Madhya Pradesh High Court
Surendra Singh vs The State Of M.P. on 26 June, 2018
1 Cr.A. Nos.55/2005 & 78/2005
THE HIGH COURT OF MADHYA PRADESH
Division Bench
Justice Sanjay Yadav
&
Justice Ashok Kumar Joshi
Criminal Appeal No.55/2005
Lohre Ram S/o Horal Singh and 15
others. Appellants
Versus
State of M.P. through Police Station
Badarwas, District Shivpuri (M.P.).
Respondent
------------------------------------------------------------
AND
Criminal Appeal No.78/2005
Surendra Singh S/o Lohre Ram,
aged about 39 years, occupation
private service, Salesman Marketing
Society, Badarwas, District Shivpuri Appellant
(M.P.).
Versus
State of M.P. through Police Station
Badarwas, District Shivpuri (M.P.).
Respondent
-------------------------------------------------------------
Shri R.K. Sharma, learned senior counsel with Shri V.K.
Agrawal, learned counsel for appellants in Cr.A.
No.55/2015.
Shri Atul Gupta, learned counsel for appellant in Cr.A.
No.78/2005.
Shri B.P.S. Chauhan, learned Public Prosecutor for the
respondent/State.
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2 Cr.A. Nos.55/2005 & 78/2005
JUDGMENT
(Pronounced on 26th June, 2018) Per Justice Ashok Kumar Joshi:
By this judgment being passed in Cr.A. No.55/2005, another pending Cr.A. No.78/2005 is also being decided as each of these appeals has been filed under Section 374 of the Cr.P.C. by relating appellants against the impugned judgment dated 07.01.2005 passed by Third Additional Sessions Judge, Shivpuri in S.T. No.40/2004. By the impugned judgment, appellant Surendra Singh of Cr.A. No.78/2005 has been convicted and sentenced under Section 302 of the IPC to life imprisonment with a fine of Rs.3,000/- with default stipulation, Section 148 of the IPC to undergo three year's RI with a fine of Rs.2,000/- with default stipulation and Section 25(1-B)(a) of the Arms Act to undergo one year's RI with a fine of Rs.1,000/- with default stipulation and Section 27(1) of the Arms Act to undergo three years' RI with a fine of Rs. 3,000/- with default stipulation and by the same judgment, each of the 16 appellants of Cr.A. No.55/2005 has been convicted and sentenced under Section 147 of the IPC to undergo one year's RI with a fine of Rs.1,000/- with default stipulation and Section 323/149 of IPC to undergo one year's RI with a fine of Rs.500/- with default constipation. By the impugned judgment, it is also directed that all the substantive jail sentences of each appellant to run concurrently.
2. Undisputedly, appellant Surendra Singh is son of appellant Lohre Ram and appellant Nepal Singh is real brother of appellant Surendra Singh and appellant 3 Cr.A. Nos.55/2005 & 78/2005 Sitaram and Veera @ Virendra Singh are real brothers of appellant Lohre Ram.
3. Prosecution story, in brief, is that on the date of incident 31st August, 2003 at evening in village Rijoudi, a verbal altercation occurred between Brijendra Singh (since deceased) and appellant Surendra Singh regarding fixing of fencing. On the same issue, at same evening at about 7:00 pm, when complainant Puran Singh (PW-3) was seated in front the house of Brijendra Singh, then appellant Surendra Singh having a country made pistol and each of 16 appellants of Cr.A. No.55/2005 having a separate stick (Lathi) came together there and appellant Surendra Singh told Brijendra Singh why he established fencing in his land and thereafter all 16 appellants of Cr.A. No.55/2005 started beating of Brijendra Singh by their sticks (Lathis) with intention to kill him, which caused blunt injuries on the body of Brijendra Singh. Thereafter, appellant Surendra Singh took out his country made pistol and for killing Brijendra Singh shot a fire by his pistol and that caused injury over left side of chest of Brijendra Singh and Brijendra Singh immediately fell down and died on the spot. The incident was also witnessed by Ramkumar (PW-1), Bundel Singh (PW-2), Narendra Singh (PW-4) and Ramwati (PW-5), who were present on the scene of occurrence. Thereafter, complainant Puran Singh, Bundel Singh and Narendra Singh brought dead body of Brijendra Singh by a tractor-trolley and reached to Police Station Badarwas, where on the date of incident at 21:15 pm, complainant Puran Singh (PW-3) lodged FIR (Ex.P-1), 4 Cr.A. Nos.55/2005 & 78/2005 which was scribed by SHO Awaneet Sharma (PW-16) and Crime No.165/2003 was registered.
