Madhya Pradesh High Court
Virendra Singh And Others vs State Of M.P. on 28 November, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRA No.545/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE SANJAY YADAV
AND
HON. SHRI JUSTICE S.K.AWASTHI
Criminal Appeal No.545/1999
Virendra Singh and Others
Versus
State of Madhya Pradesh
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Shri R.K.Shrivastava, learned counsel for the
appellants.
Shri B.K.Sharma, learned Public Prosecutor, for the
respondent/ State.
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JUDGMENT
(28.11.2017) Per S.K.Awasthi, J.:
This Appeal is preferred against the judgment dated 12.10.1999 passed in Sessions Trial No.52/1994 by First Additional Sessions Judge, Ashoknagar, District Guna; whereby, the appellants have been convicted for commission of offences punishable under Sections 450 and 302/34 of IPC and sentenced to three years rigorous imprisonment with fine of Rs.1000/- each and life imprisonment with fine of Rs.1000/- each, respectively, with default stipulation.
2. During pendency of the present appeal, the appellant No.3-Babu Singh died on 12.12.2012 and -( 2 )- CRA No.545/1999 therefore, his name was deleted from the cause-title and the appeal against him stands abated.
3. Prosecution story, in short, is that on 9.9.1992, at about 12.00 at noon, accused persons Abhayraj, Vijay Singh, Jairaj, Virendra Singh (appellant No.1), Amar Singh, Harveer Singh, Mahesh Singh, Rajendra Singh, Ashok Singh, Raghuvir Singh, Babu Singh (deceased appellant No.3), Gopal Singh (appellant No.2), Kalyan Singh, Badri Singh, Mohan Singh and Ranveer Singh came to the house of deceased Khachorilal situated in village Semrahat, District Guna and assaulted on him with lathi, axe, vallam and farsa. When Karaibai, Munnibai, Anitabai and Kamlabai tried to save the deceased Khachorilal, then all the accused persons pushed and fell them down on the ground and while beating the deceased they took him near the house of Mangalchand and thereafter went away from the spot. Khachorilal died on the spot. The incident was witnessed from the roof of the house of Gangaram by Moolchand, brother of the deceased. After that, Yudhisthir Singh and Rajendra Singh belogning to village Khejra came on the spot and took the deceased Khachorilal to his house. Moolchand lodged the report of the incident, on which Dehati Nalishi Ex.P/2 was recorded and thereafter FIR bearing Crime No.120/1992 was registered by Police Station Kachnar, District Guna. During investigation, Lash Panchnama Ex.P/1 was prepared, the deadbody was sent for post-mortem; spot map Ex.P/3 was prepared; blood stained soil and plain soil was seized from the spot; the statements of the witnesses were recorded;
-( 3 )- CRA No.545/1999the accused persons were arrested and weapons of the offence were seized from the accused persons, and after completion of investigation, the charge sheet was presented before the Additional Chief Judicial Magistrate, Ashoknagar, District Guna, who committed the case to the Court of Session and ultimately it was transferred to Additional Sessions Judge, Ashoknagar, District Guna.
4. It is revealed from the judgment of the trial Court that due to fire being caught in the room of the concerned Court, the original record of the case got burnt and the file was reconstituted and the photocopies of the documents were admitted as secondary evidence.
5. The appellants abjured their guilt and requested for trial of the matter. They examined three witnesses namely Gopal Singh (DW/1), Kalyan Singh (DW/2) and Gajraj Singh (DW/3), in their defence.
6. The trial Court after considering the evidence adduced by the prosecution pronounced the impugned judgment dated 12.10.1999 and concluded that the appellants are liable to be convicted for the commission of offence and sentenced them as stated aforesaid.
7. We have carefully perused the record and have considered the rival contentions of the parties.
8. First of all, it is to be considered as to whether the death of deceased Khachorilal was homicidal in nature or not? In this connection, evidence of Dr. D.K.Jain (PW-8) may be considered, who performed the post-mortem on the body of the deceased -( 4 )- CRA No.545/1999 Khachorilal and gave a report Ex.P/11. According to Dr. D.K.Jain, following injuries were found to the deceased Khachorilal :-
(i) Lacerated wound of size 5 cm x 1 cm x deep to bone over right parietal region. Clotted Blood present.
