Madhya Pradesh High Court
Abhay Singh And Others vs State Of M.P. on 3 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1723
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH: Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.596/2000
1. Sultan Singh S/o Badam Singh aged 18
years, occupation Agriculturist
2. Roop Singh S/o Badam Singh aged 20
years, occupation Agriculturist
Both R/o Village Belgada, P.S. Dabra,
District Gwalior
-----Appellants
Versus
The State of M.P. Through Police Station
Dabra, District Gwalior, M.P.
---Respondent
Criminal Appeal No.613/2000
1. Batoli S/o Kashiram Rawat aged 22 years.
2. Kunwarlal S/o Harnamsingh aged 26
years.
Both R/o Village Belgada, Dabra, District
Gwalior
-----Appellants
Versus
The State of M.P. Through Police Station
Dabra, District Gwalior, M.P.
---Respondent
Criminal Appeal No.628/2000
1. Abhay Singh S/o Khersingh Rawat, aged
25 years.
2. Janved Singh S/o Khersingh Rawat, aged
40 years.
3. Kitab Singh S/o Khersingh Rawat aged 45
years.
4. Amol Singh S/o Khersingh Rawat, aged
45 years.
All R/o Village Belgada, Dabra, District
Gwalior.
-----Appellants
2 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
Versus
The State of M.P. Through Police Station
Dabra, District Gwalior, M.P.
---Respondent
Criminal Appeal No.632/2000
1. Man Singh S/o Lalaram, Caste Badai,
aged 25 years R/o Village Belgada, Dabra,
District Gwalior
2. Laakhan Singh (died and his name is
deleted as per order dated 06.09.2016).
-----Appellants
Versus
The State of M.P. Through Police Station
Dabra, District Gwalior, M.P.
---Respondent
------------------------------------------------------------------------------
Shri Pramod Pachouri, learned counsel for the appellants in
Cr.A. No.596/2000.
Shri Sailendra Singh, learned counsel for the appellants in Cr.A.
No. 613/2000 & Cr.A. No.628/2000.
Shri Madhukar Kulshreshtha, learned counsel for the appellants
in Cr.A. No.632/2000.
Shri F.A. Shah, learned Public Prosecutor for the
respondent/State in all the Criminal Appeals.
------------------------------------------------------------------------------
Whether approved for reporting :
JUDGMENT
(Delivered on this 03rd Day of September, 2019) Per Justice Vivek Agarwal :
These appeals have been filed by the appellants being aggrieved by common judgment dated 18.08.2000 passed by the 3 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 Court of learned First Additional Sessions Judge, Dabra, District Gwalior in S.T. No.19/1995, by which all the appellants have been convicted and sentenced as under:CR.A.No.596/2000
Name of Sections Sentence Fine In default appellant of fine Sultan 302/149 Life 5000 3 months Singh imprisonment R.I. 148 2 years R.I. - -
Roop 302/149 Life 5000 3 months
Singh imprisonment R.I.
148 2 years R.I. - -
CR.A.No.613/2000
Name of Sections Sentence Fine In default
appellant of fine
Batoli 302/149 Life 5000 3 months
imprisonment R.I.
148 2 years R.I. - -
Kunwarlal 302/149 Life 5000 3 months
imprisonment R.I.
148 2 years R.I. - -
CR.A.No.628/2000
Name of Sections Sentence Fine In default
appellant of fine
Abhay 302/149 Life 5000 3 months
Singh imprisonment R.I.
148 2 years R.I. - -
307/34 10 years R.I. - -
294/352 2 months R.I. - -
452 & 2 years R.I.
506 II - -
4 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
Janved 302/149 Life 5000 3 months
Singh imprisonment R.I.
148 2 years R.I. - -
307/34 10 years R.I. - -
294/352 2 months R.I. - -
452 & 2 years R.I.
506 II - -
Kitab Singh 302/149 Life 5000 3 months
imprisonment R.I.
148 2 years R.I. - -
307/34 10 years R.I. - -
294/352 2 months R.I. - -
452 & 2 years R.I.
506 II - -
Amol Singh 302/149 Life 5000 3 months
imprisonment R.I.
148 2 years R.I. - -
307/34 10 years R.I. - -
294/352 2 months R.I. - -
452 & 2 years R.I.
506 II - -
CR.A.No.613/2000
Name of Sections Sentence Fine In default
appellant of fine
Man 302/149 Life 5000 3 months
Singh imprisonment R.I.
2 years R.I.
148 - -
307/149
5 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
Laakhan 302/149 Life 5000 3 months
Singh imprisonment R.I.
2 years R.I.
148 - -
307/149
2. Shri Sailendra Singh, learned counsel opening arguments for the appellants submits that alleged incident took place on 11.08.1994. Incident took place in three phases, as is mentioned in the prosecution story, namely; at about 03.00 pm when complainant party had visited their field, then they found appellants in Criminal Appeal No.628/2000, namely; Abhay Singh, Janved Singh, Kitab Singh and Amol Singh cultivating their land and when they inquired as to why they were cultivating land belonging to the complainant party, then all the four accused armed with lohangi, sariya, farsa and ballam ran after them. Out of fear all the members of the complainant party, namely; Sukkha (P.W.1), his brother Ramdin (P.W.2), Rana (P.W.4) and other cousins ran for shelter and reached their home safely.
3. Second incident it is urged took place at 6.00 pm when these very four accused allegedly reached residence of the complainant party and started abusing members of the complainant party. When Sukkha (P.W.1) and Rana (P.W.4) came out of their house, they were injured by these four accused persons and who then forcefully entered inside the residential house and forced out Shankariya and Ramdin of their house and 6 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 caused injuries and when Gyana Bai (P.W.6), mother of Sukkha came to intervene and save Shankariya, she was also subjected to injuries on vital parts of the body. Third incident it is urged took place at about 11.30 pm when complainant party was travelling in bullock carts to lodge a report from Belgada to Chetupada where all the four main accused persons alongwith other accused persons surrounded the bullock carts, to obstruct them from lodging a report and caused injuries to the members of the complainant party, as a result of which Shankariya died, whereas Patiram (P.W.3), Banwari (P.W.5) and Gabbar (P.W.7) sustained injuries dangerous to life. Thereafter, accused persons ran away. FIR (Ex.D/3) was lodged and Marg intimation (Ex.P/2) was recorded.