4. On next day i.e. 01.02.2003 Awaneet Sharma after issuing safina form (Ex.P-4) in presence of panch witnesses prepared inquest memo (Ex.P-5), after inspecting the dead body of Brijendra Singh and thereafter sent it to Badarwas Hospital for post- mortem, where Dr. M.P. Jain (PW-9) on 01.09.2003 at about 8:00 pm started post-mortem and recorded his post-mortem report (Ex.P-7). Dr. M.P. Jain sealed clothes found on dead body in a packet and sent it to relating police station. On. 01.09.2003, Awaneet Sharma (PW-16) at 9:30 at the instance of complainant Puran Singh, prepared spot map (Ex.P-2) and just thereafter seized blood stained soil and separately plain soil vide seizure memo (Ex.P-6). During investigation, appellant Surendra Singh was arrested on 13.10.2003 and on appellant Surendra Singh's disclosure statement (memorandum prepared under Section 27 of the Evidence Act, Ex.P-22) and on same day, on production of a country made 12 bore pistol by appellant Surendra Singh from his house, which was kept in a box, it was seized by ASI T.S. Palera vide seizure memo (Ex.P-23). During investigation appellants of Cr.A. 55/2005 were also arrested and on the basis of disclosure statements of some of the appellants, a separate stick (Lathi) was seized from each appellant of Cr.A. No.55/2005. For prosecution of appellant Surendra Singh in relation to offences punishable under the Arms Act, District Magistrate, Shivpuri's prosecution sanction order 5 Cr.A. Nos.55/2005 & 78/2005 (Ex.P-45) dated 17.11.2003 was obtained. The sealed articles of the relating crime were sent to FSL Sagar for examination, wherefrom report (Ex.P-47) regarding blood stained and plain soil and clothes of deceased and another report Ex.P-48 relating to seized country made pistol were received later on.
5. After completing the formalities of investigation, charge-sheet was filed before the JMFC, Kolaras, District Shivpuri, who committed the arisen criminal case to the Sessions Judge Shivpuri and Sessions Judge Shivpuri transferred relating sessions trial to above-mentioned trial Court.
6. Each appellant of both the appeals denied the above-mentioned charges framed against him by the trial Court. Sixteen prosecution witnesses were examined. It was the defence of each appellant of both appeals before the trial Court that they have been falsely implicated. It would be significant to mention here that appellant Surendra Singh did not raise plea of alibi in his examination under Section 313 of the Cr.P.C. conducted by the trial Court but on this point Manager, Marketing Society Kolaras, Haricharan Lodhi as DW-3 was examined and Dasrath Singh (DW-1) and Parmal Singh Parihar (DW-2) were also examined on other points and appellant Veera @ Virendra Singh examined himself before the trial Court as DW-4 on oath regarding his heart ailment. The trial Court after hearing, in the impugned judgment recorded its finding that it was not proved that the common object of unlawful assembly of total 17 accused persons was to kill Brijendra Singh but the common object of 6 Cr.A. Nos.55/2005 & 78/2005 unlawful assembly was to cause injuries to Brijendra Singh. Hence, the trial Court acquitted each appellants of Cr.A. No.55/2005 from the charges under Section 302/149 of the IPC and each of these 16 appellants were also acquitted from the charge under Section 148 of IPC, but each appellant of Cr.A. No.55/2005 was convicted and sentenced under Section 147 and 323/149 of IPC as aforesaid and appellant Surendra Singh was convicted and sentenced for all the charged offences as aforesaid.