(ii) Contusion over parietal region of scalp in midline of size 7 cm x 2 cm vertical.
On opening, there is Hematoma in scalp in frontal region of upper left eye and in right side temporal and parietal region. There is fracture of frontal wound, right parietal wound in it. There is depressed fracture of right temporal wound. On opening the skull, there is profuse subdural collection of blood and subarachnoid hemorrhage also present.
(iii) Contusion 8 cm x 2 cm of rail pattern over right side of back of chest.
Reddish.
(iv) Incised wound over right hand 7 cm x 1 cm x deep to bone, there is fracture of underlying 2nd & 3rd metacarpal. Clotted blood present.
(v) Penetrating wound of size 1 cm x 0.5 cm x 1 cm in right iliac fossa below right iliac crest direct upward and outward upto iliac bone, clotted blood present.
(vi) Abrasion over right leg antly 3 cm x 1.5 cm in middle 1/3rd , clotted blood present.
(vii) Lacerated wound left leg antly in middle 1/3rd of size 2 cm x 0.5 cm x deep to bone.
(viii) Contusion 3 cm x 2 cm left leg lower 1/3rd medially.
(ix) Contusion left thigh antly of size 12 cm x 2 cm in upper 1/2 vertically paced.
On opening the body of the deceased, it was found that subdural and subarachnoid hemorrhage -( 5 )- CRA No.545/1999 were present. Right frontal wound, right parietal wound, right temporal wound and 2nd as well as 3rd metacarpal wound were ruptured due to injuries. According to Dr. D.K.Jain, the injuries sustained to the deceased were anti-mortem and the injuries were sufficient to cause his death in natural course of life. There is no reason to discard the evidence given by Dr. D.K.Jain and therefore, it is properly found by the trial Court that the death of the deceased Khachorilal was homicidal in nature, caused by injuries on his head and the said injuries were sufficient to cause his death.
9. The eye-witnesses Munni Bai (PW/1) and Karai Bai (PW/5) deposed that five years ago, in the Hindi month of Bhadon, at about 12:00 (noon), Khachorilal was putting fodder to bulls, at the same time the accused Virendra Singh, Gopal and Babu Singh came to their house and they pulled Khachorilal. After seeing this, they shouted and tried to rescue Khachorilal but the accused persons took him to the door of the house of Mangal Singh where they caused injuries to Khachorilal by means of Vallam, Barchi and Luhangi respectively, due to which he succumbed on the spot. Anita Bai (PW/4) also supported the statements of Munni Bai (PW/1) and Karai Bai (PW/5). The evidence given by these witnesses can be accepted because such evidence is duly corroborated by Dehati Nalishi Ex.P/2 which is lodged by Moolchand (PW/2) who also categorically stated that the accused Virendra, Gopal and Babu Singh inflicted injuries to Khachorilal by Vallam, Barchi and Luhangi -( 6 )- CRA No.545/1999 resulting his death.
10. In Dehati Nalishi Ex.P/2 and statements of Munni Bai (PW/1), Moolchand (PW/2), Anita Bai (PW/4) and Karai Bai (PW/5) recorded under Section 161 of Cr.P.C., it is mentioned that the other accused persons Badri Singh, Vijayraj Singh, Abhayraj Singh, Ranveer Singh, Raghuvir Singh Amar Singh, Jairaj Singh, Rajendra Singh, Ashok Singh Kalyan Singh, Mahesh, Mohan and Harveer Singh came to the house of Khachorilal and they dragged out him and inflicted injuries on his body but in the statements recorded before the Court, they have denied the involvement of above 13 accused persons, therefore, the trial Court has acquitted these accused persons from the charges under Sections 147, 148, 450, 302 and 302 read with Section 149 of IPC.
