Madhya Pradesh High Court
Awatarsingha And Anr. vs The State Of Madhya Pradesh on 28 July, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1 CRA Nos.838, 855 & 857 of 2010
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR &
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 28th OF JULY, 2022
Criminal Appeal No.838/2010
Between: -
Mohan Singh S/o Siddhu Singh
Age- 64 years
Narayan S/o Bapu Singh
Age- 65 years
Sidhnath S/o Bapu Singh
Age- 85 years
Occupation- Agriculturist,
R/o Gram- Lodakhedi, District Shajapur (MP)
.....APPELLANTS
(By Shri P.K. Saxena, learned Senior Counsel assisted by
Shri Sunil Verma, Advocate)
AND
The State of Madhya Pradesh
Through Police Station Shajapur,
District Shajapur (MP)
.....RESPONDENT
(By Shri Amit Singh Sisodia, Government Advocate)
Criminal Appeal No.855/2010
Between: -
Nirbhay Singh S/o Narayan Singh
Age- 29 years
Rajesh S/o Mohan Singh
Age- 24 years
Deep Singh S/o Narayan Singh
Age- 19 years
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 28-07-2022
17:15:50
2 CRA Nos.838, 855 & 857 of 2010
Mahendra S/o Mohan Singh
Age- 20 years
Balaram S/o Siddhnathji
Age- 40 years
Occupation- Agriculturist,
R/o Gram- Lodakhedi, District Shajapur (MP)
.....APPELLANTS
(By Shri P.K. Saxena, learned Senior Counsel assisted by
Shri Sunil Verma, Advocate)
AND
The State of Madhya Pradesh
Through Police Station Shajapur,
District Shajapur (MP)
.....RESPONDENT
(By Shri Amit Singh Sisodia, Government Advocate)
Criminal Appeal No.857/2010
Between: -
Awtar Singh S/o Narayan Singh
Age- 29 years, Occupation- Agriculturist,
R/o Gram- Lodakhedi, District Shajapur (MP)
.....APPELLANT NO.1
(By Shri P.K. Saxena, learned Senior Counsel assisted by
Shri Sunil Verma, Advocate)
Hemraj S/o Narayan Singh
Age- 25 years, Occupation- Agriculturist,
R/o Gram- Lodakhedi, District Shajapur (MP)
.....APPELLANT NO.2
(By Shri Nitendra Vajpayee, Advocate)
AND
The State of Madhya Pradesh
Through Police Station Shajapur,
District Shajapur (MP)
.....RESPONDENT
(By Shri Amit Singh Sisodia, Government Advocate)
...............................................................................................................................
Reserved on: - 02.05.2022
Delivered on: - 28.07.2022
...............................................................................................................................
This CRIMINAL APPEAL (S) coming on for hearing /
judgment this day, Hon'ble Shri Justice Subodh Abhyankar,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 28-07-2022
17:15:50
3 CRA Nos.838, 855 & 857 of 2010
passed the following:
JUDGMENT
This judgment shall govern the disposal of Criminal Appeal No.838/2010, Criminal Appeal No.855/2010 and Criminal Appeal No.857/2010, as all these appeals have arisen out of common judgment dated 19th July, 2010; therefore, they were heard analogously and are being decided by this common judgment.