After inquest and necessary investigation Police filed the charge sheet. The matter was committed for trial. The accused persons abjured their guilt. Prosecution examined nine witnesses, out of these seven were examined as eye witness. The trial Court on the basis of the evidence on record found the accused persons guilty of charges leading to their conviction and sentence adverted supra which are being challenged in these batch of Appeals.
4. It is submitted that as far as charge under Section 352 of IPC is concerned, no such charge is made out under Section 352 of IPC, inasmuch as neither any assault was caused nor any criminal force was used by any of the four accused present on 7 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 the scene of incident at 3.00 pm. It is urged that Sukkha (P.W.2) in para 6 of his cross-examination admitted that the field, which was being cultivated by the accused, known as "Patia vala Khet"
is part of Survey number 354. One part of survey No.354 is of the ownership of Moti and another part is of the ownership of Summera. Both Moti and Summera belongs to 'Chamar' community. Portion belonging to Summera was purchased by Sukkha and portion belonging to Moti was purchased by Amol Singh. That, Amol Singh was cultivating portion which belongs to Moti. It is urged that this witness i.e. Sukhha (P.W.2) admitted that a dispute is going on between Sukkha and Amol in regard to portion belonging to Moti, and the case is pending in the Court of Tahsildar. It is urged that this witness though denied suggestion that he has lost his case in the Court of Tahsildar and appeal is pending in the Court of SDO but it is pointed out that Banwari (P.W.5) S/o Patiram has admitted in para 19 of his cross-examination that no partition had taken place in regard to survey No.354 and further admitted that complainant party had filed an appeal in the Court of Sub Divisional Officer, Dabra which was pending. It is urged that combined reading of evidence of Sukkha (P.W.2) and Banwari (P.W.5), it is submitted that Amol etc. were cultivating their own field and none of the ingredients of Section 352 of IPC are available, inasmuch as admittedly no injury was caused to the complainant in the field at 3.00 pm; it is accordingly urged that conviction recorded by
8 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 learned trial Court with the aid of Section 352 of IPC is illegal and arbitrary and is not sustainable in the eye of law.
5. Taking us through the evidence of Ramdin (P.W.1) , the evidence of Dr. S.P. Jain (P.W.8) and the autopsy report relating to the deceased Shankariya, it is urged that there is no corroboration as to time of incident. Referring to postmortem report and cross- examination of Dr. S.P. Jain (P.W.8) that there were no other injuries on the body of the deceased Shankariya, except two injuries one on head and one in hand, it is submitted that as per eye witnesses since these injuries were caused at 6.00 pm therefore, no injuries were caused at 11.30 pm necessitating framing of charges under Section 302/149 of IPC at 11.30 pm.
6. In this regard learned counsel for the appellants has also made a reference to statements of Ramdin (P.W.1), specifically in para 9 of his cross-examination, wherein he has deposed that all the four accused had beaten his father Shankariya in the 'Bakhar' of his house. Janved had hit his father Shankariya with a farsa on his head. He had started bleeding from mouth and had fallen unconscious. Abhay Singh had hit him with a ballam hitting him in his left hand. Then he clarified that farsa was hit not from the sharp side but from the blunt side. Reading such evidence of Ramdin (P.W.1) in conjunction with evidence of Dr. S.P. Jain, (P.W.8), who admitted in para 16 of his cross- examination that there was only one injury over head further corroborating FIR (Ex.D/3), in which it is mentioned that 9 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 injuries were caused to Sukkha, Shankariya, Gyana Bai so also Rana at about 6.00 pm, it is submitted that since no injuries were caused by six other accused persons, as is corroborated by Dr. S.P. Jain (P.W.8), no conviction could have been recorded under Section 149 of IPC for other six accused persons because no injury was caused in the third phase.
7. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Nawab Ali Vs. The State of U.P. as reported in AIR 1974 SC 1228, wherein in para 11 facts have been narrated raising a short question as to facts therein appellant could have been said to be guilty of the offence under Section 302 read with Section 149 of IPC. Answering this in para 12 it has been held as under :
"12. According to Section 149, Indian Penal Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. It is, therefore, incumbent upon the prosecution to show that the person concerned was a member of the unlawful assembly at the time of the commission of the offence. If the person concerned goes away and ceases to be, a member of the unlawful assembly before the commission of the offence, no vicarious liability can be fastened upon him under Section 149, Indian Penal Code because of any subsequent act done by the other members of the unlawful assembly. The conviction of Nawab Ali appellant for the offence 10 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 under Section 302 read with Section 149, Indian Penal Code in the circumstances cannot be held to, be well founded. We, therefore, accept the appeal of Nawab Ali to the extent of setting aside his conviction under Section 302 read with Section 149, Indian Penal Code. He is acquitted on that score.
8. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Kuldip Yadav and others Vs. State of Bihar as reported in AIR 2011 SC 1736, wherein in absence of any overt act attributed to any other accused person except accused No.1, it has been held that since common object was not known to other accused persons, it is not safe to convict other accused persons under Section 149 IPC.
9. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Raju @ Rajendra & another Vs. State of Rajasthan, as reported in (2013) 2 SCC 233, wherein in para 15 and 16 it has been held that in absence of common object and common intention of the members of the unlawful assembly, it is not safe to convict those who had not used the fire arms. It has been held that common object of unlawful assembly distinct from offence caused by some members thereof- when can be inferred. Offence that entire unlawful assembly could be held liable for two sub-groups clearly discernible in six member unlawful assembly. Each sub-group held liable only for offences committed by it, and as unlawful assembly only to the extent of common object attributable to 11 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 unlawful assembly as a whole. Sub group A : two accused found to share common intention to cause murder, convicted under Sections 302/34 of IPC. Sub group B: remaining four accused found to share common object to cause hurt by dangerous weapons convicted under Sections 324/149 of IPC.
10. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Rattiram and others Vs. State of Madhya Pradesh, as reported in (2013) 12 SCC 316, wherein it has been held that conviction of all accused with aid of Section 149 not sustainable. Reasonable doubt about presence of some accused, conviction of those accused whose presence was reasonably doubtful, set aside. Conviction of remaining accused, confirmed. In para 22 & 23, it has been held as under:
"22. In Ramachandran v. State of Kerala this Court has opined thus: (SCC p.269, para
27) "27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the 12 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injures is also relevant to be considered. 'Common object' may also be developed at the time of incident."
23. Applying the aforesaid principles, we are required to see whether all the appellants were present at the time of occurrence. We have already opined that Chhotelal exhorted and other accused persons, namely, Dhaniram, Mohan, Badri and Govardhan had assaulted the deceased and there is ample evidence on record to safely conclude that they formed an unlawful assembly and there was common object to assault the deceased who, eventually, succumbed to the injuries inflicted in the assault. As far as other accused persons, namely, Babulal, Satyanarayan, Rattiram, Kanchedi, Ramcharan and Ramesh are concerned, there are really contradictory statements with regard to the presence of the accused persons because PW 12 has stated that Babulal was not present at the place of occurrence. Ashok Kumar, PW 5, has contradicted himself about the weapons carried by Kanchedi, Ramcharan, Ramesh and Gorelal.
Leeladhar, PW 12, has not mentioned anything about Ramesh and Govardhan.
From the apparent contradictions from the depositions of PW 5 and PW 12 it seems that they have implicated Babulal, Satyanarayan, Rattiram, Ramesh and Ramcharan in the crime. As far as Govardhan is concerned, PW 5 has clearly stated that he and Badri hit Daulat with sticks on the back and the neck. The medical evidence corroborates the same. Nothing has been elicited in the cross-examination of PW 5 to discard his testimony. It has come out in the evidence of PW 13 that PW 5 was going along with Babulal, Kanchedi and his brother. We are referring to the same only to highlight that there is an 13 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 attempt to implicate number of persons.
It is borne out in the evidence that the deceased was involved in many criminal offences and there was some bad blood between the accused persons and the deceased. In such a situation it is not unusual to implicate some more persons as accused along with the real assailants."
11. It is submitted that distance between village Belgada to Police Station, as per FIR (Ex.D/3), can be deduced from the contents of FIR, inasmuch as, it is mentioned that Police Station is 12 km east between village Belgada and Chetupada, therefore, for an incident, which had taken place at 23.30 hours, recording of FIR at 3.30 am on 12.08.1994 causes doubt about the authenticity of the report because distance is not so much that it would have taken four hours to report the matter to the Police.
12. It is also submitted that appellants, namely; Sultan Singh and Roop Singh, who have filed Criminal Appeal No.596/2000 and similarly, Batoli and Kunwarlal, appellants in Criminal Appeal No.613/2000, have been added subsequently. It is pointed out that in the FIR, names of Kitab Singh, Abhay Singh, Janved Singh, Amol Singh, Laakhan Singh and Man Singh are clearly mentioned alongwith four others and thereafter names of Kunwarlal, Batoli, Sultan Singh and Roop Singh have been added. Reading marg intimation (Ex.P/2), it is submitted that marg intimation was recorded at 3.35 am, in which names of these four persons i.e. Kunwarlal, Batoli, Sultan Singh and Roop Singh have not been mentioned. Therefore, there was no 14 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 occasion for the author of the FIR to have recorded such names at 3.30 am when FIR (Ex.D/3) was lodged, as these names are not mentioned in marg intimation (Ex.P/2). In this regard, statements of I.O., Shiv Pratap Singh Sikarwar (P.W.9) have been referred to, to point out that in para 14, I.O. of the case has admitted that incident took place in three phases. He admitted that since incident had taken place in one sequence by same set of accused, therefore, FIR was registered at one crime number. He also admitted that all the accused persons were not present in the first and second phase of the incident. He further admitted that in marg intimation (Ex.P/2), there is mention of four other persons and this marg intimation (Ex.P/2) was recorded by head constable Ranjeet Singh. It is pointed out that this Ranjeet Singh has not been examined by the prosecution.
13. It is submitted that Sukkha (P.W.2), author of the FIR, has admitted in para 23 of his cross-examination that there were only eight accused and not ten. He had given names of only eight persons in the FIR and case diary statements and he is not aware as to how details of ten persons have been mentioned in the FIR and case diary statements. He has further admitted that he was knowing all the accused persons at the time of the incident and he had given names of only eight persons in the FIR. He had not mentioned "char anya aadmi" in the FIR. He had not mentioned that there were in all ten persons in the FIR. He had not mentioned in the marg intimation (Ex.P/2) from 'A' 15 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 to 'A' part that there were four other persons and how police has noted such fact, he cannot say. He further admits that Sultan Singh and Roop Singh were though named, they were not present at the time of the incident.
14. Ramdin (P.W.1) has also admitted in para 20 of his cross- examination that Roop Singh and Sultan Singh were not present at the place of incident and he had not recorded their names in any of the documents.
