Lalit vs State Of U.P. on 24 October, 2016

[Cites 21, Cited by 0]

Allahabad High Court

Lalit vs State Of U.P. on 24 October, 2016

(Delivered by Hon'ble Arvind Kumar Mishra,I J.) Since all the aforesaid three Criminal Appeals arise out of the same and one judgment and order dated 23.12.2006 of conviction/acquittal, passed in relation to the five concerned consolidated sessions trials arising out of case crime nos. 211 of 2003 and 212 of 2003, whereby the learned trial Judge has convicted the three accused persons namely Lalit, Bimal and Jagvir under various sections of IPC and Arms Act while acquitting Ram Prakash Sharma of charges under Section 201 IPC and 27/30 Arms Act, as such the same are being heard and disposed of by common order.

By way of aforesaid Criminal Appeals challenge has been made to the judgment and order of conviction (In re: Accused Lalit, Bimal and Ranvir) and Acquittal (In re: Accused Ram Prakash Sharma) dated 23.12.2006 arisng out of Case Crime Number 211 of 2003 and 212 of 2003, respectively, under Sections 302, 302/34, 323 and 336 IPC and Sections 25(1)/30 Arms Act (In re: Accused Lalit); and order of acquittal under Section 201 IPC and 27/30 Arms Act (In re: Accused Ram Prakash Sharma) passed in concerned five consolidated sessions trials numbers 826 of 2003 State Vs. Lalit, 827 of 2003 State Vs. Lalit, 828 of 2003 State Vs. Ranvir and Vimal, 829 of 2003 State Vs. Ram Prakash Sharma and 455 of 2005 State Vs. Ram Prakash Sharma, arising out of aforesaid case crime numbers concerning police station Tajganj, District Agra, whereby the aforesaid appellants- Ranvir, Vimal and Lalit- have been sentenced under Sections 302/34 IPC and 302 IPC, respectively with imprisonment for life coupled with fine Rs.10,000/- in the event of default the concerned convict would have to suffer additional imprisonment for two years, under Section 323 IPC each of the aforesaid convict shall suffer six months imprisonment coupled with fine Rs.200/- default stipulates one month additional imprisonment; under Section 336 IPC each of the convict shall have to suffer one month imprisonment and accused Lalit has been further sentenced to three years imprisonment coupled with fine Rs.2000/- and in the event of default he will have to suffer additional imprisonment for three months under Section 25(1) the Arms Act and further convict accused Lalit has been sentenced to two months imprisonment under Section 30 Arms Act.

In so far as aforesaid Government Appeal No.3026 of 2007 is concerned, the same has been preferred by the State against the aforesaid judgment and order dated 23rd December, 2006 (in so far as the order relates to acquittal of Ram Prakash Sharma in relation to charges under Sections 201 IPC Section 27/30 Arms Act) passed by the trial court in consolidated Sessions Trial No.829 of 2003 (State Vs. Ram Prakash S/o Atar Singh) and Sessions Trial No.455 of 2005 arising out of Case Crime No.212 of 2003 and Case Crime No. 211 of 2003, respectively, whereby, the learned trial court has acquitted accused-respondent Ram Prakash of charges under Sections 201 IPC and 27/30 Arms Act.

We have heard Sri Anant Ram Dubey, learned counsel appearing on behalf of appellants- Lalit, Vimal and Ranvir and Sri Saghir Ahmad and Sri J.K. Upadhyay, learned AGAs for the State and perused record of theses appeals, while accused-respondent Ram Prakash Sharma in aforesaid Government Appeal (3026 of 2007) is represented by Sri Mahesh Chandra Tiwari.

Factual matrix of this case as unfolded by first information report sensitizes us to facts that a report was lodged at Case Crime No.211 of 2003, under Sections 307, 323, 336, 504, 506 IPC and at Case Crime No.212 of 2003 under Sections 5/27/30 Arms Act (State Vs. Ram Prakash Sharma and Lalit) at Police Station Tajganj, District Agra on 13.8.2003 at 11.00 a.m. pursuant to the written report made by informant Lochan Singh S/o Genda Lal R/o Khera Pachgai, Police Station Tajganj, District Agra against four accused persons Ranvir son of Atar Singh, Vimal son of Ranvir Singh, Lalit S/o Ranvir Singh and Ram Prakash S/o Atar Singh, all residents of same village as the first informant within police station Tajganj. Allegations were made in the written report that house of informant's brother Shyam Singh is situated opposite to the house of Ranvir where a government hand-pump has been installed, which hand-pump had been used for drinking water for animals by informant's nephew's Jagvir and Bhupendra Singh and public at large also used to take water from this hand-pump, which was objected to by the sons of Ranvir, Vimal and Lalit. Today on 13.8.2003 at about 10.00 a.m. informant's nephew Bhupendra Singh and Jagvir along with informant's niece Manju took their buffaloes to drink water from this hand-pump when Ranvir and his sons Vimal and Lalit objected to the same and threatened to kill. When resisted, all the aforesaid three persons indulged in brick-batting on the informant side, on alarm being raised, co-villagers Vijay Singh S/o Nihal Singh and Gyan Singh S/o Balmant Singh arrived on the spot. Bhupendra Singh sustained injuries on his head. In the meanwhile, Lalit son of Ranvir Singh took out gun of his uncle Ram Prakash Sharma S/o Atar Singh. Ranvir and Vimal exhorted for assault to Lalit S/o Ranvir Singh, who opened fire from the gun, which fire hit informant's niece Manju Devi on lower right side of her stomach through and through. Manju Devi fell on the ground. She was taken to the hospital by the villagers and family members of the informant's side. Various persons witnessed the incident. It was requested that appropriate action be taken after lodging of the FIR. Written report is Exhibit Ka-1.

