Madhya Pradesh High Court
Harnam Singh vs State Of M.P. on 3 June, 2019
1 Criminal Appeal Nos.831/07, 852/07 & 178/10
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH : Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.831/2007
Mangal Singh & Ors. ...... Appellants
Vs.
State of M.P. .....Respondent
&
Criminal Appeal No.852/2007
Kadam Singh @ Kadma & Ors. ...... Appellants
Vs.
State of M.P. .....Respondent
&
Criminal Appeal No.178/2010
Harnam Singh ...... Appellant
Vs.
State of M.P. .....Respondent
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Shri N.P.Dwivedi, learned senior counsel assisted by Shri
S.K.Tiwari, counsel for the appellants in Criminal Appeal
No.831/2007.
Shri D.R.Sharma, learned counsel for the appellants in Criminal
Appeal No.852/2007.
Shri V.K.Saxena, learned senior counsel assisted by Shri Mayank
Bajpai, counsel for the appellant in Criminal Appeal No.178/2010.
Shri F.A.Shah, learned Public Prosecutor for the State.
--------------------------------------------------------------------------------
Whether approved for Reporting :
JUDGMENT
(Delivered on this 3rd day of June, 2019) Per Justice Vivek Agarwal :
2 Criminal Appeal Nos.831/07, 852/07 & 178/10 Criminal Appeals No.831/2007 and 852/2007 have been filed by the accused/appellants being aggrieved of judgment dated 29.9.2007 and Criminal Appeal No.178/2010 has been filed being aggrieved of judgment dated 26.2.2010 passed by the Fourth Additional Sessions Judge, Gwalior, in Sessions Trial No.156/2006, whereby each of the appellants (11 in number) have been convicted under Section 148 of IPC with two years RI, under Section 302/149 of IPC with life imprisonment and fine of Rs.3,000/-, under Section 307/149 of IPC (on three counts) with 7 years of RI and fine of Rs.1,000/- on each count and appellant Harnam Singh has been convicted under Section 323 of IPC, whereas other appellants have been convicted under Section 323/149 of IPC with six months RI and in default of payment of fine each of the appellants has to undergo six months additional RI and appellants Kadma @ Kadam Singh and Ramsevak have further been convicted under Section 25 of the Arms Act with three years RI and fine of Rs.1,000/- and under Section 27 of the Arms Act with seven years RI and fine of Rs.1,000/- and in default of payment of fine they have to undergo three months additional imprisonment.
2. Prosecution case in short is that Sughar Singh Gurjar and Narayan Singh Gurjar are having rivalry for last 14-15 years. On 17.11.1992 as per the report lodged by Sughar Singh Crime No.149/92 was registered against Narayan, Lakhan, Uttam, 3 Criminal Appeal Nos.831/07, 852/07 & 178/10 Meharban Gurjar under the provisions of Sections 336, 294 and 506-B of IPC. This was the starting point since when counter allegations against each other were made and several cases were lodged against the rival parties. In the fag end of 2004 members of both the parties with the help of friends and relatives assembled at Shitla Mata Mandir and compromised their disputes and took oath not to indulge in any rivalry in future.
3. On 1.4.2006 one Umruddin resident of Rajasthan was threshing wheat at the farm of Mangal Singh with his thresher and tractor when Pappu Gurjar and Niranjan Gurjar asked him to take his thresher to their farm. In the meanwhile, Mangal Singh and his family members namely Bhagat Singh and Manni arrived there and opposed Pappu and Niranjan resulting in oral dispute when Pappu and Niranjan proceeded to their farm. As per prosecution story, after some time Mangal Singh, Bhagatsingh, Navabsingh, Rustamsingh, Sabharam, Ramsevak armed with mouser and 12 bore guns, Manni with Lohangi, Balveer with Baka, Ramniwas and Harnam armed with Lathi came there and fired gunshots at Pappu and Niranjan when Niranjan died of such gunshot injury. It is alleged that Niranjan died of gunshot fired by Mangal Singh. It is also alleged that in such firing Pappu @ Kalicharan and Ballu @ Shivsingh were injured. Pappu sustained gunshot injury allegedly caused by Navabsingh and Rustam, whereas Ballu @ Shivsingh sustained gunshot injury allegedly caused by 4 Criminal Appeal Nos.831/07, 852/07 & 178/10 Bhagatsingh and Kadma. It is also alleged that Manni caused injury with Lohangi to Lakhan. Complaint was lodged by Lakhan Singh at police Station, Panihar, immediately after the incident, as a result of which Crime No.32/2006 was registered under the provisions of Sections 302, 307, 147, 148, 149 of IPC read with Sections 25/27 of the Arms Act.