11. Learned counsel for the appellants submitted that the statements of so called eye witnesses cannot be relied upon because they have left out 13 accused persons to whom they narrated as culprit in Dehati Nalishi and in their case diary's statement. Learned counsel for the appellants has relied on the judgments in the cases of Pandurang Sitaram Bhagwat vs. State of Maharashtra, (2005) 9 SCC 44, Arun Kumar Sharma vs. State of Bihar, (2010) 1 SCC 108 & Hari Kishan vs. State of Haryana, (2010) 2 SCC 131 wherein the Hon'ble Supreme Court held that where substantial part of the evidence has been disbelieved by the trial Court on the conviction of the appellants and verdict of the trial Court has remained unchallenged because the State has not filed any -( 7 )- CRA No.545/1999 appeal against the acquittal of the accused, in such situation, it is highly unsafe to believe the statements of such eye-witness. However, in the present case the prosecution witnesses have not stated anything against 13 accused persons who were named in Dehati Nalishi as well as their case diary statements. Therefore, the trial Court has not disbelieved any portion of the statements of the witnesses.
12. It is the settled principle of law that the Court while appreciating the statement of eye-witnesses tries to separate the grain from the chaff and the statement of the witnesses cannot be thrown out only on the ground that they had stated wrong facts with regard to other accused persons whereas their statement regarding involvement of a particular accused is found proved.
13. It is trite law that in India theory of "falsus in uno falsus in omnibus" is not applicable and the Court is duty bound to extract the truth from the statements of the eye-witnesses. Only on the basis of some contradictions or omissions in the statements, with regard to some accused, the whole statements cannot be thrown out. For this, reliance may be placed on the decision of the Apex Court in the case of Laxman and others vs. The State of Maharashtra, reported in AIR 1974 SC 308; wherein it has been held as under:-
" We never know whether we remember, perceive, or imagine". Witnesses cannot, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect -( 8 )- CRA No.545/1999 or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common sense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in ommibus".
The same principle has been laid down by the Hon'ble Apex Court in the case of Bhe Ram v. State of Haryana, reported in AIR 1980 SC 957; wherein it is held as under:-
"The High court has also rightly pointed out that the principle of falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. We are of the opinion that the High Court has made an absolutely correct approach to these cases".
The same view has been reiterated by the Hon'ble Apex Court in the case of Kalegura Padma Rao and another vs. The State of A.P., reported in AIR 2007 SC 1299, wherein it has been held as under:-
"To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of -( 9 )- CRA No.545/1999 evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366).
Consequently, the contention of the appellants to this extent is not acceptable.
14. Learned counsel for the appellants submitted that the incident took place at 12:00 noon on 9.9.1992 and the matter was reported to the Police at 5:00 pm. It is evident that Dehati Nalishi Ex.P/2 was lodged after five hours of the incident whereas the Police Station is only 12 km away and in the absence of any -( 10 )- CRA No.545/1999 explanation about the delay in making the First Information Report, Dehati Nalishi Ex.P/2 appears to be a doubtful document and it puts a dent to the prosecution story. In this context, the complainant Moolchand (PW-2) stated that his daughter Anita Bai accompanied with Kashiram went to the Police Station and they informed the incident to the Police then the Police came to the spot where he recorded Dehati Nalishi Ex.P/2. On the other hand, the ascriber of Dehati Nalishi Assistant Sub-Inspector Nathu Singh Chauhan (PW-11) has deposed that he is not aware of the fact that Anita Bai and Kashiram went to the Police Station for lodging F.I.R. According to him, on 9.9.1992, he went to village Semara hat in respect of investigation in connection with other Crime No.119/92 where Moolchand intimated him about the incident and on his narration, he wrote Dehati Nalishi Ex.P/2. In these circumstances, the explanation for delay in lodging F.I.R. as stated by Moolchand (PW/2) appears to be acceptable. If it is presumed that sometime was available to the complainant and other witnesses to make conversation, then still there was no enmity proved by the appellants with the complainant so that he would have left the actual culprit and named the appellants while lodging Dehati Nalishi Ex.P/2. Under these circumstances, Dehati Nalishi Ex.P/2 is a good corroborative piece of evidence which fortifies the testimony of the eye- witnesses as the evidence of eye-witnesses is duly corroborated by medical evidence.
