Allahabad High Court
Khem Chand And 7 Others vs State Of U.P. on 29 April, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 28.1.2022 Delivered on 29.4.2022 Court No. - 46 Case :- CRIMINAL APPEAL No. - 4400 of 2016 Appellant :- Khem Chand And 7 Others Respondent :- State of U.P. Counsel for Appellant :- Sushil Kumar Pandey,Alok Ranjan Mishra,Gopal S. Chaturvedi,Gopal Swarup Chaturvedi (Senior Adv.),Pradeep Kumar Mishra Counsel for Respondent :- G.A.,Vimlesh Kumar Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Sri Vinay Saran learned Senior Advocate assisted by Sri Pradeep Kumar Mishra learned counsel on behalf of the appellants and Sri Rajendra Prasad Mishra alongwith Ms. Arti Agarwal learned A.G.A. for the State.
2. This appeal is directed against the judgment and order dated 19.8.2016 passed by the Additional Sessions Judge, Court No. 1, Mathura in Sessions Trial No. 373 of 2013 (State vs. Khemchand and others) and S.T. No. 374 of 2013 (State vs. Lakkho and others) arising out of Case Crime No. 655 of 2012, under Sections 148, 302/149 and 307/149 IPC, Police Station Koshikalan, District Mathura, whereby eight (8) accused in two Sessions trials, the appellants herein, were convicted for the offence under Section 302/149 and 307/149 IPC and have been sentenced for life imprisonment with fine of Rs. 20,000/- for the offence under Section 302/149 IPC; the default punishment is six months additional imprisonment. And further ten years imprisonment with fine of Rs. 10,000/- for the offence under Section 307/149 IPC, the default punishment for which is six months additional imprisonment. All the sentences are to run concurrently.
3. The written report regarding the incident, occurred on 14.10.2012 at about 11:00 AM, was submitted in the Police Station Koshikalan, District Mathura by Suresh son of Rohan Singh who has been examined as PW-1. As per the written report, while deceased Prem Dutt son of Ratiram, uncle of the first informant, was coming back from his field in a Buggy, as soon as he reached on the road in front of the house of Khem Chand and Pushkar sons of Satpal, at about 11:00 AM, eight accused persons who were waiting there came out with Lathis and Sariya. Amongst them, two accused namely Sundar and Girraj were carrying firearms and accused Govind was carrying Farsa. They first abused deceased Prem Dutt and then exhorted that he should be killed and it be ensured that he may not be spared. When the deceased Prem Dutt stopped the accused from doing so, Sundar and Girraj from their country-made pistols and Govind with Farsa attacked Prem Dutt which hit his head and rest of the accused persons wielded Lathi and Sariya with the intention to kill Prem Dutt. Rohan Singh father of the first informant, brother of deceased Prem Dutt, had attempted to save him and he was also attacked by the accused persons with the intention to kill him. This incident was witnessed by the first informant and his brother Mahesh and uncle Sohan Singh son of Ratiram. It is stated therein that the assailants had assaulted Prem Dutt and Rohan Singh grievously and left them on the place thinking that they had died. The first informant alongwith his family members came to the police station carrying injured who were sent to the District Hospital, Mathura by the police alongwith the relevant papers. The injured Prem Dutt was critical and the doctors advised to take him to another hospital and while they were taking Prem Dutt, he had died at the gate of the District Hospital. Rohan Singh had been admitted in the injured state in the District Hospital and leaving the dead body of Prem Dutt at the District Hospital, the first informant came to lodge the report.
