Madhya Pradesh High Court
Chandu @ Chandra Bhan vs State Of M.P. on 25 November, 2016
Author: N.K. Gupta
Bench: N.K. Gupta, G.S. Ahluwalia
1 Criminal Appeal No.172/2007
Criminal Appeal No.176/2007
Criminal Appeal No.177/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT :
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
CRIMINAL APPEAL NO.172 of 2007
Chandu @ Chandrabhan and others
-Vs-
State of Madhya Pradesh
For appellant No.8 : Shri Sanjay Gupta,
Advocate
For remaining appellants : Shri N.P. Dwivedi, Senior
Advocate along with Shri
S.K. Tiwari, Advocate
For respondent/State : Shri J.M. Sahni, Panel
Lawyer
For complainant : Shri Prabal Pratap Singh
Solanki, Advocate
&
CRIMINAL APPEAL NO.176 of 2007
Banti @ Hindu Singh
-Vs-
State of Madhya Pradesh
For appellant : Shri N.P. Dwivedi, Senior
Advocate along with Shri
S.K. Tiwari, Advocate
For respondent/State : Shri J.M. Sahni, Panel
Lawyer
For complainant : Shri Prabal Pratap Singh
Solanki, Advocate
2 Criminal Appeal No.172/2007
Criminal Appeal No.176/2007
Criminal Appeal No.177/2007
&
CRIMINAL APPEAL NO.177 of 2007
Radheshyam and others
-Vs-
State of Madhya Pradesh
For appellant No.8 : Shri Sanjay Gupta,
Advocate
For remaining appellants : Shri N.P. Dwivedi, Senior
Advocate along with Shri
S.K. Tiwari, Advocate
For respondent/State : Shri J.M. Sahni, Panel
Lawyer
For complainant : Shri Prabal Pratap Singh
Solanki, Advocate
JUDGMENT
(25/11/2016) Per N.K. Gupta, J.
Since all these three appeals are connected arising out of the common judgment dated 08.02.2007 passed by the III Additional Sessions Judge (Fast Track), Guna (M.P.) in ST No.19/2006, they are hereby disposed off with the present common judgment. The appellants have preferred these appeals against the aforesaid judgment being aggrieved with the conviction and sentence passed against them. Each of the appellants has been convicted and sentenced as under:
S. Accused/ Section Sentence In default No. appellants 1 Rajesh Singh 302 IPC LI + fine of 1 year's RI Suresh Singh Rs. 500/- (each) (In para 119 of the (each) judgment of trial court, it was a typing error that appellant Hukum Singh has been convicted of main offence under Section 302 of IPC.) 3 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Rest of the appellants 302/149 LI + fine of 1 year's RI IPC Rs.500/- (each) (each) 2 All 307/149 7 Years + 1 year's RI [Radheshyam, IPC fine of Rs. (each) Neta @ Narendra (three 500 (each) Chandu @ Chandrabhan counts) Ram Singh Dalup @ Dilip Singh Setu @ Satyendra Singh Pancham Singh Hariom Vishnu Raghuvanshi Bhure Singh Onkar Singh Hukum Singh Lallu @ Surendra Singh Anant Singh Suresh Rajesh Banti @ Hindu Singh] 3 Anant Singh + Onkar 147 IPC 3 Months' RI 1 Month's RI Singh + fine of (each) Rs.100/- (each) Rest of the appellants 148 IPC 6 Months' RI 1 Month's RI + fine of (each) Rs.100/- (each) 4 All of the appellants 324/149 6 Months' RI 1 Month's RI IPC + fine of (each) One Rs.100/- count (each) 5 All of the appellants 323/149 Fine of 1 Month's RI IPC Rs.1,000/- each for two each for each count counts each count 6 All of the appellants 506 IPC 6 Months' RI 1 Month's RI + fine of (each) Rs.100/- (each)
(2) The prosecution's case, in short, is that on 31.10.2005 at about 08:00 am, complainant Bhupendra Singh Raghuvanshi (PW-1) along with Uttam Singh (PW-8), deceased Govind Singh, Shivram Singh (PW-4) Raghuveer Singh Raghuvanshi (PW-2), Vijay Singh @ Mannu (PW-11), 4 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Manna (PW-3), Ratan Singh, Babulal, Parmal Singh (PW-
13) and others had surrounded around camp fire in front of his house at village Sirsikalan, Police Station Bajrang-garh, District Guna (M.P.). Accused Ram Singh came there and requested complainant Bhupendra Singh (PW-1) to come with him to Guna for the purchase of a DP (transformer). Complainant Bhupendra Singh (PW-1) told him that since complainant's brother Balveer was abused by his brother and he (Ram Singh) did not permit him to run an electric motor from that transformer, he would not accompany him to bring DP (transformer) from Guna. Accused Ram Singh started abusing complainant Bhupendra Singh (PW-1). Then, he went back to his house and thereafter all the accused persons came to the spot armed with 12-bore guns or pistols, Farsa, Ballam and Lathis (sticks) whereas accused Onkar Singh and Anant Singh were barehanded. Accused persons started abusing and when they were prohibited to do so, accused/appellants Onkar Singh and Anant Singh exhorted appellant Suresh Singh who fired with a gun causing injury on the chest of deceased Govind Singh on account of which Govind Singh fell down on the ground. Thereafter, Hukum Singh fired with a single barrel 12 bore gun causing injury to victim Raghuveer Singh Raghuvanshi (PW-2). In the meantime, when deceased Govind Singh tried to stand up, appellant Rajesh fired with a pistol of 12 bore causing injuries on his chest, mouth and head due to which he again fell down on the ground. Appellant Vishnu Raghuvanshi fired with a 12 bore gun causing injury to Uttam Singh (PW-8) on his chest. (3) Accused Hariom fired with a handmade pistol. Some of the persons were injured and some pellets injured the 5 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 heel of Shivram Singh (PW-4). Accused Lallu @ Surendra Singh fired with a handmade pistol causing injury to Vijay Singh @ Mannu (PW-11). Appellant Pancham Singh fired with a firearm causing injury to Vijay Singh @ Mannu (PW-
11). Bhure Singh fired with a firearm causing injuries to Uttam Singh (PW-8). So many accused persons fired with the firearm held by them. Accused Setu @ Satendra Singh assaulted the victim Manna (PW-3) with a farsa on his head whereas accused Neta @ Narendra gave a blow of farsa on the hand of victim Manna (PW-3). Accused Radheshyam gave a blow of ballam to the victim Parmal Singh (PW-13) whereas accused Chandu @ Chandrabhan gave a blow of Ballam to Ravindra causing injury in his hand. Accused Banti @ Hindu Singh gave a blow of farsa causing injury to Uttam Singh. Similarly, all the appellants participated in the crime. Even, accused/appellants Onkar Singh and Anant Singh who were barehanded picked up the stones and pelted them on various victims.
(4) Complainant Bhupendra Singh Raghuvanshi (PW-1) took all the injured persons to the Police Station Bajrang- garh and lodged a marg intimation Ex.P-1 and FIR Ex.P-2 from where the injured persons were sent for their medico- legal examination and the dead body of the deceased Govind Singh was also sent for post mortem. Dr. P.K. Sharma (PW-15) examined Uttam Singh (PW-8), Raghuveer Singh (PW-2) and Vijay Singh @ Mannu (PW-11) and gave his reports Ex.P-64 to P-66. He found various injuries caused by the pellets discharged from the firearms to these persons. Dr. Manish Jain (PW-5) examined Shivram Singh (PW-4), Babulal, Parmal Singh (PW-13), Ravindra Singh, Ratan Singh, Manna (PW-3) and gave his reports 6 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Ex.P-8 to Ex.P-13. Victims Raghuveer Singh (PW-2), Vijay Singh @ Mannu (PW-11) and Uttam Singh (PW-8) were sent for their X-ray examination. Dr. Sitaram Singh Raghuvanshi (PW-19) examined them radiologically and gave his reports Ex.P-125, 117 and 131 respectively. No fracture was found to these persons. No vital part was mainly found broken but radio opaque shadows of pellets were found in the body of these three persons at various places. It was opined by Dr. Sitaram Singh Raghuvanshi (PW-19) that Vijay Singh @ Mannu (PW-11) sustained haemorrhagic fluid effusion in the right lung and there was surgical emphysema that could be caused due to hole in the lung and due that hole air was collected out of the lung. Victims Vijay Singh @ Mannu (PW-11), Uttam Singh (PW-8), Raghuveer Singh (PW-2) were referred to the Choithram Hospital, Indore and on 01.11.2005 they were examined by Dr. Ganesh Sugra (PW-22) who found various injuries of pellets superficial in nature. (5) Dr. P.K. Sharma (PW-15) performed the post mortem on the body of the deceased Govind Singh. He found as many as 25 wounds caused by the pellets on his body and therefore he prepared a picture of such injuries in post mortem report Ex.P-14. According to him, due to injuries of pellets, heart, both the lungs, brain and omentum of the deceased were found damaged and due to rupture of these vital parts of the body, he died. The Police examined various witnesses. The accused appellants were arrested and the firearms were recovered from appellant Hariom, Bhure Singh, Hukum Singh, Lallu @ Surendra Singh, Suresh Singh, Rajesh Singh etc. whereas Farsa, Ballam or sticks were recovered from various other accused persons 7 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 like Radheshyam, Ram Singh, Neta @ Naredra, Chandu @ Chandrabhan, Setu @ Satendra Singh, Dalup @ Dilip Singh etc. All the seized articles along with other articles seized from the concerned doctor like blood stained clothes, blood stained soil etc were sent to the Forensic Science Laboratory by letter Ex.P-139. The report of FSL Ex.P-140 was also filed before the Trial Court. A report Ex.P-141 was also filed relating to various firearms and ammunition. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Guna who committed the case to the Sessions Court and ultimately it was transferred to III Additional Sessions Judge (Fast Track), Guna (M.P.).
