Rajasthan High Court - Jaipur
State vs Jalla Khan & Ors on 10 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.1815/2007 Jalla Khan and Others Vs. State of Rajasthan through Public Prosecutor
2. D.B. Criminal Appeal No.279/2008 State of Rajasthan Vs. Jalla Khan and Others
3. D.B. Cr. Revision Pet. No.1169/2007 Bagh Singh Vs. The State of Rajasthan through its Public Prosecutor and Jalla Khan and Others Date of Order ::: 10.09.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mrs. Justice Nisha Gupta COUNSEL WHO APPEARED IN THIS CASE:-
Shri Suresh Sahni with Shri R.M. Sharma and Miss Sonal Srivastava, for accused-appellants Shri Javed Choudhary, Public Prosecutor Shri V.R. Bajwa with Shri Snehdeep Khayaliya, for complainant #### //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:-
Criminal Appeal No.1815/2007, first of these three matters, filed on behalf of twenty accused-appellants, namely - Jalla Khan, Giddu @ Chaw Khan, Safeda, Sube Khan, Munshi, Mohmadda, Aas Mohd. @ Asanda, Sakil @ Shakil, Rukmuddin, Samsuddin, Mohar Khan, Deenu Khan, Safi Mohammad, Sahun, Mustaq, Arsad, Pida, Aashin, Mishri @ Misru and Jameel, seeks to challenge the judgment of their conviction by the court of Additional District & Sessions Judge (Fast Track), Kishangarhbas, District Alwar, in Sessions Case No.2/2006, dated 19.09.2007, whereby they were convicted for offence under Sections 148, 302/149, 307/149, 324/149 and 323/149 IPC. For offence under Section 302/149, they have been sentenced to undergo life imprisonment with fine of Rs.5000/- each, in default of payment of fine, they were to further undergo one year's RI; for offence under Section 307/149 IPC, they have been sentenced to undergo seven years RI with fine of Rs.5000/- each, in default of payment of fine, they were to further undergo six months RI; for offence under Section 323/149 IPC, they have been sentenced to undergo three years RI; for offence under Section 323/149 IPC, they have been sentenced to undergo one year's RI and for offence under Section 148 IPC, they have been sentenced to undergo three years RI. All the sentences were ordered to run concurrently. However, the accused-appellants were acquitted of the charges for offence under Sections 325/149 and 201 IPC. But the learned trial court, under the impugned judgment, by giving benefit of doubt, acquitted nine accused, namely, Allahadin @ Pappu, Sarsudin, Rujdar, Fakru @ Fakrudin, Haneef, Majid, Muvin, Rehman and Himmat Khan, of the charges for offence under Sections 148, 302/149, 201, 307/149, 325/149, 324/149 and 323 IPC. Second and third of these matters seek to challenge their acquittal.
Facts giving rise to the matter are that on 25.11.2005, one Bagh Singh lodged a written-report (Exhibit P-34) with Police Station Kishangarhbas, District Alwar, stating therein that on 24.11.2005 at about 7.00 PM, when Pintu Singh was taking his aunt Nimma Kaur, who was in family way, in a jeep to hospital at Kishangarhbas for delivery, one Kasam Khan brought his camel cart in front of the jeep. Pintu Singh asked him to remove the camel cart. Both quarreled on this. Kasam Khan called his family members. They started beating Pintu Singh. Accused Jalla Khan, Deenu Khan, Mohar Khan, Samsuddin, Mishru, Rukmuddin, Sahun, Safi Mohd., Mustak, Arsad, Sube Khan, Safeda, Kasamdin, Munshi, Giddu, Pida, Aas Mohd., Aashin, Jameel, Shakil, Ayub, Himmat, Rafiq, Sajid and around 150 other persons were involved in this incident. It was further alleged that these accused caused murder of three persons, namely - Darshan Singh, Preetam Singh and Birju Singh. Apart from this, they also gave beating to Mahendra Singh, Gagan Singh, Pintu Singh, Manindra Singh, Kuldeep Singh, Karan Singh, Bagh Singh, Surmi Kaur, Babban Singh, by gun, 'farsi', sword, 'tanchia', 'kulhari', iron rod and 'lathis', and left them there assuming dead. Earlier also, the above named accused persons had committed murder. They also gave beating to their own man Mohammada Khan. It was further alleged that the informant too was beaten by Jalla and Mishru by 'farsi' and 'lathi'. On the basis of aforesaid written-report, a regular first information report, being F.I.R. No.292/2005 (Exhibit P-35), was registered with the Police Station for offence under Sections 147, 148, 149, 323 and 302 IPC.
The Police, after usual investigation, filed challan for offence under Sections 147, 148, 149, 323, 326, 307, 302, 201 and 303 IPC against accused-appellants Jalla Khan, Giddu, Safeda, Sube Khan, Munshi Khan, Mohammada, Aas Mohd. @ Asanda and for the offence under Sections 147, 148, 149, 323, 326, 307, 302 and 201 IPC against accused-appellants Sakil @ Shakil, Rukmuddin, Samsudin, Mohar Khan, Deenu Khan, Safi Mohd., Sahun, Mustaq, Arsad, Pida, Asin, Mishru @ Misru and Jamil and acquitted accused Rujdar, Himmat, Fakru, Haneef, Majid Khan, Muvin Khan, Rehman, Allahadin and Sarsudin, in the court of the concerned Judicial Magistrate, wherefrom the case was committed to the Court of Sessions and thereafter made over to the court of Additional Sessions Judge (Fast Track) Kishangarhbas, Alwar, for trial. Since accused Sajid, Rafiq, Alam, Kasamdin and Ayub were juvenile, challan for above offences was filed against them before the Juvenile Justice Board. Thus, in total, the police filed challan against 29 accused excluding five juvenile.
Learned trial Court framed charges for offence under Sections 148, 302/149, 201, 307/149, 325/149, 324/149 and 323 IPC against the present accused-appellants and nine acquitted accused. However, they denied the charges and claimed to be tried. The prosecution produced 36 witnesses and got 207 documents exhibited, whereas the defence produced 22 documents and got the same exhibited. On conclusion of trial, learned trial court convicted aforementioned 20 accused-appellants, and acquitted nine accused of the charges. While, the accused-appellants have assailed the judgment of their conviction, the State of Rajasthan and the complainant have filed revision petition assailing the same judgment to the extent it acquits the afore-mentioned nine accused.
Accused-appellants are in jail for last more than seven years. Ten of the accused-appellants filed Special Leave to Petition before the Supreme Court against dismissal of their third application for suspension of sentence. Their Lordships of the Supreme Court vide order dated 01.05.2013 in Criminal Appeal No.680/2013 arising out of SLP (Crl.) No.945/2013, suspended sentence of four accuse-appellants, namely, Mohammada, Sakil @ Shakil, Mustaq and Arsad, for a period of six months requesting this court to expeditiously dispose of their appeal. Accordingly, these matters were heard and are being decided by this common judgment.
We have heard Shri Suresh Sahni, learned counsel for accused-appellants, Shri Javed Choudhary, learned Public Prosecutor for the State, and Shri V.R. Bajwa, learned counsel for complainant.
Shri Suresh Sahni, learned counsel for the accused-appellants, has argued that the written-report (Exhibit P-34) was lodged by Bagh Singh (PW-2) with delay of 6-7 hours, after much deliberations, which is clear from the fact that not only the accused have been named but their parentage has also been indicated in a chronological sequence. Twenty-five accused were named therein and, additionally it was alleged that about 150 more persons participated in the incident. Total 36 witnesses were produced by the prosecution. Out of them, 13 were claimed to be eye witnesses, of which nine were injured. Thakur Singh (PW-1), Bagh Singh (PW-2), Roshan Singh (PW-3), Manindra Singh (PW-4), Karan Singh (PW-5), Mahendra Singh (PW-6), Pintu Singh (PW-7), Gurvindra Singh (PW-8), Rajendra Singh (PW-9), Balvindra Singh (PW-10), Surjeet Singh (PW-11), Kuldeep Singh (PW-12) and Babban Singh (PW-13) were cited as eye witnesses, even though they were not named as such in the first information report, whereas Nimma Kaur and Gagan Singh, though named as eye witnesses in the first information report, were not produced. There is no corroboration to the allegations made in the written-report (Exhibit P-34). There are lot of contradictions in the statements of eye-witnesses regarding number of accused involved in the incident. The trial court itself has observed that the prosecution witnesses appear to have been taught and tutored before recording of their statements. It is clear from their statement that they are not natural witnesses. Baljeet Kaur, whose injury-report was exhibited as Exhibit P-167, was neither named in the first information report nor produced before the court as eye witness.
Shri Suresh Sahni, learned counsel, argued that as per own showing of the prosecution, the incident had taken place at 7.00 pm on 24.11.2005. Keeping in view that it was last week of November, it has to be accepted that there was complete darkness at at that time. In this connection, learned counsel referred to the discussion made at Page 21 of the impugned judgment with reference to 'panchang' cited by the defence and submitted that the sun on that day set at 5.25 pm and the moon rose at 8.14 pm. Yet, learned trial court has made out a new case in favour of the prosecution by observing that even after sun set, there was some light and not total darkness. Investigating Officer Shashi Kant Joshi (PW-36) himself has admitted in his cross-examination that it was complete dark when the incident took place. It could not therefore be possible for the prosecution witnesses to see the incident and also notice specific role of each of the accused, particularly when almost 200 accused are alleged to have participated in the incident.