4. The Check FIR and GD entry of the first report of the incident had been proved by PW-6, the writer posted in the Police Station Koshikalan, Mathura. PW-6 had proved that the Check FIR was prepared by him based on the written report given by the first informant, which was exhibited as Exhibit Ka-5. In continuation of the same, on 14.10.2012 itself, at about 19:30 hours, the GD entry was made with regard to the Check report as Rapat No. 36. The GD entry was proved being in his handwriting and signature as Exhibit Ka-6. This witness had also proved chitthi majroobi whereby injured were sent to the hospital being in the handwriting of Constable Raj Bahadur Singh and under signature of SHO Santosh Singh. These two letters had been proved as Exhibit Ka-3 and Ka-4. The entry with regard to the chitthi majroobi, sending the injured to the District Hospital, Mathura, had been made at about 12:40 AM as Rapat No. 27 on 14.10.2012 which is Exhibit Ka-12. PW-3, the postmortem Doctor who had proved that he conducted postmortem of the dead body of Prem Dutt in Rajkiya Sanyukt Chikitshalaya, Vrindavan, District Mathura on 15.10.2012 at about 3:30 PM; stated that the dead body was sent by the SHO, Police Station Koshikalan in a sealed state and was brought by the police personnel alongwith the police papers. The proximate time of death was around one day. The ante-mortem injuries found on the person of the deceased as described in the postmortem report are:-
"(1) Lacerated wound of size of 6cm. x 1cm. Bone Deep on the middle of the scalp vertically coming to the route of the nose, 1.2 cm. from the route of the nose. (2) 3 cm. stretched wound on cut bone deep 7cm. above right eyebrow.
(3) contusions with multiple abrasions of size 8.5cm. x 10cm. and right side of chest extending to right shoulder and right upper arm deep into the chest and shoulder bone with right humerus & right both bones of forearm fractured lacerated wound of size 1cm. x 0.5 cm. bone deep exterior aspect of right forearm. (4) Contusions of size 5cm. x 4cm. left forearm with the underneath bone fractured. (5) Lacerated wound of size 0.5 x 0.5cm. Muscle deep on left elbow joint and lacerated wound of 2cm. x 1cm. bone deep exterior aspect of left forearm. (6) Lacerated wound on left leg on exterior aspect of size 1cm. X 1 cm. bone deep in middle of leg below knees. (7) Multiple abrasions on both lower legs throughout the length."
The internal injuries indicated therein are:-
"Second and fifth ribs on right chest were broken, lungs and right pulmonary cavity were filled with blood. Right lung was ruptured."
On internal examination, stomach was found empty, digested food and gases were present, in the large intestines faecal matters and gases present.
5. The cause of death as indicated therein was shock and haemorrhage as a result of ante-mortem injuries. The postmortem report was proved by PW-3 being in his handwriting as Exhibit Ka-2. With regard to the injuries on the person of the deceased, the Doctor in the examination-in-chief stated that the injuries might have been caused by hard and blunt object at about 11:00 AM. With regard to injury no. 2, in the cross-examination, the Doctor PW-3 had stated that it seemed that the deceased was provided medical aid after the injury was caused. A suggestion was given to PW-3 that injury no. 2 could have been crush injury for the Buggy (bullock cart) having been turned over crushing the deceased. He replied that though there was a possibility of injury no. 2 having been caused in such an eventuality but all other injuries could not be caused because of such an accident. He then stated that the injury no. 2 was not grave so as to cause death, however, the injury no. 3, which was at the chest of the deceased, was grave and was sufficient to cause death. He then stated that injury no. 3 was not such that the injured should have died on the spot. In a suggestion with regard to the internal condition of the body, PW-3 stated that the stomach of the deceased was empty and it seemed that he did not have his food prior to the incident. He further admitted that there was no injury of sharp object or firearm on the person of the deceased. PW-3 had denied a suggestion categorically that injury no. 3 had been caused due to the accident, i.e. for the deceased having fallen down from 'Bhaisa Buggy'.
6. The injuries of Rohan Singh, PW-2 had been examined at about 3:00 PM on 14.10.2012 in the District Hospital, Mathura. PW-4, the Doctor, who had examined injured Rohan Singh had proved injuries, and the reports prepared by him for both injured and the deceased, which was exhibited as Exhibit Ka-3 and Exhibit Ka-4; respectively. PW-4 stated that those injuries could have been caused on 14.10.2012 at about 11:00 AM. The injuries on the person of injured Rohan Singh found by PW-4 indicated in the injury report are:-
"(1) Firearm wound 0.6 x 0.7cm x Depth not measured on left upper arm outer & middle aspect, depth not ascertained, bleeding from wound with swelling all over, left upper arm & elbow. Blackening & scorching present, Advised x-ray. (2) abrated swelling 10 x 10cm on left hand & wrist, advised x-ray.
(3) V shaped lacerated wound 2 x 2cm x 0.5cm x Muscle deep on left knee &. swelling, advised x-ray. (4) traumatic swelling all over right wrist, advised x-ray.