Feeling aggrieved by the impugned judgment of conviction and order of sentence dated 19.07.2010 passed by the learned 2nd Additional Sessions Judge, Shajapur, District Shajapur (MP) in Sessions Trial No.226/2009, whereby convicting and sentencing the appellants, as mentioned herein below: -
Accused Conviction Sentence Fine Amount Sentence in default of payment of fine Mohan Singh s/o In Criminal Appeal No.838/2010 Siddhu Singh 450 of IPC 10 years RI Rs.10,000/- 2 years RI 302 of IPC RI for Life Rs.10,000/- 2 years RI 326 of IPC 5 years RI Rs.5,000/- 2 years RI 325 of IPC 3 years RI Rs.2,000/- 1 year RI 323 of IPC 1 year RI Rs.1,000/- 3 months RI 352 of IPC 3 months RI Rs.500/- 15 days RI 148 of IPC 3 years RI Rs.2,000/- 6 months RI 25 r/w 27 of Arms Act 5 years RI Rs.2,000/- 1 year RI Narayan S/o Bapu Singh AND Siddhnath S/o Bapu Singh 450 of IPC 10 years RI Rs.10,000/- 2 years RI 302 of IPC RI for Life Rs.10,000/- 2 years RI 326 of IPC 5 years RI Rs.5,000/- 2 years RI 325 of IPC 3 years RI Rs.2,000/- 1 year RI 323 of IPC 1 year RI Rs.1,000/- 3 months RI 352 of IPC 3 months RI Rs.500/- 15 days RI 148 of IPC 3 years RI Rs.2,000/- 6 months RI Nirbhay Singh In Criminal Appeal No.855/2010 S/o Narayan Singh, Rajesh S/o Mohan Singh, Deep Singh S/o Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 4 CRA Nos.838, 855 & 857 of 2010 Narayan Singh, Mahendra S/o Mohan Singh & Balaram S/o Siddhnathji 450 of IPC 10 years RI Rs.10,000/- 2 years RI 302 of IPC RI for Life Rs.10,000/- 2 years RI 326 of IPC 5 years RI Rs.5,000/- 2 years RI 325 of IPC 3 years RI Rs.2,000/- 1 year RI 323 of IPC 1 year RI Rs.1,000/- 3 months RI 352 of IPC 3 months RI Rs.500/- 15 days RI 148 of IPC 3 years RI Rs.2,000/- 6 months RI Awtar Singh S/o In Criminal Appeal No.857/2010 Narayan Singh AND Hemraj S/o Narayan Singh 450 of IPC 10 years RI Rs.10,000/- 2 years RI 302 of IPC RI for Life Rs.10,000/- 2 years RI 326 of IPC 5 years RI Rs.5,000/- 2 years RI 325 of IPC 3 years RI Rs.2,000/- 1 year RI 323 of IPC 1 year RI Rs.1,000/- 3 months RI 352 of IPC 3 months RI Rs.500/- 15 days RI 148 of IPC 3 years RI Rs.2,000/- 6 months RI 25 r/w 27 of Arms Act 5 years RI Rs.2,000/- 1 year RI the appellants have assailed the impugned judgment by filing these three criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973.
2. The facts giving rise to the present appeals are that on 29.04.2009, an Ex.P/1 Dehati Nalishi u/s. 302, 323, 452, 506, 147, 148 and 149 of IPC was registered by PW-9 Inder Singh Rawat at around 22:40 hours, stating that in the night at around 20:00 hours, when he was at his home, at that time, Awtar Singh armed with a gun, Mohan Singh armed with a gun, Hemu Singh with a country made pistol, Nirbhay Singh with a Farsi, Rajesh with an Axe, Narayan Singh, Deep Singh, Sidhhnath, Mahendra Singh, Balaram, Ishwar Singh armed with sticks and Axes came with a common Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 5 CRA Nos.838, 855 & 857 of 2010 object of committing murder of his brother Hukum Singh and entered into his house in pursuance thereof. Awtar Singh inquired from his sister-in-law, the wife of deceased Hukum Singh regarding his whereabouts and when she informed him that her husband is in the back room, all of them forcefully went into that room and dragged his brother Hukum Singh out of his house and started beating him, when Hukum Singh tried to run away from the spot, Ishwar Singh hit him with stick; as a result of which, he fell on the ground and Awtar Singh fired a shot at him with his gun. When he and his sister-in-law went to save Hukum Singh, they were also assaulted by the accused persons; and thereafter, Kalu Singh, and his sons Sitaram and Babulal also tried to save Hukum Singh, but they were also assaulted by the accused persons. Hukum Singh was taken to hospital where he was pronounced dead on arrival.
The cause of incident is said to be an old dispute between the parties regarding the ancestral property.
3. Pursuant to the aforesaid Dehati Nalishi, the First Information Report (FIR) was registered; and investigation ensued; and after the charge sheet was filed, the accused persons were tried before the learned Judge of the trial Court, who, vide its judgment dated 19.07.2010, has convicted the appellants, as aforesaid. Hence this appeal.
4. Accused No.11 Ishwar S/o Mayaram, who was also sentenced by the learned Judge of the trial Court, has not preferred any appeal.
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 6 CRA Nos.838, 855 & 857 of 20105. Shri P.K. Saxena, learned Senior Counsel appearing with Shri Sunil Verma, counsel including Shri Jitendra Bajpai, counsel appearing for the appellant (s) in respective criminal appeals, have submitted that the appellants have been falsely implicated in the case, as the prosecution has not been able to prove its case beyond reasonable doubt and even otherwise, it is not a case u/s.302 of IPC but a case u/s.304 part II of IPC looking to the injuries suffered by the deceased.
