Madhya Pradesh High Court
Jagdish Singh And Ors. vs State Of Madhya Pradesh on 5 October, 1989
Equivalent citations: 1990(0)MPLJ634
Author: Faizanuddin
Bench: Faizanuddin
JUDGMENT Y.B. Suryavanshi, J.
1. Nine appellants viz. Jagdish Singh, Narwar Singh, Yashwant Singh, Phool Singh, Dhan Singh, Karan Singh alias Kalyan, Ratan Singh, Hakam Singh and Gopal Singh, all r/o village Nadia, P.S. Suvatala, Distt. Narsinghpur have preferred this appeal against the Judgment and findings dated 26-4-1986, in S.T. No. 46/85, of the Court of A.S.J., Narsinghpur. 28 accused were charge-sheeted for committing offences under sections 147, 148, 302 and 302/149, Indian Penal Code. 19 have been acquitted, and the nine appellants abovesaid have been convicted and sentenced as below:
Conviction Sentence Appellant No. 1 Jagdish Singh under section 302, Indian Penal Code. R.I. for life. Appellants 2 to 9 under section 302/149, Indian Penal Code. R.I. for life. Appellants 4 and 7 R.I. for one year i.e. Phool Singh and Ratansingh under section 323, Indian Penal Code for causing hurt to P.W. 1 Kasim Khan
with a direction that the sentences of appellants Nos. 4 and 7 shall be concurrent.
2. It is common ground that Diwan Khadag Singh (deceased) though resident of Imjhara, lived alone at village Nadia at the house where this incident is alleged to have occurred. P. W. 1 Kasim Khan was his "Karinda", and P. W. 5 Kubchandra was deceased's servant and used to cook meals. P. W. 11 Tawalsingh was also a "Harwaha", (i.e. agricultural labourer) of deceased Khadagsingh. On the relevant date ie 6-2-1985, the appellant Jagdish Singh was Sarpanch. It is also not in dispute, that some Chamars of that village had encroached upon the Government land and had also grown crop. The Naib Tahsildar had issued notice for eviction of those persons from the Government land.
3. P. W. 12 Narmada Prasad, Head Constable No. 94 of P. S. Suatala, along with Ramcharan P. C. were detailed for the duties to maintain law and order, and were given one rifle each with 50 rounds (refer Para 2o f PW 4).
4. According to the prosecution, on 6-2-1985, at about 11 O'clock, Khadagsingh (deceased) was supervising some masonry work outside his house, and PW 1 Kasim Khan and PW 5 Khubchandra and PW 11 Tawalsingh were also present there. The appellant Jagdish and other accused thought that Khadagsingh was siding with Chamars, which had annoyed the appellant Jagdish and other accused persons, who came en masse at the house of Khadagsingh. Appellant No. 1 Jagdish Singh was armed with a rifle, and other accused with sticks. Appellant Jagdish initially fired a shot in the air and uttered "MARO SALE KO BAHUT HARIJANO KA PAKSH KARTA HAI". Khadagsingh and others, which included PW 1, PW 5 and PW 11, ran for shelter inside the house. Pausing here, it would be convenient to refer map Ex. P-46, drawn by PW 2 Durga Prasad Patwari wherein the locations have been described in details. Accordingly, there was main entrance, and then a small door, both oh northern side. The small door led further to an entry into "Dalan" towards the extreme South; adjoining Dalan was a door which led into the kitchen. To pick up the thread, on approaching Jagdish Singh (armed with 0.315 bore rifle) and others (armed with sticks) and after first fire in the air and the utterances, Khadagsingh ran inside the house through small door, and closed it. But the accused chased him, broke open that door and entered in Dalan, and other appellants also followed. Thereafter, appellant Jagdish fired with his rifle at Khadagsingh, who then fell down. Thereafter, the appellants Ratansingh, Dhansingh, Phoolsingh and Narwarsingh dealt stick-blows. Thereafter, Jagdish went closer, fired another shot at the rectum of Khadag Singh, who died on the spot. The appellant Phoolsingh and Ratansingh dealt stick-blows on PW 1 Kasim Khan also. This incident inside the house was allegedly seen by PW 1, PW 5 and PW 11 who had also come inside. It is alleged, that the injured PW 1 and 2 others i.e. PW 5 and PW 11, remained inside the house till the police i.e. PW 12 Narmada Prasad Head Constable No. 94 arrived at the scene of the incident.
5. The further prosecution story is, that PW 12 Narmada Prasad with Ramcharan P.C., at about 9 or 10 a.m., had gone to the Kudihar-field where he found appellant Jagdish Singh Sarpanch, Phoolsingh and others viz. Narwarsingh and also the Patwari and Kotwar. Moti, Mullu, Pussu and others belonging to Harijan side, were imploring the villagers to let them reap their standing crops, but Jagdish Singh Sarpanch and others were adamant. There was an incident at Kudihar and thereafter, the injured Harijans were taken, by PW 12, to Vilehara where more police staff joined him. The injured were sent with a "Dehati Nalishi" relevent to that incident at Kudihar; and PW 12 Narmada Prasad returned to the village. He came across Jagdish Singh and 8 or 10 other persons which included Dhansingh, Ajmer Singh, Ramcharan. Noticing injuries on them, he sent those injured with a constable of Barman, along with requisition forms for their medical examination. He vaguely learnt from the loose conversations that there has been "some" incident at Khadagsingh's house and therefore, he proceeded there. He found the dead body of Diwan Khadagsingh lying near the kitchen. He questioned PW 1 Kasim Khan, and scribed Dehati Nalishi (Ex. P-1) as narrated by him. This Ex. P-1, with Mahesh Kumar PC 95, was sent to P.S. Suatala, and on that basis, PW 4 Madangopal H.C. recorded the FIR Ex. P-5. The inquest memo was recorded at 3.15 p.m. (Ex. P-6). Ex. P-6 also records, briefly, the incident; and further records the names of appellants - Jagdishsingh with rifle, and Ratansingh, Phoolsingh, Gopalsingh (Appellants) and Laxman (acquitted-accused) etc., armed with sticks.
6. During investigations, PW 12 H.C. had drawn the site plan, Ex. P-46, showing relevant places - such as place where the dead body was lying, Dalan, Kitchen, the place of the door with its broken condition. Then he prepared a Panchnama Lash, Ex. P-14. An empty cartridge, lying in front of the house, was also seized by PW 12, in the presence of PW 8 Ram Prasad, who is also witness to various other seizures. A seizure memo was prepared (Ex. P-16), at 3-20 p.m., and this empty cartridge was sealed. Thereafter, the pieces of broken door lying there (67" x 9" each) were also seized, vide Exs. P-17 and P-18, which were also drawn at 15-50 and 16-10 p.m., respectively. In the presence of same panch witness, at 15-35 hours, one bullet embedded in the ground, was also seized and sealed (Ex. P-19). At 15-30 hours, 2 empty cartridges, found about 3 feet from the corpse were also seized and sealed (Seizure Memo Ex. P-20). At 15-35 hours, control and blood stained earth was seized and sealed, vide Ex. P-21.