4. Shri N.P.Dwivedi, learned senior counsel, opening arguments for appellant Balveer Singh son of Mangal Singh, appellant No.4 in Criminal Appeal No.831/07, submits that as per the FIR (Ex.P/2) there are 11 accused persons and it is a story of old rivalry. There is one death of Niranjan Singh attributed to co- accused and no overt act of appellant Balveer Singh has been shown. It is pointed out that Balveer Singh was admittedly armed with Baka, whereas Ramniwas and Harnam were armed with Lathi and no gunshot injury has been attributed to them, therefore, appellants Balveer Singh, Ramniwas and Harnam have been falsely implicated as accused because they are respectively son of Mangalsingh, Badansingh and Sughar Singh, who are related to the main accused Mangal Singh. It is submitted that Mangal Singh is son of Sughar Singh, Harnam is brother of Mangal Singh with whom complainant party has rivalry. Similarly. Navab Singh, Maniram and Bhagat Singh are all sons of Sughar Singh and brothers of Mangal Singh, therefore, they have been falsely implicated. It is submitted that there was no Baka injury or Lathi 5 Criminal Appeal Nos.831/07, 852/07 & 178/10 injury on the body of the deceased or any of the injured witnesses, therefore, allegation that all the accused persons were present is not made out. It is also submitted that though FIR (Ex.P/2) makes a mention of presence of Narayan, Officer and Majboot but they have not been examined. It is also pointed out that postmortem report is Ex.P/48 and this postmortem was conducted by Dr. V.S.Tomar (PW-15) who has clearly mentioned that when he was posted as Casualty Medical Officer in JA Hospital on 1.4.2006, then at about 11 am Niranjan son of Narayan Singh Gurjar was brought to him for postmortem by Constable Rajendra Singh (who has not been examined by the prosecution) from police Station, Panihar, when he found that deceased sustained five injuries (1) an abrasion on his right wrist measuring 3 x 1 cm transverse; (2) abrasion on right thigh measuring 6 x 4 cm transverse; (3) abrasion on right arm measuring 4 x 2.5 cm transverse; (4) entry wound in the chest on the sternum portion 6.5 cm below having diameter of 0.8 cm with inverted ends; (5) exit wound on the right sub-scapular region measuring 4.5 x 3.5 cm with extended ends and blood was found deposited. He opined that injuries No.1 to 3 were simple in nature and injury No.4 had broken the track of sternum and pierced through heart and passed through right lung reaching to exit wound. It is also pointed out that in para 4 of his cross-examination this doctor has admitted that there was no blackening, charring or tattooing marks and if deceased would 6 Criminal Appeal Nos.831/07, 852/07 & 178/10 have been hit from a distance of about 3 steps, then there would have been blackening. It is also pointed out that it has come on record that since deceased had sustained gunshot injury in the center of his chest, therefore, such injury will result in excessive blood loss and person sustaining such gunshot injury will fall down on the spot itself and cannot run for a distance of 30-35 steps.
5. Dr. S.Agarkar (PW-13) had examined Lakhan Singh son of Nathu Singh when he was taken to JA Hospital where Dr. S.Agarkar was posted as CMO. He found two injuries on his person; (i) one contusion at frontal portion of right arm measuring 2-1/2 x 2 cm and (ii) an abrasion on right wrist measuring 1 x ½ cm. Such injuries were simple in nature and were caused by hard and blunt objection within six hours of the examination. MLC report is Ex.P/47. In cross-examination, doctor admitted that such injuries could not have been caused by Lohangi and they were not on any delicate or vital parts of the body. In further cross- examination, he admitted that such injuries could have been caused due to fall and police had not sent alleged weapon of assault for his opinion. The wounds were not bleeding and there were no signs of pre-MLC.
6. It is submitted that Dr. P.L.Gupta (PW-5) had examined Pappu @ Kalicharan when he was posted as CMO at JA Hospital and he found entry wound of firearm on his right elbow and upper 7 Criminal Appeal Nos.831/07, 852/07 & 178/10 part of the arm, lacerated type with inverted ends measuring 7 x 4 x 2 cm causing rupture of all the structures inside. There was no blackening or tattooing around the wound. There was no exit wound available. Doctor had referred the patient for x-ray. On the same day, this doctor had examined Ballu son of Lakhan Singh and found one firearm entry wound on left thigh measuring ½ x ½ cm with inverted ends and wound was bleeding. No tattooing or blackening was present. There was no exit wound available and doctor had suggested conduct of x-ray of left thigh. It is also mentioned that patient was fully conscious. In cross-examination, doctor admitted that Pappu had sustained one firearm injury which was not on the vital part. He also opined that if any fracture was not found in the injury of Pappu, then it can be said to be of simple in nature and even Pappu at the time of examination was fully conscious. Pappu had mentioned his name and had given other details as are mentioned in Ex.P/7. Doctor opined that injury caused to Pappu @ Kalicharan could have been caused at about 4- 4.30 am. Even injury of Ballu was not on the vital part and if there was no fracture in the injury caused to Ballu, then it was simple in nature and that injury could also have been sustained at about 4- 4.30 am. Doctor admitted that he had not seized any of the clothes from these injured i.e. Pappu and Ballu.