(5) Abrasion 4 x 2cm on just below right knee (6) Abrasion 3.5 x 1cm on Top of Head."
It was stated in the examination-in-chief by PW-4 that injury no. 1 could have been caused by firearm and rest of the injuries by blunt object. All injuries were fresh.
7. Doctor (PW-4) had also examined deceased Prem Dutt at about 3:10 PM when he was brought in the injured state to the District Hospital Mathura, following injuries were found on the person of the deceased:-
"(1) Incised wound 2.8 x 0.7cm x bone deep right Head 7cm above from right ear.
(2) Lacerated wound 4.5 x 1cm x bone deep top of head.
(3) abrated contused swelling 12 x 10cm on right upper arm and shoulder.
(4) Firearm wound .5 x .4cm x Depth not measured, & swelling on right forearm upper part & elbow, oozing of blood, blackening & scorching (5) Lacerated wound 0.5 x 0.5 x muscle deep and swelling on right leg upper part (6) Abrated swelling 35cm x 10cm on right leg with foot, advised x-ray.
(7) Multiple lacerated wounds in an area 30 x 4cm on left leg "
PW-4 had proved the thumb impression of injured on the injury reports exhibited as 'Exhibits Ka-3 and Ka-4'.
With regard to injury no. 4, PW-4 opined that it was caused by firearm. Injury no. 1 had been caused by a sharp object and the rest of the injuries by hard blunt object. With regard to injury no. 4 of Prem Dutt, PW-4 had stated that the said injury had been caused from a close range by a firearm.
PW-4 stated that he had advised X-ray of injury nos. 1 to 7 of the deceased.
8. With regard to injuries of Rohan Singh, in cross, PW-4 had stated that all injuries were on non-vital part of the body and, therefore, there was no possibility of death caused by these injuries. He, however, stated that he had advised X-ray of injury nos. 1, 2, 3 and 4. As there was no X-ray report, he could not form a definite opinion as to which injury was grave and whether death could have been caused by any of those injuries. He had denied suggestion of the injuries being manufactured or exaggerated version and that those injuries could not have been caused by Lathi, Farsa and firearm, the weapons assigned to the accused persons, on 14.10.2012 at about 11:00 AM.
9. The inquest of the body of Prem Dutt was done in the Mortuary, District Hospital, Mathura, on 15.10.2012 beginning at 8:20 AM and ending at about 10:15 AM. The inquest report indicates that the officer had reached the Mortuary, District Hospital, Mathura at about 20:45 Hours. PW-5 is the officer who had prepared the inquest report. He stated that the written report Exhibit Ka-1 was given by the first informant Suresh at about 19:30 hours on 14.10.2012 and being Chauki Incharge of Shahpura area, he had also signed the Check report prepared by Constable Clerk Shyam Babu. The Check report was proved as Exhibit Ka-5 by PW-5 being in the handwriting of Constable Clerk Shyam Babu having been prepared in his presence. PW-5 then stated that he was directed to move to the Mortuary, District Hospital, Mathura after preparation of the Check report and making the GD entry of the same. The GD entry of the Check report was also proved by this witness as Exhibit Ka-6. He then stated that when he reached the Mortuary, because of the night hours, there being dark, the inquest proceeding could not be conducted. Two police officers were deputed for the security of the dead body and on the next morning, the body was brought out in the Mortuary and the inquest was conducted. The inquest report was proved as Exhibit Ka-7 in his handwriting and signature. Other related papers such as challan lash and photolash etc. had also been proved as Exhibits Ka-8, Ka-9, Ka-10 and Ka-11. PW-5 stated that the copies of Check and GD of registration of the FIR have also been appended with the inquest by him.
10. The Investigating Officer PW-7 had proved the statements recorded by him during the course of the investigation and the charge sheet being in his handwriting and signature (prepared after completion of the investigation) as Exhibit Ka-13. PW-7 Ram Kishan Yadav stated that he was not posted in the police station when FIR was lodged and the investigation initially was assigned to Santosh Singh. When PW-7 got posting in the police station Koshikalan on 11.1.2013, he was assigned investigation and commenced it on 12.1.2013. The statements of injured Rohan Singh and two witnesses Mahesh and Sohan Singh were recorded by him in the village on 18.1.2013. The Statements of inquest witnesses and witnesses of recovery of plain and blood stained earth were also recorded by him. On the suggestion in the delay in recording statement of injured, this witness had clarified that after the investigation was commenced by him on 12.1.2013, on perusal of the case diary, he found that the statements of injured and other witnesses were not recorded so he proceeded to record their statements on 18.1.2013. The expert and the police witnesses, thus, had proved the papers prepared by them after the occurrence during the investigation.