7. On the same day, i.e. on 6-2-1985, the dead body of Khadagsingh was sent with Ramcharan P.C. 14 of P.S. Barman, along with requisition memo Ex. P-43-A (Duty certificate is Ex. P-44). The injured Kasim Khan was also sent for medical examination, with a requisition form Ex. P-42-A. PW 12 Narmada Prasad recorded the police statements of PW 11 Tavalsingh, PW 5 Khubchandra, Shardaprasad and Shabbi, Gobar, Phoola and Dolan, and thereafter, Shri A. B. Shukla, S. O. took over the investigations.
8. (a) PW 9 Dr. Trivedi at Barman, since the body was received late in the. night, conducted the post mortem examination on 7-2-1985. He found injuries as follows: -
"External injuries: Wound of entrance (1) Gun shot wound: 2/3" X 1" entered in the thorasic cavity on the left side of chest of 5th inter costal space 2", below and lateral to the left nipple, direction obliquely upward, the edges are everted, oval in shape, the surrounding skin is scorched.
Wound of Exit:
(2) Gun shot wound: 1 1/2" X 2" entered in the thorasic cavity on the right scapula, on its border the edges are irregular and everted. No scorching the blood is running out through the wound.
Gun shot wound:
Gun shot wound 1 1/4" X 1 1/2" entered in the abdominal cavity, near rectum, the edges are irregular; the surrounding skin is scorched and are tatooed."
"There is no wound of exit.
(4) Contusion - Contusion 8" X 2/3" on the left Axillary region. On dissection blood clots found. (5) Contusion - 3 1/3" X 1" on the lateral aspect of left thigh, upper 1/3rd, on dissection blood clots found. (6) Contusion - 3" X 1" on the lateral aspect of left thigh in middle.
All the injuries are anter-mortem."
(b) He further noted fracture of the left 5th rib under the seal of injury No. 1, with laceration of muscles and tissues, and communicated fracture of the 3rd right rib and right scapula, with laceration of the muscle and tissues. Plura lacerated, Laryn and trachera, right lung-upper lobe lacerated, Left lung-extensive laceration on upper lab plural cavity is full of blood; percardium-lacerated, the cavity contained blood and clots; heart: left ventrical is found lacerated, all the chambers empty; Peritonium: pale and lacerated on 3 pairs, one small piece of brass like metal found lodged. There are two lacerations on large intestine on right side; Liver: There is extensive Laceration on the right side; Spleen and Kidneys: Pale, small pieces of lead and 3 brass like metal pieces were found lodged in the right lobe of liver.
(c) PW 9 Dr. Trivedi removed the clothes from the dead body. In his opinion, the cuts found over the clothes correspond with the external injuries (gun shot wounds). The articles found on the body, i.e. 2 pieces of lead and 4 pieces of brass like metal found lodged in the right lobe of liver and the four articles viz. clothes were packed, in separate packets and sealed, and returned to same PC Ramcharan (PC No. 14). In Doctor's opinion, the cause of death is syncope (shock and haemorrhage) as a result of gunshot wounds which have injured the internal organs. Since "sealing aspect" has been challenged, it would be convenient to mention here, that even in the requisition/Report attached to Ex. P-43-A for post mortem examination, it was pointedly mentioned, that after autopsy, the clothes and bullets (found in the body) are closely observed and are sent with P.C. "duly sealed". The post mortem examination-report is Ex. P-43.
9. PW 9 Dr. Trivedi, on 6-2-1985, examined PW 1 Kasim Khan and found the following injuries:
"(1) Lacerated wound: 2" X 1/2" bone deep on the left fronto parietal region, 3" above the left eyebrow. The edges are irregular.
(2) Lacerated wound: 1" X 3/4" X 1/2" x bone deep on the right parietal region, 5" above the right ear, the edges are irregular.
(3) Contusion: 3" X 1/2" on the left Arm upper 1/3rd on lateral aspect. Reddish in colour.
(4) C/o paind cover left thigh. No inj. is inside.
(5) Lacerated wound: 1/2" X 1/4 X 1/4" on the left side face, just near the lateral end of left eyebrow.
Opinion: The injuries are caused by hard and blunt object."
10. During investigations, Shri Shukla. S. O., on 8-2-1985 seized 315 bore rifle along with a licence; and 3 live cartridges and 19 empty cartridges were also seized in the presence of PW and Shankar Lal (Seizure memo Ex. P-9). The blood stained articles, the control and blood stained earth the empty cartridges separately seized from the place of the incident, bullet embedded in the earth, the rifle, in 8 sealed packets through S.P. vide memo No. PP 1216185 dated 13-2-1985 were sent to FSL, Sagar (Ex. P-4). The sticks were also recovered from many accused but it is unnecessary to detail them as they are inconsequential.
11. According to the report of FSL, Sagar, the presence of blood was confirmed on stained earth and the clothes of the deceased; and according to the Ballistic report (Ex. P-49) "the rifle was in perfect working order, and showed signs of discharge. The 0.315"/8mm bore fired empty cartridges exhibits EC 1 to EC 3, were compared for firing pin impressions with rest cartridges A 1 with positive results, under comparision microscope, "hence, these have been fired through the 0.31578mm. bore rifle Ex. A-1" "The deformed lead core Ex. P-1 Jacket pieces exhibits P-2-P-4 and lead piece Ex. P-5 are pieces of disintegrated copper jacketed bullet-like 0.315"/8mm bore bullet and these have been fired through the rifle like Ex. A-1". "The holes present on exhibits C 1 to C 4 are gun shot holes and these have been caused by the copper jacketed soft nose bullet like 0.315"/8mm bore bullet". "As the blackening or powder marks were absent around these holes the range of firing should be more than 30" from the muzzle end of the rifle like Ex. A-1."
12. Ultimately, 28 accused were charge-sheeted for committing offences under sections 147, 148, 302/149, Indian Penal Code.