7. It is further pointed out by learned counsel for the appellants that Vinod Kumar Gaud (PW-14) Patwari of Halka No.23 Tahsil 8 Criminal Appeal Nos.831/07, 852/07 & 178/10 Gwalior, has prepared the spot map (Ex.D/6) which makes a mention of houses available on the site from serial No.1 to 10. This witness admitted that house of Mangalsingh is at serial No.3 in Ex.D/6. He also admitted that there is a boundary wall adjacent to the house of Mangalsingh on east and north direction, whereas there was no boundary wall on southwest direction. He admitted that in spot map he has mentioned that gunshot was fired from Jhopari (hut) situated on southwest corner of the farm of Mangalsingh. He also admitted that he had shown farm of Khuman Singh at serial No.9 in which Niranjan had sustained gunshot injury. He also admitted that if at the time of preparation of spot map people present, would have informed him that gunshot injury was sustained in the field of Narayan Singh, which is mentioned at serial No.10 in the spot map, then he would have definitely shown such thing on the spot map. Similarly he admitted that if at the time of preparation of spot map he would have been informed that gunshot injury was sustained in the field of Narayan Singh and thereafter Niranjan ran for some time and fell down in the field of Khuman Singh, then he would have definitely mentioned such thing in Ex.D/6. He also admitted that no crop was standing at serial Nos.8, 9 and 10, namely fields of Hotam Singh, Khuman Singh and Narayan Singh and if any crop would have been standing there, he would have narrated/mentioned this in the spot map, Ex.D/6. He also admitted that he had seen bore 9 Criminal Appeal Nos.831/07, 852/07 & 178/10 (tube-well) of Lakhan Singh, however, this witness mentions that he has not shown such tube well in spot map (Ex.D/6) but it exists on the way adjacent to house of Narayan Singh. He also admits that distance between the field of Narayan Singh and bore of Lakhan Singh is about 1000-1200 ft. In cross-examination, this witness admits that if somebody stands in the field of Narayan Singh, then tube-well of Lakhan Singh is not visible. He also admitted that in the spot map at serial No.3 a hutment has been shown in the field of Mangal Singh which is used to tie domestic animals. Reading such evidence, it is pointed out that place of death of Niranjan Singh has not been correctly shown and attention has been invited to the testimony of Sanjeev Nayan Sharma (PW-12). It is pointed out that Sanjeev Nayan Sharma, IO of the case, has admitted that on 2.4.2006 he had recorded statements of Ballu @ Shivsingh (Ex.D/2), Pappu @ Kalicharan (Ex.D/1) as they were given to him. He had recorded statements of Constable Mithlesh on 20.4.2006. It is submitted that though statements of Umruddin were taken on 3.4.2006 but Umruddin has not been examined as a prosecution witness. It is also submitted that intimation regarding lodging of FIR registering Crime No.32/06 was sent to the concerned Magistrate on 3.4.2006. This suggestion has been given to show that FIR has been ante-timed.
8. Learned counsel for the appellants has placed reliance on the law laid down by the Supreme Court in the case of Parsuram 10 Criminal Appeal Nos.831/07, 852/07 & 178/10 Pandey and others Vs. State of Bihar as reported in AIR 2004 SC 5068. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Nagarjit Ahir vs. State of Bihar as reported in 2005 SCC (Cri) 1530 to point out that when mere presence can be culpable. Reliance has been placed on para 14 of such judgment. It is also submitted that Mangalsingh was not present on the scene of crime as has been deposed by Sanman Singh (DW-4) who has mentioned that he is resident of Singhpur, police station Mihona Distt. Guna. On the occasion of Nav Durga he had organized Durga Bhagwat week w.e.f. 31.3.2006 to 7 th April, 2006 where Pandit Shri Jagdish Prasad Bhargava was Katha Vachak for which he had printed cards, copy of one of which was exhibited as Ex.D/15. According to this witness, Mangal Singh had reached his village on 31.3.2006 at about 8-9 am and was present there on all seven days and had not left village Singhpur at any point of time during this period. Therefore, he was not present at the scene of crime.
9. Shri V.K.Saxena, learned senior counsel for the appellants submits that guns have been seized from Mangal Singh vide Ex.P/40, Ramsevak vide Ex.P/41 and Kadma @ Kadam Singh vide Ex.P/42. It is submitted that as per eye-witness Pappu @ Kalicharan on 1.4.2006 at about 6.30 am Pappu had visited field of Mangal Singh to have a talk with Umruddin when accused Mangal Singh, Bhagatsingh and Manni reached there and there 11 Criminal Appeal Nos.831/07, 852/07 & 178/10 was a verbal dispute between the two rival parties when he returned back to his field. At some distance at the bore/ tube-well of his father, Lakhan Singh was also present. Officer, Narayan and Majboot Singh were working in the close-by fields when about 7 am Mangal Singh, Bhagatsingh, Rustam, Sabharam, Navab, Kadma, Ramsevak, Harnam, Ramniwas, Balveer and Manni came to their farm when Mangalsingh, Bhagatsingh, Rustam, Sabharam were armed with mouser, Navab, Kadma, Ramsevak were armed with 12 bore gun, Harnam and Ramniwas were armed with Lathi, Balveer with Baka and Manni was armed with Lohangi surrounded him i.e. Pappu @ Kalicharan, Niranjan and Ballu. Mangalsingh fired a gunshot at Niranjan which pierced his chest and Niranjan fell down in the field of Khuman after walking for a while. Thereafter, accused ran towards him, Ballu and his father Lakhan, when Navabsingh with 12 bore gun and Rustam with mouser gun fired one gunshot each hitting him on his right hand close to his elbow. Kadma with his 12 bore gun and Bhagat Singh with his mouser gun fired a gunshot on Ballu which hit on his left thigh. In between, Manni caused Lohangi blow at the right hand of Lakhan Singh. At this point of time, all the members of complainant party ran towards their house, when accused party followed them firing gunshots. After some time, they returned to the place where Niranjan was lying and found that Niranjan was dead. It is mentioned that Lakhan Singh and Officer 12 Criminal Appeal Nos.831/07, 852/07 & 178/10 visited police Station to lodge report.
