Allahabad High Court
Mahendra Singh And Ors. vs State Of U.P. on 8 July, 1999
Equivalent citations: 1999CRILJ4669
Author: B.K. Sharma
Bench: S.K. Phaujdar, B.K. Sharma
JUDGMENT B.K. Sharma, J.
1. Both these appeals were preferred by the accused-appellants against the judgment and order dated 12-2-1980 passed by Sri A.B. Hajela, the then Ivth Additional Sessions Judge Etah in S.T. No. 430 of 1979 State v. Mahendra Singh and 3 others under Sections 302 and 307, I.P.C. whereby, he convicted Shri Pal, Ramesh and Nek Ram accused-appellants of the offence under Section 302,1.P.C. and sentenced each of them to imprisonment for life and further convicted them of the offence under Sections 307/34,1.P.C. and sentenced them to undergo R.I. for 7 years each and convicted Mahendra Singh accused-appellant for the offence under Sections 302/34,1.P.C. and sentenced him to undergo imprisonment for life and further convicted him of the offence under Section 307,1.P.C. and sentenced him to undergo R.I. for a period of 10 years.
2. The deceased in this case was Lakhan Singh. The informant Kalloo Singh P.W. 1 is father of the deceased. Sher Singh P.W. 3 injured of this case is a nephew of the informant Kalloo Singh. Shri Pal alias Bhola accused-appellant is the son of the maternal uncle of Mahendra Singh accused-appellant.
3. The occurrence in this case relates to 10-10-1978. The prosecution case is that 15-20 days before the murder the she-buffalo of one Kalloo Singh son of Chokhe (not to be confused with Kalloo Singh present informant) was stolen and Lakhan Singh deceased had helped Kalloo Singh son of Chokhe Singh in the search of the stolen she-buffalo, that on a search being made, Lakhan Singh deceased learnt that the she-buffalo has been stolen by Shri Pal alias Bhole accused-appellant, that Mahendra Singh accused-appellant was annoyed that Lakhan Singh deceased is imputing the theft of the she-buffalo to Shri Pal alias Bhola accused-appellant, that a day prior to the murder, Mahendra Singh accused-appellant collected various persons at the house of Kalloo Singh son of Chokhe Singh and called the present informant Kalloo Singh and his son Lakhan Singh deceased there and Mahendra Singh accused-appellant asked Lakhan Singh deceased as to why he was taking the name of Shri Pal alias Bhola accused-appellant in the theft, that on this, an altercation took place between Mahendra Singh accused-appellant and Lakhan Singh deceased and then Mahendra Singh accused-appellant went away from there retorting, "DEKHA JAYEGA," that on the date of occurrence at about 6 p.m. Lakhan Singh deceased and Sher Singh injured went to village Lahcha Nagarpur to the Marhiya of Lala Ram for engaging labourers for cutting Bajra crops, that the deceased and Sher Singh injured sat in the Jhopri of Lala Ram, that 2-3 minutes after Khub Lal P.W. 2 also came there for the purpose of engaging labourers, that 2-3 minutes after it, the accused-appellants Mahendra Singh, Shri Pal alias Bhola, Ramesh and NekRam came there, out of them Mahendra Singh accused-appellant was carrying gun and the rest were armed with Tamanchas, that as soon as the accused-appellants came there Shri Pal alias Bhola accused-appellant fired at Lakhan Singh deceased which struck in his chest, that Khublal P.W. 2 and Lala Ram grasped Shri Pal alias Bhola accused-appellant from behind, that in the meantime a fire was made by Mahendra Singh accused-appellant at Sher Singh injured (P.W. 3) which struck at his left inguinal region, that thereafter Sher Singh injured P.W. 3 raised the Palla of the Jhopri and started running towards North, that while he was running Mahendra Singh and Nek Ram accused-appellants fired at him which, however, did not strike him, that in the meantime Shri Pal alias Bhola accused-appellant managed to escape from the grip of Khub Lal P.W. 2 and Lala Ram, that Ramesh accused-appellant entered inside the Jhopri and fired at Lakhan Singh deceased which struck on his head and the deceased fell down there and died instantenuously, that after committing the occurrence, the accused-appellants ran away and on hearing hue and cry Kalloo Singh informant P.W. 1 reached the spot and found the deceased dead and also found Lala Ram and Khub Lal, witnesses present there, that Sher Singh injured also reached there soon after, that Lala Ram, Khub Lal and Sher Singh injured narrated the occurrence to the informant.