13. The learned trial court framed the substantive charge under section 302, Indian Penal Code against the appellant Jagdishsingh; and all other 8 appellants were charged under section 302/149, Indian Penal Code. The appellants Phoolsingh and Ratansingh were specifically charged for causing hurt to Kasim Khan, under section 323, Indian Penal Code. Obviously, the appellant Jagdish Singh was not charged under section 148; and others were not charged under section 147, Indian Penal Code. They were, similarly, not charge-sheeted for trespass by house breaking. Obviously, the trial Court did not frame appropriate charges as required. However, the charges under section 302/149, Indian Penal Code clearly stated, that "on or about 6-2-1985, at village Nadia, all these accused/appellants" were the members of unlawful assembly in prosecution of the common object of which, viz. for committing the murder of Khadagsingh, Jagdish had caused the murder of Khadagsingh, and thereby they were guilty of offence punishable under section 302/149, Indian Penal Code".
14. The appellants denied the charges and stated that they have been falsely implicatd. The specific defence taken up, and as suggested in Paras 9 and 10 of PW 1 is: that the appellants Hakam Singh, Karansingh, Dhansingh and Ajmersingh were retreating after dispossessing the Chamars; and while they were passing in front of the house of Khadagsingh, he (Khadagsingh) along with his men, dragged them inside, and assaulted them. But hearing "Halla", Jagdish came out of his house; and other villagers also came; and then Jagdishsingh was given a lathi blow by Khadagsingh, and thereafter, "someone" opened the fire. Thus, the further suggestion of the defence is, "someone had then fired the gun". Thus the presence of those 5 accused is, in other words, admitted. According to the defence, Jagdish Singh, Hakamsingh, Karansingh and Ajmersingh received injuries during the assault; that, PW 1 Kasim Khan was also amongst them (as assailant); that PW 5 and PW 11 were not present during this incident; that FIR is concocted document; that, independent witnesses were present but have not been examined particularly when those included from Chamar community; and the prosecution only just examined the witnesses who are interested witnesses; that, the three present appellants had injuries but the witnesses have not explained these injuries; and none says that the injuries on accused were caused in the Kudihar field (i.e. the first incident); that, the mob had gone to Khadagsingh because there were two factions - one that of Sarpanch, and the other of Chamars who were helped by Khadagsingh; that, the injuries on the deceased do not stand connected with 0.315 bore rifle belonging to the appellant Jagdishsingh.
15. The findings of the learned trial Court are:
(i) That, Jagdishsingh, armed with rifle, and others with sticks, had gone to Khadagsingh;
(ii) that, one shot was fired in the air, and afterwards when Khadagsingh went inside the house and closed the door, it was broken open;
(iii) that, Jagdishsingh and other appellants were among those who had entered the Dalan after breaking open the door;
(iv) that, Jagdishsingh fired by second shot as alleged while inside the house, and when Khadagsingh fell down, Ratansingh, Hakamsingh, Dhansingh, Phoolsingh and Narwarsingh also dealt stick blows on the deceased;
(v) that, PW 1 Kasim Khan was also assaulted by the appellants 4 and 7;
(vi) that, the incident was witnessed by PW 1, PW 5 and PW 11, whose testimony is reliable;
(vii) that, the omissions and contradictions in their evidence inter se and vis-a-vis, their police statements, are minor and insignificant;
(viii) that, the injuries on the appellants Jagdishsingh, Hakam Singh, Dhansingh, Karansingh and Ajmersingh, as per injury certificates, Exs. D-5 to D-10 r/w connected requisition forms which documents have been admitted by the prosecution as per Section 394, Criminal Procedure Code were caused by the Chamars at Kudihar, field;
(ix) that, five of those appellants are said to have dealt stick blows on deceased, but only 3 injuries by blunt weapons were found; but in the melee it is not necessary that every injury should correspond to a blow spoken of in the joint assault by those five persons; assault is and satisfactorily proved;
(x) that, along with the appellant Jagdishsingh, the present appellants were members of the unlawful assembly and in prosecution of the common object of that assembly the first shot was fired (outside the house) in the air;
(xi) the other 19 accused were merely present "as by-standers", and at the stage, as the fire was shot in the air, it could not be said that they shared the common object; and accordingly, they have been acquitted.
(xii) it has been further found that the other appellants who went inside with Jagdishsingh shared the common object of causing death of Khadagsingh. Accordingly, the appellants have been convicted and sentenced as referred above.
16. In the trial Court also, the learned counsel Shri S. C, Datt was Special Prosecutor, and the other leading counsel Shri Rajendrasingh had appeared for the defence. In this appeal also we had the benefit of their arguments addressed at length.
17. The pivotal controversy veers around the question as to: "whether the prosecution version of the incident is true? or the defence version?" For determination of those questions we have to bear in mind that the first incident with the Chamars occurred at about 9 or 10 a.m, in the Kudihar field, which is also in the same village, and the present incident with which we are concerned, in sequence, was the second incident as would be evident from the evidence of PW 12 Narmada Prasad, H. C. Therefore, in our view, it would be more convenient, to facilitate discussion of the evidence, to consider the backdrop, i.e. the first incident.
18. To recall, as per evidence of PW 12 Narmada Prasad, read with the statement of PW 4 Madan Gopal, PW 12 with Ramcharan, were sent from Police Station for maintaining law and order on the occasion when Chamars were to be evicted from the encroached field Kudihar. PW 12 had deposed that when he reached Kudihar, he found many villagers, which included, Jagdish Singh, Sarpanch, Phoolsingh, Narwarsingh, Yashwantsingh (all present appellants) and Ajmersingh, as also the Patwari and Kotwar. On the other side Moti, Mullu, Pussu, Komal and others, belonging to Harijans, were imploring those villagers not to destroy the crops. But those people drove their cattle, and there was a "marpeet" causing injuries on both sides. The injured Harijans were taken to Vilhera village. For maintaining law and order, the strength of the so-called "police force" was only 2. Though they were armed, it is doubtful how otherwise except trying to pacify them PW 12 could have controlled the warring parties. PW 12 further states, that Jagdish and others ran away after this incident, and were uttering that Khadagsingh should be beaten. PW 12, along with the injured Harijans, went to Vilhera where an offence was registered and some additional force joined him. The injured persons were sent for medical examination. In the first incident, Jagdish and others had left Kudihar, that "KHADAGSINGH KE SAATH BHI MAR PEET KARNA HAI". His evidence shows that after the first incident he had gone to Vilhera and did not return till about 3 p.m. to Nadia.
19. PW 6 Fate Mohd. s/o PW 1, says, that at about 8 or 9 a.m. he was at Kudihar. Jagdish, Phoolsingh, Narwarsingh, Hakamsingh, Dhansing, Ajmersingh and others came from the village and drove their cattle in the field. Pausing here, we find that the defence counsel took objection for further examination of this witness on the ground that it was a distinct incident, and it is irrelevant for the present case. But then, the learned Advocate for the prosecution urged, that those accused were present in the first incident and sustained injuries on that occasion. Thus there is no force in the submission before us that prosecution had not explained the injuries as sustained by those accused because according to this witness also there was "marpeet" from both sides; and Jagdishsingh, Ajmersingh, Karansingh, Dhansingh had also sustained injuries. He had also deposed, that Jagdishsingh was uttering that "Chamars have been beaten and now Khadagsingh is to be seen who advocates the cause of chamars".