Entry of written report was taken down in the concerned Check FIR by Constable Chandra Bhan Singh P.W.5 at case crime umbers 211 of 2003, under Sections 307, 323, 336, 504, 506 IPC and at Case Crime No.-212 of 2003, under Sections 5/27/30 Arms Act (Ram Prakash and Lalit) at 11.00 A.M. on 13.8.2003 at Police Station Tajganj, Agra, which Check FIR is Exhibit Ka-2 and two General Diary entries were made at Serial Nos. 25 and 31 in respect of aforesaid two case crime numbers (Case Crime Nos.211 of 2003 and 212 of 2003), whereby cases were registered against the aforesaid accused persons. The relevant GD entries are Exhibit Ka-3 and Ka-4, respectively.

This Constable (P.W.-5) has further proved addition of Section 302 IPC in the aforesaid Case Crime No.211 of 2003 after receipt of a memo from S.N. Medical College at 4.00 P.M. on 13.8.2003 itself informing about death of Manju Devi.

After registration of cases, investigation ensued and the same was prompted by Dileep Kumar Mittal, the Investigating Officer, P.W.7, who recorded statement of Manju Devi and informant Lochan Singh immediately at the police station itself and the statement of the then injured Manju Devi so taken has been proved as Exhibit-1. Thereafter injured Manju Devi, Jagvir and Bhupendra Singh were medically examined at S.N. Medical College, Agra on 13.8.2003. Manju Devi was medically examined at 11.55 hours at the aforesaid Hospital by Dr. N.N. Gupta PW-12, wherein following injuries were noted on her person (as she was then alive):-

(1) Lacerated wound of 2 cm x 1.5 cm x not probed on the iliac region, margins everted. No charring present. Bleeding present. No charring or tattooing present. Advised X-ray.

(2) Lacerated wound of 1 cm x 1 cm not proved on the buttock in middle, margins everted. No charring present. Bleeding present. Advised X-ray. General condition of patient was under shock. Patient admitted. Surgeon was informed.

This report has been proved as Exhibit Ka-21.

The very same day injured Bhupendra Singh was also examined at 12.00 noon by the same doctor at the aforesaid Hospital, wherein following injuries was found on his person:-

(1) Lacerated wound of 2.5 cm x 0.3 cm x scalp deep on left side parietal area 4 cm above the left ear bleeding present. Patient was drowsing. Stitched were applied in the head injury. Advised X-ray and CT-Scan given. Injury was stated to be fresh to be kept under observation.

This injury report has been proved as Exhibit Ka-22. Besides, the doctor witness PW-12 has also proved bed-head-ticket of Manju Devi and Bhupendra Singh as Exhibits Ka-24 and Ka-23, respectively.

Similarly, Dr. R.K. Yadav P.W.-8 medically examined another injured Jagvir on 13.8.2003 at District Hospital, Agra at 5.45 P.M., wherein he noted three injuries on his persons:-

(1) Traumatic swelling 3 cm x 3 cm on the lower region of right thump.

(2) Contused traumatic swelling 4 cm x 4 cm lower side of right and left knee.

(3) Traumatic swelling 4 cm x 4 cm on right ankle joint.

Injuries were stated to be simple and fresh and caused by some blunt object. This injury report has been proved as Exhibit Ka-18.

While the Investigating Officer Dileep Kumar Mittal PW-7 received information of death of Manju Devi vide GD No.31 at 4:00 p.m. on 13.8.2003 itself Section 302 IPC was added in the aforesaid Case Crime No.211 of 2003, which GD entry is Exhibit Ka-4. As a sequel to it, inquest was held at the aforesaid hospital/mortuary under his supervision. Preparation of inquest commenced at 5 p.m. on 13.8.2003 and it was completed at 6:00 p.m. This inquest report is Exhibit Ka-10.

In the opinion of inquest witnesses and the Investigating Officer, it was opined to send the dead body for postmortem examination for ascertaining exact cause of death. In the process relevant, papers such as Exhibits Ka-11 to Ka-14 were prepared.

The postmortem examination on the dead body of Manju Devi was conducted by Dr. N.K. Basantani on 14.8.2003 at 2.30 p.m. who noted the following ante-mortem injuries on the dead body of Manju Devi.