15. It is submitted that these witnesses were not declared hostile, and therefore, prosecution is bound by their version as per the law laid down by Hon'ble Supreme Court in the case of Raja Ram Vs. State of Rajasthan as reported in (2005) 5 SCC 272, wherein it has been held that if a witness is not declared hostile and supports the case of the defence, then his evidence is binding on the prosecution. Thus on the strength of evidence on record, it is submitted that Sultan Singh, Roop Singh, Batoli and Kunwarlal have been falsely implicated and as per the law laid down in the case of Rattiram and others (supra), they needs to be acquitted.
16. It is submitted that Patiram (P.W.3) has admitted in para 7 that he lives in neighbourhood of Shankariya and Shankariya was his brother, whereas Sukkha, Rana and Ramdin are his nephews. He denied that a land dispute is pending between the accused and Rana, Sukkha, Ramdin, Shankariya etc. He had reached the place of incident after hearing cries of Sukkha, 16 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 Ramdin and had seen that Shankariya, Ramdin, Gyana and Sukkha were lying at their door in a blood pool. He further admits that he had seen Shankariya. Shankariya had sustained one injury on left hand side on his head, which was bleeding and another injury in his finger, which too was bleeding. He further admits in para 9 that at the second phase of incident, which had taken place at Chetupada haar between 11.00 and 12.00, he was present and had seen only eight persons and had not seen Sultan Singh and Roop Singh and all the injuries sustained by Shankariya were sustained at home clearly point out towards wrongful conviction of all the accused under Section 302 of IPC with the aid of Section 149, inasmuch as, no injury was caused to Shankariya in the incident, which had taken place between 11.30-12.00.
17. It is further contended that Rana (P.W.4) has admitted in para 7 that police had not taken his case diary statements. Police had not reached the scene of crime in the night and had carried out interrogation in the morning when they had reached to the spot. He said that if it is not mentioned in his case diary statements Ex.D/5 that Lakkha had hit a lohangi on the head of Patiram, then he cannot give any reason for such omission. Reading statements of Rana (P.W.4), as given in Ex.D/5, it is submitted that role of Laakhan also becomes doubtful and he has been falsely implicated. The statement by him that, Police had not taken any of his case diary statement is also contrary to 17 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 the document Ex.D/5, available on record.
18. It is contended that Banwari (P.W.5) claims himself to be a witness of third phase of the incident. It is submitted that his evidence in para 5 that Kitab Singh had hit Shankariya over his head with Sariya, whereas Janved had hit him with Farsa and similarly, Kitab Singh had hit Patiram on his hand causing fracture of his hand when examined in the light of medical evidence (Ex.P/22), then injury of farsa has not been reported by Dr. S.P.Jain (P.W.8), who conducted postmortem. There was only one lacerated wound, and not incised wound. Banwari (P.W.5) has though mentioned that he was beaten when incident had taken place at village, when corroborated with medical report (Ex.P/28), then it is apparent that as per his deposition, he had sustained only one injury i.e. on his head which was caused to him when incident had taken place in the village. Banwari had not sustained any fracture, which he admits in paragraph 9 that he had not sustained any injury between village Belgada and Chetupada.
19. It is further contended that demeanour of Gyana Bai (P.W.6) has been noted by Court on more than one occasion. She has given a statement in para 7 that time was almost 10.00 pm when bullock cart was prepared and then deposed on her own that they had reached Chetupada at 11.00. Then, she deposed that there was light when they had left village. She has also admitted rivalry between complainant party and accused due to 18 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 election politics. She also admitted that her husband has died instantaneously on the spot, therefore, offence against six accused persons is not made out with the aid of Section 149.
20. As for four main accused are concerned, it is submitted that, for the second phase of incident, charges are only under Section 307 of IPC and not under Section 302 of IPC. Admittedly, prosecution evidence proves that death of Shankariya had taken place due to injuries sustained by him in second phase of incident and therefore, it is submitted that since no charge for causing injury which caused death of Shankariya in the second phase of the incident has been framed, therefore, even these four accused persons cannot be held guilty of the offences they are charged for. It is submitted that for a charge under Section 307 of IPC, conviction cannot be recorded under Section 302 of IPC.
21. Learned Public Prosecutor on the other hand submits that injured persons are Patiram (P.W.3), Banwari (P.W.5) and Gabbar (P.W.7). Ex.D/2 is case diary statements of Ramdin (P.W.1). It is submitted that if some injury on the body of Shankariya was not seen in the postmortem, then that will not render the prosecution case redundant and credible evidence cannot be discarded. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of Yunis Alias Kariya Vs. State of M.P., as reported in (2003) 1 SCC 425, wherein in para 6 it has been held as under:
19 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 "6. Coming to the alleged discrepancy between medical evidence and evidence of the eyewitnesses, it is to be noted that at least three injuries referred to by the Autopsy Surgeon and forming part of the medical evidence and as stated by the eyewitnesses are common. These three injuries are by themselves sufficient to cause death. The Autopsy Surgeon has not mentioned the knife injury on the back side of the buttock and another injury. The mere non-
mention of the two injuries by the Autopsy Surgeon does not and cannot lead to rejection of the prosecution case.
The two injuries might have escaped the notice of the doctor. Both the courts below have found the prosecution case to be fully established and proved beyond any doubt whatsoever and we see no reason to take a different view."
22. It is submitted that six other persons came with four persons of the original party armed with weapon, therefore, they had common intention, as they were not knowing about the death of Shankariya and thus, they cannot be exonerated by showing their absence.
23. It is also submitted that plea of defective charge could have been raised under Section 465 (2) of Code of Criminal Procedure and now plea of defective charge cannot be raised. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Kamalanantha and others Vs. State of Tamil Nadu as reported in (2005) 5 SCC 194, wherein in para 51, it has been observed that in the present case, accused was represented by a very senior and able criminal lawyer. All the prosecution witnesses were subjected to incisive cross-
20 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 examination. The accused has put up 49 defence witnesses. Ample opportunity was afforded to all the circumstances appearing against him. Having regard to these facts, it cannot be said that failure of justice had occasioned. It has also been held that in case of misjoinder of charges, it is just an irregularity and not an illegality and is curable under Section 464 or Section 465 Cr.P.C.
24. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Alister Anthony Pareira Vs. State of Maharashtra, as reported in (2012) 2 SCC 648, wherein it has been held that charge was framed under Section 304 Part-II containing ingredients of said section but not mentioning "in drunken condition". However, prosecution evidence consisting of evidence as to drunken condition at a relevant time disclosed to accused, and thus said omission not causing any prejudice to him. In such circumstances, said omission in the charge as well as omission to put to him specifically some of evidence in his examination under Section 313 Cr.P.C., held, immaterial and not vitiative of his trial and conviction.
25. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Darbara Singh Vs. State of Punjab as reported in (2012) 10 SCC 476, wherein in para 20 and 21 it has been held that accused is required to show prejudice caused by error in charge and failure of justice 21 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 occasioned thereby. In para 20-21 it has been observed as under:
"20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair change to defend himself against the said charge(s).
21. "Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has 22 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 to be in relation to investigation of trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Rafiq Ahmed v. State of U.P., SCC p.320, para 36; Rattiram v. State of M.P. and Bhimanna v. State of Karnataka)."
26. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of State of U.P. Vs. Jagdeo and others, as reported in (2003) 1 SCC 456, wherein in para 6 and 7 it has been held that High Court was clearly in error in not considering the evidence of eyewitnesses at all in the present case for the reason that they were interested witnesses. One of the eyewitnesses is an injured person, who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefrom he received the injuries, would be an obvious question. The evidence of the eye witnesses is consistent with version of the other witnesses. There was no reason to discard the evidence of the eyewitnesses, specially when, it is clinching and implicates the accused persons.
27. Placing reliance on these judgments, learned Public Prosecutor justifies conviction of all the accused.
28. Shri Sailendra Singh, learned counsel for the appellants, submits that doctor has admitted only one injury on head and, 23 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 therefore, judgment rendered in case of Yunis Alias Kariya (supra) is distinguishable because in that case non-reported injuries were on the posterior part of the body, whereas in the present case it is not the case of the prosecution that any injuries were caused on the body of the Shankariya on the posterior part of the body. Further doctor has neither been declared hostile nor re-examined seeking clarification as to number of injuries, which should have been caused if testimony of eye witnesses is to be believed.
29. In view of such facts, evidence and case laws, role of each of the accused needs to be scrutinized so to decide the correctness of their conviction or otherwise.
30. As far as appellants, Sultan Singh and Roop Singh in Cr.A. No.596/2000 are concerned, Ramdin (P.W.1) admitted that Roop Singh and Sultan Singh were not present. Sukkha (P.W.2) has also admitted that there were only eight persons and not ten. Patiram (P.W.3) has also admitted in para 10 that Roop Singh and Sultan Singh were not present. Therefore, when prosecution witnesses have themselves not deposed anything about Roop Singh and Sultan Singh, then their conviction cannot be justified and deserves to be set aside and is set aside, inasmuch as neither any overt act has been attributed to them nor their absence can be construed to be in common object or common intention of the so called unlawful assembly. Accordingly, Cr.A. No.596/2000 is allowed. These appellants are on bail, their bail 24 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 bonds be discharged.
31. Appellants Batoli and Kunwarlal in Cr.A.No.613/2000 have been convicted with aid of Section 149 of IPC. Similarly, Man Singh and Laakhan Singh in Cr.A.No.832/2000 have been convicted under Section 302 with the aid of Section 149 of IPC.
32. Prosecution has consistently taken the stand that, the incident took place in three phases; one at about 3.00 p.m. in the field, second at 6.00 p.m. at the house of Shankariya and third when complainant party was travelling to Chetupada for lodging of FIR. It is admitted by all the prosecution witnesses including I.O., Shiv Pratap Singh Sikarwar (P.W.9) that incident took place in three phases. Except for 4 appellants, who have filed Cr.A.No.628/2000, none of the other appellants were present at the scene of the incident either at 3.00 pm or at 6.00 p.m. As per postmortem report of Shankariya (Ex.P/22), there was only one injury on the left side of head, frontal region with bone fracture which became cause of death. Dr. S.P. Jain (P.W.8) (has been wrongly mentioned as P.C. Jain in the deposition sheet, inasmuch as he has put his name as Dr. S.P. Jain on Ex.P/22) has clearly admitted that no injury was caused to Shankariya with any sharp cutting object. He has also clearly deposed that there was only one injury on the head and there was no other injury on the head. Therefore, this injury was attributed by the eye witnesses Ramdin (P.W.1) and Sukkha (P.W.2) at the time of second phase of the incident when it is alleged that Shankariya was pulled out of house and was beaten with sariya, ballam, farsa and lohangi.
25 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
33. As per Chapter 24 of "Injuries by Mechanical Violence" in a Textbook of Medical Jurisprudence And Toxicology, 24 th Edition Reprint 2012 by Modi, Incised or Slash Wounds are described as under:
An incised or slash wound is defined as orderly solution of skin and tissue by a sharp cutting weapon drawn across the skin. It may either be produced by light sharp cutting instruments such as knife, razor, scissors, or heavy sharp cutting weapons such as sword, gandasa (chopper), axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp, cutting pointed or linear edge and are mostly intentionally inflicted. The cutting edge of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalloped or hollow, all these variations affect the shape of the wound.
34. Lohangi, sariya and ballam will cause an incised wound whereas lacerated wound found on the head of the deceased Shankariya as mentioned in Ex.P/22, could have been caused only by a sariya. Allegation of hitting Shankariya with sariya is on Kitab Singh and not on any other accused, who had allegedly formed an unlawful assembly at 11-11.30 pm alongwith four main accused, namely; Batoli, Kunwarlal, Man Singh and Laakhan Singh.