20. Under Section 3 of the "Interpretation clause" in the Indian Evidence Act, the expression "relevant fact" has been defined as, "one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts". The expression, "facts in issue" has also been explained. It is inclusive definition. Section 5 states: "the evidence may be given of facts in issue and relevant facts etc." Above evidence is also relevant under sections 7 and 8, Evidence Act. We will consider this evidence later.
21. Apropos the incident at deceased's house, PW 1 had deposed, that, at about 11 a.m., Khadag Singh was supervising the plastering work, and PW 5 Khubchandra and PW 11 Tawalsingh, besides Sharda Prasad, Peer All, Chhidda, Goverdhan Langda Chamar were also present. He had further deposed, that Jagdish Singh with a rifle, and 21 others with sticks, came near the door. He has named those appellants, besides those accused, who have been acquitted. Jagdish Singh exhorted, "MARO SALON.KO", and then he fired a shot with the rifle towards sky. Khadagsingh, out of fright, ran towards the Kotha, followed by Tawalsingh, and closed the door. 7 or 8 persons forcibly pushed the door and broke it. There is another big door, and PW 1 entered the house through that big door and went near the kitchen, which as the map shows, is adjoining the Dalan. This Dalan, according to PW 1 is 40' 50' X 18'. Then he mentions the presence of Tawalsingh and Khubchandra; and the latter stood nearby, inside small room of the kitchen. According to Para 3 of PW 1, Jagdishsingh fired from a distance of about 3 feet, and Khadagsingh then fell down. Thereafter, Narwarsingh, Phoolsingh, Hakamsingh, Ratansingh and Dhansingh dealt stick blows on the deceased, and then Jagdishsingh "felt with his hand" and fired second shot at the rectum, from a distance of about 6". Thereafter, the appellants Phoolsingh and Ratansingh dealt 3 stick blows on PW 1 also, consequently, he received the injuries on his head, left hand and also near his left eye. Jagdishsingh uttered filthy abuses and said "MAAR KAR FENK DENGE" and others were also uttering in the same manner. Then he states, that he remained there with PW 5 and PW 11 till the police arrived at about 3 p.m. when Dehati Nalishi (Ex. P-1) was scribed. He has denied that there are two factions, one led by Jagdishsingh and the other by Khadagsingh, but he admits that the accused were shouting "MARO, HARUANON KA SAATH DETE HAIN, AUR BADHAVA DETE HAIN".
22. Turning to the evidence of PW 5 Khubchand, he claims to be present with Khadagsingh outside. He was earlier in the kitchen, but after hearing the first fire and the "Halla", he came out; and meanwhile, he found Khadagsingh running towards the Dalan with Tawalsingh and Jagdishsingh, Phoolisngh, Hakamsingh, Narwarsingh, Yashwantsingh, Karansingh and others chasing them. He also came inside Dalan. Others came by the big door. He had also deposed that Jagdishsingh fired the shot on the left side of the chest and Khadagsingh fell down, and thereafter, Ratansingh, Narwarsingh, Hakamsingh, Phoolsingh, Karansingh dealt stick-blows. Thereafter, Jagdishsingh had fired second shot at the rectum. He has also deposed, that the assailants were shouting "JAAN SE MAAR DALO CHAMARON KA BAHUT SAATH DETE HAIN".
23. The evidence of PW 11 Tawalsingh, by and large, is similar to that of PW 1 and PW 5.
24. Apropos the above evidence, the learned counsel for the appellants did not, and of course, could not have disputed the presence of PW 1 Kasim Khan, who is an injured witness; but the presence of other two eye-witnesses is disputed. The deceased lived alone in that house, and PW 5 was a cook. His presence at the relevant time, therefore, was quite natural. It was pointed out, that according to Para 2 of PW 5 Khubchandra, he was "inside" the kitchen, contra, according to PW 1 he was also standing "outside" the house. This discrepancy is more apparent than real, because according to PW 5, after hearing "Halla" and firing, he naturally came out from the kitchen and then saw Khadagsingh running for his life towards Dalan. Tawalsingh was a Harwaha of the deceased and his presence being natural, he too cannot be said to be a "chance witness".
25. It was vehemently further argued, that these witnesses remained frozen in the house till the police arrived at 3 O'clock; and this behaviour was very unnatural. This submission need not detain us longer. As stated by PW 1 in Para 7, the police station was 5 kms. away from the village. After the incident, only those three persons remained; and even Chhidda and others had run away. PW 1 has stated that due to fright they did not send anyone to lodge a report at the police station. PW 11 in Para 5 is more lucid in disclosing that when a big Malgujar was shot like that they are small fries, and could not have dared to go out to inform the Kotwar. There is omission in his police statement, but he further claims to have said that the accused had also threatened them of dire consequences if any one dared to go to the police station. There is also omission ( as to cause of delay) in the police statement, but the deceased was brutally shot dead, and naturally, those persons being terror struck could not have dared to take any risks of their lives in making any efforts to go out of the house. Even PW 1 who was a mute spectator was not spared by them. Moreover, it has come in evidence, that the houses of some of the accused were in the neighbourhood. Discretion is better part of valour. Therefore, under the circumstances, we are of the view that there was no unnatural behaviour on their part in not leaving the house till the police, on its own, had arrived. Therefore, we do not agree that there is unreasonable delay in lodging the Dehati Nalishi, Ex. P-1.
26. Next it was urged, that Dehati Nalishi, Ex. P-1, on basis of which F.I.R. Ex. P-5 was registered at P.S. ( by PW 4 Madan Gopal Moharir) is a subsequently prepared document. It was argued, that in Para 13, PW 12 Narmada Prasad stated, that Dehati Nalishi was "folded and put in an envelope" and aa gum was not available, a pin was attached on the flap. There does not appear any conspicuous sign of fold or crease on Ex. P-1, yet PW 12 says, that he did send Ex. P-1. From the statement of PW 4 Moharir, we find, that Mahesh Kimar, PC No. 95 had not only brought Ex. P-1 but also Inquest Intimation Ex. P-6, and on that basis F.I.R. Ex. P-5 and Marg Intimation Ex. P-7 have been duly recorded in which the name of Mahesh Kumar has also been mentioned. There are endorsements, that copies of Exs. P-6 and P-7 have been sent to S.D.M., Gadarwara. Similarly, it seems that the defence did not question this aspect by asking the Police Officers whether there was compliance of section 157, Criminal Procedure Code in forwarding copy of F.I.R. to Magistrate. There is another section 174, Criminal Procedure Code which calls for consideration. The scope, purpose and ambit of section 174, Criminal Procedure Code were explained in Padda Narayana and Ors. v. State of A.P., AIR 1975 SC 1252. But we find that salient facts of the incident mentioned in Dehati Nalishi find reflected in the contents of Inquest under section 174, Criminal Procedure Code. The number of accused being large, in Ex. P-6, only a few are mentioned, with appendage, "VAGAIRA" i.e. others. For those reasons, the submission that Dehati Nalishi is a concocted document does not hold water.