4. The informant took Sher Singh injured to the police station and lodged a written F.I.R. at the police station Jaleser on 11 -10-1978 at 00.30 a.m. On the basis of the written F.I.R. a case under Sections 302/307,1.P.C. was registered against all the 4 accused-appellants and the injured Sher Singh P.W. 3 was taken to the hospital for medical examination.
5. The investigation of the case was entrusted to Ram Shanker Sharma, S.I. who interrogated the injured Sher Singh P.W. 3 and the informant Kallu Singh P.W. 1 at the police station and then prepared Panchayatnama and connected papers in respect of the dead body of the deceased at the scene of occurrence. He took blood stained and sample earth at the spot and also found two empty cartridges there. He also found 3 gun live cartridges and 6 empty cartridges at the house of Mahendra Singh accused-appellant. After concluding the investigation, he submitted charge-sheet against all the 4 accused-appellants.
6. Sher Singh injured was medically examined on 11-10-1978 at 1.40 a.m. by Dr. R. S. Pratihar, Medical Officer, Government Hospital Jalesar, Etah. He found the following injuries on his person:
Lacerated gun shot wound on left side of abdomen 3 1'/2 cm x 1 cm x cavity deep (about 1 1/4 cm), direction from front to backward, 12 1/2 cm above and towards abdomen and 21 cm front from the back, fresh bleeding present, blackening round the wound present. In his opinion, it was a gun shot wound and its duration was fresh. The injury was kept under observation for ascertaining its nature.
7. Post-mortem on the dead body of the de-. ceased was performed by Dr. R. K. Dixit, the then medical officer, District Hospital, Etah. His observations were as follows:
Probable Age - About 24 years.
Probable Time since death about 1 3/4th day.
External Examination Average built of good musculation. Rigor mortis absent in upper extremities present in lower extremities. Signs of decomposition were present. Bilsters with slight fluid.
Body swollen, blood passes from mouth Scrotum swollen.
peeled off rest maggots present.
Ante-Mortem Injuries (1) "Fire arm wound of entry 2 1/2 cm x 2 1/2 cm x cavity deep on the left side front abdomen upper part 2 cm (paper torn), direction left to right portion and blackening (upper torn) margins present, margins lacerated and inverted. (2) Fire arm wound of entry on the left side of skull (paper torn) left ear, margins inverted measuring 2 1/2 cm x 2 1/2 cm. No blackening, charring and tatooing present.
Internal Examination
1. Head and Neck :
There is hole of 2 1/2 cm 2V2 cm in the left temporal bone. Injuries irregular.
2. Membrane : Ruptured below injury No. 2.
3. Brain : Whole brain matter damaged in the left and right (paper torn) and (paper torn). It is mixed with slight fluid and clotted blood. Two Gatta pieces and one large metallic piece recovered on the right temporal side.
Abdomen One large hole present behind below injury No. 1 and five holes in the right lumbar region contain fluid and clotted blood about 2 lb. in the cavity.
Stomach and its contents Laceration in the lower part. Empty. M.M. congested. Two Gatta piece recovered at the laceration side. Abdominal part in the right 1/2 lacerated.
Small intestine and its contents Empty. M. M. Normal.
Large intestine and its contents Laceration present.
Kidneys with Wt.
Right Kidney Lacerated.
In his opinion, death was due to shock and haemorrhage. All accused-appellants pleaded not guilty to the charges levelled against them and cLalmed false implication.