15. Learned counsel for the appellants submitted -( 11 )- CRA No.545/1999 that not only in Dehati Nalishi as well as statements of eye witnesses recorded under Section 161 of Cr.P.C., the prosecution has shown two scenes of incident. However, in the court proceedings, the said eye- witnesses changed the place of incident, thus, the version of such eye-witnesses cannot be relied upon. In this connection, from the perusal of statements of witnesses Anita Bai, Munni Bai and Karai Bai recorded under Section 161 of Cr.P.C., it reveals that the accused persons came to the house of Khachorilal and they beat him and they took him in front of house of Mangal Singh where the accused persons again inflicted injuries to Khachorilal due to which he fell down and succumbed to the injuries. Although in the Court statement, the eye-witnesses Moolchand, Munni Bai, Anita Bai and Karai Bai have not stated about the accused persons having inflicted any injuries to Khachorilal in his house but they categorically deposed that the appellants/ accused persons inflicted injuries to Khachorilal in front of the house of Mangal Singh. Therefore, it cannot be said that scene of crime has been changed by the eye-witnesses. In the spot map Ex.P-3, two places of incident have been shown; first one is the house of Khachorilal and second one is in front of house of Mangal Singh. In the spot map it is also mentioned that the deceased died at the place in front of house of Mangal Singh. There is evidence on record that the blood was found at the spot where the witnesses stated that the attack has taken place establishes the correctness of the version of the prosecution witnesses. It is also pertinent to note that -( 12 )- CRA No.545/1999 no suggestion has been made in the statements of eye- witnesses that the incident has not happened at the place which is narrated by them, therefore, the contention raised by the learned counsel for the appellants is not acceptable.
16. Learned counsel for the appellants submitted that the trial Court has failed to appreciate the evidence properly. There are discrepancies /contradictions/exaggerations in the statements of the witnesses. On the point, he has relied on the judgments in the cases of Ramdayal v. State of M.P. (Criminal Appeal No.500/2000 decided on 27.09.2016) and Mahendra Pratap v. State of Uttar Pradesh, (2009) 11 SCC 334. The contention raised by the counsel, in our opinion, has no substance as the discrepancies or contradictions pointed out by the learned counsel are not so material which affect the credibility of the evidence of the witnesses and on the basis of which the judgment of conviction can be reversed.
17. The Hon'ble Apex Court in State of Rajasthan v. Smt. Kalki and another [AIR 1981 SC 1390] has held :
"6. The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were "material discrepancies". As indicated above we have perused the evidence of P.W. 1. We have not found any "material discrepancies"
in her evidence. The discrepancies referred to by the High Court are, in our opinion, minor, insignificant, natural and not 'material'. The discrepancies are with regard to as to which accused "pressed the deceased and at which part of the body to the ground and sat on -( 13 )- CRA No.545/1999 which part of the body; with regard to whether the respondent Kalki gave the axe blow to the deceased while the latter was standing or lying on the ground, and whether the blow was given from the side of the head or from the side of the legs. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the P. W.1."
18. In Babasaheb Apparao Patil v. State of Maharashtra [AIR 2009 SC 1461] the Hon'ble Apex Court held :
"12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence.
13. In State of U.P. Vs. M.K. Anthony (AIR 1985 SC 48), this Court indicated the proper approach which needs to be adopted while appreciating the evidence of a witness. It was observed as under:
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth.-( 14 )- CRA No.545/1999
Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
14. In Appabhai & Anr. Vs. State of Gujarat (AIR 1988 SC 696), this Court had again emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast -( 15 )- CRA No.545/1999 experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
19. In Baijnath and another vs. State of MP [ILR (2009) MP 3041], it has been held by the Hon'ble Apex Court :
"5. We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true that the trial court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that some of the findings recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of evidence in a criminal matter have been laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we respectfully produce the same:-
"...........Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.-( 16 )- CRA No.545/1999
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.