(1) Firearm wound of entry present in right iliac fossa in inguinal region 1.5. cm x 1.5 cm x through wound on buttock inverted edges are seen.

(2) Firearm wound of exit 1.5 cm x 1.00 cm present on right buttock communicating to wound no.1 by probing. Margins of wound are lacerated.

(3) Surgical wound of - present in right centripetal fossa and inner side of right ankle underlying right iliac bone fractured, bigger vessels of right pelvis and muscles lacerated.

This postmortem report prepared by Dr. Basantani was proved by Pharmacist B.B. Sharma PW-9 as Exhibit Ka-19. He has also brought on record for perusal of court carbon copy of this postmortem examination report prepared by Dr. N.K. Basantani as Exhibit 19-A. Reason for probing aforesaid postmortem examination report (Exhibit ka-19) conducted by Dr. N.K. Basantani was stated to be fact that Dr. N.K. Basantani in the meanwhile died.

Record further beacons that during the course of investigation, various other steps were taken by the Investigating Officer for completing the investigation and in the process, site plan of occurrence was also prepared, which is Exhibit Ka-8. Statement of various prosecution witnesses were recorded by the Investigating Officer. He also collected blood stained and simple clay-roll from the spot including one empty cartridge made memo of the same, which is Exhibit Ka-9. Vide order of the Chief Judicial Magistrate, Agra dated 1.9.2003, DBBL gun, which was allegedly used in commission of the crime was taken into possession by the Investigating Officer. He kept the same under seal and made memo whereof which is Exhibit Ka-15. The Investigating Officer also collected receipt and register kept and maintained by gun shop owner Ram Naresh Katara PW-6 and has proved photocopy of register and concerned receipt as Exhibit Ka-5 to Ka-7, respectively.

After completing investigation, the investigating officer (P.W.-7) filed charge sheet under Case Crime No.211 of 2003, under Sections 302, 307, 336, 323, 504, 506 IPC against accused Ranvir, Vimal and Lalit, which has been proved as Exhibit ka-16. Charge-sheet against accused Ram Prakash Sharma and Lalit at Case Crime No. 212 of 2003 under Sections 5/27/30 Arms Act was also filed which is Exhibit Ka-17. Record further reflects that investigation of the case pertaining to Section 201 IPC under Case Crime No.211 of 2003 was completed by the Investigating Officer Musai Prasad PW-11 and he filed charge-sheet only in respect of Section 201 IPC against accused Ram Prakash Sharma and he has proved this charge-sheet as Exhibit Ka-20.

Thereafter this case was committed to the court of Session for conduction of trial from where it was ultimately received for trial and disposal by the Additional Sessions Judge, court no.1, Agra and a number of Sessions Trials pertaining to the Case Crime No.211 of 2003 and 212 of 2003 as aforesaid were consolidated and tried together and were disposed of by one common judgment.

Learned trial court after hearing the accused persons on point of charge found prima facie ground for framing charges against the accused under Sections 323, 307, 302 and 336 IPC against accused Lalit and charges against accused Ranvir and Vijay were framed under Sections 323/34, 504, 506, 307, 302/34 and 336 IPC. Further Ram Prakash Sharma was charged under Section 201 IPC.

Similarly accused Lalit and Ram Prakash Sharma both were charged under Sections 5/27/30 Arms Act. Charges were read over and explained to the accused persons, who abjured the charges and opted for trial.

In the process, the prosecution was required to adduce all its testimony, whereupon prosecution produced in all 12 witness. A brief reference of the same is ut infra:-

Lochan Singh PW-1 is the first informant and the eye-witness of the occurrence. He has proved first information report Exhibit Ka-1.

Vijay Singh PW-2 is also an eye-witness of the occurrence. He has described the incident.

Bhupendra Singh PW-3 is the injured eye-witness.

Jagvir Singh PW-4 is also an injured eye-witness.

Constable Chandra Bhan Singh PW-5 has proved various entries made in the Check FIR and the concerned GD entry and has proved the process and relevant papers Exhibit ka-2, Ka-3 and ka-4, respectively.

Ram Naresh Katara PW-6 owns and runs gun shop in locality Duli, police station Uttar, Firozabad and has proved fact that Ram Prakash Sharma deposited .12 bore gun numbered as 26568 of 2000 at 9.00 p.m. for which a receipt number 50 dated 13.8.2003 was issued and this DBBL gun was taken back on 27.8.2003 at 10.00 a.m. As per his testimony, the gun was repaired/changed and its firing pin and ejector were changed. The relevant entry in the relevant register and the receipt have been proved as Exhibits Ka-5 and Ka-6, respectively. Besides, he has also proved his notary affidavit prepared at Collecterate, Agra dated 2.9.2003 as Exhibit Ka-7.