27. The oral testimony has been assailed, also on the ground, that the statements about the distances from which the gunshots were fired, vis-a-vis expert's opinion and the Patwari's map differ. To recall, PW 1 in para 3 states that the shot on chest was fired from a distance of "three feet", and the second shot was at point-blank range. In the first "entrance wound", the skin was "scorched", and in the second entrance wound, there had been "scorching and tatooing" also (Refer R. M. Report). However, according to Patwari's Map Ex. P-2-A/P-2, the first shot was fired when Jagdish was 12 ft. away from his victim. According to PW 5, the time of first shot in chest, the distance was "DO HATH". Both PW 1 and PW 5 are said to have been falsified by the Map and medical report. According to Ballistic's Report who examined shirt and pant and underwear, blackening of powder marks was absent around holes. "The range of firing should be more than 30" front the muzzle.
28. According to the learned Advocate Shri Datt (appearing with the learned Government Advocate) those discrepancies are immaterial, because the witnesses have only given approximate and rough estimates of distances. Some marginal variations would arise even due to length of barrel. Modi in Medical Jurisprudence, 19th Edn. 1975, at pages 225-227, has opined on this aspect under the heading, "distance of Firearm". In our view, those three witnesses were present, and variations are due to approximate and rough estimates of distances given by them. The second wound showed "tatooing". In that tense situation we could visualize that those witnesses were under mental stress and strain, and observational faculties were somewhat numbed, and they had to recollect later what had then happened. But the witnesses have also stated in evidence and in map, the distances where they were from the victim. It was also argued, that the total incident occurred in Dalan - towards the kitchen (Refer, Maps Ex. P-2 with index P-2-A and Ex. P-46). Though the area of Dalan breadth and length-wise is not mentioned, yet from the Index and oral evidence, it is certain that the incident occurred within a radius of, at the most, 16-20 ft. The width was even smaller. Had the incident occurred in open field, probably different considerations may have arisen. It was also stated, that the entire incident was a revolving stage where the victim, assailants and accused, all were moving objects as in a cinematograph. Hence, such discrepancies in oral evidence are natural and immaterial. In Janaksingh v. State of U.P., AIR 1972 SC 1853, it was observed:
"None of the three entry wounds showed any blackening or tatooing. Obviously, therefore, the firing did not take place from a very close range, but from distance at least. No doubt, the three eye-witnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the fire arm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation."
In our view, the aforesaid discrepancies are natural; and are not sufficient to hold that PW 5 and PW 11 are got up witnesses and were not present.
29. Apropos the omissions and contradictions in the evidence of PW 1, PW 5 and PW 11, vis-a-vis, their police statements, marked Exs. EM, D-2 and D-4, respectively, they may be seen at a glance, in the cross-examination of PW 12 Narmada Prasad, HC in Paras 15 and 16. He says that Kasim Khan made an omission in Dehati Nalishi that after the vitim Khadagsingh had fallen down, Jagdishsingh felt with his hand at the rectum (GUDA) before he shot another fire. It may be exaggeration. But it is certain that the second shot was at the rectum from a close range. Again, in the report, there is a mention that Tawal Singh also came inside which is inconsequential, because Tawalsingh's presence is mentioned in the report itself. Similarly, six accused came through one door and others entered through big door are omissions regarding the details. In Tawalsingh's police statement, there is omission that the accused gave threats of dire consequences in case they went to report. We have already stated before, that those three eye-witnesses remained inside the house for their safety. The omissions and contradictions do not relate to the root of matter to discredit the eye-witnesses. Moreover, the police statements cannot be "a replica of depositions recorded in the Court", after proper examination-in-chief and proper cross-examinations. Much was said about the non-examination of other witnesses, some of them whose presence is mentioned even in the Dehati Nalishi, have not been examined. For reasons best known to the prosecutor, Peer Ali, Sharda Prasad, Chhidda and labourers Langda Chamar and Goverdhan have not been examined. But then, the report itself states, that they were present in the Bakhri outside the house. In our view, the prosecution had examined the three eye witnesses who were inside the house for "unfolding the prosecution case" and from the non-examination of those witnesses, no adverse inference can be drawn against the prosecution.
30.(a) The learned counsel for the appellants Shri Rajendra Singh laid great emphasis on the submission that the "injuries on the appellants have not been explained", and therefore, it is apparent that the "prosecution has suppressed the genesis of the incident". Laxman Singh v. State of Bihar, AIR 1976 SC 2263, was referred. It was also submitted, that none of the eye witnesses has deposed about the injuries found on the appellants. Jagdish had one abrasion over the left feet, superficial; second injury was lacerated 1.4" X 0.2" X 0.2" over the occipito parietal region; third injury is the abrasion-superficial over the left palm; and according to Ex. D-5, injuries Nos. 1 and 3 were caused by rub against hard and rough surface and No. 2 by hard and blunt object like lathi. Similarly, Ajmersingh (acquitted accused) as per Ex. D-6, had one contusion over the right scapular region; Appellant Dhansingh had one contusion: 1.1" X 1" over the centre of the forehead higher up, caused by hard and blunt object; and the other injury is abrasion over the left side of the forehead and left side of the face on maxillary bone, superficial, caused by rub against the hard and rough surface. Appellant Hakamsingh had one L.W. 1.2" X 0.2" over the left parietal bone 3.5" from the left mastoid bone; and one bruise: 4" X 1" over the right arm, nearly vertically placed, both caused by hard and blunt object. Appellant Karansingh had lacerated wound, 3/4 X 0.2" X 0.1", over the lower side of lip. Ramcharan (acquitted) had/contusion over the left forearm, on dorsal aspect on its midlength.