8. At the trial, ocular evidence was given by Khub Lal P.W. 2 and Sher Singh P.W. 3. Sher Singh injured also gave evidence on the point of motive. Kalloo Singh informant was examined by the prosecution as P.W. 1. He reached the spot on hearing alarm and found the dead body of the deceased and blood lying there and cLalmed that the witnesses narrated the facts and named the accused persons to him on his reaching the spot. He is also a witness of motive. Rest of the prosecution/evidence was formal in nature. The accused-appellants did not lead any oral or documentary evidence in their defence.
9. The learned Sessions Judge believed the prosecution story and hence convicted the accused-appellants as aforesaid.
10. Appeal No. 470 of 1980 was preferred by all the accused-appellants and thereafter all of them preferred another Appeal No. 529 of 1980 against the same judgment and order through another counsel. So both the appeals were clubbed together and are now being disposed of by this common judgment.
11. Mahendra Singh and Nek Ram accused-appellants have died during the pendency of these appeals. Consequently, these appeals have to abate to their extent and the appeals remain to be dis-posed of on merit to the extent of Shri Pal alias Bhola and Ramesh accused-appellants.
12. Now it is amply established from the medical evidence that it is a case of murder of Lakhan Singh who ever might have been the assailant or assailants. The defence also does not dispute it. It is also established beyond doubt that Sher Singh P.W. 3 received fire arm injury on his body. The defence did not any where suggest that the fire arm injury found on his body could be self inflicted.
13. An argument was no doubt raised before us that Sher Singh P.W. 5 received his injury elsewhere but it was nowhere suggested at the trial to any of the prosecution witnesses. In fact, the argument of the learned counsel is contrary to a categorical suggestion made in cross-examination to Sher Singh injured P.W. 3 that Lakhan Singh deceased and bad characters were gambling in the Jhopri of Lala Ram, that therein a quarrel took place in which he (Sher Singh injured) received injury of fire and Lakhan deceased met his death. So it cannot be doubted that Sher Singh P.W. 3 received his fire arm injury and the deceased died in the same transaction. The place of occurrence is also established on the prosecution evidence to be the Jhopri of Lala Ram in village Lahcha. The I.O. found blood inside the Jhopri in question and then as noted earlier, the defence suggestion aforesaid in the cross-examination of Sher Singh P.W. 3 also goes to fix the place of occurrence. It is immaterial that no blood has been found by the I.O. at the place shown by Point B inside the Jhopri where the occurrence took place (Point B was shown at the place where Sher Singh injured is Said to have received his fire arm injury.) This point is quite close to the Point A inside the same Jhopri where the dead body of the deceased was found lying and where blood was found lying on the ground by the Investigating Officer. It is not always possible to show the location of each material point accurately in the site plan when the two victims are approximate to each other at the place of occurrence. Furthermore, the blood or sufficient quantity of blood was not likely to come out from the injury of Sher Singh injured and fall on the ground inside the Jhopri. In view of the categorical evidence on record that he did not stay at the spot on receiving the injury but raised the northern palla of the Chappar and ran towards North. Blood might have fallen from his body in the way but its presence has not been recorded by the I.O. However, it also is immaterial. The blood that fell on the ground might have been obliterated clue to passage of pedestrians or other causes in the open or the I.O. might have failed to check for these blood stains while making the spot inspection. The non-finding of empty cartridges or pellets etc. about the subsequent fires said to have been made at Sher Singh injured as per prosecution may also be ascribed to the carelessness on the part of the I.O, So nothing revolves on the same.