Shri Suresh Sahni, learned counsel, argued that even as per the first version in the written report (Exhibit P-34), the incident had taken place on a trifle issue when the jeep of Pintu Singh (PW-7), in which he was carrying his pregnant aunt Nimma Kaur, slightly collided with the camel cart of the accused Kasam. The alleged incident took place in the heat of passion and on the spur of moment when he asked Kasam to remove the camel cart. The incident thus took place without any premeditation and without any common object to liquidate three persons, namely, Darshan Singh. Preetam Singh, Birju Singh and to injure nine persons, of whom three received grievous injuries. What is more, it was a case of gross over implication and the trial court has failed to discharge its judicial obligation of carefully scrutinizing the evidence for excluding those, who have been falsely implicated. Besides the four juvenile, who were separately tried, accused Sakil @ Shakil S/o Aas Mohammad was also juvenile, whose age was mentioned as 17 years in his arrest-memo (Exhibit P-41). The trial court mechanically convicted all twenty accused, who went on trial, by over stretching the applicability of Section 149 IPC.
Shri Suresh Sahni, learned counsel for the accused-appellants, argued that the trial court has seriously erred in law in not upholding the plea of alibi set up by the accused Misru, Asin and Deen Mohammad that they had gone to Delhi for sale of onions. The plea of alibi was rejected by wrongly accepting the explanation of the Investigating Officer Shashi Kant Joshi (PW-36) that those accused were at Delhi on the fateful day only upto 2.00 PM. The distance from Delhi to the place of incident, being only 135 kilometers, they could come back to join the incident which took place at 7.00 PM. Documents Exhibit D-19, Exhibit D-20 and Exhibit D-21, produced by them in support of their plea of alibi, have not been properly considered by the learned trial court. Once the Investigating Officer Shashi Kant Joshi (PW-36), in his statement, admitted that he deputed Sub Inspector of Police Ratan Lal to examine the veracity of those documents, which were produced to substantiate the plea of alibi, and the said Sub Inspector went to Delhi and recorded statements of Satyapal Singh and Dhirendra Singh, who proved the presence of these three accused in Delhi on that day, these accused were not required to prove anything more. In fact, their plea of alibi should be taken as proved by such admission of Investigating Officer Shashi Kant Joshi (PW-36). Adverse inference ought to be drawn against the prosecution for not producing Satyapal Singh and Dhirendra Singh as witness.
It is argued that false/over implication is further proved from the fact that the complainant party did not even spare Himmat Khan, an old person aged 85 years, who was shown as participant in the incident. However, the Presiding Officer observed in the impugned judgment that when this accused appeared before the trial court, he was not even capable of standing properly and that he might be a mere onlooker. Himmat Khan and other eight accused have been acquitted by the learned trial court as the prosecution could not prove the charges against them beyond reasonable doubt. Their names were not mentioned in the first information report. It is argued that one member of the complainant party caused injury to accused Mohammada and complainant party wrongly alleged in written-report that accused themselves caused injuries to Mohammada.
Shri Suresh Sahni, learned counsel, further argued that the trial court has, in earlier part of the judgment, noticed that similarity in statements of the prosecution witnesses appears on account of their tutoring, yet it proceeded to mechanically convict all twenty accused-appellants by applying the 'two witness principle' on the basis of law enunciated by the Supreme Court in Masalti Vs. State of Uttar Pradesh AIR 1965 SC 202. The trial court held that as per this judgment, if there are large number of accused and large number of victims, conviction could be sustained only if two or more witnesses are naming them. Criticizing the impugned judgment, Shri Suresh Sahni, learned counsel for appellants, referred to finding as to Sections 302/149 IPC, to argue that trial court held that the said mechanical test can be applied to such trial for convicting accused, because two or more witnesses have named the accused-appellants. Such was never the intention of the Supreme Court in Masalti, supra, that conviction should be mechanically recorded regardless of the quality of the evidence of such two or three witnesses, or despite discrepancies/contradictions in their statements. The law enunciated by the Supreme Court in recent past, has laid emphasis on actual overt-act of accused when offence is alleged to have been committed by a large number of accused to determine their membership of unlawful assembly attracting Sections 149 and 141 IPC. There is no specific finding given by the trial court that all accused were members of unlawful assembly and, if at all, it was an unlawful assembly, then what was common object for which it was formed and whether common object of unlawful assembly was to liquidate three persons. If the incident had taken place suddenly on the spur of moment without any premeditation, despite unfortunate death of three persons, each accused would be individually liable for his act and not vicariously for the act of one another. Evidence shows that the accused had suddenly assembled after initial scuffle with Pintu Singh (PW-7), which proves that it was not an unlawful assembly. Learned counsel for accused-appellants, in support of this argument, has relied on judgments of the Supreme Court in Debashis Daw and others v. State of West Bengal (2010) 9 SCC 111, Khairuddin and Others Vs. State of West Bengal (2013) 5 SCC 753, Dilavar Hussain and Others Vs. State of Gujarat and Another (1991) 1 SCC 253 and Raju alias Rajendra and Another Vs. State of Rajasthan (2013) 2 SCC 233.
Shri Suresh Sahni, learned counsel, further argued that statements of most of the eye witnesses under Section 161 Cr.P.C. were recorded by the Investigating Officer with considerable delay. Even though the incident had taken place on 24.11.2005, statements of Karan Singh (PW-5), Pintu Singh (PW-7), Balvindra Singh (PW-10), Babban Singh (PW-13) and Tirath Das (PW-20) under Section 161 Cr.P.C. were recorded by the police eight days after the incident on 02.12.2005. Statement of Mahendra Singh (PW-6) was recorded thirteen days after the incident on 07.12.2005. Similarly, statement of Kuldeep Singh (PW-12) was recorded about two months after the incident on 23.01.2006. Even then, the trial court has brushed aside this argument on the premise that no such question was put to Investigating Officer Shashi Kant Joshi (PW-36), during cross-examination.
Shri Suresh Sahni, learned counsel, referring to postmortem-reports of deceased Preetam Singh (Exhibit P-163) and deceased Birju Singh (Exhibit P-164) as well as statements of Dr. M.C. Gupta (PW-23) and Dr. Atul Gaur (PW-22), argued that none of these doctors has given any specific opinion that injuries sustained by these two deceased were sufficient in the ordinary course of nature to cause their death. In absence of such specific opinion, it could not be held to be a case of culpable homicide amounting to murder. Conviction of accused-appellants for offence under Section 302 IPC is, therefore, bad in law. In this connection, learned counsel referred to clause thirdly of Section 300 IPC and argued that the prosecution in the present case has failed to prove that the act was done by the accused with the intention of causing bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause death.
Shri Suresh Sahni, learned counsel, argued that statement of prosecution witnesses, especially those from the police department, proved that Rajendra Singh, Deputy Superintendent of Police, was the first to reach at the place of incident, yet the prosecution has neither cited him as a witness in the calendar of witnesses nor produced him as such in the court. Therefore, adverse inference ought to have been drawn against the prosecution with reference to Section 114 of the Evidence Act.
Shri Suresh Sahni, learned counsel, then referred to statement of each of the eye witnesses and also other important witnesses with particular reference to specific overt-act attributed to each accused, which shall be discussed at appropriate place hereinafter. Argument is that specific role has been assigned to only some accused for causing injuries on the person of deceased Darshan Singh, Preetam Singh and Birju Singh, and on the person of seriously injured, namely, Gagan Singh, Kuldeep Singh and Mahendra Singh, and not to all. More than half the accused have not been named by any of these witnesses for injuries of three deceased and three seriously injured persons. Their conviction with the aid of Section 149 IPC has been recorded only because they happened to be present at the scene of occurrence, which is highly unjust and unreasonable, being untenable in law. It is argued that cumulative reading of statements of all eye witnesses shows that neither all the members of the complainant party were present in the jeep when it collided with the camel cart nor all the members of accused party were present there when collusion between jeep and camel cart took place. They came one by one only after scuffle took place, therefore also the allegation that all were member of unlawful assembly formed with premeditation having a common object, is legally untenable.
Shri Suresh Sahni, learned counsel argued that acquittal of nine accused was fully justified because the trial court found that their names were added subsequently by improving upon the original version given in the first information report. This was because only few witnesses named them and they too named them for the first time in the court. No overt-act was assigned to them. Besides, most of the witnesses are interested, being closely related to deceased and, therefore, their testimony should be subjected to greatest amount of scrutiny, lest some innocent may get punished. It is, therefore, argued that appeal filed by accused-appellants be allowed and revision petition as well as appeal filed by the complainant and the State be dismissed.
Per contra, Shri Javed Choudhary, learned Public Prosecutor, and Shri V.R. Bajwa, learned counsel for complainant, opposed the appeal filed by accused-appellants. They argued that learned trial court has rightly convicted accused-appellants because there was overwhelming evidence proving their role in the crime. Learned counsel argued that incident had taken place at 7.00 pm on 24.05.2005 and the FIR was lodged six hours thereafter, therefore, it cannot be said that any delay was caused in its lodgment. It also cannot be said that complainant had named 24 accused in the FIR after due deliberations. There was no possibility for informant Bagh Singh (PW-2), a person, who lost his three brothers only six hours ago, to make deliberations before lodging the FIR. Since the parties were known to each other, it was quite natural for complainant to disclose names of 24 persons in the FIR. Delay of few days in recording statements of some of the witnesses by the police under Section 161 Cr.P.C. would be immaterial, particularly when statement of Thakur Singh (PW-1), Bagh Singh (PW-2), Roshan Singh (PW-3) and Manindra Singh (PW-4) was recorded on the same day on which the FIR was registered i.e. 25.11.2005 and other witnesses, whose statement was recorded later, have given substantially the same version. Most of the eye witnesses are injured and, therefore, their presence at the scene of occurrence is fully proved. Their testimony cannot be discarded. The trial court was justified in rejecting this objection relying on judgment of the Supreme Court in Ranbir and Others Vs. State of Punjab AIR 1973 SC 1409, because the defence did not put any question to the Investigating Officer whether he deliberately delayed recording of statements in order to help the accused. Learned counsel in support of his arguments, also relied on judgments of the Supreme Court in State of U.P. Vs. Sikandar Ali and Others AIR 1998 SC 1862, Kiledar Singh and Others Vs. State of M.P. - JT 2002 (10) SC 93, Sunil Kumar and Another Vs. State of Rajasthan (2005) 9 SCC 283 and Vijay Kumar Arora Vs. State (Government of NCT of Delhi) (2010) 2 SCC 353.