(b) It was urged, that the injuries on Hakamsingh, Dhansingh and Jagdishsingh which were on the head could not have gone unnoticed by the witnesses, yet, they state nothing about it. We agree with the rival contention canvassed before us by the learned Counsel, Shri Datt, that most of the abrasions and other minor injuries were not so serious to be noticed, and even the injuries on the head described above were not of such nature as "profusely bleeding" about which the witnesses could have deposed. Commonsence dictates, that those witnesses were more concerned about their lives, safety, rather than having an "arm chair view" in noticing such injuries. In Shri Krishnalal v. State of Haryana, AIR 1980 SC 1252, it was observed, "Common sense be not sacrificed in favour of an artificial concoction, called Judicial Probability. Indeed, the Court loses its credibility if it rebels against realism. The law Court is not an unnatural world." That besides, we agree with the submission that the prosecution is obliged to explain only those injuries which are stated to have been caused "at or about the time of occurrence". (Also referred Kanhaiyalal v. State of Rajasthan, AIR 1989 SC 1515.)
31. Reverting to the statement of PW 6 Fate Mohd. and PW 12 Narmada Prasad, these injuries related to the first incident which occurred in the field Kudihar. Furthermore, the prosecution is not obliged to explain every minor or superficial injury. In a recent Judgment Hare Krishna Singh v. State of Punjab, AIR 1988 SC 863, their lordships have examined Laxmi Singh's case, besides, other leading cases, viz. Bhaba Nanda v. State of Assam, AIR 1977 SC 2252; Mohar Rai v. State of Bihar, AIR 1968 SC 1281 Onkarnath Singh v. State of U.P., AIR 1974 SC 1550; Jagdish v. State of Rajasthan, AIR 1979 SC 1010 and Munshiram v. Delhi Administration, AIR 1968 SC 702, and have summarised the principles, in Para 20 of their Judgment, in Hare Krishna Singh vs. State of Bihar (supra). In view of the factual matrix and circumstances and the decisions referred above, we repel the submission that the prosecution has suppressed the genesis of the incident.
32. As regards the defence version (Para 14 supra), there was no question for Khadagsingh and others passing through this Bakhar, because PW 2 Durga Prasad Patwari has categorically denied the suggestion that Khadagsingh's "Bakhar" was on way (on route), from Kudihar to the village. This knocks the bottom of the defence version that while Jagdishsingh with Hakamsingh and others were returning and passing by the Bakhar, Khadagsingh, through his servants, caught hold of them, and assaulted, and they were even dragged inside and beaten. On the other hand, the accused had entered after breaking open the door. There is no evidence at all that anyone else had the fire arm, except, the appellant Jagdishsingh; and it would have been fool-hardy on the part of Khadagsingh's men to assault Jagdishsingh and others when Jagdishsingh was armed with a rifle. Therefore, in the totality of the circumstances, the defence version is sheerly a cock and bull story.
33. (a) Some more legal points were raised on the above aspect. The defence witnesses, including the doctor who had examined the injured accused, were summoned for 24-4-1986. The order-seet shows, that one of them i.e. DW 1 Sobaransingh, H.C. was examined, and then the defence counsel Shri Patel filed a list together with 6 injury reports, and gave a notice to G.P. to admit those documents under section 294, Criminal Procedure Code, but the A.G.P. did not admit. Thereafter, those 6 injury reports, together with corresponding 6 requisition forms were filed, and therefore, the A.G.P. admitted those documents. Those are Exs. D-5 to D-10. Section 294 provides:
"No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall, be included in a list, and the prosecution or the accused, as the case may be, or the pleader fro the presecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed.
Provided, that the Court may, in its discretion, require such signature to be proved."
(b) According to Shri Datt, if the injury reports Exs. D-5 to D-10 are read, then, they should be read together with the requisition forms; otherwise, they would be meaningless; and moreover, the prosecution has admitted the "genuineness" of those injury reports only when the corresponding requisition forms were filed by the defence. "This section in the Code dispenses with avoidable waste of time and facilitates removal of obstruction in speedy trial". Refer Sheikh Farid v. State of Maharashtra, 1983 Cr. L.J. 487 (490) Bom. (F.B.). It says that P.M. Report is admissible under section 294, Criminal Procedure Code. It would be interesting to note, that in a Full Bench decision, Allahabad High Court in Sadiq v. State. 1981 Cr. L.J. 379, also has held, that an injury report filed by the prosecution may be read as a "substantive evidence" in place of the deposition of the doctor who prepared it, if its genuineness is not disputed by the accused and it implies admission as to the correctness of contents also. The appellants rely only on injury reports, and as regards the "requisition forms", it was argued, that they are statements under section 162, Criminal Procedure Code, and therefore, inadmissible. Obviously, the injury reports and those requisition forms relate to other incident i.e. the first incident at Kudihar field. In Doman Mahton v. Surajdeo, AIR 1970 Pat. 95, petitioner feild a case of assault which was registered as Case No. 668/85. In respect of the same incident, the opposite party also filed a complaint under various offences, and another case was registered. During the trial of the complaint case filed by the opposite party, certain police statements made in "the earlier case" were produced for contradiction. It was held, that the statements made during the course of investigation could be used in a subsequent case which was not under investigation. "The provisions of section 162, Criminal Procedure Code do not apply to statements made in an investigation other than that which results in a trial in which those statements are sought to be used." This was considered in context of section 145, Evidence Act. This is also the view taken in Jhumanlal v. State of Rajasthan, AIR 1957 Raj. 185 and Bejjanki Rajan v. State of Andhra Pradesh AIR 1959 A. P. 333. Therefore, the contentions of requisition forms are not hit under section 162, Criminal Procedure Code in the instant case. In fact, they are only the letters, addressed by the police to the doctor to examine so and so. To be precise, according to Shri Datt, requisition Ex. D-5, in the brief history of assault which is always given on such occasions, states, that an injury on head is caused by Fattu. The injuries to Dhansingh and Hakamsingh are said to be caused by Pissu and Mullu Chamar respectively, and to Karansingh, by Pussu Chamar. Probably in view of section 5, Evidence Act, which lays down "that evidence may be given in any proceeding of the existence or non-existence of every fact in issue or such other facts as are hereinafter declared to be relevant" and of no others. The fact in issue, per se, in the present case is, whether the appellants received injuries as alleged by them (by the complainant's side in this incident), and to prove non-existence of that fact, those requisite forms, together with injury reports on record, are said to be relevant. "It is the duty of the Court to exclude all irrelevant or inadmissible evidence, even if no objection is taken by the party as to admissibility." So far as Madhya Pradesh High Court is concerned, in State of Madhya Pradesh v. Nan Singh and Ors., 1980 MPLJ 603, 1980 J.L.J. 505, this Court in a D.B. decision has taken a view, that the Post Mortem Report though admitted under section 294, Criminal Procedure Code cannot be relied on without examination of the doctor since it is admissible under section 45, Evidence Act. The "genuineness" of the post mortem Report may not be disputed, but the contents with the facts observed by the doctor, and the opinion as to cause of death can be admitted in evidence only under "section 45, Evidence Act. By admitting document under section 294, Criminal Procedure Code the document could not become under section 45, Evidence Act expert evidence. It was further observed, that section 294, Criminal Procedure Code does not in any way modify the law of evidence. Because of non-examination of the doctor in that case, the conviction under section 302, Indian Penal Code was set aside, and altered to one under section 326, Indian Penal Code. In view of the decision of (M.P.) this Court, we do not, on this occasion, express any opinion on the evidentiary aspects of Exs. D-5 to D-10. But then, we are firmly of the view, that even after excluding this evidentiary aspect, the other evidence and circumstances already discussed, clearly show, that the appellants had not received these injuries in the incident in question.