11. The eye-witnesses of the occurrence are PW-1, the first informant and injured witness PW-2, Rohan Singh. PW-1 in his examination-in-chief had reiterated the version of the FIR, the manner in which the incident had occurred and proved his presence at the spot. The written report was proved as Exhibit Ka-1 being in his signature. PW-1 had stated that the written report was scribed by Ram Gopal son of Kanhaiya and the contents of the written report was read over to him and then he signed the same. In the examination-in-chief, PW-1 had narrated enmity of accused persons with his family and also filed the papers pertaining to the Court cases between them and the place of incident being near his house. In cross, PW-1 had denied the suggestion of the FIR being lodged due to enmity and that any cross case was filed with regard to the incident. The houses of the first informant and that of the accused were nearby. In cross PW-1 had categorically stated that he was present in his house at the time of the incident and the report was lodged by him in the Police Station Koshikalan at about 3:00 PM. The police had reached the village at about 10:30-11:30 PM. His statement was recorded by the police officer on the next day. The deceased was his real uncle and he was taken to the hospital in the injured state and at that time he was alive. The deceased had succumbed to his injuries while he was being taken to another hospital on the advise of the doctor at the gate of the District Hospital, Mathura. His body was then left in the hospital and then PW-1 went to lodge the report. In the same occurrence, injuries were caused to his father Rohan Singh who remained in the hospital for about 2-3 days. A suggestion was given to PW-1 that the police had reached the village prior to the lodging of the first information report and the injured were brought to the police station by the police only. In reply, PW-1 stated that the police had reached the village at about 11:30 AM and the injured were brought to the police station around 1:00 PM alongwith them. He did not know as to who had called the police. Amongst the police officers, Thakur Santosh Singh S.O. and Constable K.D. Sharma alongwith other police personnel had reached there. He further stated that he had left for Thana Koshikalan alongwith the police at about 11:45 AM and reached the District Hospital, Mathura at about 2:30 PM. PW-1 had denied the suggestion that the police did not bring the injured from the place of the incident indicated by him and that he was not present in the village at the time of the incident.
PW-1 was further questioned about the reason of the presence of the deceased Prem Dutt at the spot of the incident and the altercation which took place between the deceased and the accused persons about 7 to 8 months prior to the incident. In an extensive cross-examination with regard to the manner in which the deceased and injured were assaulted by the accused persons and his presence at the spot, PW-1 had categorically stated that he was present in his house since the morning and his father was not present there. As soon as deceased Prem Dutt reached in front of the house of the accused persons in a 'Buggy', they assaulting him. His father reached at the spot and he did not know as to how and from where the assailants came and fired at Prem Dutt and then dragged the deceased Prem Dutt from Buggy. When deceased Prem Dutt fell down, his father came, the fire was opened at that time. All the assailants had caused injuries on the person of the deceased and the injured by the weapons carried by them. PW-1 had clarified that the deceased was all alone on the Buggy and denied the suggestion that he got injured due to the accident by felling down from the Buggy. PW-1 categorically stated that only two fires were made by the assailants and that he was standing at a distance of 7-8 ft. from the spot and the accused persons could not see him as he was hiding at a place in his house watching the entire incident. When assailants left the place and other villagers came, he reached the spot and that he remained at the place of hiding for about 20 minutes.
