Madhya Pradesh High Court
State Of M.P. vs Kulwant Singh & Ors. on 9 March, 2017
Author: Anand Pathak
Bench: Anand Pathak
(1) CRA 315/2003 and CRA 482/2003
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
DB:- Hon'ble Shri Justice N. K. Gupta &
Hon'ble Shri Justice Anand Pathak
CRA 315/2003
Kulwant Singh & Others
vs.
State of Madhya Pradesh
AND
CRA 482/2003
State of Madhya Pradesh
Vs.
Kulwant Singh & Others
=======================
Shri DR Sharma, counsel for the appellants in CRA 315/2003
as well as for the respondents in CRA 482/2003.
Shri JM Sahni, Panel Lawyer for the State - respondent in
CRA 315/2003 as well as for the appellant/State in CRA
482/2003.
======================
JUDGMENT
(Delivered on 09/03/2017) Per Justice N. K. Gupta:-
Since both the appeals are connected and arise out of the common judgment dated 28/05/2003, passed by First Additional Sessions Judge, Dabra, District Gwalior (M.P.) in Sessions Trial No.262/2002, they are decided by the present common judgment.
(2) The appellants of Criminal Appeal No.315/2003 have preferred the present appeal being aggrieved with the aforesaid judgment passed against them in which each of them has been convicted of offences under Sections 148, 341, 324 or 324 read with Section 149 (three counts) of IPC (2) CRA 315/2003 and CRA 482/2003 and sentenced to seven days' simple imprisonment, one month's simple imprisonment and six months' simple imprisonment with fine of Rs.500/- for each count charge of Section 324 or 324 read with Section 149 of IPC respectively.
(3) The main accused Jaswant Singh had filed Criminal Appeal No.364/2003 which was dismissed being withdrawn.
(4) The State has preferred Criminal Appeal No.482/2003, against the appellants of Criminal Appeal No.315/2003 to get them convicted of offence under Section 302 read with Section 149 of IPC and for passing the appropriate sentence.
Also, it is prayed that the sentence recorded against accused Jaswat Singh, be enhanced.
(5) Facts of the case, in short, are that complainant Khajan Singh (PW1) was taking water from a flowing Nala near his house. The complainant and other persons were habitually putting some mud in the canal so that water could flow in the nala. Ajit Singh, brother-in-law of complainant- Khajan Singh stopped the water of nala by pouring some mud. On 22/11/2001, accused- Harvansh Singh removed the mud and opened the flow of nala. Thereafter, Ajit Singh objected before accused Harvansh Singh. Jaswant Singh, Kulwant Singh, Shailendra Singh, Balwant Singh, Harvansh Singh, Tilpratap Singh, Shamsher Singh and Rajvinder Singh abused Ajit Singh and complainant- Khajan Singh and gave a threat that they would be seen in future. On 23/11/2001, when Santosh Singh, brother of complainant- Khajan Singh was taking trolley with a tractor in his field, then accused Shamsher Singh and Rajvinder Singh prohibited him with the pretext that if they will not get water from nala then they would not permit the complainant party to use the right of way. It was alleged that Shamsher Singh and Rajvinder Singh gave two-three fist blows to victim Santosh and thereafter, he went back. Again on 24/11/2001 at about 7:00 am complainant Khajan Singh (PW1) along-with his brother deceased Charan Singh, son Harvinder Singh and nephew Jashpal Singh was going with a (3) CRA 315/2003 and CRA 482/2003 tractor to sow some seeds in the field. When tractor arrived near the field of Harvansh Singh, accused Jaswant Singh having a mouser gun, Kalwant Singh, Shailendra Singh, Harvansh Singh, Shamsher Singh and Rajvinder Singh having swords, Tilpratap Singh having luhangi and Balwant Singh having a ballam surrounded the tractor and prohibited them to move from that path. When deceased Charan Singh who was driving the tractor got down from it, appellant Shailendra Singh exhorted accused Jaswant Singh to fire and Jaswant Singh fired upon deceased Charan Singh with a mouser gun causing injury on his chest. Charan Singh fell down at the spot. When victim Harvinder Singh (PW2) tried to pick up deceased Charan Singh then appellant Rajvinder Singh gave a blow of sword causing injuries near his left thumb and index finger. Appellant Shailendra Singh gave a blow of sword to victim Jashpal Singh (PW3) causing injury on the heel of right leg. Again, accused Harvansh Singh gave a blow of sword to Jashpal Singh causing an injury on his left elbow. Accused Jaswant Singh fired four-five times. On hearing the noise of quarrel when Hardeep Singh and Gurdeep Singh came to the spot, then the appellants and other accused persons ran away from there.