14. Now we come to the time of occurrence. As per prosecution evidence, the occurrence took place at 6 p.m. and at that time presence of natural light cannot be doubted and there could be no difficulty in identification of known persons therein by Sher Singh injured P.W. 3 or the public witnesses, if any, who may be present at the spot. It need not be stressed that the injuries on the body of a victim are a hall mark of his presence at the spot. Post-mortem evidence in this case is fully consistent with the time of occurrence being 6.00 p.m. on the date of occurrence. The doctor who medically examined Sher Singh injured at 1.40 a.m. on 11-10-1978 gave the du-, ration of injury of Sher Singh as fresh which in medical terminology meant 6 hours duration. However, it is settled law that there could be a, variation of a few hours either way in the duration and so the medical evidence regarding fire arm injury of Sher Singh P.W. 3 also was quite consistent with his receiving injury on the date of occurrence at 6.00 p.m. As a matter of fact, the defence suggestion as it has come on record would itself tend to show that the occurrence must have taken place at 6.00 p.m. as cLalmed by the prosecution or in any case before the night had fallen. It is the suggestion noted above made to Sher Singh injured in his cross-examination that he and the deceased were gambling in the Jhopri of Lala Ram and there a quarrel took place in which he received injury and the deceased died. This Jhopri was situated in a village and the site plan prepared by the I.O. clearly indicates total absence of any electric light or other artificial light in or about the Jhopri. The defence also did not suggest the existence of any artificial light inside or outside the Jhopri where the occurrence took place. Obviously gambling could not have taken place in the Jhopri in darkness and so even from the defence suggestion it followed that the occurrence took place at the time as set up by the prosecution and not in the night. It is immaterial that after this suggestion a suggestion was made to this witness that the occurrence did not take' place in the evening and took place some times in the night but nothing revolves on this suggestion. It is to be seen whether the prosecution evidence led at the trial is worthy of credence considering-all the admitted facts and established cir- _ cumstances on record and the probabilities inherent in the situation.
15. Now coming to the ocular witnesses, First, it is to be seen whether their presence at or near the scene of occurrence in such a situation that they could see the occurrence and identify the culprits is believable and whether there is anything unnatural, improbable or suspicious in their testimony. Totally independent witnesses are rarely to be found and most of the time, the evidence that comes before the Courts is of interested parties or inimical witnesses and their testimony is not to be rejected as a matter of course. It is to be assessed and weighed keeping in view the common course of human conduct and the surrounding circumstances and if after such an assessment, it is found to be believable there is no reason why the Courts should not act upon it.
16. We have noted above that the presence of Sher Singh injured at the time of occurrence cannot be doubted. He is an eye-witness about the fire by Shri Pal alias Bhola accused-appellant at Lakhan deceased which struck in his abdomen and he was also witness of the fire made by Mahendra Singh accused-appellant (now deceased) at him which resulted in the injury which had been recorded in his medical report by Dr. R. S. Pratihar. He cLalms to have run away from the spot immediately on receiving fire arm injury on his person and consequently he is not an eye-witness of the second fire at the deceased which struck on his head. About the second fire there is the testimony of Khub Lal P.W. 2 alone who is an eye-witness of the entire occurrence.
17. The occurrence took place at the Jhopri of Lala Ram and he too was an eye-witness of the occurrence as per prosecution case but the prosecution has not examined him. Kalloo Singh informant P.W. 1 is not an eye-witness of the occurrence. He reached at the spot subsequently, though soon after hearing alarm of others and found the deceased dead. He cLalmed that he was narrated the occurrence by Khub Lal -P. W. 2 and Lala Ram also besides the injured Sher Singh P.W. 3. He also testified that these witnesses had cLalmed before him that all the 4 accused-appellants had participated in injuring Lakhan Singh (deceased) and Sher Singh (injured). The defence has challenged the presence of Khub Lal P.W. 6 at the time of occurrence.
18. The F.I.R. of this occurrence has been lodged by Kalloo Singh P.W. 1 father of Lakhan Singh (deceased). Much arguments had been raised by the learned counsel for the accused-appellant against this lodging of the F.I.R. by him. It has been contended that in the ordinary course, Sher Singh injured P.W. 2 would have lodged the F.I.R;. at the police station particularly as in the prosecution evidence it has come (sic) that he also had gone to the police station along with him. The explanation has come from the side of the informant in his cross-examination. He stated that he could not tell the reason why Sher Singh had not lodged the F.I.R. but volunteered that he himself lodged the F.I.R.. because his son had been murdered.