10. Pappu (PW-2) in cross-examination admits that Sughar Singh, father of Mangalsingh, are four brothers, namely Daruram @ Uday Singh, Hakim Singh and Badan Singh. Kadam Singh is son of Daruram @ Uday Singh, whereas Sabharam is son of Hakim Singh i.e. all the accused are related to each other. He also admitted that Sughar Singh i.e. father of Mangalsingh has six sons, namely Navabsingh, Mangalsingh, Harnamsingh, Bhagatsingh, Manni @ Maniram and Subedar and except Subedar, all other sons of Sughar Singh are accused in the matter. Balveer Singh son of Mangal Singh is also an accused. This witness has also admitted that all the accused are of same family and Ramsevak is son of Babu Singh and Babu Singh is maternal uncle of Mangalsingh.
11. This eye-witness Pappu @ Kalicharan has also admitted that his father Lakhan Singh has two more brothers, namely Narayan Singh and Uttam singh and all the three brothers are witness in this case. Narayan Singh has four sons out of which three namely Mehtabsingh, Majboot Singh and Rajpal are witness in this case and Niranjan, another son of Narayan Singh, has died in the incident. He also admitted that Officer son of Kaptan Singh is brother-in-law of Niranjan Singh and Officer is resident of village Urva Chak which is at a distance of about 20 kms from their village, namely Gurjar Banwari. This witness has also admitted that he has two more brothers, namely Ballu @ Shivsingh and 13 Criminal Appeal Nos.831/07, 852/07 & 178/10 Jeetu @ Jitendra, out of which Ballu is a witness in the case. He also admitted that his uncle Uttam Singh has four sons, namely Officer Singh, Dharmendra, Devendra and Lokendra out of which Officer Singh is a witness in the case.
12. It is further submitted that all the appellants have been falsely implicated with a view to settle personal scores. In fact, main accusation is on Mangal Singh of firing a gunshot on Niranjan who died on the spot. Thereafter, Rustam and Nawab respectively carrying .315 bore gun and 12 bore gun are implicated for firing a gunshot on Pappu. Kadam and Bhagat are accused of firing gunshot on Ballu, whereas Maniram is accused of hitting Lakhan Singh with a Lohangi. It is also submitted that others have been falsely accused. It is further submitted that vide Ex.P/44, recovery of empty cartridges has been made from Khaliyan of Mangal Singh marked as place 7 in the spot map, Ex.P/3, whereas spot of firing has been marked as place 6 from where accused had surrounded complainant party and had hit Niranjan, Pappu, Ballu etc. at places which have been marked as 1, 2, 3 and 4 is the place where Niranjan's dead-body was found. If prosecution story is to be relied on, then firing took place at spot marked as place 6 in the spot map Ex.P/3, and therefore, there was no occasion for empty cartridges to be recovered from Khaliyan of Mangal Singh which is on the west of alleged spot of crime.
13. In this regard, evidence of Lakhan Singh (PW-4) is 14 Criminal Appeal Nos.831/07, 852/07 & 178/10 important who has admitted in his examination-in-chief that there is old enmity with Mangal Singh. He has also stated that Rustam had fired a gunshot with his mouser on Pappu, whereas Nawab had fired a gunshot from his 12 bore gun, as a result of which one gunshot hit right hand of Pappu. Similarly, allegation on Bhagat and Kadam is of firing gunshot on Ballu hitting him in his thigh. Maniram had hit Lakhan (PW-4) with a Lohangi. This witness in cross-examination has admitted that he is illiterate but he has faced several criminal cases on him. In para 5, it is admitted that one year prior to the incident accused party had broken gun of his brother Uttam Singh and caused injury to his leg, as a result of which he is not able to move. He has also admitted that this matter was compromised at Dabra Court. This witness has also admitted that on the report of Narayan Singh son of Savailal a case was registered against Niranjan, his father Narayan, Uttam Singh, Majboot and Mehtab under Section 307 of IPC. He also admitted that on 8.8.2004 Mangal Singh had lodged a report at police Station Janakganj against father of Niranjan namely Narayan, Lakhan, Majboot, Kalicharan @ Pappu, Mehtab and Officer, on which Janakganj police had registered a case under Sections 307, 147, 148 of IPC. He also admitted that on 3.9.2004 Jhandel Singh, brother of Kadam, had lodged a report against him, Pappu @ Kalicharan, Majboot, Mehtab, Officer, Narayan etc. at police Station, Panihar, under Sections 307, 147, 148, 149 of IPC. This 15 Criminal Appeal Nos.831/07, 852/07 & 178/10 witness has also admitted that Niranjan had not visited the scene of crime on the fateful day alongwith him, but had left home prior to him. He also admitted that fields of Nirajan are in close proximity to Mangal Singh. In para 15, he has admitted that at the time of incident he was not available on his bore but was in the field of Khuman Singh. He has denied the fact that no empty cartridges were recovered from the fields of Khuman and Niranjan. In para 34, this witness admits that he had reached police Station between 7.15 and 7.30 am and returned back at 8 O' Clock alongwith police personnel, whereas in the FIR time of reporting incident has been shown as 7.50 am for an incident which took place about 7 am when distance of police Station and the place of incident is about 12 kms as is apparent from the FIR (Ex.P/2).