(6) The dead body of the deceased Charan Singh was taken to the Government Hospital, Dabra. The injured persons were also taken to the Hospital. The SHO Picchore on getting information visited the Government Hospital, Dabra where complainant Khajan Singh had lodged a Dehati Nalishi Ex.P1. The injured persons were sent for their medico-legal examination and treatment whereas the dead body of deceased Charan Singh was sent for postmortem. Dr. SK Saxena (PW10) examined Harvinder Singh and gave a report Ex.P26. He found a single incised wound to Harvinder Singh on his left hand. Similarly, he examined injured Jaspal Singh and gave a report Ex.P27. Two incised wounds were found to Jashpal Singh; one was on right foot and second was on left (4) CRA 315/2003 and CRA 482/2003 forearm at outer surface. Dr.SK Saxena (PW10) also performed the postmortem on the body of deceased Charan Singh and gave a report Ex.P25. He found one entry wound on left side of his chest and one exit wound on the back near right shoulder. Due to that gunshot, pleura of lungs, trachea, both the lungs, arch of aortic etc. were damaged. According to Dr. Saxena, the injury was caused by firearm and it was fatal in nature.
(7) Surendra Singh Bhadoriya (PW12) SHO, Picchore reached the spot and prepared spot map Ex.P2. He picked up the bloodstained and ordinary soil from the spot and recovered the same with seizure memo Ex.P29. He also seized one lungi, shirt and pair of shoes from the spot and prepared a recovery memo Ex.P30. He examined various witnesses under Section 161 of CrPC, arrested several accused persons and recovered various weapons. From accused Jaswant Singh, one rifle of 315 bore along-with three brass rounds were recovered and a seizure memo Ex.P37 was prepared. Sub-Inspector Rakesh Gupta (PW14) recovered a sword from accused Rajvinder Singh and prepared seizure memo Ex.P42. All the seized articles were sent for forensic science analysis and a report relating to blood etc. Ex.P42 is received from Forensic Science Laboratory whereas a report relating to Ballistic Expert Ex.P43 was also filed before the trial Court. After due investigation, the charge-sheet was filed before the JMFC, Dabra who committed the case to the Court of Session and ultimately it was transferred to the First Additional Sessions Judge, Dabra, District Gwalior (M.P.).
(8) The appellants of Criminal Appeal No.315/2003 abjured their guilt. They took a plea that appellant Balwant Singh was not present at the spot. He is a driver, who had gone to Raipur by transporting a truck and its luggage. One Lakhvinder Singh, brother of complainant Khajan Singh, had to recover some amount from Harvansh Singh and complainant party (5) CRA 315/2003 and CRA 482/2003 was not ready to pay the same and, therefore, it was proposed that old tractor of the deceased Charan Singh was to be exchanged with new tractor of Khajan Singh and on the date of incident, deceased Charan Singh had come to take new tractor and a dispute took place on that count in which deceased Charan Singh assaulted Harvinder Singh (PW2) with a sword and Harvinder Singh killed the deceased Charan Singh by firing with a gun and, thereafter, a false case was cooked against the appellants. In defence, Assistant Commissioner Ramesh Chand (DW1), Krishna Prakash (DW2), Nathuram (DW6) and Prakash Chandra Gupta (DW8) were examined to prove the alibi of appellant Balwant Singh whereas Kailash (DW3) and Vanta Singh (Dw7) were examined to prove the quarrel which took place between the deceased and witness Harvinder Singh (PW2). Dr. Ganeshi Lal (DW4) was examined to prove the alibi of appellant Jaswant Singh whereas arms-dealer Rajendra Kumar Jain (DW9) was examined to show that no gun was available with the accused Jaswant Singh at the time of incident.