19. Sher Singh injured P.W. 3 has expLalned in his examination-in-chief that he himself did not lodge the report in the police station because the informant was his maternal uncle and that his son had died and further that he understood that anybody could lodge the F.I.R. about the occurrence. In our view there was nothing strange if Kalloo Singh who was father of Lakhan Singh deceased and maternal uncle of Sher Singh injured lodged the F.I.R. at the police station and nothing adverse could be inferred from the fact that the F.I.R. was lodged by Kalloo Singh informant and not by Sher Singh injured.
20. As noted earlier Sher Singh P.W. 3 is the nephew of Kalloo Singh informant but then he is also an injured in the occurrence and so his testimony cannot be discarded as interested testimony. He has testified at the trial regarding fire of Shri Pal alias Bhola accused-appellant on the body of Lakhan Singh deceased which struck on his abdomen and about the fire on himself by Mahendra Singh accused-appellant which struck his body and injured him. The injury on the abdomen of the deceased contained blackening showing fire from a close range. The injury report regarding Sher Singh injured also shows blackening around the wound which also showed that he too was fired at from a very close range. It is not in controversy that he knew Shri Pal alias Bhola accused-appellant and Mahendra Singh accused-appellant from before the date of occurrence and so at the time of occurrence, he could have easily seen and identified Shri Pal alias Bhola accused-appellant and Mahendra Singh accused-appellant making these respective fires. There is also no" reason why he should leave out the real culprits who made these fires and falsely implicated innocent persons instead. It is also not possible to doubt his testimony that after fifteen minutes, he came back to the scene of occurrence and saw Lakhan Singh deceased having injury on his head also and also saw Kalloo Singh informant having reached there. It cannot also be doubted that he would have narrated the occurrence to Kalloo Singh informant to the extent it had been seen by him, as testified to by him and as cLalmed by Kalloo Singh informant in his testimony. It is immaterial whether he told the I.O. or not that he had told about the occurrence to the informant. Sher Singh P.W. has testified that when he received fire arm injury on his body, the assailant was at a distance of one yard from him. He also testified that Mahendra Singh accused-appellant had fired at him with a licenced gun standing on the Chaukhat of the Jhopri extending his hand. He also testified that Lala Ram witness was sitting on the Chaukhat of the Jhopri and that there was a distance of 2-3 paces between the Chaukhat and the place where he (witness) and Lakhan Singh (deceased) were sitting. All this evidence is quite consistent with the post-mortem and medical evidence.
21. It is immaterial that Sher Singh injured had been prosecuted in a case under Sections 399/402, I.P.C. His testimony about the occurrence does not become suspect because of it so far as these two fires, one at Lakhan Singh (deceased) by Shri Pal alias Bhola accused-appellant, another on him by Mahendra Singh accused-appellants are concerned. His testimony about the subsequent fires at him by Mahendra Singh accused-appellant and Nek Ram accused-appellant also is not open to doubt, considering all the facts and circumstances of the case.
Much has been argued by the learned counsel for the accused-appellants, against Khub Singh P.W. 2. It has been cLalmed that Khub Singh was not present at the time of occurrence at all and he had seen nothing. He was not a resident of the vicinity where the occurrence took place. He cLalms to have gone to the Marhaiyya Jhopri of Lala Ram for taking labourers and there he had a talk with Lala Ram about it and there the occurrence took place. Thus, he was a chance witness. It may be said that Lakhan Singh deceased and Sher Singh P.W. 3 also are said to have gone to the Jhopri of Lala Ram for the purpose of engaging labourers as per the prosecution case but the distinguishing fact is that the going of both (the deceased and Sher Singh P.W. 3) to the Jhopri or Lala Ram becomes established by the presence of the dead body of Lakhan Singh deceased inside the Jhopri along with the blood near the dead body and the evidence of Sher Singh P.W. 3 about his receiving fire arm injury in the same transaction at the same place which is fully established on a consideration of the relevant circumstances.