Learned counsel argued that each case of murder need not fall in clause thirdly of Section 300 IPC. It may fall in any one of the other three clauses of Section 300 IPC, supra. Learned counsel, in support of his argument, relied on judgments of the Supreme Court in State of Rajasthan Vs. Sher Ram alias Vishnu Dutta (2012) 1 SCC 602, and Dayal Singh and others Vs. State of Uttaranchal (2012) 8 SCC 263.
Shri V.R. Bajwa, learned counsel for complainant, argued that conviction of twenty accused in a case where three persons have lost their lives and sixteen sustained injuries, including three, who got seriously injured, cannot be questioned on the ground of their alleged false implication. Apart from the injuries sustained by three seriously injured persons, there were total 78 injuries on the persons of deceased and other injured. In fact, 30 injuries were received by 13 injured. Criteria of overt-act to decide membership of unlawful assembly may not therefore be applied to a case where there are, apart from three deceased, high number of injured with large number of injuries. It fully proves presence of greater number of accused as member of unlawful assembly. In such a scenario, involvement of 20 accused was quite justified. Learned counsel argued that test of overt-act may also not be a just and reasonable criteria to decide membership of unlawful assembly, when it is proved that all accused-appellants were armed with deadly weapons and seven of them were previously convict for life. The prosecution witnesses are proving their presence and role, and thus they have rightly been held to be member of unlawful assembly.
Learned counsel referred to statement of Roshan Singh (PW-3) and argued that this witness stated that there was enmity between the parties. Roshan Singh (PW-3) has proved that accused had trespassed over the land of a cremation ground. Deceased Birju Singh, who was Sarpanch of Gram Panchayat at the relevant time, had taken steps to remove the encroachment. The accused had started having grudge against complainant party since then. Learned counsel referred to statements of eye witnesses, namely, Thakur Singh (PW-1), Bagh Singh (PW-2), Roshan Singh (PW-3), Manindra Singh (PW-4), Karan Singh (PW-5), Mahendra Singh (PW-6), Pintu Singh (PW-7), Gurvindra Singh (PW-8), Rajendra Singh (PW-9), Balvindra Singh (PW-10), Surjeet Singh (PW-11), Kuldeep Singh (PW-12) and Babban Singh (PW-13), and argued that most of them have named accused-appellants and, therefore, learned trial court was fully justified in convicting them with aid of Section 149 IPC by applying 'two witness principle' propounded by the Supreme Court in Masalti, supra. If two or more witnesses are naming certain accused with overt-act, it would be a safe criteria for recording their conviction. Law does not require that every accused should be assigned specific overt-act for being a member of unlawful assembly. Knowledge about consequence arising out of act of unlawful assembly, would be sufficient to attract Section 149 IPC. Ratio of the judgment of the Supreme Court in Masalti, supra, holds the field till date, and has been reaffirmed subsequently by the Supreme Court in Chandra Shekhar Bind and Others Vs. State of Bihar JT 2001 (8) SC 386, Binay Kumar Singh Vs. State of Bihar (1997) 1 SCC 283, Krishnegowda and Others Vs. State of Karnataka (2000) 1 SCC 306 and Busi Koteswara Rao and Others Vs. State of Andhra Pradesh (2012) 12 SCC 711.
As regards the plea of alibi, it was argued that if an accused sets up plea of alibi, it is for him to prove the same by cogent evidence. The trial court rightly accepted statement of the Investigating Officer that it was possible for three accused, who were available in Delhi at 2'O clock in the day, to cover the distance of 135 kilometers to reach the place of occurrence. On the question of darkness, learned counsel argued that learned trial court, with reference to very same 'panchang' cited by the defence, noticed that moon appeared on the horizon that day at 8.14 pm and there was twilight between sun set and moon rising. Besides, members of both the parties being local, were known to each other. If the accused could identify the victim, for the same reason, the victim could also identify the accused. Light was sufficient enough on the spot to identify the assailants. Learned counsel, in support of his arguments, relied on judgments of the Supreme Court in Naseem Vs. State of U.P. - JT 2000 (Suppl.1) SC 230 and Chitrarmal Vs. State of Rajasthan (2003) 2 SCC 266.
It was argued that non-production of Rajendra Verma, Deputy Superintendent of Police, would have no adverse effect on the prosecution case because Ratan Lal (PW-34), Assistant Sub Inspector, who accompanied him at that time and first reached the scene of occurrence at 7.35 pm, has been produced in evidence. It was he who made entry in 'rojnamcha' about the incident. This witness, in cross-examination, has proved that he reached at the place of occurrence at 7.35 pm. Arguing the appeal filed by the State and the revision filed by the complainant, Shri Javed Choudhary, learned Public Prosecutor, and Shri V.R. Bajwa, learned counsel for complainant, submitted that the trial court was wholly unjustified in acquitting nine accused only because they were not named in the first information report. The FIR is not an encyclopedia. It is to be judged keeping in mind the mental condition of the complainant and, at that stage, the informant, who lost his three real brothers only six hours ago, may not be composed enough to name all the accused. In support of this argument, learned counsel relied on judgment of the Supreme Court in Budh Singh Vs. State of Madhya Pradesh (2007) 10 SCC 496.
It is argued that trial court has adopted double standards. On one hand, it has acquitted nine accused by applying the overt-act criteria, and on the other hand, it has convicted 20 accused-appellants on the same overt-act criteria. Even the nine accused, who have been acquitted by learned trial court on the basis of overt-act criteria, their presence and role in the unlawful assembly makes them members of unlawful members, and then each one of them would be vicariously responsible for the act of others. Relying on judgments of the Supreme Court in Chandrasekhar Sureshchandra Bhatt and Others Vs. State of Maharashtra (2000) 10 SCC 582 and Jaswant Singh Vs. State of Haryana 2000 (4) SC 114, learned counsel argued that minor innocuous improvements by prosecution witnesses over their previous version given to the police, would not be a reason to discard the entire prosecution case. Picture perfect description of the incident cannot be given even by an eye witness when large number of accused armed with different deadly weapons, assaulted the complainant party. In this connection, learned counsel relied on judgment of the Supreme Court in Chandrappa and others Vs. State of Karnataka JT 2008 (5) SC 540. Even if a witness does not name an accused as such in the FIR, his testimony before the court cannot be discarded merely because he did not name a particular accused in the FIR. Non naming of one or few of the accused persons in the FIR is no reason to disbelieve the testimony of crucial witnesses, although the court is entitled to subject the same to the critical scrutiny. Reliance in this connection is placed on the judgment of the Supreme Court in Kirender Sarkar and Others Vs. state of Assam JT 2009 (6) SC 114.
It is therefore prayed that the appeal filed by the State and the revision petition filed by the complainant party may be allowed as prayed for.
We have considered the rival submissions, perused the evidence on record and respectfully gone through the cited case law.
Record reveals that the trial court has in the earlier part of the judgment noticed deposition made by the prosecution witnesses with reference to specific overt-act attributed to the accused but, while deciding the question of unlawful assembly, it has segregated the accused in two groups; one of those, who have been named in the first information report and, another, who have not been named in the first information report. The trial court acquitted eight accused holding that neither they are named in the FIR nor most of the eye witnesses named them in their statement given to the police under Section 161 Cr.P.C. Third test that was applied by the trial court was that the prosecution witnesses, in their depositions, also do not assign any overt-act to them. Mere presence at the scene of occurrence, does not as such make them member of unlawful assembly. Nothing was recovered from six out of these eight accused. Recovery made at the instance of accused Rujdar and Majid Khan was neither believed nor held sufficient to connect them with the crime. Ninth accused acquitted by the trial court is Himmat Khan as he was merely shown present at the scene of occurrence by some of the eye witnesses, and only one of them i.e. Balvindra Singh (PW-10) made allegation that he exhorted other accused to murder Bagh Singh (PW-2). Learned trial court, on seeing accused Himmat Khan in the court in flesh and blood, observed that this man, who was 85 years old, was not even able to properly stand in the court. His presence at the scene of occurrence was only as an onlooker and therefore he could not be treated as a member of unlawful assembly. The reasonings given by the trial court for acquittal of these nine accused cannot be faulted. Appeal by the State and revision petition filed by the complainant against their acquittal therefore deserve dismissal.
Contention that since the incident took place at 7.00 pm and therefore there was no sufficient light, is noted to be rejected because in this case the parties were known to each other. Besides, according to the 'panchang' relied by the defence before the learned trial court, the time of sunset was 5.29 but the time for arising the moon was 8.14 pm. The trial court held that around 7.00 pm there was not complete dark. Since the parties were known to each other and there was twilight, therefore, if the accused could identify the deceased and the injured and attack them, injured and other witnesses could as well identify the accused. In a case where three persons have lost their lives and 16 sustained injuries, testimony of the prosecution witnesses cannot be discarded only for this reason. Similarly, non-examination of Rajendra Singh, the Deputy Superintendent of Police, who first reached the place of occurrence, would have no adverse effect on the prosecution case because Sub Inspector Ratan Lal, who accompanied him to the place of occurrence immediately after the incident, has been examined as PW-34.