6. Heard learned counsel for the parties and perused the record.
7. From the record, it is apparent that so far as death of deceased Hukum Singh is concerned, his post-mortem has been conducted by PW-11 Dr. Kapil Sahai, who has found the following injuries on the person of the deceased: -
"7& mDr 'ko ds ijh{k.k es eSus mlds 'kjhj ij fuEufyf[kr pksVs ikbZ%& ¼,½ mlds cka;s ekFks ij ,d QVk gqvk ?kko lk<+s rhu ls-eh- X vk/kk ls-eh-
X vfLFk rd xgjk ik;k x;kA ¼ch½ mlds nkbZuh tka?k ij ,d cM+k QVk gqvk ?kko frjNk ik;k x;k Fkk] tks 12 ls-eh- X 8 ls-eh- vkdkj dk gksdj tka?k esa ckgj dh vksj ls vUnj e/; Hkkx rd ik;k x;k] bl pksV esa 'kjhj ij peM+h n`";eku ugh FkhA ,oa dqN ek'kis'kh Hkh ogkWa ij ugh Fkh] mlds oS'kYl QVh gqbZ Fkh] rFkk ogkWa ij dkykiu nkabZ ckgjh vksj ik ik;k x;kA ¼lh½ mlds fyax ds XykUl ij ,d QVk gqvk ?kko ik;k x;k Fkk ftlesa dqN rUrq ogkWa ij ugh ik;s x;s ,oa ;g pksV XykUl ds nkfguh vkSj ckgj dh vkSj ikbZ xbZ] ftldk vkdkj <kbZ ls-eh- X 1@2 ls-eh- <kbZ ls-eh- FkkA ¼Mh½ ,d cM+k fNnzhr ?kko 6 ls-eh- X 3 ls-eh- X vfLFk rd xgjk ckabZ tka?k ij mij dh vkSj ik;k x;k tks ckgj ls tka?k ds e/; ls lkeus dh vksj FkkA ¼bZ½ cgqr lkjs fNnzhr ?kko ckabZ tka?k ij mijh e/; Hkkx esa ik;s x;s] tks pksV dza-&**Mh** ds pkjksa vksj rFkk uhps FksA esjs }kjk mDr pksV dza-Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 7 CRA Nos.838, 855 & 857 of 2010
*Mh* dks [kksnus ij pkj /kkrq ds Nj~js nks oSM~l ¼dkjrw'k ds mij dk Hkkx½] ihys jax dh IykLVhd dh dSi] IykLVhd ds Me: ds vkdkj ds foHkktd fudkys x;s vkSj mUgs 'khycUn dj lacaf/kr iqfyl ds deZpkjh dks fn, x;s] bu lHkh pksVksa esa jDr dk FkDdk ekstwn FkkA 8& 'kjhj ds vkUrfjd vaxksa dk ijh{k.k djus ij ;g ik;k x;k fd vkUrfjd vax jDrfoghu gksdj LoLFk FksA"
[Its English translation reads like this:-
7...................
(A) Lacerated wound 3 ½ cm X ½ cm bone deep on left frontal region.
(B) Large split lacerated wound transversal upwards medially on right upper thigh 12 cm x 8 cm, skin loss, partial muscle loss, vessels tear and blocking present on right lateral side of wound.
(C) Lacerated wound with loss of partial tissue over glans of penis over right laterally, size 2 ½ cm x ½ cm x 2 ½ cm. (D) Large punctured wound 6 cm x 3 ½ cm x bone deep over left thigh upper, anterior medially.
(E) Multiple punctured wounds on left upper medial thigh, around and below Injury No.4. Upon exploring Wound No.4, four metal pallets, Two wads, yellow plastic cap and plastic devible shaped separator recovered, sealed and handed over to Police Officer. Clots present over all wounds.]