7. Appearing learned senior counsel for the appellants contended that though alleged incident occurred in residential area of village Rijoudi in the evening but only interested prosecution witnesses were examined as Ramwati (PW-5) was a keep of deceased Brijendra Singh and no independent eye- witness of relating village was examined. It is further argued that from evidence of Haricharan Lodhi (DW-3) Manager of Marketing Society, Kolaras, it was proved that appellant Surendra Singh of Cr.A. No.78/2005 was present on the date of incident in night at 8:00 pm at Fair Price Shop of relating Marketing Society, but the trial Court erred in disbelieving on evidence of Haricharan Lodhi (DW-3). It was also contended that scene of occurrence is doubtful, as according to FIR, incident was occurred in front the house of deceased Brijendra Singh but in spot map the public way or path has been shown as spot of the incident. It is also argued that each appellants of Cr.A. No.55/2005, who are total 16 in number, caused injuries to Brijendra Singh by their separate sticks but only 11 injuries 7 Cr.A. Nos.55/2005 & 78/2005 caused by hard and blunt object were found on the dead body and Dr. M.P. Jain (PW-9), who conducted the autopsy admitted the suggestion given by defence counsel that these 11 contusions might be caused after death of the deceased. Hence, it is argued that there is material contradictions between ocular evidence given by prosecution's eye-witnesses and medical evidence. Hence, it is prayed that both the appeals filed by different appellants be allowed and each appellants be acquitted from the relating offences. It is alternatively argued that all the 16 appellants of Cr.A. No.55/2005 were first offenders but the trial Court erred in not providing them benefit of Probation of Offenders Act.
8. Appearing Public Prosecutor on behalf of respondent/State has supported the impugned judgment and contended that it is well established that a plea of alibi should be raised by the relating accused from beginning of the case and appellant Surendra Singh even did not raise plea of alibi before the trial Court under his examination conducted by the trial Court under Section 313 of the Cr.P.C. and actually there were no material contradiction in evidence of examined eye-witnesses before the trial Court and trial Court has properly and legally analyzed and appreciated evidence available on record. Therefore, dismissal of both the appeals filed on behalf of different appellants is prayed.
9. It is clear from evidence of Dr. M.P. Jain (PW-9) and his post-mortem report (Ex.P-7a) that on 01.03.2003 at Primary Health Centrre, Badarwas at 8 Cr.A. Nos.55/2005 & 78/2005 8:00 pm at the time of starting of autopsy of dead body of Brijendra Singh aged about 40 years, he found rigor mortis was present and following external injuries were found on the dead body:-
(i) Gun shot wound on left side of the chest just lateral to left nipple, size 5X5 cm X chest deep whose edges were inverted and on dissection of the dead body it was found that beneath this wound fifth rib was fractured on left side and left lung was having multiple lacerated wounds and heart was also punctured and fourth thoracic vertebra and vertebral column were fractured and pallets were found in lungs and plastic wad was also present in lung and 18 pallets were taken out from left lung and two pallets were taken out from heart and 17 pallets were taken out from vertebral column and therefore in total 37 pallets were taken out from dead body.
(ii) Contusion on left thigh size 2X2 cm.
(iii) Contusion on right thigh of posterior side size 2X2 cm.
(iv) Contusion size 2X2 cm over upper 1/3rd portion of right leg.
(v) Contusion size 2X2 cm on lower 1/3 rd of left leg on posterior side.
(vi) Contusion 2X2 cm on upper 1/3rd posterior side of upper 1/3rd part of left leg.
(vii) Contusion size 2X2 cm on outer side of 1/3 rd portion of left leg.
(viii) Contusion size 2X2 cm behind right scapula.
9 Cr.A. Nos.55/2005 & 78/2005(ix) Contusion size 1X1 on left iliac region of abdomen.
(x)Contusion size 2X2 cm on right arm.