Khub Lal P.W. is not injured in the occurrence, though he cLalms to have apprehended one of the accused-appellants namely Shri Pal alias Bhola at the spot. He has also not accompanied the informant to the police station, for lodging the F.I.R. When the informant Kalloo Singh testified in the witness-box about his coming to the spot, he said that he found the deceased lying dead, that his nephew Sher Singh P.W. though not present there came 15 minutes after having fire arm injury on his body. He further testified that when he reached at the Marhaiyya of Lala Ram, Lala Ram was present and no other persons were present. It is only at a second thought that he testified that Khub Lal P.W. was also present there. It has also been pointed out that Khub Lal P.W. was related to the informant being the son of Dhundhi who was one of the brothers of his father. In his cross-examination, Khub lal P.W. cLalmed that he was having 44 bighas of land in the village. He cLalmed that he cannot bring papers about the same because they have been filed in a case. He cLalmed that he could bring the papers from Lekhpal. The defence suggestion to him was that there was no agricultural land in his name or in his father's name in the village. There is no material on record to show that there was any land standing in his name or in the name of his father in that village for which he needed labourers for harvesting of crops. He admitted in his cross-examination that he did not tell the I.O. that at the time of occurrence, he had gone to village Lohcha for taking labourers. It: has been elicited in his cross-examination that he was called from his house by the I.O. after preparation of the Panchayatnama at 7-8 a.m. the next day. It may be mentioned here that the I.O. had prepared the Panchayatnama (inquest report) on 11-10-1978 at 7.30 a.m. While the occurrence had taken place on 10-10-1978. He also admitted that in the night, he did not remain with the dead body of the deceased at the scene of occurrence, that he was nephew of Kalloo Singh informant, that he is a paternal uncle of the deceased-Lakhan Singh. He further stated that he was in pain and for that reason, he had come back from the scene of occurrence and for this reason he also did not get the scene of occurrence inspected by the I.O. later on when asked again at the close of his cross-examination, he stated that he was suffering from fever for 2-4 days prior to the date of occurrence. He admitted that at that time his brother and his sons were alive. It has been argued and not without substance that when he was suffering from fever for 2-4 days prior to the date of occurrence, it was most unlikely that he would be going to the Marhaiyya (Jhopri) of Lala Ram for engaging labourers. If there was a need, he could send his real brother or his sons for the purpose, so his presence at the scene of occurrence is open to doubt.
22. Another-point to be noted is that Khub Lal P.W. cLalmed that as soon as Lakhan Singh deceased received the first fire, Sher Singh injured ran towards the Northern side and as soon as he ran, he received the fire arm injury. It may be mentioned here that Sher Singh P.W. had testified that it was after receiving the injury from the fire shot by Mahendra Singh accused-appellant on him, that he raised the Palla of the Jhopri and ran towards North. We have noted the location of the fire arm injury on the body of Sher Singh P.W. 3. It was on the left side of the abdomen and not on his back as would be the case if he had been fired at after he had started running.
23. Another aspect to be noted is that unlike Sher Singh injured P.W. 3 whose presence at the time of occurrence is not, at all, in doubt, who did not cLalm this witness Khub Lal cLalmed that he and Lala Ram (not examined) grasped Shri Pal alias Bhola accused-appellant from behind and that at the time when Mahendra Singh accused and Nek Ram accused-appellant fired second shot at him (Sher Singh P.W.), Shri Pal alias Bhola escaped from their grip, this witness Khub Lal P.W. 2 has cLalmed that after the fire of Shri Pal alias Bhola accused-appellant struck Lakhan Singh deceased in his chest, he the witness and Lala Ram grasped this accused-appellant but he managed to escape from their grip after Mahendra Singh and Nek Ram accused-appellants fired at Sher Singh injured from behind. It is also to be noted against this background that this witness does not cLalm that there was any attempt made to fire at him by any of the accused-appellant,. while he cLalms to have grasped Shri Pal alias Bhola accused-appellant, nor does this witness cLalm that any Marpit was done with him or Lala Ram. This witness cLalmed that Ramesh alias Bhola accused-appellant had himself entered inside the Jhopri and then fired at the deceased on his head. It has been argued that it does not stand to reason that the assailants and the witnesses Khub Lal and Lala Ram would be standing side by side with each other the eastern Chaukhat of the Jhopri as cLalmed by Khub Lal P.W. It was quite likely that Khub lal P.W. 2 was not present at the spot at the time of the occurrence.