Contention with regard to enormous delay in recording the statement of number of prosecution witnesses before the police under Section 161 Cr.P.C., has to be appreciated to the extent their statements substantially tally with those, whose statements were recorded on the same day. Their statements, of-course, if they have been confronted with the previous version during cross-examination, would have to receive greatest amount of scrutiny by the court to the extent of improvements and exhortations, to rule out the possibility of any innocent onlooker getting punished.
Coming now to conviction of twenty accused, who are all appellants before us in Criminal Appeal 1815/2007, we find that the trial court, in earlier part of the judgment, has taken note of the depositions of the prosecution witnesses, however, while deciding the question of unlawful assembly, applied the mechanical test of 'two witness principle' by relying on judgment of the Supreme Court in Masalti, supra. The trial court held that all these twenty accused have been named by at-least two or more prosecution witnesses as those, who came armed with deadly weapons forming an unlawful assembly and being members of such unlawful assembly, murdered Darshan Singh, Preetam Singh and Birju Singh in furtherance of achieving that common object. An unlawful assembly can be formed even on the spur of moment to achieve common object and, in this connection, it has relied on judgment of the Supreme Court in Amzad Ali @ Amzad Kha and Others vs The State Of Assam - AIR 2003 SC 3587.
What the Supreme Court held in Masalti, supra, is that when a criminal court has to deal with evidence pertaining to commission of offence involving large number of witnesses and large number of victims, the conviction could be sustained only if it is supported by two or three or more witnesses, who give a consistent account of the incident, and, at the same time, it held that it is the quality of the evidence that matters and not the number of witnesses who give such evidence. In Binay Kumar Singh, supra, the Supreme Court held that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as member of an unlawful assembly. All the same, when size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as participant in the rioting. More or less, the same view has been reiterated subsequently in Chandra Shekhar Bind, Krishnegowda and recently in Busi Koteswara Rao, supra. Despite use of the word 'mechanical test' by the Supreme Court in Masalti, supra, conviction of an accused cannot be mechanically recorded in cases in which there are large number of accused, only because minimum 'two witnesses' are, regardless of what role they attribute to them and whether or not the same finds corroboration from other evidence, alleging his presence at the scene of occurrence. The deposition that they make and the confidence that it inspires, is always the paramount consideration for accepting the testimony of such witnesses as the safe basis to sustain the conviction. For the same reason, therefore, we are not inclined to uphold the contention that since three deceased received 48 injuries, three got seriously injured, thirteen sustained thirty injuries, this by itself would justify conviction of 20 accused. Everything would depend on the quality and not necessarily quantity, of evidence adduced by the prosecution against the accused. This court, in view of the width and plenitude of powers available to it as the first appellate court under Section 374 Cr.P.C., is entitled to re-appreciate the entire evidence so as to test the correctness of the findings recorded by the trial court and hold whether or not, a particular accused was member of unlawful assembly and can be thus convicted for the substantive offence of murder with the aid of Section 149 IPC.
We have had the benefit of hearing arguments of learned counsel for accused-appellants as well as learned counsel for complainant, who took us through the statements of the eye witnesses with particular emphasis on the role they have assigned to each accused. In order therefore to test the correctness of 'two witness principle' applied by the trial court, we have to carefully examine whether each of the accused has been attributed specific role by minimum of two witnesses. For determination of the fact that accused were members of the unlawful assembly, not only what is alleged by two or more eye witnesses against them, has to be considered but we have also to examine whether testimony received corroboration from the injuries proved by the medico-legal report and the recovery of the weapons made at the instance. We have, for that purpose, critically examined the evidence. The evidence indicates that the accused can be broadly put in two categories. First category would be of those accused, who have been named by the prosecution witnesses for the injuries of the deceased as well as seriously injured and second category would be of those accused who have not been attributed any specific overt-act or it is not otherwise corroborated from the recovery of weapons or even by absence of the corresponding injury. With that end in view, we will now briefly deal with the depositions made by the eye witnesses.
Thakur Singh (PW-1) has named Sube Khan, Mohammada, Jalla, Mohra, Deenu, Giddu, Safeda, Munshi, Mishru, Samsu, Hakku, as those who were present at the place of occurrence. They were armed with 'lathis', 'tanchia', 'kulhari', 'ballam' etc. He has stated that accused Jalla Khan inflicted a 'farsi' blow on the head of Bagh Singh. Accused Deenu Khan hit deceased Birju with 'farsi' on his head and Mohar Khan with 'kulhari' and Misru with 'tanchia' on his head. Mohar Khan hit Bagh Singh with the stone. All these accused seriously injured Preetam Singh.
Bagh Singh (PW-2) has alleged presence of (1) Sube Khan, (2) Samsuddin), (3) Pida, (4) Mohammada, (5) Fakru, (6) Alam, (7) Jalla, (8) Deenu, (9) Sahun, (10) Safi, (11) Mohar Khan, (12) Giddu, (13) Mubin, (14) Hanif, (15) Safeda, (16) Misru, (17) Kasam, (18) Sajid, (19) Majid, (20) Ayub, (21) Himmat, (22) Aas Mohammad, (23) Jamil, (24) Sakil and (25) Asin. Then, he has stated that there were about 100 more persons standing there. These accused were armed with 'lathis', 'farsi', 'kulhari', 'tanchia' and gun. They were beating Pintu while he lay on ground. He further deposed that accused Jalla inflicted a 'farsi' blow on his head, which this witness could save because he moved backward. On Birju Singh reaching there, accused Jalla and Munshi pointed at him and exhorted them to kill him (this witness). Thereafter all the accused attacked Birju Singh with 'kulhari', 'farsi', and 'tanchia', and caused serious injuries to him. Accused Hakku, Mishru and Aas Mohammad along-with two others, dragged Birju Singh towards their house. These accused caused serious injuries to Preetam Singh by their weapons and thereafter he fell down on the ground. Accused Kasam and Deenu dragged Preetam Singh towards their house.
Roshan Singh (PW-3) has named (1) Munshi Khan, (2) Giddu, (3) Mohammada, (4) Mishru, (5) Kasim, (6) Arsad, (7) Himmat, (8) Asin, (9) Aas Mohammad, (10) Jamil, (11) Sakil, (12) Rafiq and (13) Sajid, as those present at the scene of occurrence and has also stated that there were 50-60 more persons, who were all armed with 'lathis', farsis', 'kulhari', 'tanchia'. These accused seriously injured Preetam Singh. Soon Bagh Singh reached there, Jalla Khan inflicted on him a blow by 'farsi' but Bagh Singh saved himself by moving to another side. Munshi Khan inflicted a 'farsi' blow on the person of Birju Singh, and all these accused gave him beating by 'lathis', 'kulhari' and 'tanchia'. Thereafter when Preetam Singh came, these accused attacked him and he was seriously injured. The accused also seriously injured Gagan Singh, Babban Singh, Manindra Singh, Karan Singh, Kuldeep Singh.
Manindra Singh (PW-4) (S/o Bagh Singh) named thirty four accused. They are, (1) Jalla Khan, (2) Deenu Khan, (3) Mohar Khan, (4) Sube Khan, (5) Mohammada, (6) Samsuddin, (7) Rukmuddin, (8) Pida @ Hakmudin, (9) Fakru, (10) Alam, (11) Sahun, (12) Sappi, (13) Arsad, (14) Mushtak, (15) Safeda, (16) Mishru, (17) Kasam, (18) Sajid, (19) Rafiq, (20) Himmat, (21) Aas Mohammad, (22) Asin, (23) Jamil, (24) Shakil, (25) Majid, (26) Ayub, (27) Giddu, (28) Munshi, (29) Rehman, (30) Mubin, (31) Hanif, (32) Sarsu, (33) Pappu and (34) Rujdar. As regards the overt-act, he has stated that Jalla Khan inflicted a 'farsi' blow on the head of his father. When he tried to save his father, Jalla Khan inflicted a 'farsi' blow on him, which he received on his hand, leading to a cut in the thumb of his hand. Then Jalla Khan inflicted another 'farsi' blow, as a result of which his lips and nose were amputated resulting in disfigurement of his face.
Karan Singh (PW-5) has stated that accused had seriously injured Pintu before he reached the place of occurrence. Jalla Khan and his family members were beating Bagh Singh, elder brother of this witness. When he asked them not to do so, accused Ayub and Hanif also exhorted the other accused that he (this witness) should also be finished. Mishru thereupon inflicted a blow, which he received on his shoulder and when Mishru inflicted another blow, he received the same on the palm of his left hand. Accused Ayub and Hanif inflicted blows by 'lathi' and 'sariya' on his hand. Birju Singh was murdered by (1) Pappu, (2) Sarsu, (3) Fakru, (4) Jalla, (5) Deenu, (6) Mohra, (7) Giddu, (8) Munshi, (9) Safeda, simultaneously by 'lathis', 'farsis', 'kulhari' and 'tanchia'.
Mahendra Singh (PW-6) has stated about presence of (1) Sube Khan, (2) Mohammada, (3) Jalla, (4) Deenu, (5) Mohra, (6) Sakku, (7) Samsu, (8) Pida, (9) Munshi, (10) Giddu, (11) Majid, (12) Himmat, (13) Asin, (14) Aas Mohammad, (15) Rehman, (16) Rujdar, (17) Jamil, (18) Shakil, (19) Sahun, (20) Mubin, (21) Hanif, (22) Pappu, (23) Sarsu, (24) Asif Mohammad. He alleged that Deenu inflicted a 'farsi' blow on his head. The accused were so infuriated that they caused injuries to Mohammada, one of their own men.