35. Sukkha (P.W.2), author of marg intimation (Ex.P/2) and also of FIR (Ex.D/3) has admitted that he had not mentioned, 'four others', as are mentioned in the marg intimation (Ex.P/2) and FIR (Ex.D/3).
36. Thus it is submitted that as per author of the FIR, he had not given names of Kunwarlal, Batoli, Sultan Singh and Roop 26 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 Singh and therefore, when Sukkha (P.W.2) admits in para 23 of his cross-examination that he had not mentioned four others in marg intimation (Ex.P/2) and there were only eight and not ten persons, then inclusion of names of Batoli and Kunwarlal in the FIR (Ex.D/3) is not justified when such names were not mentioned in the marg intimation (Ex.P/2). Even Gyana Bai (P.W.6) in her case diary statement (Ex.D/7) has deposed that she is not knowing names of four others. She further deposed that at Chetupada she and Patiram (P.W.3) were beaten. Patiram has not taken name of Batoli in his case diary statement (Ex.D/4). Therefore, from this testimony and evidence, it is apparent that Batoli and Kunwarlal have been falsely implicated and had no role in the commission of the offence and even their presence during third phase of the incident becomes doubtful, therefore, trial Court should have extended benefit of doubt to them. Trial Court has committed an error, which needs to be rectified and therefore, finding of conviction against Batoli and Kunwarlal in Cr.A.No.613/2000 needs to be set aside and is set aside for this reason, besides the fact that none of the prosecution witnesses have been able to establish any common intention or common object and also could not attribute any overt act, which is requirement of law as has been held in the case of Kuldip Yadav & others (supra) and Raju @ Rajendra & Anr. (supra). Accordingly, Cr.A.No.613/2000 is allowed, conviction of Batoli and Kunwarlal under Section 302/149 IPC 27 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 is set aside.
37. Rana (P.W.4) has though mentioned names of Man Singh and Laakhan Singh in his case diary statements (Ex.D/5) but has not attributed any overt act to Laakhan. He alleged that Man Singh had hit him with an axe on little finger of right hand and Roop Singh had hit him with lathi, as a result of which he had fallen down. M.L.C. of Rana, Ex.P/26, reveals that he had not sustained any incised wound capable of being caused with an axe and it is not the case of the witness Rana that he was hit by blunt side of an axe by Man Singh. Dr. S.P. Jain (P.W.8) deposed that all the injuries on the body of Rana were caused by hard and blunt object and they were simple in nature. Dr. S.P. Jain (P.W.8) admits that except for Ramdin and deceased Shankariya, nobody had sustained any fracture, as per the clinical examination. He had not found any incised wound except on the body of Gyana Bai, Sukkha and Patiram.
38. It is an admitted position that there is old rivalry between the complainant party and the accused. Rivalry is a double edged weapon but at the same time, it is to be appreciated that other injured witness Gyana Bai has not attributed any specific role to Man Singh and Laakhan.
39. Gabbar (P.W.7) has deposed that they had started running for their life and has attributed attack of lohangi to Sultan, whose presence has been discarded by other prosecution witnesses.
28 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
40. Sukkha (P.W.2) in para 16 of his cross examination has admitted that Sukkha, Shankariya, Gyana Bai and Ramji had sustained all the injuries at home and not at Chetupada.
41. Patiram (P.W.3) admitted in para 2 of his examination -in- chief that complainant party was travelling in two bullock carts. The one, which was going ahead, was being driven by Raghunath, in that Shankariya, Gyana and Sukkha were sitting whereas in the cart, which was following them, was being driven by Bhanu. In that he himself i.e. Patiram, Ramdin and Rana were sitting. Then he said that he, Gabbar and Nawab were on foot. This witness in his examination-in-chief has admitted that Kitab Singh had hit him with a Sariya on his head. Amol Singh had hit him in both of his hands and on his back with lohangi. Janved had hit him with farsa. He has though taken names of Laakhan Singh @ Lakkha and Man Singh as the persons who were present at the time of third phase of the incident but has not ascribed any specific role to Laakhan and Man Singh. In para 11, this witness has deposed that he had identified accused persons in the brightness of bulb which was glowing on the house of Kadam Singh. Then he said that he heard their voice and then identified them, then he said that even if there would not have been any source of light, then also he would have identified all of them but could not explain as to why he had not narrated this fact in his case diary statement (Ex.D/4) that as to why he omitted to state that such incident had taken place in front of the house of Kadam Singh and he had seen accused persons in the light which was glowing on the house of Kadam Singh or had 29 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 identified all the accused persons on the basis of their voice.
42. Gyana Bai (P.W.6) has mentioned in her examination-in- chief that four years prior to her deposition all the accused persons, viz Janved armed with farsa, Amol armed with lohangi, Kitab Singh armed with farsa, Abhay Singh armed with ballam, Laakhan armed with lathi, Man Sing armed with axe, Batoli armed with lathi and Kunwarlal armed with lathi had visited her house. They murdered Shankariya. Thus, according to this prosecution witness, who is also an injured witness, Shankariya was murdered at her home. She has deposed that they had caused injuries to head of Sukkha and has broken his hands and legs and had thrown them on floor. In para 2 she admits that when incident took place at Chetupada, then Sukkha had hidden himself and had reported the matter to police. She alleged that Kitab Singh had hit her with sariya and Abhay Singh with ballam. Thus, even Gyana Bai (P.W.6) has not attributed any overt act to Laakhan and Man Singh for an incident which took place at Chetupada.