Dileep Kumar Mittal PW-7 is the Investigating Officer. He has detailed the entire investigation conducted by him in this case right from the beginning when the case was registered against the accused persons at Case Crime No.211 of 2003 under Sections 307, 323, 336, 504, 506 IPC and at Case Crime No.212/2003, under Sections 5/27/30 Arms Act. He also recorded statement of various persons and held inquest of deceased Manju Devi, besides doing other necessary work. He prepared site plan and has proved the same. He took custody of the DBBL .12 Bore gun by order of Chief Judicial Magistrate and made the memo of the same and at last he filed charge-sheets against the accused persons, which are Exhibit Ka-16 and Ka-17, respectively. He also proved material Exhibit-1 and material Exhibit-2.

Dr. R.K. Yadav PW-8 has medically examined Jagvir on 13.8.2003 at 5.45 P.M. at District Hospital, Agra and has proved his injury report as Exhibit Ka-18.

B.B. Sharma, Pharmacist, District Hospital, Agra, PW-9 has proved postmortem examination report Exhibit ka-19; which autopsy was infact done by Dr. N.K. Basantani with whom he had worked for several years and this witness claims to have been well acquainted with the hand-writing and signatures of Dr. N. K. Basantani. Besides, this witness has also proved carbon copy of postmortem report as Exhibit Ka-19-A. Udal Singh PW-10 is witness of particular fact that he saw Ram Prakash Sharma carry away his licensed gun on 13.8.2003 around 10.30 a.m. He has not reflected on any other aspect of this case.

Musai Prasad PW-11 is also the Investigating Officer and he was assigned investigation only in respect of offence under Section 201 IPC concerning Case Crime No.211 of 2003 and he has proved process adopted by him in completing investigation and he has filed charge-sheet Exhibit ka-20 against accused Ram Prakash Sharma.

Dr. N.N. Gupta PW-12 has medically examined injured Manju Devi on 13.8.2003 at 11.55 a.m. at S.N. Hospital, Agra and the very same day he examined at 12 noon injured Bhupendra Singh and has proved both injury report as Exhibits Ka-21 and Ka-22, rspectively. Apart from above, this witness also proved Exhibits Ka-23 and ka-24, the bed-head-tickets of Bhupendra Singh and Manju Devi, respectively.

Thereafter evidence for prosecution was closed and the statement of the accused persons was recorded under Section 313 Cr.P.C., wherein they disowned responsibility for committing the offence alleged instead claimed to have been involved in the case on account of enmity and 'partibandi'.

The defence also wished to adduce testimony, therefore, opportunity was afforded, consequently, the defence produced DW-1 Raodas, Assistant Director of Forensic Science Labrotary, Agra. He has deposed about the cartridge and the DBBL gun number 26568/2000 and has detailed the process adopted for testing the tool and in the process, he has proved report Exhibit Kha-1.

Defence has also produced DW-2 Sahab Singh, who is resident of the same village as the accused and the informant. He has been produced to brief about fact that no such incident as alleged ever took place in the village on 13.8.2003.

Thereafter evidence for defence was also closed and the matter was posted for extending arguments pros and cons by the parties. Consequently, the arguments were heard and after consideration of the entire record on its merit, the learned trial Judge returned aforesaid judgment and order of conviction/acquittal, whereby the appellants Ranvir, Lalit and Vimal were acquitted of charges under Sections 307, 504, 506 IPC, instead convicted Ranvir, Vimal and Lalit under Sections 302/34 and 302 IPC and under Sections 323, 336 IPC. By the same judgment accused Ram Prakash Sharma against whom charge under Section 201 IPC and 27/30 Arms Act were framed was acquitted of aforesaid charges. The accused persons Ranvir, Vimal were sentenced to life imprisonment coupled with fine Rs.10,000/- default stipulated additional imprisonment for two years each, likewise accused Lalit was also sentenced with the same sentence under Section 302 IPC. Aforesaid accused persons Ranvir, Vimal and Lalit each were sentenced to six months R.I. and with fine Rs.2000/- each, default stipulated one month additional imprisonment to the concerned convict accused- under Section 323 IPC. Accused Ranvir, Vimal, Lalit each were further sentenced to one month imprisonment under Section 336 IPC. Convict accused Lalit was also convicted under Section 25(1) Arms Act and Section 30 Arms Act and he was sentenced to three years imprisonment coupled with fine Rs.2000/- default prescribed three months additional imprisonment (under Section 25(1) Arms Act) and two years imprisonment (under Section 30 Arms Act).

Consequently, the aforesaid two appeals- against order of conviction- Criminal Appeal No. 914 of 2007 and Criminal Appeal No.176 of 2007- at the instance of three appellants against judgment of conviction, namely, Lalit, Vimal and Ranvir and the aforesaid Government Appeal- 3026 of 2007 against verdict of acquittal against Ram Prakash under Section 201 IPC and 27/30 Arms Act.