34. We have already mentioned before that charges framed were defective. Specific charge under section 147, Indian Penal Code should have been framed on all the appellants. However, to reiterate, there is a substantive charge under section 302, Indian Penal Code against the appellant Jagdishsingh; and others have been charged under section 302/149, Indian Penal Code. The criticism on this aspect is completely answered in section 215, read with section 464, Criminal Procedure Code. Other appellants have not been misled in any way by absence of a specific charge under section 147, Indian Penal Code. Questions have been asked about all the incriminating circumstances under section 313, Criminal Procedure Code and about unlawful assembly and the common object; and there is no failure of justice; and no question of any prejudice has been caused (refer W. Slaney v. State of M.R, AIR 1956 SC 116).
BALLISTIC EXPERT'S EVIDENCE
35. The Ballistic Expert's report is Ex. P-48 admitted under section 293, Criminal Procedure Code. The criticism is two-fold: First, it was argued, that in view of section 45, Evidence Act, it is an opinion, but no reasons have been given; and therefore, it has no evidentiary value. Secondly, it has been vehemently urged, that the "sealing processes" essential, during the seizures, particularly that of the empty cartridges, has not been "duly proved" and therefore, this report is of no value. Apropos the first submission, a bare perusal of the report would show that various articles have been examined and the data relating to the findings on basis of which opinion is based, are there. That opinion is based on comparison of firing pin impressions as found on the empty cartridges, after comparing them with test-cartridges. Furthermore, that the weapon was in firing condition and quite in order; and that, "the deformed lead core Ex. P-1, pieces of copper jacket Exs. P-2 to P-4, one piece of lead core Ex. P-5 are pieces of disintegrated copper jacketed bullet like 0.315"/8mm bore bullet and these have been fired through the rifle like Ex. A-1". We are of the view that no fault can be found with this Ballistic Expert's report.
36. Regarding the second criticism, it was urged, relying on the principle stated in State v. Moti and Ors., AIR 1955 Raj. 82, that the prosecution should have produced evidence that the articles sent to the Chemical Examiner were the same which were recovered from the accused, and that it is further necessary that the officers recovering the articles should immediately take steps to seal them, and evidence should be produced that the seals were not tampered with, or till the articles are sent to the examiner for analysis. "In the absence of such precautions it would be open to the accused to say that the blood stains are not of human blood in order to implicate the accused. In evidence as to such sealing is not produced, the Court cannot place the same reliance on the discovery of blood stains on various articles". In that decision, the recoveries took place 11 days after the murder. It is distinguishable on its own facts. In the instant case, it was urged, that the 3 empty cartridges: one outside the house, and 2 inside the house, were seized near the place of the incident on 6-2-1985 and the rifle together with 3 live cartridges and 19 empty cartridges, were seized on 8-2-1985, vide Ex. P-19. But the evidence of DW 1 Sobaransingh Head Constable shows that the 3 empty cartridges relating to the incident were deposited in Malkhana on 8-2-1985. He deposed, on basis of Malkhana Register but has expressed his inability as to the person who deposited, because there is no such column therein. On the other hand, we find ample internal evidence to prove the circumstances that the concerned articles were sealed. "Every cross-examiner should and can if he is careful, indicate in cross-examination, whichever part of the evidence given in examination-in-chief is challenged, and an omission to do so would lead to the inference that the evidence is accepted, specially, of course to its being assailed is inherently improbable". Refer Pallai Pada Kalingan v. Parmanandan, AIR 1954 T.C. 152. The seizure witnesses about those empty cartridges, seized from the place of the incident, are PW 12 Narmada Prasad and Panch PW 8 Ramprasad. In Para 2. PW 8, specifically deposed that those cartridges and bullet were seized vide Ex. P-20. In fact, various articles were seized on 6-2-1985 and the recitals in Exs. P-16, P-20, and P-21 record that they were "duly sealed". PW 12 Narmada Prasad says that those articles were sent on next day, i.e. 7-2-1985, though according to DW 1 they had been deposited on 8-2-1985. Thus, there is only one day's delay in depositing those "sealed packets" in Malkhana. It was urged, that when PW 12 sent Dehati Nalishi and Marg intimation to the police station forthwith, with Mahesh Kumar P.C. and these also could have been sent along with. This witness had answered the question and stated that whatever articles seized by Narmada Prasad must have been deposited in the Malkhana Register. He was not asked any question on basis of the Register. It appears for one day before they were formally deposited in Malkhana, they were in sealed condition lying at police station because at the time of depositing them on 8-2-1985 they were in sealed condition.
37. Turning to the requisition for post mortem, we find that D.M.O. was also requested to seal the blood stained clothes after autopsy, and further, to seal bullet, if any found in the body. It is further recorded by Dr. Trivedi, that "after sealing" those articles i.e. bullet pieces, extracted found in the body, and the clothes of the deceased were returned with the Constable Ramcharan, P.C. No. 147 who had brought the body. PW 12 in Para 7 stated that 8 "sealed packets" were sent through S. P.s office, on 13-2-1985. to F. S. L... Sagar. In the memo No. PP/21/216/85 it has been further noted, that all the articles are being sent in "sealed packets". The Ballistic Expert had noted, that the memo Ex. P-46 has not been "proved", because the S. P.s signatures. have not been proved. It is a part of official communication sent by S. P. to F. S. L. and hence a "public document under section 74. Evidence Act. Re: Edu v. Hiralal, AIR 1928 Oudh 488 at page 490. a certified copy of a public document can be a proof under section 77, there is no reason why the "original" cannot be produced. According to the learned Counsel, Shri Datt, those questions have now been given subsequently significance in the arguments, but during trial the defence case was only that of "private defence" and therefore, this aspect too does not appear to have been challenged. Even if for sake of argument we ignore the Ballistic Expert's Report, the fact remains, that Jagdishsingh had a rifle with which he had fired shots and killed Khadagsingh. However in our view the evidence produced by the prosecution stated above, is an additional and corroborative evidence for 3 witnesses. Therefore, in the instant case, we find, that the prosecution has taken precautions for "sealing" and criticism on that behalf is devoid of any substance.