Pintu Singh (PW-7) has stated about presence of (1) Sajid, (2) Mishru, (3) Rafiq, (4) Shakil, (5) Jamil, (6) Aas Mohammad, (7) Asmin, (8) Himmat, (9) Ayub, (10) Arsad, (11) Jalla, (12) Mohra, (13) Giddu, (14) Munshi, (15) Deenu, (16) Mohar Khan, (17) Sarsu, (18) Samsu and (19) Pappu, etc. Kasam inflicted a blow on his right hand. Safeda inflicted another blow by 'tanchia' at his back. When his uncle Bagh Singh reached there, Jalla caused a 'farsi' blow on his head. When Bagh Singh, in order to save himself, ran towards the mosque, he was chased by (1) Rafiq, (2) Ayub, (3) Alam and (4) Asin, and they caught hold of him. Birju Singh was attacked by (1) Jalla Khan, (2) Mohra, (3) Giddu, (4) Munshi, (5) Deenu, (6) Safeda and (7) Mishru, by 'lathi', 'farsi', 'gandasa' and 'kulhari'. Birju died on the spot. His father Preetam Singh was attacked by (1) Aas Mohammad, (2) Samsu, (3) Jalla, (4) Mohra, (5) Giddu, (6) Munshi, (7) Mohar Khan, (8) Safeda, (9) Mishru and (10) Rukmuddin, by 'gandasa', 'farsi', 'kulhari'. As a result of the injuries sustained he died on the spot. His uncles Darshan Singh, Mahendra Singh, Gagan Singh, Manindra Singh, Babban Singh also reached on the scene of occurrence. They were also attacked by (1) Jalla, (2) Mohra, (3) Deenu, by 'gandasa', 'farsi', 'kulhari'. Mohammada, a person belonging to accused-party, was also attacked by accused themselves by 'lathi' and 'farsi'.
Gurvindra Singh (PW-8) has stated that when he reached the place of occurrence, accused Alam and Rafiq rushed towards him. Alam inflicted a 'sariya' blow on finger of his hand. He got frightened and went back to his house. All the accused were armed with 'farsi', 'kulhari', 'gandasa', 'lathis' etc. They were beating the members of the complainant party.
Rajendra Singh (PW-9) has stated that he saw accused Shakil, Mushtaq, Asim and Rujdar dragging his uncle Birju Singh towards their house. That time there was still some light. Arsad inflicted a 'lathi' blow on his hand, which hit his wrist. He got frightened and watched the incident by hiding himself in a street, wherefrom he saw his uncle Preetam Singh reach there to save Pintu Singh and Bagh Singh. Preetam Singh was beaten by (1) Jalla, (2) Deenu, (3) Mishru, (4) Mohar Khan, (5) Giddu, (6) Safeda, (7) Munshi, (8) Aas Mohammad, (9) Samsuddin and (10) Rukmuddin. They were armed with 'farsi', 'kulhari', 'gandasa' etc. On receiving injuries, his uncle Preetam Singh fell on the ground. Preetam Singh was dragged by (1) Kasam, (2) Deenu, (3) Asin, (4) Alam, (5) Sajid and (6) Rafiq towards their house. Jalla, Deenu and Mohra, who were armed with 'farsi' and 'kulhari' were also present there. Mohammada received an injury on his head at the hands of the accused themselves.
Balvindra Singh (PW-10) has deposed that Jalla Singh inflicted a 'farsi' blow on the head of Bagh Singh. Accused Sube Khan, Himmat, Asin, Ayub, Jamil and Arsad were instigating Jalla to kill Bagh Singh. Sappi, Mohammad, Sahun and Pida were also standing there. They were armed with 'lathis'. Mohammada, who had a pipe, was running towards the house of Om Prakash, to give beating to Pintu, but Jamil, Asin, Arsad and Ayub, pulled him back. When Preetam Singh reached near flour mill, accused (1) Deenu, (2) Jalla, (3) Mohra, (4) Mishru, (5) Munshi, (6) Giddu, (7) Safeda, (8) Aas Mohammad, (9) Samsu and (10) Rukmuddin, who were armed with 'farsi', 'kulhari', 'gandasa', 'tanchia' etc. attacked Preetam Singh. Preetam Singh fell on the ground near the flour mill. Sappi and Sahun also beat Preetam Singh by 'lathis' while he was lying on the ground. Thereafter, on askance of Mohammada and Himmat, Preetam Singh was dragged by Rafiq, Sajid, Alam, Kasam, Arsad and Asin towards their house. Pida and Mohammad were armed with 'lathi' and pipe. When Darshan Singh reached near the temple, Jalla, Deenu and Mohra gave him beating by 'farsi', 'kulhari', 'tanchia' and 'gandasa', on exhortation by Majid and Hanif. Mohammada accidentally received an injury on his head at the hands of accused and thereafter he went towards his house. Jamil, Arsad, Ayub, Majid, Hanif and Fakru dragged Darshan Singh towards their house.
Surjeet Singh (PW-11) has stated that (1) Mohammada, (2) Sube Khan, (3) Deenu, (4) Mohra, (5) Jalla, (6) Munshi, (7) Giddu, (8) Safeda, (9) Samsu, (10) Mishru and (11) Hakku, and 50-60 other persons, armed with 'lathi', 'farsi', 'kulhari', 'tanchia', 'ballam', were present at the scene of occurrence. These accused seriously injured Pintu Singh. When Bagh Singh came to save him, Jalla inflicted a 'farsi' below on his head. Soon thereafter Birju Singh reached there. Deenu inflicted a 'farsi' blow on the head of Birju Singh. Mohra inflicted a 'kulhari' below. Mishru inflicted a 'tanchia' blow. All these accused gave beating to Preetam Singh, who fell on the ground. When Darshan Singh came, these accused also gave him beating and caused him to fall on the ground. All these accused dragged Preetam Singh, Darshan Singh and Birju Singh towards their house.
Kuldeep Singh (PW-12) has deposed that (1) Jalla, (2) Deenu, (3) Sube Khan, (4) Mohammada, (5) Rukku, (6) Samsu, (7) Mohra, (8) Munshi, (9) Safeda, (10) Giddu, (11) Majid, (12) Himmat, (13) Aas Mohammad, (14) Sappi, (15) Shakil, (16) Jamil, (17) Pappu, (18) Hanif, (19) Mubin, (20) Sarsu, (21) Sahun, (22) Alam, (23) Sajid, (24) Rehman and (25) Rujdar, were present at the scene of occurrence. These accused were beating his father Birju Singh, uncles Darshan Singh and Preetam Singh. Mohra had 'tanchia'. Rukku and Munshi had 'danti'. Asin, Jalla, Deenu and Samsu had 'farsi'. These persons gave severe beating to his brother Gagan Singh, who received head injuries also. Fakru inflicted a blow on his temple by pipe. Asin inflicted a 'farsi' blow on his head. He also received injury on his jaw. Deenu inflicted a 'farsi' blow on the head of his uncle Mahendra Singh. These accused dragged Birju Singh, Darshan Singh and Preetam Singh, towards their house.
Babban Singh (PW-13) has stated that he saw accused (1) Jalla Khan, (2) Rukmuddin, (3) Mohra Khan, (4) Deenu, (5) Munshi Khan, (6) Mishru Khan, (7) Safeda Khan, (8) Giddu, (9) Aas Mohammad and (10) Samsu Khan, present at the scene of occurrence. They were armed with 'farsi', 'tanchia', 'lathis'. They gave severe beating to Preetam Singh. When he reached there with his father, his father was attacked by Deenu, Mohra and Jalla by 'kulharis' and 'farsis'. Jalla and Samsu Khan gave him beating. Jalla attacked him by 'farsi' and hit his head with the handle of 'farsi'. Samsu inflicted a 'lathi' blow on his right hand, and thereby fractured his right hand. He also received other injuries on his body.
Shashi Kant Joshi (PW-36), Investigating Officer, has proved all the exhibits of prosecution, apart from proving recovery of weapons.
Gist of statement of prosecution eye witnesses, that we have recapitulated above, indicates that the witnesses have named many of the accused but equally true is the fact that many of them have been merely shown present, the specific overt-act having been assigned to a few of them, who were, according to these witnesses, mostly armed with sharp edged weapons, like 'farsi', 'kulhari' and 'tanchia'. This allegation finds corroboration from the injuries received by the deceased and seriously injured persons and recovery of weapons at their instance.
Dr. Atul Gaur (PW-22) and Dr. M.C. Gupta (PW-23), who were at the relevant time posted at the Community Health Centre, Kishangarhbas and were Members of the Medical Board, which conducted autopsy of deceased Preetam Singh, have proved the postmortem-report (Exhibit P-163), according to which the deceased received following injuries:-
1. Incised wound 5cm x 2cm x muscle deep on left leg posteriorly just below knee joint
2. Incised wound 4cm x 3cm x bone deep laterally on left leg upper 1/3rd with # of both tibia and fibula.
3. Incised wound 3.5 cm x 0.5 cm x muscle deep on left leg anteriorly middle 1/3rd.
4. Incised wound 4.5cm x 2.5cm x bone deep posteriorly on right leg lower 1/3rd with # of both bones (tibia and fibula).
5. Incised wound 5cm x 2.5cm x muscle deep on left leg anteriorly middle 1/3rd.
6. Bruise with swelling 5 x 6cm on right arm upper 1/3rd laterally with # of left humours.
7. Incised wound 3cm x 2cm x muscle deep on right arm lower half anteriorly.
8. Incised wounds 2.5 cm x 0.5cm x bone deep on forehead just above left eye.
9. Bruise with swelling 5x4cm on left arm posteriorly upper half.
10. Multiple abrasions on whole back.
11. Incised wound 3.5cm x 0.5cm x bone deep on occipital region transversely placed.
12. Incised wound 8cm x 0.5cm x bone deep. Longitudinal on right side of fronto-parietal region with # of frontal bone.
13. Incised wound 5.5cm x 0.5cm x bone deep longitudinal on left side of fronto-occipital region.
14. Incised wound 6cm x 0.5cm x bone deep on scalp middle part, longitudinal.
15. Lacerated wound 8cm x 0.8cm x muscle deep. Posteriorly on right shoulder joint.
The cause of his death was opined to be shock as a result of multiple injuries.