(6) The appellants abjured their guilt. Some of them took a plea of alibi and therefore witnesses Prakash Narayan (DW-1), Rajkumar (DW-2), Vinay Buchke (DW-3), Ghanshyam Raghuvanshi (DW-4) and Narendra Singh Choudhary Assistant Chemical Examiner (DW-5) were examined. Out of these witnesses, Ghanshyam Raghuvanshi (DW-4) son of appellant Anant Singh has tried to state about the incident that companions of victims initiated the firing and the victims were armed with various weapons. Assistant Chemical Examiner, namely, Mr. Narendra Singh Choudhary (DW-5) was examined to get the details of ballistic expert's report Ex.P-141. (7) The trial court after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above.
(8) During the pendency of these appeals, appellant No.4 of Criminal Appeal No.172/2007, namely, Pancham Singh expired and appeal filed by him stood abated and his name 8 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 was deleted from the array of cause-title. (9) On the bail application of the accused, the Hon'ble Apex Court vide order dated 03.01.2014 in CRLMP 25377/2013 has directed that appellant Suresh may move an application for urgent final hearing of the matter and therefore the matter was heard out of turn. (10) We have heard the learned counsel for the parties. (11) Before adverting to the merits of the case, a technical objection raised by the learned Senior Advocate appearing for the appellants may be considered. Learned Senior Advocate has submitted that the appellant Hukum Singh has been convicted for offence under Section 302 of IPC whereas no such charge was framed against him. If charge under Section 302 read with Section 149 of IPC is framed then the accused cannot be convicted for the main offence under Section 302 of IPC. He has relied upon the judgments passed by the "Subran @ Subramanian and others Vs. State of Kerala" [1993 SCC (Cri.) 583] and "Nanak Chand Vs. State of Punjab" [AIR 1955 SC 274]. Reliance is also placed upon the judgment passed by the Division Bench of this court in the case of "Rajaram Vs. State of Madhya Pradesh" [2009 (II) MPWN SN 93]. In all the aforesaid cases, it is held that in absence of main charge under Section 302 of IPC, if charge is appended of Section 302 read with Section 149 of IPC then the accused cannot be convicted for the main charge of Section 302 of IPC. However, such contention is not acceptable in the present case. In the present case, it is apparent that the charge under Section 302 of IPC was appended against the appellants Suresh Singh and Rajesh Singh. In para 99 of the judgment, on internal page 49, the 9 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 trial court has convicted the appellants Suresh Singh and Rajesh Singh for offence under Section 302 of IPC and convicted the remaining accused persons for offence under Section 302 read with Section 149 of IPC. It appears that by mistake while dealing with the matter for sentence in para 119 of the judgment, it is mentioned that appellants Rajesh Singh and Hukum Singh are punished with a particular sentence for offence under Section 302 of IPC and it appears that by typing mistake name of Suresh Singh was replaced by Hukum Singh. Hence, it is not a mistake of non-framing of charges. The charge of Section 302 of IPC relating to deceased Govind Singh was framed against each of the appellants, namely, Suresh Singh and Rajesh Singh and in para 99 of the judgment only those two persons have been convicted of offence under Section 302 of IPC, hence, looking to the factual difference, the aforesaid judgments are not applicable to the present case. Since appellant Hukum Singh was convicted for offence under Section 302 read with Section 149 of IPC in para 99 of the judgment then there was no dispute relating to his charges and conviction.
(12) This case is having sufficient number of injured persons and sufficient number of accused persons and therefore in order to avoid the complexity of the discussion, it would be appropriate to consider the points in a sequence. It should be considered as to whether the death of the deceased Govind Singh was homicidal in nature? Whether victims Raghuveer Singh Raghuvanshi (PW-2), Vijay @ Mannu (PW-11), Uttam Singh (PW-8) and Shivram Singh (PW-4) have sustained any fatal injury. It is to be examined as to who assaulted the particular victim 10 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 and what is the crime constituted against that person who assaulted the particular victim. Thereafter, whether the appellants could be convicted for the aforesaid offences with the help of common intention or common object and whether unlawful assembly was constituted and some of the persons had deadly weapons in that unlawful assembly. (13) Dr. P.K. Sharma (PW-15) has performed the post mortem on the body of the deceased Govind Singh and gave a report Ex.P-14. He found 25 firearm wounds on the body of the deceased caused by pellets. Three pellets were found in the body of the deceased and those were removed and given to the police for their ballistic examination. Heart, brain, both the lungs, liver and omentum were found damaged due to impact of pellets and therefore due to damage of these vital parts of the body, deceased Govind Singh died. According to Dr. P.K. Sharma (PW-15), death of the deceased Govind Singh was homicidal in nature. There is no reason to disbelieve Dr. P.K. Sharma (PW-15) and hence looking to so many injuries, death of the deceased Govind Singh is proved to be homicidal in nature. Dr. P.K. Sharma (PW-15) examined victims Uttam Singh (PW-8), Raghuveer Singh Raghuvanshi (PW-2), Vijay @ Mannu (PW-11) and gave his reports Ex.P-64 to P-66. According to him Uttam Singh (PW-8) sustained four injuries of firearm on his right buttock whereas five wounds were found on his chest and abdomen. Wounds were also found on left forearm and right elbow. Victim Uttam Singh (PW-8) was referred for radiological examination. Dr. Sitaram Singh Raghuvanshi (PW-19) examined him radiologically and gave his report Ex.P-131. No fracture was found to the victim Uttam Singh (PW-8) 11 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 whereas one radio opaque shadow was found on the right elbow. Two such shadows were found on abdomen. Two such shadows were found on the pelvic region and one on the chest. Such shadows should be caused due to presence of small pellets.
(14) Dr. Ganesh Sugra (PW-22), CMO, at Choithram Hospital, Indore (M.P.) examined Uttam Singh (PW-8) and gave a report Ex.P-138. He found various wounds caused by pellets but he did not mention as to whether Uttam Singh (PW-8) would have died due to such injuries or not. No bed-head ticket or surgical report was submitted by any of the doctors to show that any vital part of the injured Uttam Singh was damaged. Out of all the doctors like Dr. P.K. Sharma (PW-15), Dr. Sitaram Singh Raghuvanshi (PW-
19) and Dr. Ganesh Sugra (PW-22), none has opined that injuries caused to the victim Uttam Singh (PW-8) were fatal in nature. Hence, the prosecution has failed to prove that injuries caused to victim Uttam Singh (PW-8) were fatal in nature.
(15) Dr. P.K. Sharma (PW-15) has also examined the victim Raghuveer Singh Raghuvanshi (PW-2) and gave his report Ex.P-65. One firearm injury was found near his left eye. Two injuries on right chest, four injuries on left upper arm and four injuries on right arm were found by Dr. P.K., Sharma (PW-15) which could be caused by pellets. Dr. Sitaram Singh Raghuvanshi (PW-19) examined the injured Raghuveer Singh Raghuvanshi (PW-2) radiologically and gave his report Ex.P-125. He found nine radio opaque shadows on the corresponding portion of the body where Dr. P.K. Sharma (PW-15) found the injuries of pellets, however, no fracture was found to the victim Raghuveer 12 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Singh Raghuvanshi (PW-2). Raghuveer Singh Raghuvanshi (PW-2) was also referred to Choithram Hospital, Indore, however, Dr. Ganesh Sugra did not opine in his report Ex.P- 137 that any of the injuries caused to the victim Raghuveer Singh Raghuvanshi (PW-2) was fatal in nature. No bed- head ticket or surgical report was produced before the trial court to show that some surgery was done to the victim Raghuveer Singh Raghuvanshi (PW-2) or any vital part of his body was found damaged, hence, the prosecution has failed to prove that the victim Raghuveer Singh Raghuvanshi (PW-2) sustained any fatal or grave injury.