8. On examination of internal organs, it was found that they were pale (without blood) but healthy"
8. As per the Post mortem report Ex.P/45, the death was within 24 hours and the cause of death was due to excessive bleeding resulting in shock. It is apparent that almost all the injuries suffered by the deceased was on his lower limbs, namely on his thighs, and all the other vital organs were found to be intact and healthy but without any blood. Cause of death is said to be haemorrhage and shock. In para 22 of his cross examination, PW-11 Dr. Kapil Sahai has admitted that except injury No.A, all the other injuries were possibly caused by a single gunshot. Apparently, the Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 8 CRA Nos.838, 855 & 857 of 2010 death was homicidal in nature but then question is whether such injuries would fall within the category of culpable homicide amounting to murder or not amounting to murder. In this regard, reference may be had to the decision of the Supreme Court in the case of Nankaunoo v. State of U.P., (2016) 3 SCC 31, relevant paras of the same reads as under:-
"2. Briefly stated case of the prosecution is as under: de- ceased Chhedi Lal was running a barber shop in Kurari Khurd Market. On 18-2-1981, the appellant visited the shop of Ch- hedi Lal and asked for a haircut. An altercation took place between the two when appellant insisted the deceased for hair- cut claiming preference over other customers; but the deceased Chhedi Lal declined his demand. The appellant felt insulted and left the barber shop threatening the deceased. At around 5.00 p.m., deceased Chhedi Lal closed the shop and went back home. Later at 6.00 p.m., the deceased went towards the canal lying on the western side of the village abadi to answer the nature's call. When the deceased reached near the eastern mend of the grove of Ishwari, the appellant emerged from the northern side carrying a pistol in his hand and threatened the deceased as he had insulted the appellant in the market and that he would not spare him alive. The deceased fled towards the west to save himself and the appellant fired from his pistol which hit the deceased on his left thigh and he had fallen down. The incident was witnessed by Janoo, PW 2; Udan, PW 3 and Muneshwar. Also father of the deceased, namely, Kis- hore, PW 1 and his son Ram Pal saw the incident when they were returning from their field. On the alarm being raised by the deceased and the witnesses, the appellant fled away from the scene. The deceased was taken on a cot to his house and on the narration of incident by Kishore, the father of the deceased, the complaint was written by Shiv Pujan Singh. Thereafter, the deceased was taken to Police Station Achal Ganj, where FIR (Ext. Ka-1) bearing Crime No. 37/81 dated 18-2-1981 was re- gistered against the appellant under Section 307 IPC.
3. SI Ravinder Prasad Yadav (PW 6) recorded the state- ment of Chhedi Lal who was lying injured on the kharkhara outside the police station and the deceased was sent to Achal Ganj Hospital from where he was referred to District Hospital Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 9 CRA Nos.838, 855 & 857 of 2010 Unnao; but the deceased died on the way to the hospital. FIR was altered from Section 307 IPC to Section 302 IPC and fur- ther investigation was taken up. After inquest by the police, post-mortem was conducted by Dr J.N. Bajpai (PW 4) at Dis- trict Hospital Unnao on 19-2-1981 at 3.30 p.m. PW 4 Dr Ba- jpai noted a gunshot wound of entry ½? × ½? on the back and inner part of left thigh and six gunshot wounds of exit each ?? × ?? in size in front and middle left thigh. Dr J.N. Bajpai (PW
4) opined that the death was due to shock and haemorrhage due to injuries of firearm. After completion of investigation, charge-sheet was filed against the appellant under Section 302 IPC. After committal of the case to the Sessions Court, charge was framed against the appellant under Section 302 IPC.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, some- times the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the suffi- ciency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.
13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1½? × 1½? on the back and inner part of left thigh, six gunshot wounds of exit each ?? × ?? in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to pre- meditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused inten- tionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause death. We find substance in the contention of the learned coun- Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 10 CRA Nos.838, 855 & 857 of 2010 sel for the appellant that the injury was on the inner part of left thigh, which is a non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not eli- cited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said in- jury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the convic- tion of the appellant under Section 302 IPC should be under Section 304 Part I IPC."
(emphasis supplied)
9. Since the cause of incident is the ancestral property and the accused persons and the complainant parties are closely related to each other, as the deceased Hukum Singh's father Umar Singh and A-Naryaysingh and Siddhnath are real brothers, the possibility of false implication of the other family members of the accused party cannot be ruled out. At this juncture, it would be fruitful to take note of the decision rendered by the Supreme Court in the case of Jalpat Rai v. State of Haryana, reported as (2011) 14 SCC 208 = (2012) 3 SCC (Cri) 1285, at page 222: the relevant paras of the same reads as under:-
"42. There cannot be a rule of universal application that if the eyewitnesses to the incident are interested in the prosec- ution case and/or are disposed inimically towards the ac- cused persons, there should be corroboration of their evid- ence. The evidence of eyewitnesses, irrespective of their in - terestedness, kinship, standing or enmity with the accused, if found credible and of such a calibre as to be regarded as Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 11 CRA Nos.838, 855 & 857 of 2010 wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is a reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over implicate and distort the true version against the per- son(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime.