(xi)Contusion size 2X2 cm on right hand.
(xii)Contusion size 2X2 cm on posterior side of left hand.
10. Dr. M.P. Jain (PW-9) also deposed that on dissection of dead body, it was found that blood was filled in thoracic cavity and left lung was ruptured and in total 37 pallets with plastic wad were taken out from the dead body, were sealed in a packet and underwear and shirt found on the dead body were also sealed in a packet and sent to relating police station. Dr. Jain opined that the death of the deceased occurred due to arisen syncope and anemia because of firearm injury over vital organs and death occurred within 18 hours from starting of the post-mortem and nature of the death was homicidal.
11. In cross-examination, Dr. M.P. Jain (PW-9) opined that gun shot might have been fired from the relating firearm within a distance of 4 feet from the victim, but all the contusion injuries were of simple nature and as contusion injuries were on back portion of relating organs, it might be possible that these contusion injuries could be caused when body of the deceased was lying on earth having face towards the earth and deceased might have been died just after receiving firearms injuries and in total 11 other contusion injuries might be caused after death of the deceased.
12. Much emphasis has been given by the learned senior counsel on above-mentioned opinion given by 10 Cr.A. Nos.55/2005 & 78/2005 Dr. M.P. Jain that contusion injuries found on dead body might be caused after death of the deceased. But it is to be remembered that such opinion given by the doctor is only an opinion evidence because autopsy surgeon is not an eye-witness and according to the prosecution story, firearms' injuries and these contusion injuries were caused in single incident or transaction and according to prosecution's case as mentioned in FIR, firstly stick blows were given to Brijendra Singh on spot by 16 appellants of Cr.A. No.55/2005 and thereafter country made pistol was taken out by appellant Surendra Singh of Cr.A. No.78/2005 and a shot was fired by that firearm over Brijendra Singh.
13. Much emphasis has been given by the learned senior counsel on the fact that all the contusion injuries were total 11 in number whereas alleged eye- witnesses of prosecution gave evidence that each appellant of Cr.A. No.55/2005 gave stick blows to Brijendra Singh. It is significant to mention here that it is well established that when constitution of unlawful assembly having five or more persons is found proved and their common object is found proved, then overt act of each member of assembly is not necessary to be specifically proved. Hence, above-mentioned arguments relating to numbers of contusion injuries though appear attractive, but it is having no substance.
14. Complainant Puran Singh (PW-3) and brothers of the deceased Ramkumar (PW-1), Narendra (PW-4), Bundel Singh (PW-2) and Ramwati (PW-5) deposed 11 Cr.A. Nos.55/2005 & 78/2005 before the trial Court as eye-witnesses. It would be significant to mention here that complainant Puran Singh (PW-3), Ramkumar (PW-1) and Narendra (PW-
4) deposed that in total 17 accused persons/present appellants were involved in committing the relating crime, whereas Bundel Singh (PW-2) did not disclose names of 4 appellants Nepal Singh, Brijbhan Singh, Krishnbhan Singh and Jagbhan Singh, but has disclosed names of remaining appellants but it appears from evidence of Bundel Singh (PW-2) that he is not a resident of village Rijoudi but he is a resident of village Baroud, which is according to his evidence was about 6 to 7 km away from village Rijoudi and Bundel Singh deposed that at the time of incident at 7:00 pm he was seated at the house of Narendra Singh (PW-4). Bundel Singh deposed in his cross-examination that deceased was his maternal uncle (Mama), similarly Ramwati (PW-5) disclosed names of accused persons Surendra Singh, Veera @ Virendra Singh, Nepal Singh, Lohre Ram, but she clearly deposed in her evidence that total accused persons were in total 16 to 17 gave beating to Brijendra Singh. She clearly deposed before the trial Court that all the accused persons, who were present in Court at the time of recording of her evidence were giving beating to Brijendra Singh and thereafter Surendra Singh fired a shot form his pistol, then Brijendra Singh died.