We have been vehemently persuaded by Sri A.R. Dubey, learned counsel for the appellants that the accusation has been made without any basis. The informant's side itself has committed murder of Manju Devi and fabricated false injuries on the person of Bhupendra Singh in order to falsely implicate the appellants, because the first informant's side was greedy and avaricious of money of Manju Devi, for the reason that husband of Manju Devi had deserted her (Manju Devi) two years prior to the incident. In this context, evidence on record was completely ignored by the trial court and no proper appreciation as required, was ever done by it. Moreover, testimony of one witness of fact on the whole does not inspire confidence and testimony of one of witnesses of fact is found to be contradictory with testimony further shows testimony of another witness of fact. It can be easily seen that testimony of witnesses of fact is contradicting each other in material particulars. The incident has not been proved beyond reasonable doubt. Testimony on record shows that the first information report is ante time and the same was lodged at the interference of the police personnels.

Learned counsel for the appellants has next contended that injuries caused allegedly by brick-batting, have not been properly proved by the prosecution. The doctor witness who examined Bhuprendra Singh has agreed to the suggestion about nature of causing injuries that were caused on the person of Bhupendra Singh, could have been caused by falling. There was no motive for causing death of Manju Devi nor was it so intended by any of the accused persons. No independent witness from village Khera Pachgai was produced by the prosecution. The Investigating Officer also colluded with the first informant's side and perfunctorily with a view to falsely implicate the appellants, has filed charge-sheets without bringing on record any worthy material against the appellants. There was no previous enmity between the parties. There was no occasion for the appellants ever to think of committing such offence and what to say about commission of such incident.

Learned counsel for the appellants has further contended that assuming it to be that offence was committed by the appellants even then statement of the witnesses as recorded under Section 161 Cr.P.C. at the most prove reasonably that the case is covered under Section 304 IPC Part-I instead of under Section 302 IPC against appellant Lalit only and the case of the other two appellants Vimal and Ranvir though squarely falls under Section 336 IPC but the common intention cannot be imputed against them. Testimony in this regard as given before the trial court is full of embellishment that appellants Vimal and Ranvir exhorted Lalit to fire on the informant's side, whereas, no such statement was given to the Investigating Officer and this aspect of the case stands proved both in the cross-examination of the prosecution witnesses of fact and Investigating Officer Dileep Kumar Mittal PW-7.

Learned counsel for the appellants has next contended that post mortem examination of Manju Devi Ext. Ka-19 has not been properly proved by any doctor so that specific question regarding nature and extent of ante mortem injuries could be asked and ascertained. It was only a pharmacist, B.B. Sharma PW-9 who being acquainted with the handwriting of Dr. N.K. Basantani was introduced to prove fact which, in the absence of special knowledge on the part of this witness, was not proved. Therefore, his testimony is not admissible and overall view of the entire gamut of the incident vis-a-vis attendant circumstances on record would at the most prove case of the prosecution against appellant Lalit under Section 304 Part I IPC and under Sections 27, 30 Arms Act and against appellants Vimal and Ranvir only under Section 336 IPC because there was no occasion for committing planned murder of Manju Devi or any other person. In case it is assumed that the incident took place even then the dispute originated on point of use of hand-pump and its water for animals, which hand-pump was installed adjoining to the house the appellants. The dispute resulted in altercation between the parties. It has come in the testimony of certain prosecution witnesses that when he arrived on the spot, he found both the sides indulge in abusing each other as appearing in examination-in-chief of Vijay Singh PW-2, therefore, sudden fight and provocation can be ascribed as proper reason responsible for overall outcome of the incident. Apart from above there was no any other prior grudge or enmity which contributed towards the crime.

Per contral, learned AGA has refuted arguments on several counts by submitting that the entire prosecution version has been consistently proved. The incident took place in broad day light. Both the parties were acquainted with each other and act of firing was done in furtherance of the common intention. All the accused appellants succeeded in overpowering the first informant's side by perpetrating the offence and one innocent lady was killed in the firing which cannot be doubted on the face of testimony and circumstances of this case.

Learned AGA further contended that post mortem examination report Ext. Ka-19 has been correctly proved by the pharmacist because he was acquainted with the handwriting and signature of Dr. N.K. Basantani who is no more. If the defence wanted to extract any detail in regard to the contents of the post mortem examination report then nothing stopped them from calling any expert doctor who could have explained the contents to their satisfaction. The case of the prosecution is proved to the hilt.

We have considered the aforesaid rival submissions of both the parties.

After considering the allegations including aforesaid submissions, the core consideration that requires adjudication in these present criminal appeals pertains to the fact whether conviction recorded is not sustainable in the eye of law? Likewise whether the finding of acquittal in relation to Ram Prakash Sharma under Section 201 IPC and under Section 27, 30 Arms Act was erroneous and perverse?

At the very outset, we notice that the incident allegedly took place on 13.08.2003 at 10:00 a.m. in village Khera Pachagai, within Police Station Tajganj, District Agra wherein Ranvir, Vimal and Lalit were named accused and case was registered against these accused persons at Case Crime No.211 of 2003 under Sections 307, 323, 336, 504, 506 IPC and on information being received pertaining to death of Manju Devi at 4:00 p.m. at Police Station Tajganj, District Agra, Section 302 IPC was also added, inter-alia, in the aforesaid case crime number.