24. It has been argued by the learned counsel for the accused-appellants that the second fire on the deceased resulted in an injury of the same length (2 1/2 cm x 2 1/2 cm) and that this might be the result of fire made by some weapon at the deceased again from the same distance.
25. If we reject or ignore the testimony of Khub Lal P.W. 2 taking his presence at the spot to be doubtful, the question arises whether the case against Ranjesh accused-appellant for firing a shot at the deceased which struck on his head can be safely sustained and his constructive liability about the fires on Sher Singh P.W. 3 can be safely upheld. There is of course the testimony of Sher Singh P.W. 3 about the coming of all the 4 accused-appellants at the spot and that out of them, Mahendra Singh accused-appellant was carrying a gun and the rest were carrying Tamanchas. In his testimony while he has testified to specific positive acts of Mahendra Singh, Shri Pal alias Bhola and Nek Ram accused-appellant apart from cLalming that all the four accused came there and that while Mahendra Singh accused-appellant was carrying gun the rest were carrying tamanchas, he did not cLalm any other overt act by Ramesh accused-appellant. He did not even say that this accused-appellant levelled a tamancha towards him or towards the deceased or made any exhortation to kill. That being so, considering all the fact that Ramesh accused-appellant is a cousin brother of Mahendra Singh accused-appellant to avoid the possibility of false implication we are inclined to give the benefit of doubt to Ramesh accused-appellant on both charges.
26. So far as the accused-appellants Mahendera Singh and Nek Ram are concerned, they have died during the pendency of this appeal and so to their extent, the exercise is more or less academical and so we would make only a brief reference to the point of motive and enmity. It has come from the evidence of Kalloo Singh informant PW 1 and Sher Singh PW 3 that the she-buffalo of another Kalloo Singh (son of Chokhe) had been stolen and that in the search of the said she-buffalo, Lakhan deceased had helped Kalloo Singh (son of Chokhe) and it had transpired to Lakhan Singh deceased in the course of the search that his she-buffalo was stolen by Shri Pal accused-appellant himself. It has also come in evidence that Shri Pal accused-appellant was son of maternal uncle of Mahendra Singh accused-appellant and consequently, Mahendra Singh accused-appellant felt annoyed by this acquisition against Shri Pal accused-appellant and for this reason a Panchayat was held by Mahendra Singh accused-appellant a day before the present occurrence and there an altercation had taken place between Mahendra Singh accused-appellant and Lakhan Singh deceased and Mahendra Singh accused-appellant had left the Panchayat retorting, "It will be seen". It may be that the said Kalloo Singh son of Chokhe Singh never lodged any F.I.R. regarding the said theft of his she-buffalo and he was also not examined by the prosecution at the present trial as a witness on the point of motive. It may also be said that no member present in the alleged Panchayat was produced at the trial. However, it does not appear to us that such a motive was concocted by the informant PW 1 and Sher Singh PW 3 for the purpose of this case.
27. It has been elicited from the informant that one Layak Singh had given evidence against both the brothers in a criminal case 10 years ago which resulted in conviction at the trial and an acquittal from the High Court and that Layak Singh is grand father of Mahendra Singh accused-appellant by village relationship. This, however, is a far fetched connection. Then, it has been elicited from the information in cross-examination that Bacha Ram Pradhan father of Mahendra Singh accused-appellant got him implicated in several cases of illicit distillation of liquor. Naturally, there would be enmity between both the sides and the informant could have been annoyed with Bacha Ram. However, there is no reason for Sher Singh PW 3 to leave out the real culprits and implicate Mahendra Singh accused-appellant or Shri Pal alias Bhola and Nek Ram accused-appellants making specific allegations against them.