15. Much emphasis has been given by learned senior counsel for the appellants that no independent eye- witness has been examined by the prosecution as it was suggested to Ramwati (PW-5) that she was a keep 12 Cr.A. Nos.55/2005 & 78/2005 of deceased Brijendra Singh, but Ramwati has clearly denied the above-mentioned suggestion given to her by defence counsel during her cross-examination and she has deposed that at the time of incident she had gone to the house of Komal Singh for taking wages in relation to labour work done by her husband. It would be significant to mention here that appellant No.5 Veera @ Virendra Singh is a real brother of appellant Surendra Singh examined himself before trial Court as DW-4 regarding his alleged heart ailment, but even Virendra Singh had not shown courage to depose in his evidence that Ramwati (PW-5) was a keep of deceased Brijendra Singh. It has come in evidence that deceased Brijendra Singh was a married man. In these facts and circumstances, Ramwati (PW-5) appears to be an independent eye-witness of the incident, who has substantially corroborated the prosecution's case like evidence of other eye-witnesses. Komal Singh is the name of father of deceased Brijendra Singh and his brothers Narendra (PW-4) and Ramkumar (PW-1).
16. Much emphasis has been given by the learned senior counsel for the appellants on evidence given by Bundel Singh (PW-2) and Ramwati (PW-5) in their cross-examinations that relating witness could not disclose the fact that how many blows were given by each appellant having stick (Lathi) to Brijendra Singh. Bundel Singh offered explanation in his cross- examination that as in total 16 accused persons were giving stick blows to the deceased, he could not mention that whose stick caused injury on which organ of the deceased and how many stick blows were given 13 Cr.A. Nos.55/2005 & 78/2005 by each appellant. In the light of the case of Masalti and others vs. State of UP, (AIR 1965 SC 202), above-mentioned explanation offered by Brijendra Singh appears to be totally natural and believable, wherein it has been observed that where so many accused persons were giving beating to some injured witness or witnesses, then it is not possible for anyone to disclose specific role of each accused.
17. According to prosecution's case, incident occurred at 7:00 pm but FIR was lodged at 21:15 pm in same night, hence, it is also contended by appellants counsel that FIR is delayed, but it is mentioned in FIR itself that after incident, the dead body of deceased was taken by some witnesses to house of Narendra Singh and thereafter dead body was taken to Police Station Badarwas in the same night by tractor and trolley. In the FIR (Ex.P-1), distance of village Rijoudi from Police Station Badarwas is mentioned as 5km. Where a young and healthy person is murdered within few minutes, the state of his close relatives, neighbourers could be understood and in such state of grief, the delay of about 2 hours and 15 minutes in lodging the FIR could not be termed as a delay as some time should have been spent for arrangement of tractor and trolley for taking dead body to the police station.
18. Much emphasis has been given by learned senior counsel on the point that scene of occurrence is doubtful, as according to FIR at the time of beginning of incident complainant Puran Singh (PW-3) was seated in front the house of deceased Brijendra Singh, 14 Cr.A. Nos.55/2005 & 78/2005 which is shown in spot map (Ex.P-2) prepared by Investigating Officer Awaneet Sharma (PW-16) by No.13 and by marked No.1 place of incident is shown at public way going towards village Rijoudi and scene of occurrence is shown adjacent to complainant Puran Singh's agricultural land on southern side.