(9) The trial Court, after considering the evidence adduced by the parties, acquitted all the appellants of Criminal Appeal No. 315/2003 from the charge of Section 302 read with Section 149 of IPC but convicted and sentenced as mentioned above whereas accused Jaswant Singh was also convicted of offence under Section 302 of IPC.
(10) We have heard the learned counsel for the parties at length.
(11) First of all, the evidence given by Dr.SK Saxena (PW10) may be considered who performed the postmortem on the body of deceased Charan Singh and gave a report Ex. P/25. Dr. Saxena found one entry wound on the left side of chest and one exit wound on the back near the right shoulder. He found that it was due to firing a gunshot. The bullet had passed from the body of deceased Charan Singh and, therefore, pleura, both lungs, trachea and various parts near (6) CRA 315/2003 and CRA 482/2003 the lungs were found ruptured and the deceased Charan Singh died due to such injuries caused to him. According to Dr. Saxena, the injuries were sufficient to cause death of deceased Charan Singh and hence, according to him, the death of deceased Charan Singh was homicidal in nature and death could be caused due to injuries in the natural course of his life. There is no reason to discard the testimony of Dr. Saxena. Looking to the defence taken by the appellants that the witness Harvinder Singh (PW2) fired with a gun causing injuries to deceased Charan Singh indicates that they accept the fact that the deceased died due to a gunshot. Hence, it cannot be said that it is a case of suicide or accident. Hence, opinion given by Dr. Saxena that death of deceased Charan Singh was homicidal in nature, is acceptable.
(12) Also, Dr. SK Saxena (PW10) has examined Harvinder Singh (PW2) and gave a report Ex. P/26. He also examined Jashpal Singh (PW3) and gave a report Ex.P/27. According to Dr. Saxena, Harvinder Singh sustained one incised wound size 2.5 x 0.75 cm x skin deep in left hand on upper and outer side. The injury should have been caused within six hours of the incident. Similarly, he examined Jashpal Singh (PW3) and gave a report Ex.P/27. He found following injuries to the victim Jashpal Singh:-
"(1) one incised wound having size 8cm x 1.5 cm x muscle deep on right palm of right leg.
(2) One incised wound having size 1x ½ cm x skin deep on left forearm."
According to Dr. Saxena, the injuries of victim Jashpal Singh (PW3) were also six hours' old and simple in nature caused by sharp-cutting weapon.
(13) Khajan Singh (PW1), Harvinder Singh (PW2), Jashpal Singh (PW3) and Gurdeep Singh (PW4) have stated that due to previous quarrels when Khajan Singh and Charan Singh etc. were passing a tractor through the disputed way, the appellants surrounded them having various arms. It is alleged that accused Jaswant Singh had a mouser rifle. When Charan (7) CRA 315/2003 and CRA 482/2003 Singh got down from the tractor then on instigation of appellant Shailendra Singh, accused Jaswant Singh fired with the mouser gun causing injury to the deceased Charan Singh. Thereafter, when Harvinder Singh tried to pick up the deceased Charan Singh then appellant Rajvinder Singh gave a blow of sword on Harvinder Singh (PW2) causing injury on his head whereas appellants Shailendra Singh and Harvansh Singh assaulted the victim Jashpal Singh (PW3) by making blows of swords and, therefore, Jashpal Singh sustained two injuries. However, when other witnesses came to the spot the appellants ran away. The accused Jaswant Singh has been convicted of offence under Section 302 of IPC by the trial Court and he withdrew the appeal, therefore, it appears that he accepted the guilt and did not prosecute the appeal any more. However, for considering the common object or intention of the appellants, it would be appropriate to discuss about the crime committed by accused Jaswant Singh.