14. Learned counsel for the appellants has placed reliance on the judgment of the Supreme Court in the case of Thanedar Singh vs. State of M.P. as reported in (2002) 1 SCC 487 to support their case that FIR was ante-timed and was not sent to the Magistrate as has been admitted by the IO that it was sent on 3 rd April, 2006, whereas incident had taken place on 1.4.2006, and therefore, on the basis of such ante-dated, ante-timed FIR adverse inference should be drawn against the prosecution. Reliance has also been placed on the judgment of the Supreme Court in the case of Settu and others vs. State of Tamil Nadu as reported in AIR 2006 SC 16 Criminal Appeal Nos.831/07, 852/07 & 178/10 2986 to point out that in fact incident had taken place in the Khaliyan of Mangal Singh as can be seen from the recovery memo of empty cartridges and gunshots were fired in self defence as the complainant party were the aggressors and accordingly accused who had not attacked on the vital parts should have been convicted under Section 304 Part I or Section 326 of IPC taking into consideration that places where injuries were inflicted by them were not vital parts of the body. Reliance is also placed on the judgment of the Supreme Court in the case of M.C.Ali and Anr. vs. State of Kerala as reported in AIR 2010 SC 1639 wherein behaviour of one of the prosecution witness in not defending his employer was unnatural, the statement of injured witness, son of 'M' was not recorded, though he was available, names of accused were mentioned in FIR but not in inquest report, in such circumstances, it has been held that all witnesses are interested and their evidence is not independently corroborated and only one conclusion consistent with guilt of accused is not possible and in facts and circumstances acquittal of accused by trial Court was refused to be interfered with. It is submitted that in this case independent witness Umruddin has not been examined, so also Narayan, Officer and Majboot though they were cited as witnesses in the FIR and only interested witnesses have been examined. It is submitted that it has come on record that on 1.11.2006 prosecution had given up Narayan and Officer, whereas 17 Criminal Appeal Nos.831/07, 852/07 & 178/10 on 6.2.2007 Majboot and Shivnarayan were given up which clearly demonstrates that prosecution has not taken sufficient measures to examine independent witnesses of the case, and therefore, since prosecution has failed to prove its case by examining independent witnesses, testimony of interested witnesses needs to be scrutinized with due care and caution.
15. Reliance has also been placed on the judgment of the Supreme Court in the case of Kuldeep Yadav & Ors. Vs. State of Bihar as reported in AIR 2011 SC 1736 wherein in para 31 it has been held that when no overt act had been attributed to any other accused persons except accused No.1 and had other accused persons intended or shared common object to kill, they must have used weapons allegedly carried by them to facilitate alleged common object of committing murder, then it is not safe to convict other accused persons under Section 149 of IPC. Reliance has also been placed on the judgment of the Supreme Court in the case of Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Wagh and others as reported in (2017) 3 SCC 261 wherein essential ingredients of Section 149 of IPC have been summarized and it has been held that common object to commit murder cannot be inferred only on the basis that weapons carried by accused were dangerous and a holistic view has to be taken to all the facts.
16. It is also pointed out that prosecution did not seize clothes of Pappu and Ballu so also that of Lakhan Singh which could have 18 Criminal Appeal Nos.831/07, 852/07 & 178/10 been used to corroborate the nature of injury. Lakhan Singh (PW-
4) has admitted that Niranjan had sustained only one gunshot injury and dacoits had made abduction from his field. It is also pointed out that there is contradiction in the testimony of this witness inasmuch as in para 15 he has mentioned that when Niranjan was surrounded, at that point of time he had already crossed his field and reached field of Khuman Singh, but in reply to question below para 42 of cross-examination, he submits that Niranjan had fallen down in the field of Khuman Singh, but he had sustained gunshot injury in his own field.
17. Learned counsel Shri D.R.Sharma appearing for Kadam, Ramsevak, Ramniwas, Sabharam and Rustam, adopts the arguments advanced by Shri N.P.Dwivedi and Shri V.K.Saxena and submits that his clients are innocent and they have been falsely implicated. It is also submitted that there is no overt act of these five appellants and in fact place of incident is close to the field of Mangal Singh. Ex.P/44, seizure memo of empty cartridges, explains and corroborate that incident had taken place in the field of Mangal Singh.