These two witnesses also conducted autopsy of deceased Birju Singh and have proved his postmortem-report (Exhibit P-164), who received following injuries:-
1. Incised wound 5cm x 2.5cm x bone at lower 1/3rd of right arm with # of humorous posteriorly.
2. Incised bruise, transversely placed 10.5cm x 4.5cm on Ant. Abd. With just below both nipples.
3. Incised wound 5cm x 3.5cm x bone deep on right leg middle 1/3rd with # of both bones.
4. Incised wound 5.5cm x 4.5cm x bone deep on left leg middle 1/3rd with # of both bones.
5. Incised wound 7.5cm x 0.5cm x bone deep transversely placed on occipital region of scalp.
6. Incised wound 6.5cm x 0.5cm x bone deep on frontal bone, right side of scalp, longitudinally placed with # of frontal bone.
7. Bruise bluish 5x4cm around right eye.
8. Incised wound 6.5cm x 0.5cm x bone deep at left occipital frontal region transversely placed.
9. Incised wound 3.5cm x 0.5cm x bone deep at left occipital frontal region just below injury No.8.
10. Bruise with swelling on dorsal of left hand 5x4cm with # of all four fingers of left hand at the base.
In his case also the cause of death was opined to be shock as a result of multiple injuries.
Dr. Phool Singh Choudhary (PW-28) has proved the postmortem-report (Exhibit P-170) of deceased Darshan Singh, who received following injuries:-
1. Incised wound on left side of parietal region obliquely placed from central mid line to left side. Length is 8cm and width is 1 cm, depth is upto bone.
2. Incised wound on right parietal region obliquely placed from central middle to right side, of length 9cm x 1cm x bone deep. Brain matter is coming out from the wound.
3. Incised wound on right occipital region of size 3 x 1cm x bone deep. Dry blood present at the wound and in surrounding area.
4. Abrasion on right arm Post Lat of size 2 x 1cm in U 1/3rd.
5. Bruise on right arm Post Lat of size 12 x 3cm in middle part.
6. Bruise on right side abdomen Ant-Lat of size 20 x 4cm.
7. Bruise on right thigh Post of size 12 x 2cm in upper part.
8. Bruise on right hip of size 12 x 2cm.
9. Abrasion on right hip Lat of size 8 x cm.
10. Abrasion on right hip 3 x cm, 2cm below injury No.9
11. Abrasion left iliac crust of size 3 x 7cm.
12. Bruise on right shoulder in upper part 12 x 2cm obliquely placed.
13. Bruise on right shoulder 10 x 4cm just below injury no.12.
14. Bruise on right shoulder in 30 x 20cm area just below injury no.13.
15. Bruise on left hip of size 13 x 2cm.
16. Bruise on left hip of size 8 x 4cm just below injury no.15.
17. Abrasion on left hip three in number of length 10, 12 and 16cm of width 1cm placed upside down cm apart.
18. Abrasion on abdomen Post on left side 12 x 2cm in middle part.
19. Bruise on abdomen Anterior Lat left side of size 8 x 2cm in M 1/3rd.
20. Abrasion on forehead right side of size 1 x cm.
21. Abrasion on forehead left side of size 10 x 2cm just above eyebrow.
22. Abrasion on abdomen Anterior in upper part right side of 10 x 10cm.
23. Abrasion on abdomen left side in upper part of 10 x 8cm.
His cause of death was opined to be Coma due to Brain Injury, sufficient in ordinary course of nature to cause death.
At this stage, we may deal with the argument raised by learned counsel for accused-appellants that in first two of these three postmortem-reports, the Medical Board has not opined that the injuries were sufficient in the ordinary course of nature to cause death and, therefore, it would not attract clause thirdly of Section 300 of the IPC. This omission would have no adverse consequence to the prosecution case because even otherwise, clauses firstly, secondly, thirdly and fourthly of Section 300 IPC, may get attracted alternatively and in certain cases cumulatively. Even if, therefore, clause thirdly is not attracted, the first clause, that the culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or clause secondly that if the act is done with the intention to cause such bodily injury, as the offender knew to be likely to cause the death of the person to whom the harm is caused, would still be attracted. The defence did not at all cross-examine Dr. M.C. Gupta (PW-23). In cross-examination of Dr. Atul Gaur (PW-22), however, no such question was put to him. All that was asked was whether hemorrhagic shock could be caused due to excessive bleeding, to which he replied in the positive.
Coming back to the nature of injuries, we may notice the injuries of the seriously injured persons, Gagan Singh, Kuldeep Singh and Mahendra Singh. It should be noted that their injury-reports have not been exhibited on record, although their bed-head-tickets of S.M.S. Hospital, Jaipur, where they were treated, have been proved by producing the doctors.
Dr. N.C. Punia (PW-25), Assistant Professor, Neurosurgery Department, S.M.S. Hospital, Jaipur, has proved bed-head-ticket of injured Gagan Singh (Exhibit P-168A), who, on the basis of CT Scan, has stated that there was fracture of his left parietal and frontal bone, leading to contusion and swelling in the brain. He was subjected to surgery. During operation, he (this witness) removed broken pieces of bones of parietal cranium. He also removed the contused brain and repaired the dural-sinus and also repaired the dura after taking patch of pari-cranium. It was essential to conduct this surgery to save his life.
Dr. Pankaj Gupta (PW-29), Assistant Professor, Neurosurgery Department, S.M.S. Hospital, Jaipur, has proved bed-head-ticket of injured Mahendra Singh (Exhibit P-171). He has proved that on CT Scan he found depressed fracture of right parietal bone. He was immediately operated upon and broken pieces of bone were removed and extra dural hematoma was removed and dura restitched. If this surgery was not conducted, he would have died.
Dr. Pradeep Gupta (PW-26), the Assistant Professor, Plastic Surgery Department, S.M.S. Hospital, Jaipur, has proved bed-head-ticket of injured Kuldeep Singh (Exhibit P-169). He has proved that Kuldeep Singh suffered fracture of lower jaw and zygoma bone. He had to be operated upon for repairing such bones.
There is thus opinion by medical experts at-least about two injured of these three seriously injured persons, namely, Gagan Singh and Mahendra Singh, that if their surgery was not conducted, they would have died.
The Supreme Court in State of Rajasthan Vs. Shera Ram alias Vishnu Dutta (2012) 1 SCC 602, held that there is no documentary or oral evidence to prove the fact that the injuries caused by the respondent to the deceased were sufficient in the ordinary course of nature to cause death. This, however, cannot be stated as an absolute proposition of law and the question whether the particular injury was sufficient in the ordinary course of nature to cause death or not, is a question of fact, which will have to be determined in light of the facts, circumstances and evidence produced in a given case. There could be cases where injuries caused upon the body of the deceased per se can irresistibly lead to the conclusion that the injuries were sufficient to cause death in the ordinary course of nature, while there may be other cases.
Apart from that law, such minor omissions in the postmortem-report would have no adverse bearing on the prosecution case in view of the direct evidence by way of statement of prosecution eye witnesses, above referred to medical evidence, recovery of deadly weapons and corroboration of the use thereof from nature of injuries. We, therefore, reject this argument.
Examination of the record reveals that most of the injuries and to be more specific, all the fatal injuries, suffered by the deceased were incised wounds caused by sharp edged weapons. This can also be said of all injuries suffered by three seriously injured, namely, Gagan Singh, Kuldeep Singh and Mahendra Singh, which were grievous in nature, in view of the statements of the Doctors, who operated upon them. 11 out of 15 injuries found on the person of deceased Preetam Singh, being incised wounds, were caused by sharp edged weapons and of remaining four, two were bruises, one abrasion and last one was lacerated wound, as evident from his postmortem-report Exhibit P-163. Deceased Birju Singh received ten injuries, as per his postmortem-report (Exhibit P-164). Out of them, seven injuries were incised wounds caused by sharp edged weapon, and two injuries were bruises and one was abrasion. Deceased Darshan Singh, however, received twenty-three injuries as per his postmortem-report (Exhibit P-170). Ten of these injuries were bruises, whereas other ten were abrasions, but the injuries no.1, 2 and 3 on head, which proved fatal as per the cause of death assigned by the Medical Board, were incised wound caused by sharp edged weapon. Injury no.1 was on left side of parietal region obliquely placed from central mid line to left side, length of which was 8cm and width was 1 cm, depth was upto bone. Injury no.2 was on right parietal region obliquely placed from central middle to right side, which was of length 9cm x 1cm x bone deep. Brain matter was coming out from the wound. Third injury was on right occipital region of size 3 x 1cm x bone deep. Dry blood was present at the wound and in surrounding area.
The medical evidence thus corroborate the ocular evidence to the extent the witnesses have attributed the overt-act to the different accused of causing injuries on the person of deceased by use of sharp edged weapons, like 'farsi', 'gandasa', 'kulhari', 'danti' and 'tanchia'. When we look at the record, we find that one 'farsi' each has been recovered from accused, namely, Samsuddin vide recovery-memo Exhibit P-10, Jalla Khan vide recovery-memo Exhibit P-11 and Deenu Khan vide recovery-memo Exhibit P-25. Similarly, one 'gandasa' has been recovered at the instance of accused Giddu vide recovery-memo Exhibit P-15, and another 'gandasa' has been recovered at the instance of accused Safeda vide recovery-memo Exhibit P-29. Recovery of 'kulhari' has been made at the instance of accused Mohar Khan vide recovery-memo Exhibit P-20, and recovery of 'danti' (bunky) has been made at the instance of accused Munshi Khan vide recovery-memo Exhibit P-2, another 'danti' has been recovered at the instance of accused Rukmuddin vide recovery-memo Exhibit P-9. But 'lathis' have been recovered at the instance of accused Pida @ Hakmuddin, Safi Mohammad @ Sappi and Sahun, respectively vide recovery-memos Exhibit P-7, Exhibit P-22 and Exhibit P-24. Similarly, one iron pistol has been recovered at the instance of accused Majid vide recovery-memo Exhibit P-63. That is all on the aspect of recovery of weapons.