(14) In this connection, the appellants have examined the defence witnesses Kailash (DW3) and Banta Singh (DW7) that a quarrel took place between Harvinder Singh and deceased Charan Singh. Since Charan Singh gave a blow of sword to the victim Harvinder Singh, Harvinder Singh fired with a gun and Charan Singh died. However, evidence of Banta Singh (DW7) is not accurate. According to him, at the time of such incident, he was participating in a "Prabhat Pheri"
[a religious procession of Sikh community]. However, he has accepted that such "Prabhat Pheri" was to be observed for fifteen days prior to Guru Nanak Jayanti and he could not inform about the date when Guru Nanak Jayanti was in the month of November 2001 and whether it was possible that the "Prabhat Pheri" was moving on 24th November, 2001. He has stated that he heard shouts from the house of Khajan Singh but exactly he did not know about the actual quarrel which took place. Hence, by evidence of Banta Singh (DW7) nothing could be established in favour of the accused persons.
(8) CRA 315/2003 and CRA 482/2003 Similarly, Kailash (DW3) who was not the resident of the locality where house of complainant Khajan Singh was situated, has claimed that he went to the house of Khajan Singh for purchase of paddy and he saw the incident that Charan Singh gave a blow of sword to Harvinder Singh and thereafter Harvinder Singh brought a handmade gun and fired from a distance of 20 steps. In cross-examination, he told that the incident took place on 24/11/2001 but he could not tell about the date of birth of his children. He could not show the licence that he was competent to purchase the paddy. He told that he was a broker but for such business transaction it was not expected from the broker that he would have visited the house of Khajan Singh at about 8:00 am in the morning and, therefore, the trial Court has rightly discarded the evidence given by Kailash (DW3).
(15) Though defence evidence is not proved, it is for the prosecution to stand on its own feet and to prove the case beyond doubt. In this connection, the most important document is Dehati Nalishi Ex. P/1 proved by Surendra Singh Bhadoriya (PW12) the then SHO, Picchore who had gone to the District Hospital, Dabra on intimation of the quarrel. The FIR was lodged within two and half hours whereas sufficient time was required for the complainant Khajan Singh to take the deceased and the injured persons to the Government Hospital, Dabra and sufficient time was required for SHO Surendra Singh Bhadoriya to reach the Government Hospital, Dabra from Police Station Pichhore. After reaching, Dehati Nalish Ex.P/23 was registered and same was sent to the concerned Magistrate under Section 157 of CrPC. The evidence of eye-witnesses is duly corroborated by medical evidence as proved by Dr. SK Saxena (PW10). He found a gunshot injury to deceased Charan Singh as discussed by the witnesses and also the simple injuries to victims Harvinder Singh (PW2) and Jashpal Singh (PW3). Under these circumstances, the trial Court has rightly relied upon the (9) CRA 315/2003 and CRA 482/2003 testimony of eye-witnesses and rightly found it as proved that accused Jaswant Singh fired with a gun causing death of deceased Charan Singh.
(16) The State has preferred the present appeal against the appellants of Criminal Appeal No. 315/2003 that they were acquitted from the charge of Section 302 read with Section 149 of IPC. In this connection, if evidence of eye-witnesses is examined then they did not state the role of aforesaid appellants along with the accused Jaswant Singh that they intended to cause death of deceased Charan Singh.
According to the witnesses, when Charan Singh got down from the tractor, on instigation of accused Shailendra Singh, accused Jaswant Singh fired with a gun causing an injury and Charan Singh fell down. It is alleged against various appellants that they assaulted victims Harvinder Singh (PW2) and Jashpal Singh (PW3) by swords but their overt act does not fall within the purview of common intention from their side with the accused Jaswant Singh. When Charan Singh had already died then if the appellants would have intended to kill him then to make sure that Charan Singh had died, the appellants would have assaulted on the body of the deceased Charan Singh but there is no injury found on the body of deceased Charan Singh caused by these appellants. There is no allegation that any of such appellants had assaulted the deceased Charan Singh by any weapon and, therefore, the trial Court has rightly found that there was no common object or intention of these appellants along with the accused Jaswant Singh to kill the deceased Charan Singh and hence, the trial Court has rightly acquitted the appellants from the charge of Section 302 read with Section 149 of IPC. The story of exhortation relating to the appellant Shailendra Singh was not accepted by the trial Court. There was no reason for the appellant Shailendra Singh to kill the deceased Charan Singh, hence,it is possible that the witnesses would have told against him to implicate him in crime of murder.