18. Shri F.A.Shah, learned Public Prosecutor for the respondent State, on the other hand supports the impugned judgment and places reliance on the judgment of the Supreme Court in the case of State of Maharashtra vs. Ramlal Devappa Rathod and others as reported in (2015) 15 SCC 77 wherein in para 15 it has 19 Criminal Appeal Nos.831/07, 852/07 & 178/10 been held that even if there is single eye-witness account, then as per the law laid down in the case of State of Haryana vs. Inder Singh as reported in (2002) 9 SCC 537 the testimony of a sole witness can be relied on if it is confidence inspiring and beyond suspicion leaving no doubt in the mind of the Court. Further reliance is placed on the judgment of the Supreme Court in the case of Ramnaresh and others Vs. State of Chhattisgarh as reported in (2012) 4 SCC 257 wherein it has been held that statement of the sole eye-witness can be relied upon. All that is needed that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution. Similarly, reliance is placed on the judgment of the Supreme Court in the case of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel and others as reported in (2018) 7 SCC 743 wherein it has been held that the responsibility of the prosecution and/or of the court (in a case like the one at hand where large number of people (5 or more) are collectively accused to have committed various offences and subjected to trial)- in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group- requires an analysis. Such analysis has two components- (i) the amplitude and the vicarious liability created under section 149; and (ii) the facts which are required to 20 Criminal Appeal Nos.831/07, 852/07 & 178/10 be proved to hold an accused vicariously liable for an offence. Reliance has also been placed on the judgment of the Supreme Court in the case of Joseph vs. State, represented by Inspector of Police as reported in (2018) 12 SCC 283 wherein requirements for invoking of vicarious liability under Section 149 of IPC have been summarized in para 11 to 14. Para 11 & 12 being relevant are quoted herein below:-
"11.Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts:
11.1 The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
11.2 The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.
11.3 What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients.
Before recording the conviction under Section 149 IPC, the essential ingredients of Section 149 IPC must be established.
21 Criminal Appeal Nos.831/07, 852/07 & 178/10
12. Scope of two parts of Section 149 IPC has been explained in Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003) 2 SCC 257, where this Court has explained Section 149 and held as under:
"14.Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the 22 Criminal Appeal Nos.831/07, 852/07 & 178/10 behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149-- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...... " [emphasis supplied] The same principles have been reiterated in State of Punjab v. Sanjiv Kumar alias Sanju and Ors. (2007) 9 SCC 791."
19. After hearing arguments of learned counsel for the parties and perusing the record, certain things are required to be summarized so to analyze the evidence and reach to a just conclusion. Incident which took place on 1.4.2006 at about 7 am left one person dead, namely Niranjan allegedly fired at by use of mouser gun by accused- appellant Mangal Singh. There are three injured witnesses, namely Pappu, Ballu and Lakhan Singh. Pappu (PW-2) has sustained gunshot injury in his right arm and as per x- ray report (Ex.P/37) proved by Dr. Shilpi Gupta (PW-9) there were multiple metallic foreign bodies seen in the tissue. Similarly, vide report Ex.P/8 it has been opined that Ballu (PW-3), another injured, has sustained one gunshot injury in his thigh and as per x- ray report (Ex.P/36) there was a metallic density foreign body seen 23 Criminal Appeal Nos.831/07, 852/07 & 178/10 in soft tissue of left thigh.
20. Lakhan (PW-4) was examined by Dr. S.Agarkar (PW-13). Lakhan had alleged that he was hit by Lohangi wielded by Maniram. Dr. Agarkar opined that there were two simple injuries on the right forearm in the form of a contusion 2-1/2 x 2 cm and one scratch mark on the right wrist measuring 1 x ½ cm and both the injuries were simple in nature and caused within six hours of MLC. In cross-examination, this doctor has clearly deposed that there were no marks of rings on such injuries and both the injuries could not have been caused by a Lohangi allegedly wielded by Maniram and recovered from his possession vide recovery memo Ex.P/17. It is apparent from the recovery memo (Ex.P/17) that a Lohangi was seized from Maniram which was on a stick having 8 knots and 7 iron rings were tied with aluminum wire at different places. Similarly, there were no injury on the body of any of the injured persons caused by a Baka or Lathi. Therefore, in the light of the testimony of Dr. S.Agarkar (PW-13), role of Balveer, appellant No.4, Maniram, appellant No.3 in Criminal Appeal No.831/07 and that of Ramniwas, appellant No.3 in Criminal Appeal No.852/07 and Harnam Singh, appellant in Criminal Appeal No.178/10, is not made out.
21. It is evident that when incident took place, then deceased and injured persons were in the field of Niranjan. In the spot map (Ex.P/3) empty gun cartridges have been shown in the field of 24 Criminal Appeal Nos.831/07, 852/07 & 178/10 Niranjan & Khuman, but as per seizure memo (Ex.P/44) recovery of empty cartridges has been shown from the Khaliyan (field) of Mangal Singh. This document has been proved by the IO Sanjeev Nayan Sharma (PW-12). No seizure of empty cartridges has been shown from the field of Niranjan or Khuman. This goes to show that incident took place on the Khaliyan of Mangal Singh unless prosecution establishes boom rang theory, which it has not. Therefore, in fact, law laid down in the case of Joseph (supra) which has explained scope of two parts of Section 149 of IPC goes in favour of the accused. Thus, prosecution has failed to prove two eventualities necessary to prove ingredients of Section 149 of IPC. Similarly, in the case of Vinubhai Ranchhodbhai Patel (supra) facts were different. There were three people who were killed and five injured and in that context Supreme Court has laid down a principle that Court