43. In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused party and the interestedness of PW 1, PW 4 and PW 8 in the prosecution case , it is prudent to look for corroboration of their evidence by medical/ballistic evid- ence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration from medical and ballistic evid- ence and the circumstances brought out on record may ulti- mately persuade that in fact their evidence cannot be safely acted upon."
(emphasis supplied)
10. Thus, the evidence on record has to be sifted by this Court on the anvil of the aforesaid decision of the Supreme Court.
11. Regarding culpability of the appellants, it is found that except PW-1 Hemabai, aged 12 years who is the daughter of the deceased Hukum Singh, there are as many as four witnesses viz. PW-2 Kalu, PW-6 Leelabai w/o Hukum Singh, PW-7 Babulal s/o Kalu, PW-8 Sitaram s/o Kalu who have also been injured in the incident,; and thus, the evidence has to be appreciated in the light of the deposition of the said eye witness, as well as the injured witnesses.
12. PW-1 Hemabai happens to be the daughter of the deceased, was at home at the night when the incident took place;
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 12 CRA Nos.838, 855 & 857 of 2010and she has also stated that all the accused persons came together armed with various weapons barged into their house, enquired about her father from her mother, dragged him out and killed him. In para 27 of her deposition, she has admitted that earlier she had given the names of some other persons as accused persons but subsequently she gave a different set of names to the police to which she was also scolded by the police. She has also been suggested that she also informed the police that some people came on motorcycle and shot her father dead. She has also admitted that the person who was riding the motorcycle had killed her father in the temple only; and had also admitted that subsequently her uncle had told her to name the accused persons, as the assailants and that is why she is mentioning their names. In such circumstances, the testimony of PW-1 Hemabai being inconsistent, is hardly tenable.
13. PW-2 Kalu Singh is a neighbour of the deceased Hukum Singh and according to him, at the time of incident, deceased Hukumsingh went to his house from the house of his brother, which is nearby, and he saw that Hukum Singh was being assaulted by Avtar Singh, Nirbhay Singh, Hem Singh, Deep Singh and Narayan Sing, out of which Avtar Singh, Mohan Singh and Hem Singh had guns in their hands, whereas the other accused persons were wielding sticks. All of whom had assaulted the deceased in unison and he himself was also assaulted by A-Avatar Singh, A- Hemraj and A- Nirbhay Singh in the incident, as he has suffered a head injury and an injury on his hand and has also Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 13 CRA Nos.838, 855 & 857 of 2010 admitted that accused persons had lodged an FIR against his sons for car and thresher theft, and another report of water pump theft has also been lodged against his sons, who were also arrested earlier. This witness has also admitted that because of such report, his relations with the accused persons were not good. He has admitted that the deceased Hukum Singh's father Umrao Singh and accused Narayan Singh and Siddhulal are the real brothers and there is a land dispute going on between the families. Thus, the presence of by A-Avatar Singh, A- Hemraj and A- Nirbhay Singh is established through this witness Pw/2 Kalu's testimony. But has also stated that when he reached on the spot, he did not see PW-3 Inder Singh on the spot.
14. PW-3 Inder Singh, the brother of the deceased Hukum Singh, also happens to be the complainant who had lodged the First Information Report (FIR) / Dehati Nalishi Ex.P/1, although he has stated that all the accused persons came to the house of Hukum Singh armed with various weapons, however, he has made specific allegations against appellant Avtar Singh, A-Mohan Singh and A- Hemraj who were having country made pistols. Nirbhay Singh was having Farsi and appellant Rajesh had an Axe, whereas the other accused persons were having sticks. He has also stated that when his brother Hukum Singh tried to run away from the clutches of the accused persons, at that time, Ishwar Singh gave him a stick blow, as a result of which he fell down and thereafter, appellant Avtar Singh shot him on his stomach. He has also stated that Kalu and his Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 14 CRA Nos.838, 855 & 857 of 2010 sons Babulal and Sitaram also came to rescue Hukum Singh but they were also assaulted by the accused persons. He has admitted in para 36 that all the accused persons are related to each other and accused Narayan Singh is a very old man. PW-3 Inder Singh has made specific allegations against Ishwar Singh who had a stick in his hands, and A-Avtar Singh, A-Mohan and A-Hemraj, who were present on the spot with country made pistols.
15. PW-4 Dr. R.C. Kuril had examined Leelabai, the wife of deceased Hukum Singh and it is found that she had suffered an injury in the nature of swelling on her right biceps. The duration of which is said to be some 4-5 days as the MLC itself took place on 02.05.2009, whereas the incident took place on 29.04.2009.