(10) CRA 315/2003 and CRA 482/2003 (17) In the appeal, the State has also prayed for
enhancement of sentence against accused Jaswant Singh. When leave application was filed and the State was granted leave to file an appeal against the judgment of acquittal then the scope of that appeal under Section 378(3) of CrPC pertaining only to the first portion of relief of the appellants granted to them, can be challenged. If the State wanted to get enhancement of sentence against any of the accused then a separate appeal under Section 377 of CrPC was required to be filed and such relief cannot be given in the appeal filed by the State against the judgment of acquittal. Also, if it is presumed that second portion of relief may be considered then accused Jaswant Singh was sentenced to life imprisonment whereas he simply fired with a gun causing death of deceased Charan Singh and his overt act is not brutal so that he would be imposed by death sentence. Hence, there was no substance in the second portion of the prayer made by the State. Under these circumstances, in absence of any substance, the appeal filed by the State cannot be accepted.
(18) So far as the remaining portion of appeal filed by the appellants is concerned, various witnesses have proved the alibi relating to appellant Balwant Singh but that alibi was discarded by the trial Court. In this connection, if evidence given by eye-witnesses Khajan Singh (PW1), Harvinder Singh (PW2), Jashpal Singh (PW3) and Gurdeep Singh (PW4) is considered, then appellants Rajvinder Singh, Shailendra Singh and Harvansh Singh have assaulted victims Harvinder Singh (PW2) and Jashpal Singh (PW3) by swords but there is no allegation against accused Kulwant Singh or Balwant Singh or Shamsher Singh that they participated in the assault either on deceased Charan Singh or on victims Harvinder Singh (PW2) and Jashpal Singh (PW3). It is the settled principle of criminal law that by mere presence any accused cannot be convicted of offence done by others unless his (11) CRA 315/2003 and CRA 482/2003 overt act is proved to show his common intention. If the appellants Kulwant Singh, Balwant Singh and Shamsher Singh were present at the spot with arms then there was no reason that they would have kept silence or they would not have participated in the assault. Hence, possibility cannot be ruled out that appellant Balwant Singh was not present at the spot and it is clear from the evidence given by the eyewitnesses that there is no evidence to show the common intention of appellants Kulwant Singh, Balwant Singh and Shamsher Singh along-with other appellants. Hence, they could not be convicted on any count of charge under Section 324 of IPC either directly or with the help of Section 149 of IPC. The trial Court has committed an error in convicting appellants Kulwant Sigh, Balwant Singh and Shamsher Sigh for the aforesaid offence.
(19) Similarly, when it is not proved beyond doubt that the appellants Kulwant Singh, Balwant Singh and Shamsher Singh had participated in the crime then as per eye-witnesses, accused Jaswant Singh fired with a gun and appellants Rajvinder Singh, Harvansh Singh and Shailendra Singh have assaulted victims Harvinder Singh (PW2) and Jashpal Singh (PW3) with swords and, therefore, at the most only four persons have participated in the crime and, therefore, it was not proved beyond doubt that any unlawful assembly was constituted. For constitution of unlawful assembly, at least five persons should have a common object and in furtherance of common object they should have done some crime. When it is not proved that any unlawful assembly was constituted then none of the accused could be convicted of offence under Section 148 of IPC or any inferior offence of similar nature like Section 147 of IPC. The trial Court has committed an error in convicting the appellants of offence under Section 148 of IPC.
(20) So far as the offence of appellants Sailendra alias Shailendra Singh alias Savinder, Harvansh Singh alias Meja and Rajvinder Singh alias Mintu is concerned, it is proved (12) CRA 315/2003 and CRA 482/2003 beyond doubt that they assaulted victims Harvinder Singh (PW2) and Jashpal Singh (PW3) with swords. When a person having a arm like sword then he should know about the result of assault done with a sword and, therefore, in the light of the provision of Section 39 of IPC, it is clear that these appellants had voluntarily caused hurt to victims Harvinder Singh (PW2) and Jashpal Singh (PW3) and, therefore, they are liable for conviction of offence under Section 324 of IPC due to their own criminal act.