12. PW-2, the inured witness had proved his presence at the spot and that he received injuries in the same occurrence. He had also proved the motive being enmity of the deceased with the accused person. On confrontation as to how he had reached the place of occurrence, PW-2 had stated that after hearing abuses by the assailants, he reached the spot and his son Suresh also reached there but Suresh remained hidden at a place in his house. PW-2 had proved that he was brought in the injured state by the first informant to the police station and then to the hospital. His statement under Section 161 Cr.P.C. was recorded after three months of the incident and the site plan was not prepared in his presence. PW-2 stated that he received injuries caused by firearm and had denied the suggestion that he got injuries by accident, by felling from the Buggy. He had categorically stated that even the deceased was not sitting on the Buggy rather he was walking besides it. The plot in which PW-2 was present at the beginning of the incident was located at the southern side of his house and at that time, he was all alone in his plot. Mahesh and Sohan Singh also reached at the spot from their own house which was located nearby. Suresh, his son (first informant) was residing with him. The deceased Prem Dutt was gheraoed by the accused persons and the first fire made by them hit Prem Dutt. The accused Girraj then hit the deceased by farsa and by that time Buggy had moved ahead. Being hit by Farsa, Prem Dutt fell down and while he was lying on the floor, accused wielded Lathis on him. PW-2 stated that he was also hit by Lathi and Sariya. Though he was not unconscious but was lying at the spot till he and the deceased (in the injured state) were taken to the police station. As soon as they reached the police station, the police officer instructed to take them to the hospital. PW-2 had denied the suggestion of the injuries being caused due to the accident and the report being the result of deliberations. He had also denied that no injury was caused by firearm.
13. Sri Vinay Saran learned Senior Advocate appearing for the appellants vehemently argued that eight accused persons belonged to one large family (as they are related to each other) have been implicated falsely. In a malicious effort to put all behind the bars, the prosecution had assigned weapon in the hands of each accused. The false implication of eight accused persons of one large family was on account of old enmity, which is also admitted to the prosecution. There is major contradiction in the statement of PW-1 who had specified that two fires were shot whereas there was no firearm injury on the person of the deceased. The postmortem Doctor did not see any firearm injury. On a question put to the postmortem Doctor, in cross, he had admitted that no incised wound or firearm wound was found on the person of the deceased. The injuries in the postmortem report, thus, ruled out use of firearm, Farsa and Sariya, the weapons assigned to the accused persons by PW-1. With regard to the injuries, specially the one at the 'Torso' (the trunk of the body) of the deceased (injury no. 3) was caused due to accident. The statement of PW-2 that the deceased was hit in his head through Farsa and then he fell down is not supported by medical evidence, inasmuch as, Farsa is a heavy cutting weapon and none of the injuries found on the person of the deceased can be assigned to this weapon. All the injuries of the injured Rohan Singh were on non-vital part of the body and simple injuries; there was no incised wound caused by any sharp edged weapon. The offence under Section 307 readwith Section 149 IPC, thus, not made out. In absence of any supplementary report and the injuries being grievous in nature, the accused persons cannot be convicted of the said offence so far as the injured Rohan Singh is concerned.
14. As regards injury no. 1 on the person of deceased Prem Dutt, it is vehemently argued by the learned Senior Counsel for the appellants that though the said injury may have been caused by a sharp edged weapon but because of the injury being so small, it could not have been said to be caused by Farsa. The said injury was though described being bone deep but there was no fracture and as such cannot be attributed to Farsa. The injury no. 3 seems to be a crush injury which had been caused by the accident of felling of the deceased from Buggy and then being crushed by the same.
15. As per own version, PW-2 he was not present at the spot and it could not be proved by him that he had received injuries in the same occurrence. His statement cannot be believed to prove his presence on the spot. With the above facts, it is vehemently argued by the learned Senior Counsel for the appellants that both the prosecution witnesses are liars and their testimony is liable to be rejected discrediting their presence on the spot.
16. Learned AGA, on the other hand, submits that weapons and injuries assigned to each accused persons by the eye-witnesses was categorical. The injuries found on the person of the deceased were sufficient to cause death. There were seven grievous injuries on the person of the deceased. Weapons in the hands of each accused and use of the weapons by them has been specified by the prosecution witnesses. The presence of injured at the spot could not be disputed. As regards the conviction of the accused under Section 302 and 307 IPC, it is stated that all eight accused persons have been convicted for causing murder of deceased Prem Dutt and grievous injuries to injured Rohan Singh by taking aid of Section 149 IPC. It has been proved by the prosecution that all the accused persons had formed an unlawful assembly by coming at the spot while carrying weapons in their hands. They have committed the offence in prosecution of the common object of that assembly. There may not be an overt act of any or one of the member of the unlawful assembly but all are vicariously liable for the act of one or other member of that assembly as Section 149 proceeds on the principle of constructive guilt.