(16) Similarly, Dr. Manish Jain (PW-5) examined injured Shivram Singh (PW-4) and gave his report Ex.P-8. He found one lacerated wound 7 cms above left heel, one lacerated wound on left knee. Shivram Singh (PW-4) was complaining of pain on right shoulder but no injury was found. According to Dr. Manish Jain (PW-5), injuries caused to Shivram Singh (PW-4) were simple in nature. It is not mentioned by Dr. Manish Jain (PW-5) that any of the injuries caused to the victim Shivram Singh (PW-4) was caused by gunshot. Shivram Singh (PW-4) was not referred for his radiological examination or admission. Hence, it would be apparent that the victim Shivram Singh (PW-4) sustained simple injuries.
(17) Dr. P.K. Sharma (PW-5) examined the victim Vijay Singh @ Mannu (PW-11) and gave his report Ex.P-66. One firearm injury was found on his left cheek whereas blood was oozing from his nose. Five such injuries were found on right shoulder. Two injuries were found on left abdomen and one or two injuries were found on left thigh. Dr. P.K. 13 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Sharma (PW-5) referred the victim, Vijay Singh @ Mannu (PW-11) to ENT specialist because blood was oozing from his nose. However, no report of ENT specialist was submitted. On the other hand, Dr. Sitaram Singh Raghuvanshi (PW-19) who performed the X-ray of victim Vijay Singh @ Mannu (PW-11) and gave his report Ex.P-
117. He found that some radio opaque shadows were present below the wounds described by Dr. P.K. Sharma (PW-15). Some air was collected on upper lobe on the right lung of victim Vijay Singh @ Mannu (PW-11). Haemorrhagic fluid was present on right chest, however, such opinion was not confirmed by any surgical specialist. Dr. Ganesh Sugra (PW-22) examined Vijay Singh @ Mannu (PW-11) and gave a report Ex.P-136. He repeated the opinion given by Dr. P.K. Sharma (PW-15). According to Dr. P.K. Sharma (PW-15) except the symptom of blood oozing from the nose of Vijay Singh @ Mannu, all the remaining injuries were simple in nature. In the absence of any bed- head ticket or surgical report, it can not be established that Vijay Singh @ Mannu sustained any fatal or grave injury. No fracture was found on any portion of his body. No ENT specialist was examined to show that blood was oozing from the nose of victim Vijay Singh @ Mannu due to any internal injury of brain etc. Hence, the prosecution has failed to prove that the victim Vijay Singh @ Mannu sustained any fatal or grave injury and therefore his injuries shall be counted as simple injuries. (18) Dr. Manish Jain (PW-5) examined Babulal, Parmal Singh (PW-13), Ravindra Singh, Ratan Singh and Manna and gave his reports Ex.P-9 to P-13. According to Dr. Manish Jain (PW-5), all the injuries of these persons were 14 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 simple in nature. These injuries were either abrasions or lacerated wounds. According to him, Babulal sustained a lacerated wound on his head and he made complaint of pain on right buttock but no injury was found. Parmal Singh (PW-13) sustained a lacerated wound on right palm in between the palm and thumb that was simple in nature. Ravindra Singh sustained two abrasions on right leg. Those were simple in nature. Ratan Singh sustained mainly two injuries; one incised wound was found on right knee of Ratan Singh and above that wound there were three parallel lacerated wounds. One abrasion was found on his left knee. He was making complaint of pain on left leg but nothing was found in that leg. He found two injuries to victim Manna. One lacerated wound was found on right palm and another one was found on right temporal and occipital region. According to Dr. Manish Jain (M.P.), one injury of victim Ratan Singh was found to be caused by sharp cutting weapon whereas all the injuries of these victims were caused by hard and blunt objects. (19) Witness Bhupendra Singh Raghuvanshi (PW-1), Raghuveer Singh Raghuvanshi (PW-2), Manna (PW-3), Shivram Singh (PW-4), Uttam Singh (PW-8), Vijay Singh @ Mannu (PW-11) and Parmal Singh (PW-13) etc. were examined as eyewitnesses. All of them have categorically stated that on exhortation extended by appellants Anant Singh and Onkar Singh, first of all, appellant Suresh Singh fired with a 12-bore gun and injury was caused on the chest of deceased Govind Singh. Again when Govind Singh tried to stand up appellant Rajesh Singh again fired upon him causing injury on his chest and head and thereafter deceased Govind Singh again fell down on the ground and 15 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 died. There is no any contradiction in the evidence given by all these eyewitnesses so that there is a difference in their story. Learned counsel for the appellants Suresh Singh and Rajesh Singh has submitted that according to FIR Ex.P-2, complainant Bhupendra Singh Raghuvanshi (PW-1) went to the police station along with Akhilesh Singh and Jaswant Singh and those were not examined by the prosecution and therefore an adverse inference be drawn against the prosecution. He has also relied upon the judgment passed by the Apex Court in the case of "Brijpal Singh Vs. State of Madhya Pradesh" [2004 SCC (Cri) 90] in which it is held that non-examination of independent witnesses present at the spot creates a doubt in the prosecution story. Reliance is also placed on the judgment passed by the Apex Court in the Case of "Lallu Manjhi and another Vs. State of Jharkhand" [AIR 2003 SC 854] in which it is held that if the sole eyewitness was interested being brother of the deceased then his testimony can be accepted if it is corroborated fully by the medical evidence and therefore, no conviction can be sustained on the basis of the interested witnesses. However, submissions made by the learned counsel for the appellants Suresh Singh and Rajesh Singh cannot be accepted. Initially, in the FIR Ex.P-2 it was mentioned that complainant Bhupendra Singh Raghuvanshi (PW-1) went to the police station along with Akhilesh Singh and Jaswant Singh and he did not mention that those were the eyewitnesses. In the end of FIR, he has expressed that Akhilesh Singh was present at the spot at the time of incident but he did not mention that Jaswant Singh was also present at the time of incident. In the present case, 16 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 there were so many persons who sustained injuries and it is the settled principle of the Apex Court that number of witnesses is not important to prove a case. All of the eyewitnesses are not required to be examined. It is not proved by the appellants that Akhilesh Singh and Jaswant Singh were not the relatives of Bhupendra Singh Raghuvanshi (PW-1) or those were not the interested witnesses, hence, the law laid down by the Hon'ble Apex Court in the case of Brijpal (supra) cannot be applied. Similarly, since it is a case of multiple eyewitnesses, out of them, so many witnesses are injured witnesses and therefore, the judgment passed by the Apex Court in the case of Lallu Manjhi (supra) relating to sole eyewitness cannot be applied in the present case.