43. Ramdin (P.W.1) has also admitted that Amol Singh had hit Gyana Bai on her head with lohangi which corroborates with Ex.P/23 i.e. MLC of Gyana Bai and so also statement of Sukkha (P.W.2) that Gyana Bai, Sukkha, Ramdin and Shankariya had sustained all the injuries at home when second phase of incident had taken place. In his case diary statement (Ex.D/2), he has taken names of Sultan Singh, Roop Singh, Kunwarlal, Batoli as participants who participated in the third phase of incident at Chetupada and alleged that Laakhan had hit him with lohangi on 30 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 his left hand side but has not attributed any injury caused by Man Singh. This witness has thereafter given clean chit to Sultan and Roopsingh, however, he has admitted that if he has not given such details as to which of the accused caused injury with which weapon in his case diary statement (Ex.D/2), then he can not give reason for such omission. This witness has also admitted that when their bullock cart was surrounded, then he had ran away in the fields of Kadam Singh to save himself. Then improvised his statement as is evident from para 19 of his cross examination that accused had surrounded them and had given lathi blows. Neither Maan Singh nor Laakhan Singh were armed with lathi as per the seizure memo. However, Rana (P.W.4) though deposed in his examination-in-chief that Patiram was hit by Laakhan with lohangi in his head and Kitab Singh had attacked him with a Sariya in his right hand whereas Man Singh had attacked Rana on his right hand and also admitted in para 7 of his cross-examination that he had not given any statement to the police. However, in Ex.D/5 he has not mentioned that Laakhan had hit Patiram with lohangi. MLC of Rana (Ex.P/26) reveals that all the injuries caused to Rana were by hard and blunt object as they all were either lacerated wound or contusions. Therefore, contention that Man Singh had hit him with an axe is not made out.
44. Banwari (P.W.5) has also admitted that he had seen the incident in the light of bulb which was glowing on the house of Kadam Singh. In para 11 he has clearly mentioned that it was Kitab Singh, who had hit Patiram with Sariya. Abhay Singh had 31 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 hit Patiram with ballam. Janved had hit him with farsa and Amol Singh with kulhadi and then had taken name of Batoli and Kunwarlal hitting Patiram with lathi. This witness had not taken names of Laakhan and Man Singh as assailants. However, one thing is apparent that all these prosecution witnesses have shown presence of Laakhan and Man Singh armed with deadly weapons at the time of the incident, which took place at Chetupada.
45. As per Sukkha (P.W.2), who has deposed in para 16 of his cross-examination that he himself, Shankariya, Gyana Bai and Ramji were beaten at home only and were not beaten at Chetupada, therefore, common object of Man Singh and Laakhan was not to cause any death as Shankariya died due to injuries, which were sustained by him at his home when Man Singh and Laakhan were not present.
46. Hon'ble Supreme Court in the case of Willie (William Slaney) Vs. State of Madhya Pradesh as reported in AIR 1956 SC 546 has held as under:
"Evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.
There is much difference in the scope and applicability of Ss.34 and 149,I.P.Code, though they have some resemblance and are to some extent overlapping. S.34 does not by itself create any offence, whereas S.149 does. In a charge under S.34, there is active participation in the commission of the criminal act, under S.149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the preparation or commission of the crime."
32 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000
47. Hon'ble Supreme Court in the case of Kartar Singh Vs. State of Punjab as reported in AIR 1961 SC 1787 has held as under:
"Conviction under Ss.302, 307 and 149, I.P.Code can be converted into one under Ss. 302, 307 and 34, I.P.Code."
48. Hon'ble Supreme Court in the case of Bhoor Singh Vs. State of Punjab as reported in AIR 1974 SC 1256 has held as under:
"Where the accused have been charged under S.302, I.P.Code read with S.149, I.P. Code but convicted under S.302, I.P.Code read with S.34, I.P.Code though there was no specific charge under S.34, I.P.Code, this tantamounts to irregularity. All the circumstances showing concert and participation in the joint criminal action by all the three appellants were duly put to them in their examination, under S.34, Cr.P.Code, 1898 (old Code). The appellants were fully aware of the nature with which they were charged. No question of prejudice arises, so the objection stands overruled "
49. Therefore, Man Singh and Laakhan were present at Chetupada, had common object and common intention to obstruct and harm the complainant party. Thus, as they were not present in the incident, which took place at 6.00 pm and except for Gyana Bai (P.W.6), no material witness has testified their presence at 6.00 pm when allegedly Shankariya sustained injuries and died because of, their conviction under Section 302 read with Section 149 of IPC cannot be sustained. However, it can be recorded under Section 307 read with Section 149 of IPC as they had an object of obstructing and injuring the complainant party in reporting the incident which had taken place in earlier two phases and were part 33 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 of the unlawful assembly. Thus, appellants Man Singh and Laakhan in Cr.A. No.632/2000, are convicted under Section 307 of IPC with the aid of Section 149 of IPC with 07 years imprisonment and fine of Rs.5,000/- each for causing grievous injury to Patiram (P.W.3).
50. Learned counsel for the appellants in Cr.A. No.628/2000 submits that it was only Kitab Singh, who was wielding sariya. Deceased Shankariya sustained only one head injury, which is in the form of lacerated wound, which became cause for his death attributable to Kitab Singh, who was wielding a sariya and therefore, all other persons, namely Abhay Singh, Janved Singh and Amol Singh should be exonerated. Another argument is that since death of Shankariya admittedly took place in an incident, which happened at 6.00 pm outside the house of Shankariya, therefore, since no charge has been framed under Sections 302/149 of IPC, no conviction can be recorded in regard to these four appellants.
51. As far as question of charge is concerned, this aspect has been aptly summarized in the case of Kamalanantha and others (supra), Alister Anthony Pareira (supra) and Darbara Singh (supra). In fact, incident, which took place at 3 o' clock in the field can be treated in isolation but the fact remains that these four appellant have been commonly and consistently named as accused. Specific roles have been attributed to each of them showing their common intention, which are substantially corroborated with the medical evidence. All four of them had 34 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 sufficient opportunity to defend themselves in relation to charge of murder of Shankariya and they have adduced prolonged evidence by indulging in exhaustive cross-examination so to seek their exoneration, therefore, it cannot be said that they were not aware of the charge and their act of causing injury on the vital part of Shankariya and injuring of other persons, who are family members of Shankariya out of whom Ramdin had sustained fracture, therefore, this Court in the light of the law laid down in the case of Darbara Singh (supra) is of the opinion that defect in the framing of the charge was not so serious that it could not be covered under Section 464 and 465 of Cr.P.C.