Reliance is placed on the decision of the Apex Court in Karulal vs. State of Madhya Pradesh Home Department Station Officer1 to assert that the ingredients of Section 141 IPC are fulfilled as also Section 149 from the facts and circumstances brought by the prosecution on record. The enquiry as to whether any injury had been caused by Farsa or injury no. 1 being Farsa injury or not is not open in such a situation.
17. Having considered the submissions of the learned counsel for the parties and perused the record, at the outset, we may consider the arguments of the learned Senior Counsel for the appellants with regard to the nature of injuries caused to the deceased and injured Rohan Singh (PW-2) as noted in the postmortem and the injuries reports prepared by PW-3 and PW-4; respectively.
18. From the record, it is evident that two injured persons namely Prem Dutt and Rohan Singh were brought to the District Hospital, Mathura in the injured state by the police personnel when they were taken to the police station Koshikalan, Mathura by the first informant alongwith the police from the spot of the incident. The doctor posted at the District Hospital, Mathura (PW-4) had examined the injuries of deceased Prem Dutt at about 3:10 PM. The thumb impression of the injured on the said report and the report being in his handwriting had been proved by PW-4 as Exhibit Ka-4.
19. It is relevant to note the injury no. 4 on the person of deceased Prem Dutt, described in the injury report. It was mentioned as firearm injury in the right and forearm near the elbow. The description of injury no. 4 indicates that the wound was bleeding and blackening and scorching was present. The submission of the learned Senior Counsel for the appellants that no firearm wound was found on the person of the deceased to corroborate the statement of PW-1 is, thus, liable to be rejected.
20. We may also note that the said injury was not noted by the Doctor who had prepared the postmortem report for the reason that it was bandaged by the doctor at the District Hospital, Mathura who treated the injured before referring him to another hospital and was not visible during the postmortem as such. On a suggestion to PW-4 (doctor), he had stated that the firearm injury was caused from a close range. As regards the injured, injury no. 1 on his left arm is a firearm injury. As per the description of the said injury, the wound was bleeding, blackening and scorching was present. The first informant PW-1 had categorically stated that two fires were shot by the accused. PW-2 also stated that he and deceased got firearm injuries.
21. The submission of the learned Senior Counsel of the appellants that the medical evidence do not corroborate ocular evidence with regard to the weapons carried by the accused/appellants and the injuries caused by them, thus, is liable to be rejected.
22. As regards the injuries caused by Farsa, we may note that we are not supposed to enter into this controversy, inasmuch as, the injury nos. 1 and 2 (as indicated in the injury report as also in the postmortem report) as also other injuries, corroborate the ocular version of PW-1 and PW-2 that the deceased was attacked in his head and when he fell down he was attacked by Lathis.
23. We may also note that Farsa has two sides. There is no suggestion to any of the witnesses nor it can be said with certainty that the injuries could not be caused by Farsa in any manner.
24. As noted above, from the statement of eye-witnesses (including injured witness), it is evident that the deceased was first hit by firearm and when he fell down the accused persons wielded Lathis on him. The injury no. 3 on the person of the deceased as indicated in the postmortem report is proof of the said fact. This injury was found to be existing on the right side of the chest, right shoulder and right arm. The rib bones were found fractured and pushed to the inner side. The clavicle bone, the neck bone and shoulder bones were also fractured. The bones of right forearm and upper arm were fractured. This injury had been proved by the prosecution having been caused by the blunt object and corelate with the ocular evidence that the assailants had wielded Lathis on the deceased when he fell down. There are other injuries on the leg and right arm of the deceased and bones of left forearm were also broken. Injury no. 7 in the postmortem report is a sign of dragging of the deceased on the ground. In the internal examination, though no fracture was found in the head but 2 to 5 number ribs on the right side were broken and a lot of blood was found in the pulmonary cavity as right lung was ruptured. The injury no. 3 itself was sufficient to cause death of the deceased as is proved from the medical report and the statement of the doctors.
The discrepancies pointed out by the learned Senior Counsel in the injuries reports and the ocular evidence, thus, are not found from a careful reading of the evidence on record.