Record further reveals that the case was registered on the basis of written report at Case Crime No.212 of 2003 under Sections 5/27/30 Arms Act against Ram Prakash Sharma and Lalit which was investigated into and charge-sheets were filed against aforesaid accused persons which charge sheets have been proved as Ext. Ka-16 and Ext. Ka-17 by the Investigating Officer Dileep Kumar Mittal PW-7, whereas, another Investigating Officer Musai Prasad PW-11 was entrusted with exclusive investigation to investigate for offence under Section 201 IPC against the accused Ram Prakash Shama whose licensed DBBL gun 12 bore was allegedly used in commission of offence. He (PW-11) has filed charge sheet against Ram Prakash Sharma which has been proved as Ext. Ka-20.

In the aforesaid particular backdrop of facts, now we may scrutinize testimony of prosecution witnesses of fact regarding the occurrence but before proceeding further with the appraisal of evidence of witnesses of fact, it would be appropriate to take note of fact that specific suggestion has been made by the appellants that the first informant himself committed murder of Manju Devi in order to take/obtain her money because her husband has deserted her and entered into wedlock with another woman. This specific suggestion is not supported either by any evidence or by any material collected by the Investigating Officer during investigation or is reflected from the attendant circumstances. Therefore, killing of Manju Devi by gun shot is virtually admitted to the prosecution and the appellants' claim that this murder was perpetrated/committed by the first informant's side has been rendered unacceptable because of lack of supporting material or evidence. Now it will be seen whether it was act of the appellants or anybody else.

Testimony on record and particularly testimony of the injured Bhupendra Singh PW-3 and Lochan Singh PW-1 first informant- eyewitness of the incident, depicts that he (PW-1) has testified that the incident occurred on 13.08.2003 around 10:00 a.m. At that point of time Lochan Singh, the first informant was standing in the 'Gher' (covered circle in a house in village), whereas, the first informant's nephews Bhupendra and Jagvir accompanied by niece Manju Devi took their bufalloes to the government hand-pump and there made the animals to drink water. Both the houses of Shyam Singh and Ranvir were situated opposite to each other. The hand-pump was installed on 'Kharaja' in front of house of Ranvir. The act of drinking water by animals from this hand-pump was objected to by Vimal and Ranvir to the extent they should not take their animals for drinking water from this hand-pump whereupon objection was specifically resisted by the first informant's side saying that this being government hand-pump, no grievance should be caused to them, because all the persons utilise service of this hand-pump. On this, Ranvir, Vimal and Lalit abused him and started brick-batting which caused injuries to Bhupendra Singh and Jagvir, both nephews of the first informant. When hue and cry was raised, villagers and neighbour Gyan Singh, Vijay Singh, Megh Singh, Vimlesh and many other persons arrived on the spot. In the meanwhile Ranvir asked his son Lalit to bring gun whereupon Lalit swung into action and appeared with DBBL gun of his uncle Ram Prakash Sharma. At the exhortation of Ranvir and Vimal, Lalit fired from this gun with the intention to kill on Bhupendra Singh and Jagvir, which fire missed the target and instead hit the informant's niece Manju Devi who was standing on the Gher. This fire wounded through and through on her lower right side of stomach and informant's nephew Bhupendra Singh suffered lot of injuries, therefore, he was sent to the hospital and the accused Ranvir, Vimal, Lalit and Ram Prakash Sharma fled away from the scene of occurrence carrying away with them the licensed gun.

Thereafter, the injured Manju Devi in company with the first informant and others was taken to the police station and report was lodged at the police station where the Investigating Officer recorded statement of Manju Devi when she was conscious at that point of time. Thereafter she was sent to the hospital for treatment where she succumbed to her injuries after a little short while- the very same day in the afternoon.

Similar is statement of the another eyewitness of fact namely Vijay Singh PW-2 who happens to be living in the neighbourhood of the first informant and he arrived on the spot after hearing noise. He states to have witnessed the entire occurrence. He claims that at that point of time when he arrived on the spot, Ranvir, Vimal and Lalit were indulged in abusing Lochan Singh, Manju Devi, Bhupendra Singh and Jagvir and this altercation was occasioned only on the point of use of water from the Government hand-pump. This witness also interceded and tried to pacify the appellants but they remained adamant and started brick-batting which caused injuries to Bhupendra Singh and Jagvir and at last firing was done by Lalit which resulted into death of the deceased Manju Devi.

Similar is position of the injured witness PW-3 Bhupendra Singh who has deposed that firing caused by Lalit was intended to kill him, but fire missed the target, hit Manju Devi due to which Manju Devi sustained injury on her person and died in the hospital during course of treatment.

Jagvir PW-4 who is also injured witness and nephew of the first informant has also deposed move or less on similar line as PW-3. No doubt, the witnesses of fact have been vacillating on certain minor description of the incident but in so far as manner and style of incident is concerned, nothing disconcerting appears in their testimony which may may cast any doubt on commission of the offence by the appellants.