A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-
Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all -( 17 )- CRA No.545/1999 important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
20. Be that as it may, we will have to bear in mind these deficiencies pointed out by the learned counsel for the appellants, while considering the creditworthiness of witnesses Munni Bai (PW/1), Moolchand (PW/2) and Karai Bai (PW/5), and in this background we consider the evidence of the aforesaid witnesses, we notice that the defence has not been able to create my doubt in their evidence at least so far as the involvement of appellants are concerned. Their evidence in this regard has been consistent and natural. The defence has not been able to bring out any material contradiction in the evidence of Munni Bai (PW/1), Moolchand (PW/2) and Karai Bai (PW/5).
21. The consistency has been found in the statements of eye-witnesses which is duly corroborated by Dehati Nalishi and Post-Mortem report, thus, the trial Court has rightly found that the accused persons Virendera Singh, Gopal Singh and Babu Singh inflicted injuries to the deceased Khachorilal due to which he died.
22. Learned counsel for the appellants submitted that from the statements of defence witnesses namely Gopal Singh, Kalyan Singh and Gajraj Singh, it is established that at the time of incident, the appellants were not present on the spot, and they had gone to village Panwadi hat and Aron but the accused Gopal Singh who has been examined as defence witness admitted that village Panwadi is situated only 5 Kms -( 18 )- CRA No.545/1999 far from his village, from where it takes 15 to 20 minutes to reach the village Semra hat. Looking to the distance of Panwadi hat from the place of incident, it cannot be accepted that the accused Gopal Singh cannot reach to village Panwadi hat after or before committing the offence. It is stated that the accused Virendra Singh had gone to Aron for purchasing the cow but he has not filed any document to substantiate his claim, therefore the trial Court has rightly rejected the plea of alibi taken by the accused persons.
23. In the case of Moniruddin Ahmed @ Lalu Dealer & Ors. v. State of West Bengal, 2010 Cri.L.J. 3448, the Hon'ble Supreme Court has held as under :-
"Though the first appellant took the plea of alibi, the same was not substantiated. It is basic law that prosecution is to prove that the accused was present at the scene and had participated in the crime. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. However, once the prosecution succeeds in discharging its burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with certainty so as to exclude the possibility of his presence at the place of occurrence. It is also settled that when the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened."
24. In the case on hand, we have already noted the -( 19 )- CRA No.545/1999 absolute evidence indicating the presence of appellants at the scene of occurrence. They were not only at the spot but also caused the death of Khachorilal by fatal blows with Ballam and Barchi. As rightly observed by the trial Court, the stand taken by the defence witnesses is unacceptable.
25. Although the appellant/accused Babu Singh has expired during the pendency of the appeal, however it would be apparent from the overt act of the appellants Virendra Singh, Gopal and Babu Singh (deceased) that not only they inflicted injuries to Khachorilal by means of Vallam, Barchi and Luhangi, thus the common intention of the appellants is very well established and therefore, the appellants Virendra Singh and Gopal are liable to be convicted for the offence punishable under Section 302 read with Section 34 of IPC for causing the injuries which resulted into the death of the deceased and the trial Court has rightly convicted them for the aforesaid charges.
26. On the basis of aforesaid discussions, there is no substance in the appeal filed by the appellants Virendra Singh and Gopal. The trial Court has recorded their conviction for the offences under Sections 450 and 302/34 of IPC and appropriate sentence has been passed by the trial Court. There is no reason warranting any interference in the impugned judgment passed by the trial Court. Consequently, the appeal filed by the appellants is hereby dismissed. Conviction of the appellants for the offences punishable under Sections 450 and 302/34 of IPC is hereby affirmed. Their custody period shall be -( 20 )- CRA No.545/1999 adjusted towards their main jail sentence.
27. The appellants are on bail. It is hereby directed that the bail bonds of the appellants shall stand cancelled and they are also directed to surrender immediately before the trial Court so that they be sent to jail for execution of their remaining jail sentence.
A copy of this judgment be sent to the trial Court alongwith the record for information and necessary action.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
AK/-
ANAND KUMAR
2017.11.29 11:20:24 +05'30'