19. Investigating Officer Awaneet Sharma (PW-16) by mistake in his cross-examination deposed that he has not shown the house of deceased Brijendra Singh in spot map (Ex.P-2) prepared by him, whereas actually deceased Brijendra Singh's house is clearly shown and marked as No.13 in the spot map. In cross- examination, Investigating Officer Awaneet Sharma (PW-16) was not asked about distance between deceased's house and spot of incident mentioned by No.1 in the spot map by him. In spot map houses of Narendra Singh (PW-4), Ramkumar (PW-1), Puran Singh (PW-3), Harnam Singh, Brijbhan Singh, Krishnbhan Singh, Gadpal Baghel, Bundela Baghel and Ravindra's house and Ramkumar's garage have been specifically shown. Ramwati (PW-5) has clearly deposed in her cross-examination that she has seen complainant Puran Singh's maize field and incident had occurred nearer to complainant Puran Singh's that field. Narendra Singh (PW-4) has deposed in his cross- examination that incident had occurred about 10 to 20 paces ahead from his house. It is clear from spot map that Narendra's house is situated adjacent to the house of deceased. Therefore, it appears from evidence that scene of occurrence shown in spot map Ex.P-2 is not at much distance from the house of the 15 Cr.A. Nos.55/2005 & 78/2005 deceased. Complainant Puran Singh has clearly deposed in his cross-examination (para 9) that when Brijendra Singh was being beaten by sticks by relating appellants, then Brijendra Singh started running from here to there and after receiving gun shot fired by Surendra Singh from his pistol, he fell down. Puran Singh also deposed in his cross-examination that appellant Surendra Singh fired on Brijendra Singh by his firearm when Surendra Singh was about five paces away from the victim. It is natural that when a person is being attacked by so many persons, then he will try to save himself and start running. Hence, it is clear that actually there is no ambiguity or confusion about the spot or scene of occurrence in the present case. It is clear from Ex.P-42 and Ex.P-43 that the copy of the FIR (Ex.P-1) was received in the Court of JMFC, Kolaras at 11:00 am on 01.09.2003 and it was also proved by Ex.P-44 that copy of the FIR was timely sent to the relating Magistrate.
20. On some contradictions and omissions among depositions and relating police statements of prosecution witnesses, attention has been drawn, but such contradictions appear to be trivial in nature and do not affect the veracity of relating prosecution witnesses.
21. It is clear from the evidence of eye-witnesses that all 17 appellants came jointly on scene of occurrence, hence, constitution of unlawful assembly by more than five persons was found proved by the trial Court and it was clear from the FIR and evidence of eye-witnesses that after Brijendra Singh was beaten 16 Cr.A. Nos.55/2005 & 78/2005 by the appellants of Cr.A. No.55/2005 by sticks, thereafter Surendra Singh (appellant of Cr.A. No.78/2005) took out his firearm and fired a shot on Brijendra Singh, which proved fatal. Hence, inferences drawn by the trial Court that common object of unlawful assembly was only to give beating i.e. causing injuries to Brijendra Singh and suddenly Surendra Singh took out his hidden pistol and fired at deceased, hence, it is clear that 16 appellants of Cr.A. No.55/2005 were not having common object to kill the deceased, whereas it appears that only Surendra Singh was having intention to kill the deceased and therefore came on spot with firearm.
22. It is clear from evidence of ASI Tirsan Say Palera (PW-14) that after arrest of appellant Surendra Singh, on the basis of his disclosure statement (Ex.P-22), he seized a country made pistol of 12 bore on production by Surendra Singh from his house on 13.10.2003. On this point, evidence of above mentioned police officer is totally supported by panch witness Ramvir (PW-10), who is a panch witness of relating disclosure statement (Ex.P-22) and seizure memo (Ex.P-23) in reference to country made pistol. Therefore, it was proved that a firearm was seized from appellant Surendra Singh, which was examined by Constable-cum-Arms moharar Jageshwar Singh (PW-12) on 22.10.2003 at Police Line, Shivpuri and Jageshwar Singh found that seized 12 bore pistol was in working condition. It is also proved from evidence available on record that seized country made 12 bore pistol was sent to FSL Sagar and according to report Ex.P-48 sent by ballistic expert 17 Cr.A. Nos.55/2005 & 78/2005 of FSL Sagar, pistol was in working condition and the hole found on shirt of the deceased was indicating presence of lead metal and according to another report Ex.P-47 of FSL Sagar, human blood was present on seized shirt and underwear of the deceased, but due to reason mentioned in that report blood group of human blood could not be ascertained. Hence, the above- mentioned circumstance regarding seizure of above- mentioned articles provide corroborations to the eye- witness account given by above-mentioned eye- witnesses produced before the trial Court.