Only consideration that remains to be worked out at our end is confined to the contention raised that the offence committed cannot be said to be an offence committed in furtherance of the common intention of all the accused-persons. We are conscious of the fact that under Section 34 IPC, liability is joint and vicarious for the act of one person the other members of the group who shared the common intention shall also be held responsible.

Section 34 IPC prescribes that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done him alone. Here sharing the common intention becomes gist and essence of imputation of common intention. In legal parlance, the common intention means pre-oriented plan acting in concert pursuant to the plan. Thus it means existence of prior concert before or at the time of the commission of the act or offence as the case may be and it may develop even on the spot itself.

It is for the prosecution to prove under current of such flow of intention and it can be gathered from facts and circumstances of the case that the accused shared common intention to commit a particular crime. It is not necessary that each one of the group should be assigned any overt act but his presence on the spot along with others, in the absence of anything contrary to the context, shall ordinarily be construed and placed within ambit of his sharing the common intention which fact alone is enough for bringing the accused in the same position as principal offender.

Here we come across testimony of the first informant PW-1 who was present on the spot and he has been confronted by several queries raised by the defence. Some trifle inconsistency appears in his testimony regarding statement recorded by the Investigating Officer under Section 161 Cr.P.C. and his testimony before the trial court and this inconsistency emerges on point of exhortation given by the two other accused persons namely Ranvir and Vimal to Lalit for firing on the informant side.

Admittedly, the firing was done on the spot by Lalit but this way, we have every reason to believe that in absence of any such specific statement under Section 161 Cr.P.C., reasonable conclusion can be drawn based on specific fact that there was no previous enmity whatever of such magnitude which may allude to making any well-thought out plan to commit murder of any person of the informant's side. Instead circumstances and facts of this case reflect innocuously that killing of Manju Devi was outcome of sudden altercation and consequent aggravation of the dispute wherein vituperation was followed by brick-batting which caused hurt on the informant's side. In the meanwhile, the third accused person Lalit brought 12 bore DBBL licensed gun of his uncle Ram Prakash Sharma and opened fire. If act of exhortation was there then the first informant who witnessed the incident must have stated about this particular fact to the Investigating Officer that exhortation was given by the two accused persons namely Ranvir and Vimal to open fire on the informant side.

We are conscious of the fact that fire shot on the spot missed the target and instead hit the deceased Manju Devi and the seat of injury on the face proves that the injury was not considered fatal by the informant's side and the wound was tried to be stuffed with cloth and the injured Manju Devi remained conscious and was taken to the Police Station Tajganj. The incident took place around 10:00 a.m. and the first information report was lodged only at 11:00 a.m. The distance between the place of occurrence and the police station was stated to be 7 kilometers.

After lodging of the first information report at 11:00 a.m. on 13.08.2003, statement of injured Manju Devi was recorded by the Investigating Officer. Thereafter Manju Devi was taken to the hospital where she was medically examined by the doctor and then only she was admitted in the hospital. Her medical examination report is Ext. Ka-21 and the same has been proved by Dr. N.N. Gupta PW-12. Had her condition been precarious and serious, she would have been taken to the hospital immediately after the occurrence. But that emergency, it appears, neither arose nor felt by the informant side.

Perusal of her injury report shows that medical examination was done at 11:55 a.m. on 13.08.2003. It is beyond our comprehension as to how and why the first informant side was not interested in availing early medical facility instead the informant side was interested more in lodging of the first information report and only then availed medical facility. Though negligence on this point of the informant side does not help the defence but we are aware of the fact that Manju Devi remained conscious and in her senses till her medical examination at 11:55 a.m. It means that after the incident took place, she was fully conscious for about two hours and then only she died around 2:00 p.m. during course of treatment and cause of death has been shown to be shock and haemorrhage as a result of ante mortem injuries. All these factors acted and were responsible for further deteriorating physical condition of the victim.

It is noticeable that Dr. N.K. Basantani who conducted autopsy on the cadaver of the deceased Manju Devi could not be produced before the trial court because of his demise but the prosecution instead of producing any doctor for proving nature and ambit of ante mortem injuries noted in the post mortem examination report Ext. Ka-19, thought it proper to produce only a pharmacist - B.B. Sharma PW-9. - For reasons best known to it.

A careful perusal of testimony of PW-9 shows that the prosecution was so negligent that it did not care to take notice of fact that even ante mortem injuries noted in the post mortem examination report Ext. Ka-19 has not been described in examination-in-chief of this witness. This is height of negligence. The wholesome effect of the prosecution story, cumulatively with attendant circumstances, make out a case of sudden altercation followed by perpetration of the crime/offence by the accused side and there appears no coherent testimony on this particular aspect that all the accused persons shared the common intention to commit crime of murder. The appellant Lalit only filed from licensed DBBL gun of his uncle. Here, under prevailing circumstances of this case, accused Lalit alone will be responsible for his act of firing because the other two accused persons Ranvir and Vimal restricted their act to brick-batting only as their reaction was focused and their object was not to kill any body but to deter the informant side from utilizing/availing facility of drinking water for cattle from the hand-pump.