16. PW-5 Dr. N. K. Gupta was posted as the Doctor at Dis- trict Hospital, Shajapur who had examined the other injured persons namely Kalu Singh S/o Nagga, Sitaram S/o Kalu, Babu Lal s/o Kalu.
Kalu Singh had suffered following bony injuries: -
(1) Lacerated wound 2" x 0.2 cm x scalp deep over left parietal region.
(2) Incised would 2 cm x 0.2 cm x skin deep on left fore-
arm.
(3) Swelling and pain over right wrist, size 2" x 2".
In x-ray report it was found that Kalu Singh had two fracture on his right ulna bone and radius and metacarpal of left hand.
PW-8 Sitaram also suffered the following injuries: -
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 15 CRA Nos.838, 855 & 857 of 2010(1) Lacerated wound 2 cm x 0.2 cm x skin deep, bleeds, on right forearm mid post oblique.
(2) Pain over all the fingers of Right Hand. (3) Lacerated wound 2 x 0.2 cm x skin deep, bleeds, on right leg below knee, (4) Pains on both buttocks.
PW-7 Babulal also had a fracture on his left clavicle bone.
Thus, from the deposition of the aforesaid doctors, it is apparent that the witnesses have also suffered injuries in the inci- dent.
PW-5 Dr. N.K. Gupta has also stated that the aforesaid accused persons did not inform him about the history of the incident.
17. PW-6 Leelabai wife of Hukum is yet another important witness who was present in the house at the time when the incident took place. In her deposition she has again mentioned that appel- lants Avtar Singh, Mohan Singh and Hem Singh were having coun- try made pistols whereas Nirbhay Singh was having a Farsi and A- Rajesh an Axe and the other accused persons were having lathi in their hands and while her husband tried to run away from the spot, accused Ishwar Singh gave a stick blow to him as a result of which, he fell down and thereafter A- Avtar Singh fired a shot at him which hit him in his lower abdomen region. She has also stated that Nirbhay Singh assaulted with a stick on her hand and while her brother-in-law Inder Singh ran away from the spot, Kalu Singh and his sons Sitaram and Babulal (who tried to intervene) were also as-
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 16 CRA Nos.838, 855 & 857 of 2010saulted by the accused persons. However, in para 50 of her cross examination she has admitted that she was not assaulted on the date of incident but around four days back accused Nirbhay Singh had assaulted her with a stick. In such circumstances, it is apparent that this witness has tried to improvise her statement. She has admitted that the incident took place on account of a dispute between the boundary wall of the fields of the appellants and complainant side. Thus, her testimony is held good for appellants Avtar Singh, Mohan Singh and Hem Singh only.
18. PW-7 Babulal Gurjar S/o Kalu has also reiterated the incident, but has admitted that by the time he reached on the spot, Hukum Singh was already on the ground whereas the accused per- sons were assaulting his father Kalu Singh and his brother Sitaram. He has not attributed any overt act against the appellants. Specific allegations have been levelled against Nirbhay Singh, Narayan Singh, Rajesh, Ishwar Singh and Mohan Singh that all these appel- lants assaulted him. However, on perusal of the testimony of PW-5 Dr. N.K. Gupta, it is found that Babulal has only received three in- juries namely pain on his shoulders which is due to fracture in his left clavicle, pain on the forearm of his right hand and in the right leg lower part. Thus, it cannot be said that these three injuries were caused to him by five persons/appellants namely, Nirbhay Singh, Narayan Singh, Rajesh, accused Ishwar Singh and A- Mohan Singh. His ocular testimony is not corroborated by the medical evidence. In para 33 of his cross-examination, he has also stated that he was Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 17 CRA Nos.838, 855 & 857 of 2010 assaulted by the accused persons for a period of around five min- utes and was given around 5 to 10 stick blows by the accused per- sons which also does not corroborate with his medical record. In such circumstances, his testimony cannot be accepted on its face value to convict the appellants.
19. PW-8 Sitaram Gurjar, the second son of Kalu Singh has also suffered some injuries, has deposed that he was assaulted by the appellants Rajesh and Nirbhay Singh with sticks. Thus, so far as this witness PW-8 Sitaram Gurjar is concerned, he has named only two persons as his assailants, apart from omnibus allegations against the other accused persons / appellants that they were also assaulting his father. He is also a panch witness but has turned hos- tile by denying the factum of seizure or memo u/s.27 of the Evi- dence Act. His attention is also drawn to his police statement Ex.P/32, but he has denied having given any such evidence. In such circumstances, his testimony is hardly reliable.