Contention that the incident actually started on a trivial issue when the jeep of Pintu Singh collided with the camel cart of the accused Kasim and the accused joined the incident much later, one after another and therefore, it cannot be said that they had prior meeting of mind and on that basis, further contention that the incident had taken place on spur a moment without premeditation and with no common object, to liquidate three persons and injure others, is noted to be rejected for the simple reason that the manner in which several accused armed with deadly weapons joined the incident, clearly prove that it was an act of unlawful assembly with the common object of murdering three persons and causing grievous injuries to others. It is trite that an assembly which is though lawful in the beginning may become illegal in course of time and common object can develop even on spot. All this can be ascertained in the facts and circumstances of each case. But once it is established that a particular accused was member of unlawful assembly, he shall be vicariously liable to the offence committed by any member of unlawful assembly in prosecution of common object of that assembly. The crucial question to be examined by this court is whether all the accused-appellants were member of unlawful assembly. This court has to, for that purpose, decide whether all the accused appellants actively participated in the incident in furtherance of the common object of such assembly. What is alleged is that apart from 24 accused named in the first information report, there were about 100 more persons, who participated in the incident. In the statements before the court, the prosecution witnesses have named as many as 34 accused and have also additionally alleged that more than 100 accused in all were present at the scene of occurrence.
In Bachan Singh Vs. State of Bihar - (2008) 12 SCC 23, Supreme Court re-visited previous case law on the subject in Masalti & Ors. Vs. The State of Uttar Pradesh - AIR 1965 SC 202, Lalji and others Vs. State of U.P. - (1989) 1 SCC 437 and Shamushul Kanwar Vs. State of U.P - (1995) 4 SCC 430 and held that where prosecution fails to prove the existence of common object of all the members of unlawful assembly, it is unsafe to convict all on the basis of overt-acts of few. It was further held by the Supreme Court that where free fight took place and thirteen accused were charged, only those who caused fatal injuries, were liable to be convicted. The Supreme Court acquitted other accused-appellants, who were charged with the aid of Section 149 IPC giving them benefit of doubt.
In Vishnu and others Vs. State of Rajasthan - (2009) 10 SCC 773, the Supreme Court sounded a note of caution that court has to ascertain whether every member of an unlawful assembly knew the offence likely to be committed in prosecution of a common object, only then a person, who at the time of committing that offence was such member, would be guilty of the offence committed. The court should guard against danger of convicting innocent persons and for that purpose scrutinize record carefully and if doubt arises, should give benefit thereof to the accused. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributed to the members of the unlawful assembly and whether a member of such unlawful assembly was aware as regards likelihood of commission of yet another offence or not, would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in this behalf. (emphasis supplied) In Nagarjit Ahir Vs. State of Bihar - (2005) 10 SCC 369, the Supreme Court held that it may be safe to convict only those persons against whom overt-act is alleged with the aid of Section 149 IPC, lest some innocent spectators may get involved. In Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra - (2009) 10 SCC 773, the Supreme Court held that where a large number of persons are alleged to have participated in the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the facts situation and convict only those accused, whose presence was clearly established and overt-acts were proved.
The Supreme Court in Debashis Daw, supra, while considering the question of applicability of Sections 149 and 141 IPC, held that it is well settled and needs no restatement that mere presence of the persons at the scene of offence, itself would not be enough to convict them and punish under Section 149 IPC unless it is established that each one of them was part of the unlawful assembly and committed the offence in prosecution of the common object of that assembly. When there are large number of accused with general allegations, the court should categorically scrutinies the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. (underlying ours) The Supreme Court in Khairuddin, supra, dealt with a case where the dispute was regarding possession and right to cultivate a parcel of agricultural land, which embittered relations between the accused on one hand and one A and his tillers on the other. On the day of the incident, when A along with the informant and victims accompanied by a few others were working on the disputed parcel of land, twenty-four named persons including the appellants and some unnamed persons, came to the spot, armed with sharp weapons. On obstruction from ploughing the land in question, an altercation took place between the two parties, which escalated into a murderous assault by the appellants upon the persons in cultivation of land, who sustained grievous injuries from the sharp-edged weapons. The Supreme Court held that the evidence adduced at trial comprising depositions of prosecution witnesses, attributed overt-act of assault to only five of the appellants (Group A). The said evidence clearly shows that Group A accused were not only named in the FIR but were in specific terms named even at trial by the witnesses, some of whom were themselves injured in the incident, thereby proving their presence on the spot beyond any doubt. Hence, their conviction was confirmed. Accused of Group B were not named in the FIR and their presence and participation was doubtful, hence they were acquitted. Group C accused were not named in the FIR but participation of one amongst them proved. Hence, the Supreme Court upheld conviction only of one in Group C and acquitted remaining of this Group.
When we analyze the evidence of this case in the light of overt-act attributed to the accused, to decide as to which of the accused fall in the first category, we find that Thakur Singh (PW-1) has blamed accused-appellant no.1 Jalla Khan of inflicting injury on the head of Bagh Singh. Pintu Singh (PW-7) has named Jalla Khan on allegation of attacking Darshan Singh. He has been consistently named by most of the witnesses of causing injury on the head of Bagh Singh by 'farsi', though, Bagh Singh has received simple incised wound there. Bagh Singh (PW-2) himself has also attributed his such head injury to Jalla Khan and has further alleged that Jalla Khan and Munshi exhorted other accused to kill Birju Singh. Manindra Singh (PW-4) has stated that Jalla Khan hit Manindra Singh with 'farsi' on face. Pintu Singh (PW-7) has alleged that Jalla, Mohra and Deenu attacked deceased Darshan Singh. Rajendra Singh (PW-9) has stated that Jalla, Deenu and Mohra had attacked Darshan Singh, as a result of which he fell down. Bagh Singh (PW-2) has stated that Jalla and Munshi exhorted other accused to kill Birju Singh. Balvindra Singh (PW-10) has stated that Jalla along-with Deenu and Mohra hit deceased Darshan Singh by 'farsi', 'kulhari' and 'tanchia'. This witness also named Jalla along-with nine other accused who gave severe beating to deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa' and 'tanchia'. Babban Singh (PW-13) has specifically named Jalla Khan amongst ten accused for severely beating Preetam Singh by 'farsi', 'tanchia' and 'lathis'. He has further alleged that his father Darshan Singh was attacked by Deenu, Mohra and Jalla by 'kulhari', 'gandasa' and 'farsis'. Recovery of 'farsi' has been made at the instance of accused Jalla vide recovery-memo Exhibit P-11.
Coming now to the role of accused-appellant no.2 Giddu @ Chav Khan, it should be noted that Pintu Singh (PW-7) has named him along-with six other accused, who inflicted 'lathi', 'farsi', 'gandasa' and 'kulhari' blows on deceased Birju Singh. This witness also named him along-with nine other accused, who inflicted 'gandasa', farsi' and 'kulhari' blows on the person of deceased Preetam Singh. Rajendra Singh (PW-9) has also named Giddu amongst nine other assailants, who delivered 'kulhari' 'farsi', gandasa', blows on the body of deceased Preetam Singh. Balvindra Singh (PW-10) has also alleged that Giddu was one amongst ten accused, who gave severe beating to deceased Preetam Singh by use of 'kulhari', 'gandasa' and 'tanchia'. Babban Singh (PW-13) has named Giddu amongst ten accused, who gave severe beating to deceased Preetam Singh by use of 'farsi', 'tanchia' and 'lathis. 'Gandasa' has been recovered at the instance of accused Giddu @ Chav Khan, vide recovery-memo Exhibit P-15.
Accused-appellant no.3 Safeda has been specifically named by Karan Singh (PW-5) along-with eight other accused, who inflicted severe blows on the body of Birju Singh by 'farsi', 'kulhari', 'tanchia' and 'lathis'. Pintu Singh (PW-7) has also named Safeda along-with six other accused for causing injuries on the person of deceased Birju Singh. He further named accused Safeda along-with nine other accused for causing injuries on the person of deceased Preetam Singh. Rajendra Singh (PW-9) has named accused Safeda amongst ten other accused on specific allegation of causing injury on the body of deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa' etc. Balvindra Singh (PW-10) has named Safeda amongst 10 accused for causing injuries to deceased Preetam Singh by use of 'farsi', 'kulhari', 'gandasa', 'tanchia' etc. Babban Singh (PW-13) has named Safeda along-with nine other accused specifically for causing injury on the body of deceased Preetam Singh by use of 'farsi', 'tanchia', 'lathi' etc. 'Gandasa' has been recovered at the instance of accused Safeda, vide recovery-memo Exhibit P-29.