(20) Learned counsel for the appellants Suresh Singh and Rajesh Singh has also submitted that if marg intimation Ex.P-1 and FIR Ex.P-2 are compared then both the documents are shown to be written at the same time whereas it was not possible for the police officer to write down both the documents simultaneously and also compliance under Section 157 of Cr.P.C. is not established by the prosecution and possibility cannot be ruled out that initially a marg intimation was registered and later on the FIR was registered by due deliberations etc and therefore compliance of Section 157 of Cr.P.C. was essential. Learned counsel for the appellants has relied upon the judgment passed by the Apex Court in the case of "Bhajan Singh alias Harbhajan Singh & others Vs. State of Haryana"
[AIR 2011 SC 2552] in which it is held that every delay under Section 157 of Cr.P.C. is not fatal but unexplained inordinate delay may affect the case adversely. Reliance is
17 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 also placed upon the judgment passed by the Apex Court in the case of "Arjun Marik and others Vs. State of Bihar" [1994 SCC (Cri.) 1551] and "L/NK Meharaj Singh Vs. State of Uttar Pradesh" [1995 Cri.L.J. 457] in support of the aforesaid submissions. The contention advanced by the learned counsel for the appellants Suresh Singh and Rajesh Singh cannot be accepted. If various columns of marg intimation and FIR are examined then column about date and time of intimation is shown in both the documents. In that column, it is not mentioned that date and time of document be mentioned when the document was written. When FIR was lodged by complainant Bhupendra Singh Raghuvanshi (PW-1) then during writing of that FIR police officer knew that Govind Singh had expired and therefore while recording the FIR he had received the information about the death of the deceased Govind Singh and therefore in the column of date and time of intimation, date and time when information received by the police should be written and hence it would be the same in the FIR as well as in the marg intimation. It is not accepted by the police officer who had written the FIR that marg intimation was written prior to the FIR. Hence, when intimation of crime committed by the appellants and death of the deceased Govind Singh was received by the police at the same time then the police is bound to write down the same date and time in both the documents. This fact is immaterial that how much time was consumed in recording the FIR and how much time was consumed in recording the marg intimation because there was no such column in either document so that such time be mentioned which was consumed in writing of 18 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 document. Under these circumstances, contention of learned counsel for the appellants Suresh Singh and Rajesh Singh has no effect on the prosecution's case. (21) So far as compliance of Section 157 of Cr.P.C. is concerned, it is the settled view of the Apex Court that it would be hyper-technical for the trial court or the appellate court to reject every FIR if compliance of provision under Section 157 of Cr.P.C. is not established. It is held in the case of "State of U.P. Vs. Gokaran and others" [AIR 1985 SC 131] that if soon after the lodging of FIR, investigating machinery starts its functioning i.e. its investigation then it cannot be said that the FIR was written ante-time. Learned counsel for the appellants Suresh Singh and Rajesh Singh has submitted that since no complete data is given in the marg intimation Ex.P-1, therefore, it shall be presumed that the FIR Ex.P-22 was ante-time and written much after the marg intimation. However, according to the provisions of the Code of Criminal Procedure while recording the marg intimation, only sufficient facts relating to death of the deceased are required to be shown and it is not necessary to give the description of any crime committed whereas in the FIR the description is to be given as to how the crime was committed. When the marg intimation Ex.P-1 and the FIR Ex.P-2 were written at the same time then only by the fact that no detailed description is given in the marg intimation, it cannot be said that FIR was ante time. In the present case, the injured persons were present at the time when marg intimation and the FIR were being recorded. Those were immediately sent for their medico-legal examination and the dead body of the deceased Govind 19 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Singh was recovered by the police and it was also sent for post mortem. If MLC reports given by Dr. Manish Jain (PW-
5) and Dr. P.K. Sharma (PW-15) are examined then Dr. P.K. Sharma (PW-15) examined the victim Uttam Singh (PW-8) at 10:45 am. Also, thereafter, he examined various victims one by one. Since the medical officer of the Primary Health Centre, Bajrang-garh was not available various victims were sent to the District Hospital, Guna and still within a few minutes those were examined by Dr. Manish Jain (PW-
5) and Dr. P.K. Sharma (PW-15) which indicates that machinery immediately came into operation and various injured victims were sent for their medico-legal examination. Under these circumstances, in the light of the judgment passed by the Apex Court in the case of Gokaran (supra) if prosecution has not proved that any compliance under Section 157 of Cr.P.C. was done then it would not be fatal to the prosecution case. Due to factual difference, the aforesaid judgments passed by the Apex Court in the case of Arjun Marik (supra) and L/NK Meharaj Singh (supra) cannot be applied in the present case.
(22) The benefit of doubt is given to the accused, if there is a reasonable doubt created in the prosecution story. Only on the basis of surmises and possibilities prosecution's case and its documents cannot be thrown away. When documents Ex.P-1-Marg Intimation and Ex.P-2- FIR were written at the same time within one hour and 40 minutes of the incident whereas the police station was 25 kms away and it was for the complainant to take various injured persons to the police station it would be presumed that FIR was timely lodged and no delay has been caused 20 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 in lodging the FIR. It is not proved that the FIR was written in ante-time manner. Under these circumstances, testimony of the eyewitnesses is duly corroborated by the timely lodged FIR Ex.P-2.
(23) Also Dr. P.K. Sharma (PW-15) has proved the post mortem report Ex.P-14. He found 25 firearm wounds on the body of the deceased Govind Singh. According to the eyewitnesses, appellants Suresh Singh fired with a 12-bore gun and injuries were caused on the chest and thereafter appellant Rajesh Singh fired with a gun and injuries were caused on the chest as well as on the remaining portion of the body. Various pellets struck the chest of the deceased Govind Singh causing injuries on both the lungs and heart. Similarly, pellets struck the head of the deceased Govind Singh causing injuries on his brain and by both the fires deceased Govind Singh sustained fatal injuries which could be caused by each of the fires. Hence, appellants Rajesh Singh and Suresh Singh have caused fatal injuries to the deceased Govind Singh by firing with 12-bore guns. Thus, the medical evidence is also corroborative to the evidence of eyewitnesses. Learned counsel for the appellants has relied upon the judgment passed by the Apex Court in the case of "Baldev Singh and another Vs. State of M.P." [AIR 2003 SC 2098] and Lallu Manjhi (supra) to show that if medical evidence does not corroborate fully the eyewitnesses then ocular evidence can be discarded. However, in case of deceased Govind Singh, ocular evidence is duly corroborated by post mortem report Ex.P- 14 as given by Dr. P.K. Sharma (PW-15). Hence, aforesaid judgments are not applicable in the present matter for the deceased Govind Singh.
21 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 (24) In the present case, learned counsel for the appellants Suresh Singh and Rajesh Singh have submitted that by seizure memo Ex.P-42 one double barreled 12-bore gun was allegedly recovered from Suresh Singh and by seizure Ex.P-43 a hand-made pistol of 12-bore was recovered from appellant Rajesh Singh and such weapons were sent to the Forensic Science Laboratory. Narendra Singh Choudhary (DW-5) who proved the report Ex.P-141 has accepted that he cannot give a specific opinion that the live or missed fire cartridges sent for examination could be fired again from various guns or not. He has also accepted that three pellets which were found in the body of the deceased Govind Singh could be fired by a gun which was marked as A-3 and according to the report Ex.P- 141, the gun allegedly recovered from Hukum Singh was marked as A-3. Hence, it is submitted that there is a contradiction between the ocular evidence and report of ballistic expert. Reliance is placed upon the judgment passed by the Apex Court in the case of "Pancho Vs. State of Haryana" [(2011) 10 SCC 165], Baldev Singh (supra), "Ghurey Lal Vs. State of Uttar Pradesh"
[(2009) 1 SCC (Cri.) 60] and "State of M.P. Vs. Ghudan" [AIR 2004 SC 797] to show that if the ocular evidence is not duly dealt with by the opinion of ballistic expert then the evidence of prosecution can be discarded, however, the statement made by the learned counsel for the appellants is not acceptable. The opinion of the ballistic expert may be relevant if some definite opinion could be given by him. If a bullet is fired from a gun then its cartridge has a particular hammer mark on it and if another cartridge is fired by the same gun then hammer
22 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 mark would be the same. Similarly, on fire bullet marks of barrel may be obtained and if such marks of barrel are found on the piece of bullet found inside the body of someone then the comparison may be possible that whether such bullet was fired with a particular gun or not. In case of 12-bore gun, a cartridge of 12-bore may be fired by a single barreled 12-bore gun, a double barreled 12- bore gun or pistol of 12-bore. It can never be ascertained whether there would be a one piece of lead or different pellets would be found in such cartridge. There is no hard and fast rule that particular number or particular size of pellet or particular number of pellet would be filled up in a particular cartridge of 12-bore gun. It is possible that all the pellets filled up by a particular company may be of equal size and those may not be of equal size but this fact is positive that if a cartridge is prepared to be fired with a 12 bore gun then it may be fired by longer barrel gun as well as a handmade pistol of 12-bore and therefore if the ballistic expert has stated that those pellets which were found in the body of the deceased Govind Singh could be fired by a gun A-3 that was allegedly recovered from Hukum Singh then he did not give such an opinion that these pellets could not be fired by the guns held by Suresh Singh and Rajesh Singh. If post mortem report Ex.P-14 proved by Dr. P.K. Sharma (PW-15) is considered then as many as 25 injuries of pellets were found to the deceased Govind Singh and therefore such injuries were caused by firing from 12-bore guns, hence, the opinion given by ballistic expert Narendra Singh Choudhary (DW-5) does not help the appellants in any manner whatsoever. The aforesaid judgments passed by the Apex Court are not 23 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 applicable in the present case due to different factual positions.