20. PW-9 Inder Singh Rawat is the Head Constable who has proved Ex.P/42 which is the ballistic report in which he has stated that three country made pistols were recovered from appel- lants Avtar Singh, Mohan and Hem @ Hemraj and out of which, 'A' and 'B' articles country made pistols were of twelve bore which were in working condition, whereas article 'C' recovered from ap- pellant Hemraj was not in working condition.
21. PW-10 Sanjay Vyas is the Reader to the District Mag- istrate who has proved Ex.P/43, a permission to prosecute the ap-
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 18 CRA Nos.838, 855 & 857 of 2010pellants under the provisions of the Arms Act, 1959.
22. The FSL report Ex.P/47-48 reveals that although some deformed pellets were recovered from the body of the deceased but the only opinion which the ballistic expert has given is that these pellets can be fired from the gun seized from the appellants. Thus, there is no positive evidence on record that the aforesaid pellets were actually fired from the gun of the appellants and as such the aforesaid FSL report cannot be a deciding factor towards established the guilt of the appellants.
23. From the aforementioned overall discussion of the facts and circumstances of the case, what can be inferred is that at the time of incident admittedly, appellants Avtar Singh, Mohan Singh, Hem Singh were having country made pistols in their hands out of which only Avtar Singh used it against the deceased by firing only one shot below the vest of the deceased Hukum Singh, and Nirbhay Singh, either had an Axe or a stick as per the different prosecution witnesses, but his presence is also established as he is also named by just about every prosecution witness who is reliable. It is true that so far as the causing of single gunshot injury is con- cerned, it is attributed to Avtar Singh only, but it was also caused below the vest, thus, in the light of the decision rendered by the Supreme Court in the case of Nankaunoo (supra), A-Avatar cannot be convicted u/s.302 of IPC but under s.304 part I of IPC only, and considering the fact that the other co-accused persons namely Mo- han Singh and Hemraj were also wielding guns in their hands but Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 19 CRA Nos.838, 855 & 857 of 2010 did not use it, it entitles them the benefit of doubt that they did not intend to commit murder of the deceased Hukum Singh but shared a common object with A-Avatar Singh to murder Hukum Singh.
24. Now coming to the sentencing part, the accused persons/appellants are closely related to each other which is also apparent from the fact that the appellant Narayan Singh and Siddhnath are the brothers of deceased Hukum Singh's father whereas the appellant Mohan Singh happens to be the son of appellant No.3 Siddhnath. Appellant Siddhnath is 85 years old whereas appellant Mohan Singh and Narayan Singh are 64, 65 years old respectively. Appellant No.1 Nirbhay Singh in Cr.A. No.855/2010 happens to be the son of Narayan Singh, Appellant No.2 Rajesh is the son of Mohan Singh, Appellant No.3 Deep Singh is again, a son of Narayan Singh. Appellant No.4 Mahendra is son of A-Mohan Singh and appellant No.5 Balram is son of appellant No.3 Siddhnath in Cr.A. No.838/2010. Similarly, in Cr.A. No.857/2010, both appellants Awtar Singh and Hemraj are sons of Narayan Singh, appellant No.2 in Cr.A. No.383/2010. Thus, all the accused persons are closely related to each other and their false implication cannot be ruled out. At this juncture, we may fruitfully refer to a decision rendered by the Supreme Court in the case of Pyare Singh v. State of M.P., 1992 Supp (3) SCC: the relevant paras of the same reads as under:-
"1. The three appellants in Criminal Appeal No. 259 of 1979 and the sole appellant in Criminal Appeal No. 258 Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 20 CRA Nos.838, 855 & 857 of 2010 of 1979 along with two others were indicted of the of- fences punishable under Sections 147, 148, 302 read with Sections 149 and 325 read with Section 149 IPC on the allegations that they all formed themselves into un- lawful assembly and in prosecution of the common ob- ject of that assembly they committed murder of Preetam Singh and caused grievous hurt to PW 4. As the appel- lant in Criminal Appeal No. 258 of 1979, namely, Pyare Singh was absconding, the case as against the three ap- pellants in Criminal Appeal No. 259 of 1979 was split up and the three appellants along with two others were tried for the above-said offences and convicted under Section 302 read with Section 149 IPC and Section 325 read with Section 149 and sentenced to undergo impris- onment for life and 3 years' rigorous imprisonment re- spectively and further the appellants 1 and 3 and another were convicted under Section 148 IPC and sentenced to undergo rigorous imprisonment for one year and appel- lant 2 and another under Section 147 IPC to undergo rig- orous imprisonment for one year with a direction that all the sentences imposed on each of the appellants are to run concurrently.