In that perspective, we may consider injury report of the injured Bhupendra Singh Ext. Ka-22 proved by Dr. N.N. Gupta who medically examined him at 12:00 noon on 13.08.2003 at S.N. Medical College, Agra wherein one lacerated wound 2.5 cm x 0.3 cm x scalp deep on left side parietal 4 cm above ear, bleeding present was noted. Patient was drowsing. X-ray was advised. Injury kept under observation. But no supplementary report was brought on record which may establish fact that injury on head of Bhupendra Singh was either fatal or sufficient enough in ordinary course of nature to cause death. In absence of any such supplementary report of the injured Bhupendra Singh, we may conclude that nature of injury does not travel beyond periphery and limit as contemplated under Section 336 IPC.

Our above discussion takes us to the conclusion that the incident in fact was outcome of sudden provocation and the cause of dispute was also sudden when informant's side took their buffaloes to the government hand-pump installed adjoining to the house of Ranvir and made their animals to drink water, which was resented to by the accused side. There was hardly any moment left for deliberation or pre-concert for the accused side and each member of the accused side may responsibly be imputed with objective to stop animals from drinking water from the hand-pump. In such conspicuous prevailing circumstance and scenario, the person present on the spot is found to be reacting according to his own physical and mental capacity and he will not be expected to act in unison with intention of another accused.

After considering the entire facts and circumstances of the case, and its cumulative effect and considering manner and style of occurrence, we are of the view that contention raised by learned counsel for the appellants to the ambit that case of the two accused Ranvir and Vimal does not travel beyond purview of Sections 323, 336 IPC and the case of third accused Lalit falls squarely under Section 304 Part-I IPC carries force and is accorded approval by us.

Therefore, act of accused Lalit falls squarely under Section 304 Part-I IPC, therefore, he is convicted under Section 304 Part-I IPC instead of Section 302 IPC and his conviction recorded by the trial court under Sections 25 (1) and 30 Arms Act and other Sections of IPC (under 323 and 336 IPC) is justified. Consequently, we modify conviction of accused Lalit from Section 302 IPC to one under Section 304 Part I IPC and the other two accused persons Ranvir and Vimal along with accused Lalit are responsible for causing hurt to the informant side by brick-batting and their case is covered under Sections 323, 336 IPC and no liability can be fastened on the other two accused for offence with imputation of sharing common intention under Sections 302/34 IPC, they are acquitted of charge under Sections 302/34 IPC.

Accordingly, the present criminal appeal nos.914 of 2007 and 176 of 2007 are allowed partly in terms aforesaid.

The appellant Lalit has served more than approximately 13 years in jail in this case. Therefore, he is sentenced to the period already undergone by him coupled with fine Rs.10,000/-, in default of payment of fine, he will have to suffer additional rigorous imprisonment for one year under Section 304 Part-I IPC, whereas, his conviction is maintained under aforesaid Sections of IPC (323, 336) and Arms Act (25 (1) and 30). If he has not deposited the amount of fine, he shall be released only after deposition of aforesaid fine or suffer sentence prescribed therefor.

Two co-accused Ranvir and Vimal each has been sentenced to under Sections 323, 336 IPC to six months and one month imprisonment coupled with fine Rs.200/- and they have already served more than three years period in incarceration, therefore, sentences imposed under Sections 323, 336 IPC is deemed to have been suffered by them except the amount of fine, if not already deposited, the same may be deposited by them as per mandate of the trial court. In case the amount of fine is not deposited by them, they will have to suffer additional imprisonment as prescribed by the trial court. But the entire period suffered by them is fair enough to include the period of Additional imprisonment prescribed in the event of default In the wake of our discussion on the point of occurrence and particularly on point of acquittal of accused-respondent Ram Prakash Sharma in the connected Government Appeal, it has been urged that finding of acquittal is perverse and erroneous and the same is outcome of misreading of evidence on record by the trial court. But we have carefully gone through the record and particularly report of forensic science laboratory Ext. Kha-1 which proves that after test was conducted from DBBL 12 bore licensed gun, it was not established that any firing was done by it as claimed by the prosecution then charge against the accused-respondent Ram Prakash Sharma squarely falls to the ground.

In this context, testimony of Sri Raodas DW-1 who was at that point of time when his testimony was recorded, was Assistant Director, in Forensic Science Laboratory, Agra, assumes vital importance and the same cannot be done away with merely on the asking. Can it be said that the trial court acquitted accused Ram Prakash Sharma without any material or base, we on the contrary hold that base of acquittal stands on solid rock and it is cardinal principle of criminal jurisprudence that in case finding of acquittal is grounded on material on record, the same cannot be interfered with by the higher Court. Consequently, the Government Appeal fails and the same is dismissed.

All the appellants shall comply with provisions of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt. 24.10.2016 Rk/rkg

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