(25) Learned counsel for the appellants Suresh Singh and Rajesh Singh have also submitted that seizure of guns from the appellants Suresh Singh and Rajesh Singh is highly doubtful. But in the present case where so many accused persons have used 12-bore guns causing injuries to various persons and so many victims have sustained injuries of pellets fired by the 12-bore gun therefore if a 12-bore gun is recovered from any accused then it makes no difference. It cannot be said positively by the report of FSL that particular cartridge was fired by a particular gun and the firing mark of barrel can be found on the piece of lead available in the body of any victim. In case of 12-bore gun, no such mark can be seen on any of the pellets where the cartridge was filled up by so many pellets. Hence, by seizure of a gun offence under Section 25 of the Arms Act may constitute but it cannot be said definitely that fire was done by the same gun which was recovered and therefore present case is to be considered without giving much weight to the report Ex.P-141 given by the FSL. (26) Learned counsel for the appellants Suresh Singh and Rajesh Singh has submitted that according to the spot map and recovery, one used empty cartridge was found 100 ft away from the spot and no other cartridge could be recovered by the police. Looking to the distance of the cartridge it cannot be said that both the fires were done with the gun or were fired with a distance of 100 ft. Such submission is not acceptable in the case. It is proved by various doctors that so many persons have sustained injuries of pellets fired by more than one person. It can be 24 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 said because some blackening etc was found by Dr. P.K. Sharma (PW-15) on the injuries of Uttam Singh (PW-8) whereas no blackening etc was found on the body of deceased Govind Singh. So many injuries of pellets were found to various victims and such injuries could not be caused by a single shot. Blackening may be caused if fire is done with a distance of 4-5 ft and no blackening would be found if fire is done from a distant place. Looking to the blackening found on the wounds of victim Uttam Singh (PW-8) and as no blackening was found on the wounds of remaining persons it would be apparent that at least one fire was made with a distance of 4-5 ft and other fires were made from a longer distance. Police reported at the spot after sometime and therefore there was possibility for the appellants to remove the empty cartridges from the spot or they also had an opportunity to change the distance of empty cartridge which was found on the spot, hence, if only one empty cartridge was found at the spot with a distance of 100 ft then it gives no advantage to the appellants whereas evidence of eyewitnesses is duly corroborated by the timely lodged FIR Ex.P-2 and post mortem report Ex.P-14 proved by Dr. P.K. Sharma (PW-15). (27) Learned counsel for the appellants has submitted that if there is a contradiction between the statements of witnesses recorded under Section 161 of Cr.P.C. and their statements recorded before the court then a deliberate change creates a doubt. In this connection, the judgment passed by the Apex Court in the case of "Shingara Singh Vs. State of Haryana and another" [AIR 2004 SC 124] is referred in which it is held that if eyewitnesses have deliberately changed material facts during their 25 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 depositions before the court in comparison to their previous statements on the basis of medical evidence then the facts of the case shall come under a cloud of doubt. However, in the present case, there is no change in the version of the eyewitnesses either in their case diary statements or in their statements before the Court and also the medical report according to their statements in relation to the death of the deceased. Hence, the law laid down in the case of Shingara Singh (supra) cannot be applied in the present case due to difference of factual position. Learned counsel for the appellants has also placed reliance upon the judgment of Baldev Singh (supra) to show that if there is a discrepancy between the medical evidence and ocular evidence relating to place of injury etc. then the evidence of eyewitnesses should be discarded. In case of Baldev Singh (supra), there were so many discrepancies such as FIR was lodged with the delay of two days. Also in the present case, if medical evidence does not confirm the version of the eyewitnesses then ocular evidence may be discarded but in the case of appellants Rajesh Singh and Suresh Singh, the ocular evidence is similar and corroborative by the medical evidence, hence, the law laid down in the case of Baldev Singh (supra) cannot be applied in the present case relating to appellants Rajesh Singh and Suresh Singh. (28) Learned Senior Advocate appearing for the appellants has fairly admitted that no case of right of private defence was established, however, learned counsel for the appellants Suresh Singh and Rajesh Singh has submitted that evidence of various defence witnesses should be considered. He has read out the evidence of Ghanshyam 26 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Raghuvanshi (DW-4) to show that the complainant and his companions were fully armed and they initiated criminal activity, however, such evidence is not acceptable because if 5-6 persons armed with guns etc had attacked the appellants already then some cartridges should have been found near the spot as told by witness Ghanshyam Raghuvanshi (DW-4), an FIR would have been lodged by the injured persons and they would have been examined by the doctor. It is not possible that the complainant and his companions fired with the guns and assaulted various victims and no-one sustained any injury. No counter FIR or no medico-legal report of any of the appellants was produced before the trial court. Hence, the story told by Ghanshyam Raghuvanshi (DW-4) appears to be hypothetical which cannot be accepted. The appellants have failed to prove that any right of private defence had accrued to them.
(29) Learned counsel for the appellants Suresh Singh and Rajesh Singh has also submitted that there was no intention of the appellants to kill the deceased Govind Singh. There was no previous enmity proved by the prosecution between the parties. It is true that enmity between the parties could not be proved by the prosecution because apparently there was no previous enmity as such between Govind Singh and Rajesh Singh or Suresh Singh, however, motive is ingredient which can be an additional circumstance in the chain of circumstantial evidence if it is proved. Sometimes, it is not possible to know the motive of the accused who killed the deceased and therefore motive is not an essential ingredient to prove the offence of murder. In the present case, initially, hot 27 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 talks took place between Ram Singh and complainant Bhupendra Singh Raghuvanshi (PW-1) and therefore appellants would have reached the spot to cause harm to complainant Bhupendra Singh Raghuvanshi (PW-1) whereas after reaching the spot appellants Suresh Singh and Rajesh Singh aimed at the deceased Govind Singh and fired on his chest. If they had appeared in the scene of crime to commit offence against complainant Bhupendra Singh Raghuvanshi (PW-1) then it was not possible for them to aim Govind Singh. Repeated firing done by Rajesh Singh after Suresh Singh on vital parts of the body of the deceased Govind Singh clearly indicates that they had intended to kill the deceased Govind Singh. If initially Govind Singh was not the target of mob then there was no need to the appellant Suresh Singh to fire upon the deceased Govind Singh. He would have fired upon complainant Bhupendra Singh Raghuvanshi (PW-1) but he started firing with a 12-bore gun, on the chest of the deceased Govind Singh and when he again stood up, second fire was made by Rajesh Singh on his chest and upper portion of the body. Hence, looking to the conduct as established by the prosecution before the trial court clearly indicates that the appellants Suresh Singh and Rajesh Singh had an intention to kill the deceased Govind Singh. Initially, appellant Suresh Singh fired with a gun causing fatal injuries to the deceased Govind Singh on various vital parts like chest and Govind Singh would have died due to such fatal injuries on lungs, liver and heart. Again, Rajesh Singh fired with the gun causing injury on brain of the deceased Govind Singh. One pellet was also found in the brain. Under these circumstances, the 28 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 appellants Suresh Singh and Rajesh Singh had not only caused fatal injuries to the deceased Govind Singh but also they had intended to kill him and therefore the trial court has rightly convicted them of offence under Section 302 of IPC.
(30) So far as the injuries of victims Raghuveer Singh Raghuvanshi (PW-2), Vijay Singh @ Mannu (PW-11), Uttam (PW-8 and Shivram Singh (PW-4) are concerned, as discussed above, none of their injuries was found to be fatal. Though it is stated by Dr. Sitaram Singh Raghuvanshi (PW-19) that some air was found collected above the right lung of victim Vijay Singh @ Mannu (PW-11) due to hole on the lung but thereafter it could not be proved that such injury was either grievous or fatal and therefore since no surgery was done and no doctor has given any opinion about the injury to be fatal or grave then it shall be presumed that the prosecution could not prove the injuries of Vijay Singh @ Mannu (PW-11) to be fatal or grave. There are allegations of various witnesses as to who assaulted whom and with which weapon but when so many accused persons have fired and so many victims have sustained injuries it was difficult for every eyewitness to locate all the assaults with their respective victims and accused and therefore if such contradiction in the evidence of witnesses arrives then it cannot be said to be material. If the victim who sustained injuries knows that who caused injuries to him, then the evidence of such witness can be accepted as it is. Raghuveer Singh Raghuvanshi (PW-2) has stated about the injuries caused to the deceased Govind Singh and thereafter he told that Chandu @ Chandrabhan assaulted him with a ballam causing injuries on his right 29 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 fingers and left side of his head but Dr. P.K. Sharma (PW-
15) who examined the victim Raghuveer Singh Raghuvanshi (PW-2) in his MLC report Ex.P-65 did not find any such injury and therefore it cannot be accepted that appellant Chandu @ Chandrabhan assaulted the victim Raghuveer Singh Raghuvanshi (PW-2) with ballam. Witness Raghuveer Singh Raghuvanshi (PW-2) has also stated that Hukum Singh fired with a gun and he sustained so many injuries of pellets. This version was proved by Dr. P.K. Sharma (PW-15) in MLC report Ex.P-65 where 10 to 11 firearm injuries were found on his person viz. near the left eye, on the right chest, left upper arm and right arm. Such version was also mentioned in the FIR and therefore it is proved beyond doubt that appellant Hukum Singh fired with a gun causing simple injuries to the victim Raghuveer Singh Raghuvanshi (PW-2). Hence, in the light of the judgments passed by the Apex Court in the case of "Pashora Singh and another Vs. State of Punjab"
[AIR 1993 SC 1256], "Parsuram Pandey and others Vs. State of Bihar" [AIR 2004 SC 5068] and Baldev Singh (supra), since no fatal injury was found to the victim Raghuveer Singh Raghuvanshi (PW-2) and simple injuries were found upon him caused by gunshot. The appellant Hukum Singh did not repeat his fire upon the victim Raghuveer Singh Raghuvanshi (PW-2) and therefore he did not intend to kill him and therefore the act of appellant Hukum Singh relating to victim Raghuveer Singh Raghuvanshi (PW-2) shall fall within the purview of Section 324 of IPC and not under Section 307 of IPC.