2. The appellant in Criminal Appeal No. 258 of 1979, namely, Pyare Singh was separately tried and convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of 10 years, under Section 326 read with Section 149 IPC to undergo rigor- ous imprisonment for 5 years and under Section 148 IPC for two years' rigorous imprisonment by the Additional Sessions Judge, Gwalior.
3. Aggrieved by the judgment of the trial court the ap- pellants in both the Criminal Appeal Nos. 258 of 1979 and 259 of 1979 preferred their respective appeals before the High Court. It may be stated that Criminal Revision No. 239 of 1973 was preferred by one Harnam Singh not only for enhancing the sentence in respect of Pyare Singh for the offence under Section 304 Part II read with Section 149 IPC, but also against the acquittal of Pyare Singh under Section 302 IPC. The High Court altered Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 21 CRA Nos.838, 855 & 857 of 2010 the conviction of all the appellants as one under Section 304 Part I IPC and sentenced each of them to undergo rigorous imprisonment for life besides confirming the convictions and sentences for the other offences. Hence these two appeals.
4. After hearing the learned counsel for the respective parties and perusing the entire records, we are of the view that the conviction recorded by the High Court un- der Section 304 Part I IPC does not call for interference. However, we are not going into the question of the legal- ity of the judgment made by the High Court (giving rise to Criminal Appeal No. 258 of 1979) in altering the con- viction and enhancing the sentence, at the instance of a private party as well as in the appeal preferred by the ap- pellant against his conviction when the State has not pre- ferred any appeal.
5. Now coming to the question of sentence we, having regard to the facts of the case and the attending circum- stances indicated above feel that the sentence of life im- prisonment is not called for and the ends of justice will be met by reducing the sentence to 7 years' rigorous im- prisonment for the conviction under Section 304 Part I IPC.
6. In the result, while confirming the conviction, we set aside the sentence of life imprisonment imposed for the offence under Section 304 Part I IPC awarded to all the appellants and instead sentence each one of them to un- dergo 7 years' rigorous imprisonment. The convictions and the sentences imposed for other offences are con- firmed, but the sentences are directed to run concur- rently. Both the appeals are dismissed accordingly sub- ject to the modification of the sentence as indicated above."
(emphasis supplied)
25. Testing the facts of the case on the anvil of the decision ren- dered by the Supreme Court in the case of Jalpat Rai as also Pyare Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 22 CRA Nos.838, 855 & 857 of 2010 Singh (supra), this Court is of the considered opinion that the ap- peals are liable to be partly allowed and whereas the appellants Narayan, Siddhanath, Rajesh, Deep Singh, Mahendra and Bal- ram are hereby acquitted (in Criminal Appeal No.838/2010 and Criminal Appeal No.855/2010) as the evidence against the them is weak and is not of reliable quality, the death of deceased Hukum Singh resulted from a gun shot injury inflicted by A- Avatar Singh, it was on the lower limb and none of the his vital organs were in- jured in the incident, thus as already discussed above, this Court is inclined into convert the conviction of the appellants Avtar Singh, Mohan Singh, Hem Singh and Nirbhay Singh (in Criminal Ap- peal No.838/2010, Criminal Appeal No.855/2010 and Criminal Ap- peal No.857/2010) from one under Section 302 of IPC to one u/s. 304 Part-I read with s.149 of IPC and under the attending facts and circumstances of the case, they are sentenced to undergo 7 years' rigorous imprisonment. Since appellants Mohan Singh, Avtar Singh and Hemraj (in Criminal Appeal No.838/2010 and Criminal Appeal No.857/2010) have already undergone the aforesaid period, as they have completed more than ten years' incarceration, they are directed to be released from jail forthwith, if not required in any other case. Whereas appellant Nirbhay Singh (in Criminal Appeal No.855/2010) was on bail, his bail bonds are cancelled and he is di- rected to surrender before the trial Court to suffer the remaining pe- riod of sentence awarded to him.
Original signed judgment be kept in Criminal Appeal Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 28-07-2022 17:15:50 23 CRA Nos.838, 855 & 857 of 2010 No.838/2010 and a copy thereof be kept in other connected cases (in Criminal Appeal No.855/2010 and Criminal Appeal No.857/2010).
The Appeals stand disposed of accordingly.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pithawe RC /
Khemraj Joshi
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 28-07-2022
17:15:50