(21) Similarly, it is clear that when initially appellant Rajvinder Singh gave a blow of sword to victim Harvinder Singh thereafter on intervention of Jashpal Singh, appellants Shailendra Singh and Harvansh Singh also gave blows of swords to Jashpal Singh then their common intention is visible with co-accused Rajvinder Singh and their assault was done in support of Rajvinder Singh. Therefore, common intention of Rajvinder Singh can be presumed with these two persons. Hence, These three appellants, namely, Rajvinder Singh alias Mintu, Shailendra alias Shailendra Singh alias Savinder and Harvansh Singh alias Meja can be convicted on two count charges under Section 324 read with Section 34 of IPC. When charge under Section 149 of IPC fails, then it is for the Court to convict the concerned accused with the help of provisions of Section 34 of IPC if no prejudice is caused to the concerned accused. In the present case, there was charge of offence under Section 324 read with Section 149 of IPC and, therefore, these appellants were aware that they have to defend themselves for the deeds of the co-accused and, therefore, if they are now convicted with the help of Section 34 of IPC then no prejudice shall be caused to these appellants. Hence, instead of convicting these three appellants of offence under Section 324 read with Section 149 of IPC (two counts), it would be appropriate to convict them for offence under Section 324 read with Section 34 of IPC (two counts).
(22) So far as offence under Section 341 of IPC is (13) CRA 315/2003 and CRA 482/2003 concerned, it is proved that all the appellants surrounded and did not permit to pass the tractor from the path on which the deceased Charan Singh was taking the tractor but the various defence witnesses have proved the alibi of appellant Balwant Singh. The alibi is dependent upon the various documents and evidence of public servants and other witnesses and, therefore, it was not proved beyond doubt that appellant Balwant Singh was present at the spot. Hence, he could not be convicted of offence under Section 341 of IPC whereas the trial Court has rightly convicted the remaining appellants of offence under Section 341 of IPC because they had wrongfully restrained deceased Charan Singh and complainant Khajan Singh from going towards their fields.
(23) So far as the sentence is concerned, the trial Court has passed a nominal sentence for offence under Section 341 of IPC. Similarly, sentence of offence under Section 324 of IPC has already been executed looking to the custody period of the appellants in the jail during trial and, therefore, there is no reason to interfere in the order of sentence passed by the trial Court.
(24) On the basis of aforesaid discussion, the appeal filed by the State is hereby dismissed. The appeal filed by the appellant Balwant Singh alias Billa alias Balwant is accepted. His conviction as well as sentence of offences under Sections 341, 148 and 324 read with Section 149 of IPC (two counts) of IPC is hereby set aside. He is acquitted from all the charges. At this stage, it would be made clear that the trial Court has convicted the appellants on three count charges of Section 324 of IPC but according to Dr. SK Saxena (PW10) only two persons, namely, Harvinder Singh (PW2) and Jashpal Singh (PW3) were found injured and, therefore, only two count charges were framed against the appellants and, therefore, they could not be convicted on three count charges of Section 324 read with Section 149 of IPC. The appeal filed by appellants Kulwant Singh and Shamsher Singh is hereby (14) CRA 315/2003 and CRA 482/2003 partly allowed. Their conviction and sentence of offence under Section 341 of IPC is maintained but remaining conviction along with sentence is hereby set aside. They are acquitted from the charges of Section 148 and two count charges of Section 324 read with Section 149 of IPC. Similarly, the appeal filed by appellants Shailendra alias Shailendra Singh alias Savinder, Harvansh Singh alias Meja and Rajvinder Singh alias Mintu, is hereby partly allowed. They are acquitted from the charge of Section 148 of IPC and, therefore, the sentence recorded for that offence is also set aside. However, their conviction of offence under Section 324 read with Section 149 of IPC (two count charges) is maintained with the modification that they are convicted of offence under Section 324 read with Section 34 (two counts) of IPC and sentence recorded by the trial Court shall remain same for the aforesaid crime. All the appellants shall be entitled to get the fine amount back for the crime in which they are acquitted.
(25) Since all the appellants are on bail, their presence is no more required before the Court and therefore, their bail bonds shall stand discharged.
(26) A copy of the judgment be sent to the Court below along with its record for information.
(N. K. Gupta) (Anand Pathak)
Judge Judge
09/03/2017 09/03/2017
MKB