UNLAWFUL ASSEMBLY. COMMON OBJECT AND VICARIOUS LIABILITY:
38. It was urged, that on the approach of appellant Jagdishsingh and others, PW 1 ran inside through big door, whereas, Khadagsingh followed by PW 11 through small door which they closed. But all the three PWs assert that "the accused broke open the door", and entered. Since they could not see, therefore, who are those who broke the door? But then, door was broken; and witnesses have deposed specifically about those appellants found inside. The trial Court had rightly held, that other accused could be "bystanders". "Tamashgirs" are not wanting on occasion of unlawful assemblies. But that stage was over when Jagdishsingh and others broke open the door and entered chasing Khadagsingh. till he was brutally done to death inside. "Tamashgirs" would not go upto the stage of house breaking and house trespass. Therefore, there is no manner of doubt that these appellants who were found inside the house, were members of an unlawful assembly. It is further significant that Jagdish, Dhansingh, Hakamsingh, Karansingh, Ramcharan, Yashwantsingh were present in the incident also at Kudihar, and had also suffered injuries as stated by PW 6 Fateh Mohd. The presence of Jagdishsingh Sarpanch, Ajmersingh. Phoolsingh. Narwarsingh and Yashwantsingh is also stated by PW 12 Narmada Prasad who further states, that both sides sustained injuries.
39. In the above backdrop, Jagdishsingh with associates had gone to deceased's house, with all fury, to wreak vengeance. Deceased was thought to be the supporter of the Chamars. Beating by Chamars added insults to the injured. The utterances referred earlier bannerline the revengeful and aggressive moods of those persons, who gathered together, shortly afterwards from Kudihar. and went to deceased's house.
40. Next point is, what was the common object of this unlawful assembly? It was urged, that the common object was only to leach Khadagsingh a lesson; at worst, to cause grievous hurt. "Jagdishsingh, on reaching near the house, fired a shot "in the air", which is interpreted as an overt act only to terrorise Khadagsingh. But the subsequent events belied this contention. Even during dacoities we find shots are fired in the air. That is generally done to cause panic and terror and to scare away all concerned, and to deter others from any expected intervention. Khadagsingh closed the door. Yet, after breaking open the door, those appellants entered, chasing, knowing full well, the determined mood of Jagdishsingh armed with a rifle. Jagdishsingh was. not satisfied with first shot, though deceased was already hit on vital part (chest). Between the short interlude of two shots, appellants Ratansingh, Hakamsingh. Dhansingh, Phoolsingh, Narwarsingh, dealt stick blows. That was when deceased had fallen down, and before second shot was followed thereafter. The medical evidence shows only three injuries by blunt weapons, and therefore, the contention is, who were those three appellants amongst the five abovenamed? The place near Kitchen where Khadagsingh had fallen was not much in width, and attack with lathis by five assailants, could not have been so indiscreet so as to break one another's head amongst themselves. PW 1, an old man of 60 years, being Karinda, was not spared, though he was a mute spectator to the incident. Five assaulted but it could be that there were only three injuries which could he recorded in medical report.
41. Section 149, Indian Penal Code describes the offence in two parts, viz. offence committed by a member in prosecution of common object. Secondly, offence, which the members of that assembly knew to be likely to be committed in prosecution of common object. This distinction has been considered in Mirzazi's decision, AIR 1959 SC 572. The second part of section relates to the situation where the members KNEW that it is likely to be committed in prosecution of common object. "A thing is likely to happen only when it will probably happen, or may very well happen". "Prosecution has to prove, that it was likely to be committed." "The word "KNEW", indicates, a state of mind at the time of commission of offence". And in law the standard is that of a reasonable man. The question of common object has to be spelled out from circumstances of each case.
42. Shambhunath v. State of Bihar, AIR 1960 SC 725, was referred for the proposition, that "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their object, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this, the effect of section 149, Indian Penal Code may be different on different members of the same unlawful assembly". There was a land-dispute and only the member who fired was found guilty under section 302, Indian Penal Code and other members under section 326/149. Indian Penal Code. Similarly, in Fatte and Ors. v. State of U. P. AIR 1979 SC 1504, the accused who fired, and another who supplied bullet, were held guilty under section, 302 and 302/34, Indian Penal Code; but others under section 325/149, Indian Penal Code. In that case none of the rest took any part.
43. In the case before us, as the first shot by Jagdish was fired in the air, it could also be inferred, that others thought that Jagdishsingh would not kill Khadagsingh, and the utterances (refer - Para 7 of PW 1, Para 3 of PW 6 and Para 1 of PW 11) are vitrually to the effect: "MARO SALENKO BAHUT CHAMARON KA SATH DETA HAI" and NOT "KILL HIM" OR "SHOOT HIM". Therefore, it will be doubtful to invoke second part of the provision under section 149. Indian Penal Code to hold the other appellants guilty under section 302/149, Indian Penal Code. But they were all armed with sticks, and some, as stated above, even assaulted the deceased and even PW 1, and therefore, they "knew" and had "community of object" to the extent, of at least causing grievous hurt. Hence, Jagdishsingh alone is liable under section 302, Indian Penal Code, but the rest of the appellants, under section 325/149, Indian Penal Code. We do not agree with the submission that the case of those appellants is similar to (he accused who have been acquitted.
44. The learned counsel with reference to the sizes of gun shot Entrance injuries vis-a-vis sizes on carbon in P.M. Report argued, that these were not caused by 0.315" bore rifle. Taylor and Modi were referred. In view of clear, cogent and convincing reliable evidence already discussed, we are not inclined to encumber this judgment, which in absence of Ballistic Expert's statement, will be only an exercise of academic discussion.
45. It is unfortunate that in spite of 35 years of independence and ethos of socio-economic justice and special protection of civil rights, feelings of contempt should linger even against the sympathiser of the downtrodden, as in this case, hence such riots deserve deterrent sentences.
46. In the result, this appeal is partly allowed. The conviction of Jagdishsingh under section 302, Indian Penal Code and the sentence of imprisonment for life are maintained. But the convictions of the remaining 8 appellants under section 302 read with 149, Indian Penal Code and the sentences of imprisonment for life are set aside. Instead, they are convicted under section 325 read with 149, Indian Penal Code, and are sentenced each to seven years' R.I. Under section 428, Criminal Procedure Code, the period of detention be set off against the sentences awarded to those 8 appellants.