(31) Witness Vijay Singh @ Mannu (PW-11) has stated that initially Lallu @ Surendra Singh fired upon him and
30 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 thereafter Pancham Singh fired upon him and he sustained various injuries of pellets. Evidence of Vijay Singh @ Mannu (PW-11) is duly corroborated by other eyewitnesses as well as FIR Ex.P-2 and evidence of Dr. P.K. Sharma (PW-
15) in relation to the MLC report Ex.P-66. 8-9 injuries were found on his person i.e. on left cheek, right shoulder, left abdomen and left thigh. Hence, the evidence of Vijay Singh @ Mannu (PW-11) is acceptable that appellants Lallu @ Surendra Singh and Pancham Singh fired upon him causing simple injuries to him and on the same logic as mentioned for victim Raghuveer Singh Raghuvanshi (PW-
2), the appellants Lallu @ Surendra Singh and Pancham Singh would be liable for offence under Section 324 of IPC only, however, since the appellant Pancham Singh has expired during the pendency of the appeal, therefore, only appellant Lallu @ Surendra Singh shall be liable for offence under Section 324 of IPC for the injuries caused to the victim Vijay Singh @ Mannu (PW-11).
(32) Victim Uttam Singh (PW-8) has stated that appellants Vishnu Raghuvanshi and Bhure Singh fired with 12-bore guns causing injuries to him and one Banti @ Hindu Singh assaulted him with Farsa causing injury on left elbow, however, according to the MLC report Ex.P-64 proved by Dr. P.K. Sharma (PW-15) the victim Uttam Singh (PW-8) sustained 9-12 injuries of pellets caused on his right buttock, chest, abdomen, left forearm and right elbow but no injury of Farsa was found on his person and therefore on the basis of aforesaid judgments passed by the Apex Court his evidence cannot be accepted that appellant Banti @ Hindu Singh assaulted him with a Farsa, however, due to corroboration of other witnesses, FIR Ex.P-2 and 31 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 medical evidence it is proved that appellants Vishnu Raghuvanshi and Bhure Singh fired upon the victim Uttam Singh (PW-8) causing simple injuries and therefore on the basis of logic as mentioned above, these two persons shall be liable for offence under Section 324 of IPC. (33) If the case of Shivram Singh (PW-4) is examined then he has stated that Hariom fired with a gun causing injury to him on his left heel and Dalup @ Dilip Singh assaulted him by means of a stick causing injury. Dr. Manish Jain (PW-5) proved the MLC report of victim Shivram Singh (PW-4) as Ex.P-8. He found one lacerated wound 7 cm above the left heel and one lacerated wound below the left knee. The size of the first wound was 1/2 x 1/2 cms and the size of second wound was 2 x 1 cms. Hence, the wound caused below the left knee could not be caused by firing. It could be caused by assault done by Dalup @ Dilip Singh with a stick. Though Dr. Manish Jain (PW-5) did not express as to whether the injury found 7 cms above left heel was caused by firearm and whether blackening or charring would be found, if fire was done from a distance of more than 5 ft. If pellet would not have struck directly in the deep skin then doctor cannot say definitely as to whether injury was caused by firearm or not. Thus, corroboration of medical report Ex.P-8 Shivram Singh (PW-
4) has sustained gunshot injury just above his left heel and stick injury below left knee, hence when his statement is corroborated by other eyewitnesses, FIR Ex.P-2 and MLC report Ex.P-8 proved by Dr. Manish Jain (PW-5), it is proved that the appellant Hariom fired with a gun causing simple injury to the victim Shivram Singh (PW-4) whereas Dalup @ Dilip Singh assaulted him with a stick causing 32 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 simple injury. On the basis of logic, as discussed above, Hariom shall be liable for offence under Section 324 of IPC and Dalup @ Dilip Singh shall be liable for offence under Section 323 of IPC in relation to victim Shivram Singh (PW-
4).
(34) None other victim was considered for offence under Section 307 of IPC, however, the other injured witnesses may also be considered for their injuries and the co- relative accused who assaulted them. Dr. Manish Jain (PW-
5) has proved the MLC report Ex.P-10 relating to victim Parmal Singh (PW-13) and found a lacerated wound on his right palm between the palm and thumb. According to Dr. Manish Jain (PW-5) the injury found to the victim Parmal Singh (PW-13) was simple in nature. Parmal Singh (PW-13) has stated that accused Radheshyam assaulted him with ballam which caused injury on his right palm near thumb and there was a wound which was stitched by the doctor. He did not state that appellant Radheshyam stabbed the ballam on his right palm and therefore it is possible that pointed portion of ballam would not have caused any injury to the victim Parmal Singh (PW-13), however, if pointed portion of the ballam had touched the skin of victim Parmal Singh (PW-13) so that skin was lacerated then wound could be caused. Evidence of Parmal Singh (PW-13) is corroborated by other eyewitnesses along with FIR Ex.P-2 and medical report Ex.P-10 proved by Dr. Manish Jain and therefore it is established that the accused/appellant Radheshyam is liable for offence under Section 323 of IPC causing simple injuries to victim Parmal Singh (PW-13). (35) Dr. Manish Jain (PW-5) has proved the MLC report Ex.P-13 of victim Manna (PW-3). According to Dr. Jain, 33 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 there were two simple injuries to the victim Manna (PW-3); one was lacerated wound on his right palm and second was a blunt injury on right temporal and occipital region of size 12x1 cms. Manna (PW-3) has stated that Setu @ Satendra Singh gave a blow of Farsa on his head and Neta @ Narendra gave a blow of ballam causing injury on his right palm. It is true that the Farsa and Ballam are the sharp cutting and stabbing weapons respectively and it is not mentioned by Manna (PW-3) that Neta @ Narendra stabbed the ballam in his palm and therefore if ballam was not stabbed and it was used to cause injury otherwise then such injury could be caused to the victim Manna (PW-3) as proved by Dr. Manish Jain (PW-5). Similarly, if farsa was not so sharp, such lacerated wound would have been caused on his right temporal and occipital region. Looking to the size of wound it is also possible that if Farsa was not so sharp such lacerated wound could be caused. Evidence given by Manna (PW-3) is duly corroborated by MLC report Ex.P-13 proved by Dr. Manish Jain (PW-5). His statement is also corroborated by other eyewitnesses. Hence, on the basis of aforesaid logic, appellant Setu @ Satendra Singh and Neta @ Narendra shall be liable for offence under Section 323 of IPC to voluntarily cause hurt to the victim Manna (PW-3).
(36) Similarly, if injuries of victim Ratan Singh are considered then Dr. Manish Jain (PW-5) has proved his MLC report Ex.P-12. According to him, Ratan Singh sustained incised wound on the joint of right knee and it was followed by three lacerated wounds. Those were one upon the other and one abrasion was found on his left knee. The injured Ratan Singh was not examined by the 34 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 prosecution, however, complainant Bhupendra Singh Raghuvanshi (PW-1) and other eyewitnesses have stated that Ram Singh assaulted victim Ratan Singh with a stick but no-one has stated that any of the appellants has assaulted the victim Ratan Singh with a sharp cutting weapon. Hence, when it is not established that any of the appellants assaulted the victim Ratan Singh with sharp cutting weapon no-one can be convicted for the injury voluntarily caused by sharp cutting weapon, however, on the basis of the logic as mentioned above, appellant Ram Singh is liable for offence of voluntarily causing hurt to the victim under Section 323 of IPC.