must analyze (i) amplitude and vicarious liability created under Section 149 of IPC and (ii) facts required to be proved to hold accused vicariously liable. In fact, in the present case, recovery of cartridges from the Khaliyan of Mangal Singh leads to a different story, and therefore, even the ratio in the case Vinubhai Ranchhodbhai Patel (supra) will not be attracted to the facts and circumstances of the case. Even facts in the case of Ramnaresh (supra) are different and do not turn up to the facts of the present case. There is no quarrel about the proposition that evidence of a single eye-witness can be relied on if such testimony 25 Criminal Appeal Nos.831/07, 852/07 & 178/10 is trustworthy and duly corroborated. Similarly, law laid down in the case of Ramlal Devappa Rathod (supra) lays down a principle of law that rule of prudence as laid down in the case of Masalti Vs. State of UP, AIR 1965 SC 202 that at least four witnesses must give a consistent account against the accused in case of mob violence only applies when such vicarious liability is sought to be fastened. It has been held that said rule of prudence does not apply when culpability of accused against whom there are specific allegations of overt act is in question, as was in that case, when it has been held that conviction of accused can be sustained on reliable testimony of sole witnesses. In the present case, prosecution has not examined any of the independent witnesses specially Umruddin and secondly as is revealed from the chronology of events that there is conflict and doubt in the minds of injured witnesses as to Pappu and Ballu were hit by bullet of which of the accused, and therefore, the responsibility is casted on the Court not to be carried away by the testimony of prosecution witnesses or gets swayed under a flush of sympathy, but to separate grain from the chaff so to arrive at a just and proper conclusion. In the humble opinion of this Court, Court cannot lose sight of the fact that justice is not only to be done to the victim but also the accused specially when this whole region of Gwalior Chambal Division has a notorious history of false accusations to settle scores in a wholesale manner against all the members of the 26 Criminal Appeal Nos.831/07, 852/07 & 178/10 actual culprit. Therefore, in the light of the law laid down by the Supreme Court in the case of Nagarjit Ahir and Kuldeep Yadav (supra) since no overt act has been attributed and found to have been committed by the aforesaid accused persons namely Balveer, Maniram, Ramniwas and Harnam, they deserve to be acquitted and are hereby acquitted from all the charges. Similarly, as far as Sabharam and Ramsevak are concerned, there is no allegation of any overt act on their part. Therefore, they also deserves to be acquitted and are hereby acquitted from all the charges under IPC in the light of the law laid down by the Supreme Court in the case of Nagarjit Ahir and Kuldeep Yadav (supra). However, conviction of Ramsevak under Sections 25/27 of the Arms Act does not call for any interference.
22. Now we would like to consider the role of Mangal Singh, Bhagat Singh, Nawab Singh, Rustam, (Ramsevak, Sabharam) and Kadam Singh in the light of the evidence which has come on record. All the prosecution witnesses have singularly alleged that it was Mangal Singh who fired gunshot on Niranjan which caused death of Niranjan. From the postmortem report, Ex.P/48, it is evident that cause of death of Niranjan has been mentioned as due to cardio-respiratory failure due to injury No.4 and 5 and its effect. Injury No.4 is wound of entrance present over upper part of anterior aspect of chest on sternal region and injury No.5 is wound of exit present over right sub-scapular region. Learned counsel for 27 Criminal Appeal Nos.831/07, 852/07 & 178/10 the appellants have given various suggestions to prosecution witnesses Pappu @ Kalicharan (PW-2), Ballu @ Shivsingh (PW-
3) and Lakhan Singh (PW-4) that if Niranjan would have sustained gunshot injury in his own field, then it was not possible for such a grievously injured person to run for 30-35 steps and fall in the field of Khuman, but a careful perusal of testimony of Dr. V.S.Tomar (PW-15) reveals that some suggestions have been given, but they have not been emphatically proved to show that Niranjan could not have sustained a gunshot injury in chest and after such injury was not in a position to move for 30-35 steps, therefore, when these statements of eye-witness Pappu @ Kalicharan (PW-2) and Ballu @ Shivsingh (PW-3) who are injured themselves and Lakhan Singh (PW-4) are taken into consideration, then guilt of Mangal Singh appears to be proved beyond reasonable doubt. It is equally true that plea of alibi has been taken by Mangal Singh that he was not present at the place of incident and has examined Sanman Singh (DW-4) son of Gopilal in defence that Mangal Singh is his Samdhi and was present at his residence from 31.3.2006 where he had reached about 8-9 am till 7.4.2006 at village Singhpur where 'Bhagwat' was organized and had not gone anywhere else during this duration, but this testimony of Sanman Singh has not been corroborated by any independent witness so to substantiate such testimony to give any benefit of doubt to Mangal Singh, and therefore, such statement of 28 Criminal Appeal Nos.831/07, 852/07 & 178/10 Sanman Singh being that of a interested witness and not supported by any independent testimony deserves to be rejected and is rejected. Conviction of Mangal Singh for murder of Niranjan is upheld, however, ingredients of Sections 148 and 149 of IPC are not proved, therefore, appeal in relation to Mangal Singh deserves to be dismissed and is dismissed but his conviction will be only under Section 302 of IPC with the same sentence as imposed by the trial Court under Section 302/149 of IPC.
23. There are three injured witnesses, namely Pappu @ Kalicharan (PW-2), Ballu @ Shivsingh (PW-3) and Lakhan (PW-
4). We have already dealt with the testimony of Lakhan and has acquitted Maniram.
24. As per Pappu @ Kalicharan (PW-2), allegation is that Rustam was armed with .315 bore gun and Nawab with a 12 bore gun and both of them had fired a gunshot on him. Similarly, Ballu has alleged that Kadam Singh was armed with a 12 bore gun and Bhagat with a mouser and both of them had fired a gunshot on him.