28. It has been elicited from the information in his cross-examination that Sumera bad character of Pirthi Nagla had committed a dacoity at the house of Chandra Pal and had abducted Chandra Pal' daughter and Mahendra Singh accused-appellant got that daughter restored to her. father. It was also elicited from him that his son (the deceased or his some other son) was nominated in that dacoity. It is cLalmed that the deceased had link with Summera bad character and that Mahendra Singh accused-appellant was linked with the victim Chandra Pal on whose house the dacoity had taken place and for this reason Mahendra Singh accused-appellant has been implicated. It has been suggested to the informant that Lakhan Singh deceased and Sher Singh injured were men of the gang of Sumera and (in that connection) used to visit the aforesaid Lala Ram witness not examined at the trial). The information has refuted the suggestion.
29. The I.O. had found the dead body of the deceased resting by the side of the northern wall of the Jhopri of Lala Ram where the occurrence took place and it was argued that if the witnesses were around at the time of the occurrence they would at least bring the dead body of the deceased in a prostrate condition on the ground so that his head rested on the ground. On this point, it is enough to say that normally, it is only when a deceased is in his injured but alive condition or where he is thought to be still alive that the body of the deceased is moved or shifted from the position or location to make it convenient for him.
But once a person died in a medico legal case, the location, position or posture of the dead body of the deceased is never changed. In the present case, the post mortem evidence makes it obvious that the death of the deceased must have been instantaneous and so there was no occasion for anybody to change the position or location of the dead body of the deceased. Moreover, the testimony of Sher Singh PW 3 against Mahendra Singh, Shri Pal alias Bhola and Nek Ram accused-appellant is not adversely affected at all because he did not stay at the spot and instead ran away alter the deceased had received the shot in abdomen and he himself had received a shot on his body.
30. On a conspectus of the prosecution evidence and the circumstances and probabilities of this case, we have no hesitation in accepting the testimony of Sher Singh PW 3 against the accused-appellant Mahendra Singh, Shri Pal alias Bhola and Nek Ram.
31. In view of the above discussions, we find that Shri Pal alias Bhola accused-appellant intentionally fired at Lakhan Singh deceased by Tamancha which caused fatal injury to him which itself was sufficient to cause his death in the ordinary course of nature and that consequently, he committed murder of Lakhan Singh deceased an offence under Section 302,1.P.C. that Mahendra Singh accused-appellant had fired at Sher Singh PW 3 injured from short distance with an intent to commit his murder and also fired at him while he was running which amounted to an offence under Section 307, I.P.C. Nek Ram accused-appellant did not fire at the deceased and fired at Sher Singh PW 3 only from a distance and so the offences under Section 302, I.P.C. or 307, I.P.C. simpliciter may not be said to have been made out but it cannot be doubted that all of them were working in furtherance of their common intention to murder the deceased and Sher Singh PW 3. Consequently, the offence under Section 302/ 34, I.P.C. is held established against Mahendra Singh and Nek Ram accused-appellants and the offence under Section 307/34, I.P.C. is established against Shri Pal alias Bola and Nek Ram accused-appellants.
32. For the reasons aforesaid, both the appeals are dismissed to the extent of Shri Pal alias Bhola accused-appellant and his conviction for the offence under Section 302, I.P.C. and the sentence of imprisonment for life therefor is sustained and his conviction and sentence for the offence under Sections 304/34, l.P.C. is also maintained. The appeal is allowed to the extent of Ramesh accused-appellant and his conviction and sentence for the offences under Section 302, l.P.C. and Sections 307/34, l.P.C. is set aside. He is acquitted of both the offences. The appeal abates to the extent of Mahendra Singh and Nek Ram accused-appellants, who have died during the pendency of these appeals.
33. Shri Pal alias Bhoal accused-appellant was on bail during the pendency of this appeal. His bail is cancelled. He shall be arrested forthwith and sent to the district jail concerned to serve out his sentence according to law. Ramesh accused-appellant is in jail custody, his bail having been cancelled by this Court. He be released forthwith unless required in connection with some other case or crime.
34. Let a copy of this judgment be sent to the Sessions Judge concerned at once for information and immediate compliance. The compliance report shall be submitted by the Sessions Judge to this Court within a fortnight from today. List this appeal on 27-7-1999 along with the compliance report of the learned Sessions Judge for orders.