(37) Similarly, Dr. Manish Jain (PW-5) has proved the MLC report Ex.P-11 of the victim Ravindra Singh. According to Dr. Jain, Ravindra Singh sustained two minor abrasions on his right leg. Out of them one was on right knee. Ravindra Singh was not examined by the prosecution, however, if evidence given by complainant Bhupendra Singh Raghuvanshi (PW-1) and other eyewitnesses is considered then Ram Singh assaulted Ravindra Singh causing such injuries. Looking to the corroborative evidence of various injured eyewitnesses it is proved that Ram Singh had voluntarily caused injuries to victim Ravindra Singh and therefore he is liable for offence under Section 323 of IPC for victim Ravindra Singh.
(38) Dr. Manish Jain (PW-5) has proved the MLC report Ex.P-9 of victim Babulal. According to him Babulal had sustained two injuries; one was lacerated wound on left parietal region and he had a complaint of pain on the joint of right buttock, however, no injury was found and hence it was for the prosecution to prove the author of the injury 35 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 caused on the left side of the head of Babulal. If evidence of complainant Bhupendra Singh Raghuvanshi (PW-1) and other eyewitnesses is considered then accused Dalup @ Dilip Singh had caused injury on the head of victim Babulal with the help of a stick. On the basis of the aforesaid discussion and logic as state above, appellant Dalup @ Dilip Singh is liable for offence under Section 323 of IPC for the victim Babulal.
(39) As discussed above no right of private defence is available to any of the appellants. They were the assailants who entered into the scene of crime with various weapons and therefore their intention can be presumed that they did not assault anyone due to sudden or grave provocation. If complainant Bhupendra Singh Raghuvanshi (PW-1) had refused to go with accused Ram Singh to purchase a DP (transformer) then such denial could not result in such grave or sudden provocation caused to either Ram Singh or any of the aforesaid appellants so that many injuries to various victims could have been caused and therefore they should be held liable for various offences under Sections 324 and 323 of IPC.
(40) When any accused enters the scene of crime having gun or any other weapon then it shall be presumed that he knows the result of assault if it is done by that particular weapon and since thereafter he assaulted various victims without any sudden or gave provocation or right of private defence then as per the provisions contained under Section 39 of IPC his act of assault and causing injury shall be held to be done voluntarily. Hence, as discussed above, appellants Hukum Singh, Lallu @ Surendra Singh, Vishnu Raghuvanshi with Bhure Singh are responsible for offence 36 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 under Section 324 of IPC for voluntarily causing simple injuries to the victims Raghuveer Singh Raghuvanshi (PW-
2), Vijay @ Mannu (PW-11) and Uttam Singh (PW-8) by firing with the guns. As discussed above, Hariom caused gunshot injury to Shivram Singh (PW-4) and due to his voluntary act he shall be liable for conviction of offence under Section 324 of IPC, however, trial court convicted him only of offence under Section 323 of IPC relating to the injuries caused to Shivram Singh and therefore in the absence of counter appeal filed by the State now no accused can be convicted of offence under Section 324 of IPC relating to victim Shivram Singh (PW-4) and hence it would be appropriate to convict the appellant Hariom for offence under Section 323 of IPC. Similarly, appellants Setu @ Satendra Singh and Neta @ Narendra who voluntarily caused simple injuries to the victim Manna (PW-3) and both of them are liable for conviction of offence under Section 323 of IPC. Dalup @ Dilip Singh had voluntarily caused simple injuries to Shivram Singh (PW-4) and Babulal and therefore they are liable for conviction of two count charges of Section 323 of IPC. Similarly, Ram Singh had voluntarily caused hurt to the victims Ratan Singh and Ravindra Singh and therefore, he is also liable for conviction of two count charges of Section 323 of IPC. (41) Now, at this stage, it shall be considered as to whether any unlawful assembly was constituted and what was the object of the unlawful assembly. Whether any appellant can be convicted for the offence done by the other with the aid of Section 34 or 149 of IPC. As discussed above, it is true that the appellants Suresh Singh and Rajesh Singh fired with the guns causing death of the 37 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 deceased Govind Singh. Accused Hukum Singh, Lallu @ Surendra Singh, Vishnu Raghuvanshi, Bhure Singh and Hariom have caused simple injuries to the victims Raghuveer Singh Raghuvanshi (PW-2), Vijay Singh @ Mannu (PW-11), Uttam Singh (PW-8) and Shivram Singh (PW-4) with the help of firearms etc. Appellants Dalup @ Dilip Singh, Radheshyam, Setu @ Satendra Singh, Neta @ Narendra and Ram Singh have voluntarily caused hurt to the various victims like Shivram Singh (PW-4), Parmal Singh (PW-13), Manna, Babulal, Ratan Singh and Ravindra Singh and therefore at that time these many persons had caused various injuries to various victims. Hence when more than five persons have used criminal force simultaneously at the same time in the incident then the unlawful assembly is constituted. It was to be established by the prosecution to show about the common object of the unlawful assembly. If evidence of eyewitnesses is considered then initially the appellants had gathered to teach a lesson to the victim Bhupendra Singh Raghuvanshi (PW-1) and his companions by firing with the guns. If someone had already carried a gun in the unlawful assembly then it was in the knowledge of various accused persons that grave injury could be caused by firing of the guns to various victims. It was not necessary to be known by each of the appellants that someone would be killed in the incident because it was not pre-planned. If other appellants except appellants Suresh Singh and Rajesh Singh were interested to kill the deceased Govind Singh then they would have assaulted the deceased Govind Singh by firing or by any other weapon. According to the prosecution's case, only appellants Rajesh Singh and 38 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Suresh Singh participated in committing murder of deceased Govind Singh.
(42) It was stated by various witnesses that appellants Onkar Singh and Anant Singh had exhorted appellant Suresh Singh to kill the deceased Govind Singh, however, there is a contradiction between the evidence of various witnesses. Complainant - Bhupendra Singh Raghuvanshi (PW-1) has stated that Anant Singh and Onkar Singh exhorted the appellant Suresh Singh to kill Govind Singh whereas some of the eyewitnesses have stated against Onkar Singh and some of them have stated against Anant Singh that he exhorted the appellant Suresh Singh to kill the deceased Govind Singh, however, in this connection if FIR Ex.P-2 is perused then it was mentioned in the FIR Ex.P-2 that Onkar Singh and Anant Singh suggested Suresh Singh to fire with a gun to kill Govind Singh and thereafter he fired. Again, there is no allegation on Anant Singh and Onkar Singh that they exhorted the accused Rajesh Singh to kill the deceased. All the eyewitnesses have stated that Onkar Singh and Anant Singh had no weapon in their hands and therefore it was mentioned in the FIR Ex.P-2 and stated by the witnesses that, in the last, appellants Onkar Singh and Anant Singh pelted stones upon various victims, however, none of the victims has sustained any injury caused by pelting of stones. Hence, the version of the witnesses cannot be accepted that appellants Onkar Singh and Anant Singh pelted stones. When there was no previous enmity between the parties and it was not established against Anant Singh and Onkar Singh that they had any specific enmity with the deceased Govind Singh then it was not possible that instead of 39 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 assaulting the complainant Bhupendra Singh Raghuvanshi (PW-1) they would have instigated the appellant Suresh Singh to kill the deceased Govind Singh.
(43) It appears that since there was no weapon in the hands of Onkar Singh and Anant Singh, eyewitnesses have tried to implicate them with the allegation that they exhorted the appellant Suresh Singh to fire upon the deceased Govind Singh. When the appellants Anant Singh and Onkar Singh did not have any enmity with the deceased Govind Singh then there was no reason to exhort the appellant Suresh Singh to kill the deceased Govind Singh and hence the allegation of exhortation made by the witnesses against Onkar Singh and Anant Singh cannot be accepted. No overt act of Onkar Singh and Anant Singh is proved to show that they had any common intention with any other accused to commit any crime, hence, they had no common object of unlawful assembly and therefore they are not liable for the offence done by other accused with the help of Section 34 or 149 of IPC. Similarly, since they did not participate in the crime, by mere presence, they cannot be held liable for the offence punishable under Sections 147 or 148 of IPC.