23. It is clear from evidence of the then Arms Clerk of Collectorate, Shivpuri, Lalaram Jatav (PW-15) that on 17.11.2003, the then District Magistrate Shivpuri, Shri V.L. Kanta Rao granted sanction (Ex.P-45) for prosecution of appellant Surendra Singh in relation to offences punishable under the Arms Act.
24. Dasrath Singh (DW-1) deposed that Brijendra Singh's dead body was found in the agricultural field of complainant Puran Singh (PW-3), but it is clear from the evidence of Investigating Officer Awaneet Sharma (PW-16) and by his prepared spot map Ex.P-2 and seizure memo Ex.P-6 that he seized the blood stained soil from the spot or scene of occurrence shown in spot map (Ex.P-2), which is not in the Puran Singh's field. Similarly, Parmal Singh Parihar (DW-2) deposed that on the date of incident, he heard sound of firing by firearm in his Mohalla and when he came out from his house he found that Ramkumar (PW-1) and Brijendra Singh were mutually quarreling but it has been found proved that just after receiving firearm 18 Cr.A. Nos.55/2005 & 78/2005 injuries, Brijendra Singh fell down and died. Hence, Parmal Singh's evidence appears to be totally false and afterthought and no suggestion was given to Ramkumar (PW-1) in his cross-examination by defence counsel that actually on the date of incident, he was quarreling with his real brother Brijendra Singh (deceased), therefore, it is clear that evidence of Parmal Singh Parihar is totally afterthought and unbelievable. Appellant Veera @ Virendra Singh as DW-4 gave evidence before trial Court that after his heart operation, he remained at his house and does not walk, but in cross-examination he admitted that generally he used to walk and on much walking he felt some difficulties, hence, it is clear that appellant Veera @ Virendra Singh was not suffering from any such disability which can prevent him on the date of incident from coming to the scene of occurrence with other appellants.
25. Another defence witness Haricharan Lodhi (DW-
3) deposed that he was posted as Manager of Marketing Society, Kolaras and appellant Surendra Singh was working as Salesman on their Fair Price Shop at Badarwas and on 31.08.2003 in the night at 8:00 pm he gave wheat to appellant Surendra Singh on the above-mentioned shop. He also filed receipts of Ex.D-7 and Ex.D-8, appellant Surendra Singh's appointment letter (Ex.D-6), but he admitted in his cross-examination that at Badarwas shop, except seller, manager was also posted and delivery of wheat in the night at 8:00 pm does not inspire confidence and the time of incident is said to be 7:00 pm in 19 Cr.A. Nos.55/2005 & 78/2005 village Rijoudi and delivery of wheat by Manager of Kolaras to the Seller of Badarwas prima facie appears to be impossible and unnatural. As pointed out earlier, even the relating appellant Surendra Singh of Cr.A. No.78/2005 has not taken specific defence regarding plea of alibi in his examination conducted by the trial Court under Section 313 of the Cr.P.C. and it was not suggested in cross-examination to any prosecution witness including Investigating Officer that at relevant time on the date of incident appellant Surendra Singh was at above-mentioned Badarwas shop. It is well settled that plea of alibi should be raised by relating accused from the beginning. In such legal and factual position, evidence of above-mentioned defence witness Haricharan appears to be totally false and unacceptable. The defence evidence is unable to cast any shadow of doubt on evidence of above mentioned eye-witnesses produced by the prosecution as complainant Puran Singh's evidence is corroborated by his prompt FIR Ex.P-1 and evidence of other four eye- witnesses.
26. We are of the considered opinion that the learned trial Court has minutely analyzed and appreciated the entire evidence available on record and did not commit any error in convicting all the 16 appellants of Cr.A. No.55/2005 the offences punishable under Sections 147, and 323/149 of the IPC and similarly, trial Court did not commit any error in convicting appellant Surendra Singh of Cr.A. No.78/2005 for the offences punishable under Sections 302, 148 of the IPC and Section 25(1-B) (a) and 27(1) of the Arms Act.