25. The further submission of the learned Senior Counsel for the appellants is that the injuries on the person of injured Rohan Singh were minor injuries and, therefore, conviction of the appellants under Section 307 with the aid of Section 149 IPC was not possible.
26. We are afraid to accept the said submission for the injury no. 1 which was a firearm injury and that the presence of injured at the spot could not be disputed. It is also cannot be disputed that the injured had received injuries in the same occurrence as he and the deceased were brought together to the District Hospital, Mathura by the police. They both were examined by the same doctor between 3:00 PM-3:10 PM. The prosecution evidence shows that PW-2 injured was unarmed and he tried to save his brother and the accused persons also shot him by firearm. Injury no. 1 which is a firearm injury, found on the person of injured PW-4, is with blackening and scorching which means he was fired from a close range. In the circumstances proved by the prosecution, it cannot be said that the firearm injury was caused by the accused persons without any intention to cause death of injured Rohan Singh. PW-1 in his statement categorically stated that both the deceased and injured fell on the ground and the assailants had left the place thinking that they both were dead.
The prosecution has, thus, brought sufficient cogent evidence which proved the place and manner of occurrence and the injuries caused to the deceased and injured PW-2 in the same occurrence. The minor discrepancies pointed out in the statements of PW-1 and PW-2, both the eye-witnesses, are such which even prove them being truthful and trustworthy. It is settled that the testimony of an injured witness has its own efficacy and relevancy. Convincing evidence would be required to discredit an injured witness. The statement of an injured witness generally considered to be very reliable and it is considered unlikely that he has spared the actual assailant in order to falsely implicate someone else. [See Mohar and another vs. State of U.P.2 and Bhajan Singh alias Harbhajan Singh and others vs. State of Haryana3] The testimony of an injured witness being accorded a special status in law, we do not find any good ground to reject the testimony of PW-2 who is an injured witness or to discredit him on the ground that due to proven enmity of the deceased with the appellants, eight accused persons were falsely implicated by the eye-witnesses, relatives of the deceased. It is trite that enmity is a two ways sword; it may be the reason for committing the crime or false implication. It is not possible for the prosecution to collect evidence of false implication of the accused persons. The credible eye-witness account cannot be discarded on the hypothesis brought by the defence of false implication. No evidence has been brought by the defence to prove this hypothesis. Reference be made to the decision of the Apex Court in Ramashish Rai vs. Jagdish Singh4.
27. The first report of the crime is a prompt report wherein eight accused persons were named with the description of weapons carried by them. The presence of the first informant, the eye-witness at the spot, was natural and the prompt report of the incident also falsify any suggestion of his absence at the spot. There is no reason why the eye-witness/PW-1 would leave the real assailants scot free while falsely implicating the accused persons when his own father had received serious injuries in the occurrence. There cannot be a dispute to the presence of PW-2 who had received injuries in the same occurrence when he tried to save the deceased from the assault by the appellants. The date, time and place of the occurrence has been proved by the prosecution by cogent evidence. There is no reason for the Court to discard the testimony of the prosecution witnesses which is also corroborated by medical evidence.
28. This is a case where eight persons came together carrying weapons to kill the deceased Prem Dutt. The formation of unlawful assembly and the commission of offence in furtherance of the intention of unlawful assembly, in prosecution of common object of the assembly, thus, has been proved by the prosecution. The ingredients of Section 149 IPC are found to be existing. The conviction of the accused persons for the offence under Section 302 IPC with the aid of Section 149 IPC for causing murder of deceased Prem Dutt, therefore, cannot be said to suffer from any error of law. In the same manner during the same occurrence, the accused persons also opened fire on injured Rohan Singh who came to save the deceased. The appellants have rightly been convicted for the offence under Section 307 with the aid of Section 149 IPC.
For the above discussion, no infirmity could be found in the decision of the trial court in conviction of eight accused persons for the offences under Sections 302/149 and 307/149 IPC.
No interference, thus, is required.
The appeal is found devoid of merits and hence dismissed.
The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. The appellants are directed to surrender before the court concerned forthwith from where they shall be sent to jail to undergo the sentence. The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
(Subhash Chandra Sharma,J.) (Sunita Agarwal,J.)
Order Date :- 29.4.2022
Brijesh