(44) When there was no object of unlawful assembly to cause death of the deceased Govind Singh and suddenly Suresh Singh and Rajesh Singh fired on the vital part of body of Govind Singh and killed him, therefore it cannot be said that there was common intention or object of all the appellants who participated in the crime to kill the deceased Govind Singh and therefore it cannot be said that there was a common object of the unlawful assembly to kill the deceased Govind Singh. Hence, common object of the 40 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 unlawful assembly could be to cause harm to the opposite party by firing and that common object may be considered up to the offence under Section 326 or 324 of IPC. However, it is not settled between the accused persons as to who was their target and why. It is not proved beyond doubt against several appellants that they assaulted anyone or participated in the crime and therefore it cannot be presumed that they were the part of the unlawful assembly or they would be liable for the offence done by the other accused persons. Under these circumstances, the persons who have participated in the crime of assault with any weapon are liable for constitution of unlawful assembly to cause hurt to various victims and hence each of them shall be liable for the offence under Sections 147 or 148 of IPC according to the weapon held by him. But the appellants whose overt act is not proved that they participated in assaulting anyone cannot be held to be the part of unlawful assembly and those cannot be convicted for any offence done by any of the other appellants either with the help of Section 149 or 34 or IPC and by mere presence they will not be held liable for offence under Sections 147 or 148 of IPC.
(45) As discussed above, it is established that overt act of Chandu @ Chandrabhan, Banti @ Hindu Singh, Onkar Singh and Anant Singh could not be proved beyond doubt that they were the members of unlawful assembly or in furtherance of the common object of unlawful assembly or otherwise they used any criminal force upon any of the victims and therefore they will be entitled to get the benefit of doubt, hence, these four persons cannot be convicted of any offence either directly or with the help of 41 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 Section 149 of IPC. Since it was not proved that they were the members of unlawful assembly, they cannot be even convicted of offence under Section 147 or 148 of IPC also. (46) As discussed above, it is established that Dalup @ Dilip Singh and Ram Singh had one stick each in their hands and since stick is not a deadly weapon, therefore, though being a member of unlawful assembly and in furtherance of his common object they used criminal force upon various victims still then these two appellants are liable for conviction of offence under Section 147 of IPC because they did not have any deadly weapon with them, whereas remaining 10 accused persons, namely, Hariom, Vishnu Raghuvanshi, Lallu @ Surendra Singh, Rajesh Singh, Radheshyam, Neta @ Narendra, Setu @ Satendra Singh, Bhure Singh, Hakim Singh and Suresh Singh had participated as members of unlawful assembly with deadly weapons like Farsas, guns or ballams and therefore as discuss above for their overt act they are liable for conviction of offence under Section 148 of IPC. (47) Except of Suresh Singh and Rajesh Singh, remaining appellants are not liable for conviction of offence under Section 302 of IPC either directly or with the help of Section 149 of IPC and therefore they would get the advantage of acquittal for that offence. But it is proved beyond doubt that they formed an unlawful assembly with the object to voluntarily cause grievous or simple injuries to the various victims with guns, farsas and ballams and therefore they shall be liable for each offence which is committed by any of the members of the unlawful assembly, hence, all of the appellants who are not entitled to be acquitted are liable to be convicted of three count 42 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 charges of offence under Section 324 read with Section 149 of IPC relating to victims Raghuveer Singh Raghuvanshi (PW-2), Vijay @ Mannu (PW-11) and Uttam Singh (PW-8). Similarly, all of such appellants are liable for conviction of six count charges of offence under Section 323 read with Section 149 of IPC relating to the victims Shivram Singh (PW-4), Parmal Singh (PW-13), Manna (PW-
3), Babulal, Ravindra Singh and Ratan Singh. However, according to para 123 of the judgment passed by the trial court the appellants have been sentenced for two count charges of offence under Section 323/149 of IPC and one conviction of offence under Section 324/149 of IPC is now reduced to Section 323/149 of IPC, hence, in the absence of any appeal filed by the State the appellants cannot be convicted for six count charges of offence under Section 323/149 of IPC. Thus, the appellants shall be convicted of three count charges of Section 323/149 of IPC. (48) The trial court has convicted all the appellants of offence under Section 506 of IPC that they threatened the victims after the incident that they would kill them in future. When the entire criminal force was used by the appellants and one Govind Singh was killed then nothing remained with the appellants to do in future. Such wordings can not be considered as threatening or criminal intimidation if much harm was caused to the victims, hence, such words uttered by the accused persons shall not constitute the offence of criminal intimidation but such words may be considered to be used simply by the appellants to satisfy their ego. Hence, the trial court has committed an error in convicting the appellants of offence under Section 506 of IPC and therefore it would be 43 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 appropriate to acquit all the appellants from that charge. (49) So far as sentence is concerned, for offence under Section 302 of IPC, the trial court has recorded a minimum sentence whereas after considering the fact that the appellants fired with the guns upon the various victims, the trial court recorded the sentence of six months of RI with a fine of Rs.100/- for offence under Section 324 read with Section 149 of IPC. If the trial court found crime of Section 324 of IPC done by the accused with any sharp cutting weapon and at present it is found that three victims have sustained simple injuries by firing then such offence is grave, however, it is not so grave that the appellants may be sentenced for more than a year for offence under Section 324 of IPC. Similarly, only a fine of Rs.1,000/- was imposed for offence under Section 323 of IPC for each count. Similarly for offence under Section 148 of IPC the trial court recorded the sentence of six months' RI with a fine of Rs.100/- and for offence under Section 147 of IPC three months' RI with a fine of Rs.100/- was imposed. Hence, no further dilution is required in the order of sentence whereas each of the appellants has remained in custody for more than 400 days during trial and thereafter they remained in custody again for a few days during appeal. Since the trial court has also ordered all the sentences to run concurrently and all of the accused persons have already undergone the sentence which could be imposed for three count charges of Section 324 read with Section 149 of IPC and three count charges of Section 323 read with Section 149 of IPC or under Section 147 or 148 of IPC. Hence, it would be appropriate to reduce the sentence for aforesaid offences to the period for which the 44 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 appellants remained in custody.
(50) On the basis of the aforesaid discussion, appeal filed by the appellants Onkar Singh, Anant Singh, Chandu @ Chandrabhan, Banti @ Hindu Singh is hereby allowed. Their conviction and sentence for all the offences are hereby set aside. They are acquitted from all the charges. Similarly, all of the appellants are acquitted from the charge of Section 506 of IPC.
(51) The appeal filed by the appellants Ram Singh, Dalup @ Dilip Singh, Hariom, Vishnu Raghuvanshi, Lallu @ Surendra Singh, Radheshyam, Neta @ Narendra, Setu @ Satendra Singh, Bhure Singh and Hukum Singh is hereby partly allowed. Their conviction of offence under Section 302/149 of IPC and three count charges of Section 307/149 of IPC is hereby set aside. They are acquitted from the charge of Section 302/149 and 307/149 of IPC but all of them are convicted of three count charges of offence under Section 324/149 of IPC. Their conviction under one count charge of Section 324/149 of IPC is reduced for the offence under Section 323/149 of IPC and now they are held guilty for three count charges of Section 324/149 and three count charges of Section 323/149 of IPC.
(52) Similarly, conviction and sentence of the accused Dalup @ Dilip Singh and Ram Singh for offence under Section 148 of IPC is set aside but under the same head of charge they are convicted of offence under Section 147 of IPC whereas conviction under Section 148 of IPC relating to remaining appellants is confirmed, however, looking to the period of custody of each of the appellants it is directed that each of the appellants shall be sentenced for three count charges of Section 324/149, three count 45 Criminal Appeal No.172/2007 Criminal Appeal No.176/2007 Criminal Appeal No.177/2007 charges of Section 323/149, 148 or 147 of IPC for the period in which each of them remained in custody, however, no change in the fine amount. However, no separate fine is imposed for third count conviction under Section 323 of IPC. Default sentence as prescribed by the trial court is maintained in lieu of payment of fine. If the appellants have not deposited the amount of fine then the same shall be deposited within two months otherwise execution of default sentence will start. (53) So far as the appeal by the appellant Rajesh Singh and Suresh Singh is concerned, the same is hereby partly allowed. Their conviction of offence under Section 307/149 of IPC for three count charges is reduced to conviction of three count charges of Section 324/149 of IPC and a sentence of six months' RI with a fine of Rs.100/- for each count of offence under Section 324/149 of IPC is imposed upon these two appellants whereas no change in the sentence for offence under Section 323/149 of IPC. Their conviction and sentence for remaining offences is confirmed.
(54) The Registry is directed to issue the super-session warrants in case of the appellants who are in custody. For the appellants who are on bail, their presence is no more required before this Court and therefore it is directed that their bail bonds shall stand discharged.
(N.K. Gupta) (G.S. Ahluwalia)
Judge Judge
25/11/2016 25/11/2016
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