20 Cr.A. Nos.55/2005 & 78/200527. The various sentences awarded to appellant Surendra Singh appears to be justified, but so far as sentences awarded by the trial Court to each of the appellants of Cr.A. No.55/2005 is concerned, offence punishable under Section 323 of the IPC is punishable with imprisonment for a term which may extend to one year or with fine which may extend to Rs.1,000/- or both and the offence punishable under Section 147 of the IPC is punishable with imprisonment up to two years or with fine or both.
28. In relating charge-sheet, no any previous conviction and sentence of any of the appellants of Cr.A. No.55/2005 is referred, hence appellants of Cr.A. No. 55/2005 appear to be first offenders.
29. It has been found proved that by all the 16 appellants of Cr.A. No.55/2005 in furtherance of common object of their unlawful assembly regarding causing injuries to Brijendra Singh, inflicted simple injuries to him by sticks and according to medical evidence in total 11 injuries in the form of contusions were found on the body of the deceased and in same incident, deceased was murdered by Surendra Singh (appellant of Cr.A. No.78/2005) by firearm, hence, the case of all 16 appellants of Cr.A. No.55/2005 is not fit for releasing them on probation of good behavior, but in our considered opinion the punishment of fine of Rs.1,000/- each to all 16 appellants of Cr.A. No.55/2005 in relation to offences punishable under Section 323/149 of the IPC and similarly fine of Rs.1,000/- under Section 147 of the IPC would meet with ends of justice in reference to these 16 appellants 21 Cr.A. Nos.55/2005 & 78/2005 of Cr.A. No.55/2005. Hence, Cr.A. No.55/2005 appears to be worthy of partial acceptance to the above mentioned extent of modification of their sentences only for the offences punishable under Section 147 and 323/149 of the IPC, but Cr.A. No.78/2005 filed on behalf of appellant Surendra Singh is having no substance and deserves its total dismissal.
30. Consequently, criminal appeal filed by appellant Surendra Singh (Cr.A. No.78/2005) is dismissed and his conviction under Section 302 and 148 of the IPC and Section 25(1-B)(a) and Section 27(1) of the Arms Act and relating sentences in above-mentioned offences as awarded by the trial Court are affirmed, but the connected Cr.A. No.55/2005 filed on behalf of in total 16 appellants is partly dismissed in relation to conviction of each of the appellants of Cr.A. No.55/2005 under Section 147 and 323/149 of the IPC as recorded by the trial Court is affirmed but this appeal by above-mentioned 16 appellants is partly allowed in reference to their sentences as awarded by trial Court and sentences recorded by the trial Court against these 16 appellants is set aside and each of the appellant's sentence is altered to fine of Rs.1,000/- in relation to offence punishable under Section 147 of the IPC and each appellant is sentenced with a fine of Rs.1000/- in relation to offence punishable under Section 323/149 of the IPC. It appears that the above- mentioned fine amount imposed by this judgment has already been deposited by each of the above- mentioned 16 appellants in reference to sentence awarded by the trial Court. Hence, it is directed that 22 Cr.A. Nos.55/2005 & 78/2005 already deposited fine amount by each appellant of Cr.A. No.55/2005 be deemed to be deposited under their modified sentences passed under this judgment. Appellants of Cr.A. No.55/2005 were released on bail after suspension of their jail sentences awarded by the trial Court. Now, they are not required to mark their presence before this Court. Their bail bonds are discharged.
31. Appellant Surendra Singh of Cr.A. No.78/2005 is in jail. Let the result of this criminal appeal be intimated to appellant Surendra Singh through relating Jail Superintendent. With copy of this judgment, record of trial Court be sent back immediately.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
...06.2018 ...06.2018
SS
Digitally signed by SATEESH
KUMAR SEN
Date: 2018.06.28 10:24:11 +05'30'