25. MLC of Pappu is Ex.P/7 and that of Ballu is Ex.P/8. From the MLC, Ex.P/7 and Ex.P/8, it is apparent that there is only one gunshot injury mark sustained by Pappu and Ballu respectively. They have been examined by Dr. P.L.Gupta (PW-5) who opined that Pappu @ Kalicharan had sustained one firearm entry wound on his right arm which was lacerated with inverted ends measuring 29 Criminal Appeal Nos.831/07, 852/07 & 178/10 7x4x 2 cm and there was no blackening or tattooing around the wound. There was no other wound but this wound was surrounded by reddish skin. X-ray was advised. X-ray report is Ex.P/37 conducted by Dr. Shilpi Gupta (PW9) and she had seen multiple metallic foreign bodies in the tissue of right upper arm. Dr. P.L.Gupta (PW-5) has opined that if fracture is not found, then such injury is simple in nature. Similarly, Ballu was examined by Dr. P.L.Gupta and he found one entry wound in the left thigh on the anterio- lateral aspect with inverted ends and blood was oozing. There was no blackening or tattooing. This witness Ballu was also advised x-ray and x-ray report is Ex.P/36 in which Dr. Shilpi Gupta has deposed that there was metallic density foreign body seen in soft tissue of left thigh. Though in cross-examination, it has come that injury sustained by Ballu could have been sustained at about 4-4.30 in the morning but no definite opinion has been recorded by Dr. P.L.Gupta.
26. Dr. Shilpi Gupta (PW-9) has admitted that there was no fracture sustained by Ballu and similarly Pappu had not sustained any fracture in his right arm. Reading this evidence of Dr. Shilpi Gupta and para 5 of Dr. P.L.Gupta (PW-5) in absence of fracture, as per the opinion of Dr. P.L.Gupta injuries were simple, and therefore, for such injuries conviction under Section 302/149 of IPC is not made out.
27. Careful perusal of evidence of Pappu and Ballu, PW-2 and 30 Criminal Appeal Nos.831/07, 852/07 & 178/10 PW-3, also reveals that though there is allegation on Rustam and Nawab of causing injury to Pappu and Kadam and Bhagat of causing injury to Ballu, but injury sustained by Pappu as is evident from Ex.P/37, where shots of several metallic pieces were seen and Dr. Gupta (PW-5) opined that around the main wound there was effect of abrasion of skin, was definitely caused by a 12 bore gun, therefore, it appears that Rustam has been falsely implicated inasmuch as both Pappu and Ballu have deposed that Rustam was wielding a .315 bore gun, whereas Nawab was wielding a 12 bore gun and they have admitted in their cross-examination that they are not sure as whose gun shot had actually hit them. Therefore, as far as Pappu is concerned, in the light of single gunshot injury attributable to a 12 bore gun, conviction of Rustam does not appear to be just. As has already been discussed above, it is a case of old rivalry and in such rivalries it is a common practice to falsely implicate all the family members of the rival party and Rustam appears to be victim of such false accusation. Therefore, conviction of Rustam needs to be set aside and is set aside. On the basis of aforesaid hypothesis, conviction of Nawab deserves to be maintained as he was wielding a 12 bore gun and multiple metallic object found in the tissue of right upper arm could have been caused by a 12 bore gun only, else the shot of .315 bore gun would have pierced through. However, Nawab has already died on 30.5.2013 as is noted in the order-sheet dated 19.2.2018 and 31 Criminal Appeal Nos.831/07, 852/07 & 178/10 appeal has already abated against him.
28. Similarly, Ballu has made allegation against Kadam and Bhagat of firing gunshot on him. Admittedly Kadam was wielding a 12 bore gun, whereas Bhagat was wielding a mouser and there are no scattered wounds on the thigh of Ballu and only one opaque shadow has been seen in the x-ray report (Ex.P/36). Such injury could have been caused by a mouser gun and not by a 12 bore gun, else there would have been other injury marks in or around the thigh of Ballu, therefore, it is apparent that since Bhagat was wielding a mouser, assailant of Ballu was Bhagat and not Kadam, therefore, even Kadam deserves to be acquitted and he is acquitted from all the charges under IPC, however, conviction of Kadam under Section 25/27 of the Arms Act with the same sentence as imposed by the trial Court is affirmed as recovery of gun has been made from him.
29. As the injury sustained by Ballu is attributable to Bhagat, he is convicted under Section 307 of IPC with the same sentence as imposed by the trial Court under Section 307/149 of IPC, however, conviction of Bhagat under other sections is set aside.
30. Consequently, all the appeals are disposed of. Conviction of all the appellants under all the charges under IPC is set aside except appellant Mangal Singh and Bhagat Singh. Appellant Mangal Singh is convicted under Section 302 of IPC with the same sentence as imposed by the trial Court under Section 32 Criminal Appeal Nos.831/07, 852/07 & 178/10 302/149 of IPC and appellant Bhagat Singh is convicted under Section 307 of IPC with the same sentence as imposed by the trial Court under Section 307/149 of IPC. Similarly, conviction of appellants Ramsevak and Kadam Singh under Section 25/27 of the Arms Act is affirmed. Record of the trial Court be sent back.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
ms/-
MADHU SOODAN PRASAD
2019.06.04 14:59:16 -07'00'