52. As far as submission that individual role should be seen and not the collective act of the four, law is crystal clear that where a charge under Section 148 or 149 of IPC is not made out, then if a criminal act is found to have been 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. In case of Pandurang Vs. State Of Hyderabad as reported in AIR 1955 SC 216, a three Judge Bench of Supreme Court has held that to attract the applicability of Section 34 of the Code, prosecution is under an obligation to establish that there existed a common intention which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been 35 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 done in furtherance of the common intention of all.
53. In the present case, as has been putforth by learned counsel for the appellants, incident took place in three phases. First at 3.00 pm in the field, second at 6.00 pm in front of the house of Shankariya and third between village Belgada and Chetupada. In the second phase originally four accused were the aggressor and it was not a case of free fight. They had approached the house of Shankariya. It is not their case that they were passing through that way and were intercepted resulting in free fight. Admittedly, the joint liability has been for the act committed in front of the house of Shankariya. The time gap between two i.e. first phase and second phase is about three hours. It is not the case of the accused that they had not attacked the complainant party at their home at 6.00 pm. There was sufficient time gap between 3.00 pm when first incident took place when allegedly Amol Singh and other were cultivating their field and the second phase and therefore, the time gap was sufficient to infer a preconceived and premeditated act on the part of the four accused resulted in their act in consultation with each other resulting in the second phase of the incident.
54. In the case of Damodar Vs. State of U.P. as reported in 2005 Cr.L.J. 330 (SC), it has been held that when accused according to the evidence pursuant to common intention with the co-accused fired at deceased resulting in his death, the allegations were proved by evidence of wife of deceased and her brother, who were eye witnesses to occurrence. Conviction of 36 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 appellant and co-accused under Section 302 read with Section 34 was held proper.
55. In the case of Sangappa Sanganabasappa Vs. State of Karnataka as reported in (2010) 11 SCC 782, Supreme Court has held that substitution of conviction from Section 149 to Section 34 is justified. It has been further held that it is true that there was no charge under Section 302 read with Section 34 but the facts of the case are such that the accused could have been charged alternatively either under Section 302 read with Section 149 or under Section 302 read with Section 34 and one of the accused having been acquitted, the conviction under Section 302 read with Section 149 can be substituted with one under Section 302 read with Section 34. No prejudice is likely to be caused to the accused whose appeal is being dismissed.
56. Similarly, in the case of Nethala Pothuraju and others Vs. State of Andhra Pradesh as reported in AIR 1991 SC 2214, it has been held that a non-applicability of Section 149 of IPC is no bar for the purpose of convicting the accused under Section 302 read with Section 34 of IPC, if the evidence discloses the commission of an offence, in furtherance of the common intention of such accused. This is because, both, Section 149 and Section 34 of IPC deal with a group of persons who become liable to be punished as sharers in the commission of an offence. Thus, in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more, the court can simply convict the guilty persons with 37 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 the aid of Section 34 IPC, provided that there is sufficient evidence on record to show that such accused shared a common intention to commit the crime in question.
57. In view of such facts and the legal position, this Court is of the opinion that conviction of appellants, namely; Abhay Singh, Janved Singh, Kitab Singh and Amol Singh in Cr.A. No.628/2000, needs to be maintained, however, the judgment of the trial Court needs to be substituted and instead of convicting them under Section 302 with the aid of Section 149 IPC their conviction is converted under Section 302 read with Section 34 of IPC with life imprisonment and fine of Rs.5,000/- each, under Section 307 read with Section 149 of IPC with 07 years imprisonment for causing grievous injury to Patiram (P.W.3).
58. Accordingly, Cr.A. No.596/2000 and Cr.A. No.613/2000, are allowed. Judgment of conviction and sentence of all the appellants in the aforesaid Criminal Appeals is set aside. Appellants Sultan Singh, Roop Singh, Batoli and Kunwarlal are on bail. Their bail bonds shall stand discharged. Cr.A. No.628/2000 is disposed of for the reasons discussed above with modification of sentence from Section 302 with the aid of Section 149 IPC to Section 302 read with Section 34 of IPC with life imprisonment and fine of Rs.5,000/- each and under Section 307 read with Section 149 of IPC with 07 years imprisonment for causing grievous injury to Patiram (P.W.3). Cr.A. No.632/2000 is disposed of for the reasons discussed above and they are convicted under Section 307 of IPC with the 38 Cr.A. Nos.596/2000, 613/2000, 628/2000 & 632/2000 aid of Section 149 of IPC with 07 years imprisonment and fine of Rs.5,000/- each for causing grievous injury to Patiram (P.W.3). Prosecution has been able to prove charges under Section 452 of IPC but has failed to prove charges under Section 307 of IPC vis-a-vis other injured persons and as Dr. S.P. Jain (P.W.8) has not certified injuries on the body of any of the injured persons to be fatal to life or to have been sustained on any vital part of the body, therefore, looking to the nature of the injuries, this Court is of the opinion that conviction of the appellants for causing injuries to other injured persons can be recorded under Section 325 of IPC with sentence of three years' imprisonment and fine of Rs.2,000/-. Appellants, namely; Abhay Singh, Janved Singh, Kitab Singh, Amol Singh and Man Singh are on bail. Their bail bonds stands cancelled and they are directed to surrender themselves before the trial Court on or before 15th September, 2019 to serve their remaining jail sentence.
Record be sent back to the trial Court.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
shanu
SHANU RAIKWAR
2019.09.04
11:23:31 -07'00'