 'C' Came There And Intervene In The Commission Of Robbery. The Person Having Firearm Committed The Murder Of 'B' By Firing Shot On Him And Another Person Caused Grievous Injuries To 'C' By Means Of Farsa. Under Such Situation, Applying Section 34 I.P.C., Other Two Persons, Who Did Nothing And Remained Silent, Would Also Be Held Liable For These Incidental Offences, As These Offences Were Committed In Furtherance Of Commonly Intended Criminal Act Of Committing Robbery. The Other Two Persons Can Not Escape Their Liability For The Murder Of 'B' And Causing Injuries To 'C' Saying That They Did Not Cause Any Injury To 'B' And 'C' Or Did Not Do Any Other Overt Act Towards The Commission Of These Incidental Offences. Section 34 I.P.C. Clearly Lays Down That If A Criminal Act Is Done By Several Persons In Furtherance Of The Common Intention Of All, Then Each Of Such Persons Sharing Common Intention Would Be Liable For That Act In The Same Manner As If It Was Done By Him Alone. As We Have Mentioned Above, Overt Act On The Part Of All The Accused Persons Is Not Essential To Attract Section 34 I.P.C. The Only Precondition For Applying Section 34 I.P.C. Is That The Criminal Act Must Be Done In Furtherance Of The Common Intention Of All. If The Incidental Offences, Which Have Nexus With Commonly Intended Criminal Act, Are Committed By One Or Two Persons To Achieve The Object Of Committing The Commonly Intended Criminal Act, Then Such Incidental Offences, Though Not Commonly Intended, Would Be Deemed To Have Been Committed In Furtherance Of The Common Intention Of All Persons And Applying Section 34 I.P.C., All Such Persons Would Be Liable For Incidental Offences Also. It Is Immaterial In Such Situation That Some Persons Did Not Do Any Overt Act.
75. Therefore, In Instant Case Also, The Appellants-accused Suleman And Rameshwar Can Not Escape Their Liability Saying That No Overt Act Was Done By Them Towards The Commission Of Murder Of Pooran And His Murder Was Not Committed In Furtherance Of Their Common Intention. As We Have Mentioned Above, Common Intention To Abduct Ram Larhetey Was Developed At The Spot And When The Appellants-accused And Unknown Person Were Carrying Him, Then In Furtherance Of The Common Intention To Abduct Ram Larhetey, Murder Of Pooran Was Committed By Firing Shot On Him By The Appellant-accused Ram Naresh. This Act Of Committing Murder Of Pooran Had Nexus With The Commonly Intended Criminal Act Of Abducting Ram Larhetey And Hence, This Incidental Act Of Committing His Murder Would Be Deemed To Have Been Committed In Furtherance Of The Common Intention Of All The Appellants-accused And Unknown Person. Therefore, In Our Considered Opinion, The Learned Trial Court Did Not Commit Any Illegality In Convicting The Appellants-accused Suleman And Rameshwar Under Section 302 Read With Section 34 I.P.C.
76. For The Foregoing Reasons, We Are Of The Opinion That The Impugned Judgement Does Not Suffer From Any Legal Infirmity. There Is No Merit In The Appeal.
77.Consequently, The Appeal Is Dismissed. The Conviction And Sentences Recorded By The Trial Court Against The Accused-appellants Ram Naresh, Rameshwar @ Collector And Suleman Are Affirmed.
The Accused-appellants Are On Bail. They Shall Be Taken Into Custody By The Trial Court Concerned And Sent To Jail To Serve Out The Remaining Sentence. After Sending The Accused-appellants To Jail, Their Sureties And Surety Bonds Shall Stand Discharged.
The Office Is Directed To Return Lower Court Record Expeditiously Along-with A Copy Of This Judgement For Necessary Action. Compliance Report Be Sent By The Trial Court Concerned Within Two Months

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