Manindra Singh (PW-4) has specifically named thirty-four accused including accused-appellant no.5 Munshi Khan, who caused injuries on the body of deceased Birju Singh by use of 'farsi', 'kulhari', 'tanchia' and 'lathis'. Pintu Singh (PW-7) has named Munshi along-with six other accused, who murdered deceased Birju Singh by causing injuries by 'lathi', 'farsi', 'gandasa', 'kulhari. This witness also named Munshi along-with nine other accused for causing injuries on the person of his father Preetam Singh by use of 'gandasa', 'farsi' and 'kulhari'. Rajendra Singh (PW-9) has named Munshi along-with nine other accused on specific allegation of causing injuries on the body of deceased Preetam Singh by use of 'farsi', 'kulhari', 'gandasa' etc. Balvindra Singh (PW-10) has named Munshi along-with nine other accused on specific allegation of causing injuries on the person of deceased Preetam Singh by use of 'farsi', 'kulhari', 'lathi', 'tanchia' etc. Kuldeep Singh (PW-12) has named Munshi as one who attacked all the three deceased with 'tanchia', 'danti' and 'farsi', along-with other accused. Babban Singh (PW-13) has named Munshi Khan along-with nine other accused for killing of Preetam Singh by use of 'farsi', 'tanchia', 'lathi' etc. 'Danti' was recovered at the instance of accused-appellant Munshi vide recovery-memo Exhibit P-2.
Pintu Singh (PW-7) has named accused-appellant no.7 Aas Mohammad @ Asanda amongst ten accused, who gave beating to his father Preetam Singh by use of 'gandasa', 'farsi', 'kulhari'. Rajendra Singh (PW-9) has named Aas Mohammad amongst ten accused whom he saw beating Preetam Singh by 'farsi', 'kulhari' and 'gandasa'. Balvindra Singh (PW-10) has named Aas Mohammad amongst ten accused, who, by 'farsi', 'kulhari', gandasa' and 'tanchia', were beating deceased Preetam Singh. Babban Singh (PW-13) has named Aas Mohammad amongst ten accused on specific allegation of beating Preetam Singh by use of 'farsi', 'tanchia', 'lathi' etc. However, it may be noted that no recovery has been made at the instance of accused-appellant Aas Mohammad. Nonetheless, his guilt has been proved beyond reasonable doubt by overwhelming evidence.
Coming now to accused-appellant no.9 Rukmuddin, he has been named by Pintu Singh (PW-7) amongst ten accused, who subjected his father Preetam Singh to severe beating by 'gandasa', 'farsi' and 'kulhari'. Rajendra Singh (PW-9) has named Rukmuddin amongst ten accused, who gave severe beating to deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa', etc. Balvindra Singh (PW-10) has named Rukmuddin Khan amongst ten accused, who beat Preetam Singh by 'farsi', 'kulhari', 'gandasa', 'tanchia' etc. Babban Singh (PW-13) has also named Rukmuddin amongst ten accused, who gave severe beating to decreased Preetam Singh by 'farsi', 'tanchia' and 'lathi'. 'Danti', a sharp edged weapon, has been recovered at the instance of accused-appellant Rukmuddin, vide recovery-memo Exhibit P-9.
Coming to accused-appellant no.10 Samsuddin, he has been named by Pintu Singh (PW-7) amongst ten accused, who gave severe beating to his father Preetam Singh by 'gandasa', 'farsi', 'kulhari'. Rajendra Singh (PW-9) has named him amongst ten accused, who gave beating to Preetam Singh by 'farsi', 'kulhari', 'gandasa', etc. Balvindra Singh (PW-10) has named Samsuddin amongst ten accused, who caused injuries on the body of deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa', 'tanchia' etc. Babban Singh (PW-13) has named this accused ( shown as Samsu Khan) amongst ten accused, who gave beating to deceased Preetam Singh by 'farsi', 'tanchia', 'lathi' etc. Recovery of 'farsi' has been made at the instance of Samsuddin vide recovery-memo Exhibit P-10.
Similar is the case of accused-appellant no.11 Mohar Khan @ Mohra, who has been named by Karan Singh (PW-5) amongst nine accused, who gave severe beating to deceased Birju Singh by 'lathi', 'farsi', 'kulhari', 'tanchia'. This accused has been named by Thakur Singh (PW-1) as the one who delivered severe blows on the head of deceased Birju Singh by use of 'kulhari'. Pintu Singh (PW-7) has named Mohra amongst seven accused, who gave severe beating to deceased Birju Singh by 'lathi', 'farsi', 'gandasa', 'kulhari'. He has also named this accused (Moora) amongst ten accused, who gave beating to his father Preetam Singh by use of 'gandasa', 'farsi', 'kulhari' etc. Pintu Singh (PW-7) has also named accused Mohra amongst two accused for giving severe beating to deceased Darshan Singh by 'gandasa', 'farsi', 'kulhari' etc. Rajendra Singh (PW-9) has named this accused Mohar Khan along-with nine other accused, who gave beating to deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa', etc. Balvindra Singh (PW-10) has named Mohar Khan @ Mohra amongst ten accused, who gave beating to Preetam Singh by 'farsi', 'kulhari', 'gandasa' etc. He has further stated that when Darshan Singh reached near temple, Jalla, Dina, Moora (Mohar Khan @ Mohra) gave beating to him by 'farsi', 'kulhari', 'tanchia' and 'gandasa'. Surjeet Singh (PW-11) has named Moora (Mohar Khan @ Mohra) and alleged that he inflicted 'kulhari' blow on deceased Birju Singh. Babban Singh (PW-13) has named Moora (Mohar Khan @ Mohra) amongst ten accused, who gave beating to deceased Preetam Singh by 'farsi', 'tanchia', 'lathi' etc. A 'Kulhari' has been recovered at the instance of this accused Moora (Mohar Khan @ Mohra) vide recovery-memo Exhibit P-20.
Adverting now to accused-appellant no.12 Deenu Khan. Thakur Singh (PW-1) has alleged that Dina (Deenu Khan) inflicted a 'farsi' blow on the head of deceased Birju Singh. Karan Singh (PW-5) has named him as one amongst nine accused, who gave beating to deceased Birju Singh by use of 'farsi', 'kulhari', 'tanchia' and 'lathis'. Pintu Singh (PW-7) has named him as one amongst seven accused, who gave beating to deceased Birju Singh by use of 'farsi', 'kulhari', 'gandasa' and 'lathi'. He also named him along-with nine other accused for giving beating to deceased Preetam Singh by use of 'gandasa', 'farsi', 'kulhari'. He also alleged that Deenu Khan was one amongst three accused, who gave beating to deceased Darshan Singh by use of 'gandasa', 'farsi', 'kulhari etc. Rajendra Singh (PW-9) has named Deenu Khan amongst ten accused, who gave beating to Preetam Singh by 'farsi', 'kulhari', 'gandasa', etc. Balvindra Singh (PW-10) has also named Deenu Khan amongst ten accused, who inflicted severe blows on the body of deceased Preetam Singh by use of 'farsi', 'kulhari', 'tanchia' etc. He then also named Deenu Khan along-with two other accused for giving severe injuries to deceased Darshan Singh by use of 'farsi', 'kulhari', 'tanchia', 'gandasa' etc. Surjeet Singh (PW-11) has named Deenu as the one who gave a 'farsi' blow on the body of deceased Birju Singh. Babban Singh (PW-13) has named accused Deenu amongst ten accused, who inflicted severe blows on the body of deceased Preetam Singh by use of 'farsi', 'tanchia', 'lathi' etc. A 'Farsi' has been recovered at the instance of accused Deena Khan vide recovery-memo Exhibit P-25.
Coming now to the case of accused-appellant no.19 Mishru @ Misru. We find that Thakur Singh (PW-1) has alleged for him that he hit Birju Singh on his head by 'tanchia'. Pintu Singh (PW-7) has named this accused along-with six other accused, who inflicted severe blows on the body of deceased Birju Singh by 'farsi', gandasa', 'kulhari' and 'lathis'. He has also named Mishru @ Misru along-with nine other accused, who delivered severe blows on the body of his father deceased Preetam Singh by 'gandasa', 'farsi', 'kulhari' Rajendra Singh (PW-9) has named this accused as one amongst ten accused, who gave beating to deceased Preetam Singh by 'farsi', 'kulhari' and 'gandasa'. Balvindra Singh (PW-10) has named this accused as one amongst ten accused, who gave beating to deceased Preetam Singh by 'farsi', 'kulhari', 'gandasa', 'tanchia' etc. Surjeet Singh (PW-11) has also named this accused as one who inflicted severe blows on the body of deceased Birju Singh by 'tanchia'. Babban Singh (PW-13) has also named this accused along-with nine other accused, who inflicted severe blows on the body of deceased Preetam Singh by 'farsi', 'tanchia', 'lathi' etc. Although, recovery of any weapon has not made at the instance of accused-appellant Mishri @ Misru. His offence is proved by all the afore-discussed evidence beyond reasonable doubt, even in the absence of recovery.
Let us now come to the case of second category of accused-appellants against whom there is no specific evidence in the statements of the eye witnesses and either no recovery of any deadly weapon has been made from them or recovery of only blood smeared clothes of other accused has been shown at their instance.
Accused-appellant no.4 Sube Khan is one such accused, who has been merely shown present along-with other accused at the scene of occurrence, though with no specific overt-act by Thakur Singh (PW-1), Bagh Singh (PW-2), Manindra Singh (PW-4), Mahendra Singh (PW-6), Surjeet Singh (PW-11) and Kuldeep Singh (PW-12). Not only that, no specific overt-act has been attributed to him, none of the witnesses has in fact alleged that he carried any specific weapon. No recovery of any weapon whatsoever has been made at his instance.
Similarly, accused-appellant no.6 Mohmadda has been merely shown present by Thakur Singh (PW-1), Bagh Singh (PW-2), Roshan Singh (PW-3), Manindra Singh (PW-4), Mahendra Singh (PW-6), Surjeet Singh (PW-11) and Kuldeep Singh (PW-12). But none of these witnesses have attributed to him any overt-act of injuries either of the deceased or the seriously injured persons. In fact, most of the eye witnesses have claimed that accused Mohmadda himself suffered injuries on his head at the hands of other accused-appellants themselves and then he went to his house. This only fortifies the plea that he was merely an onlooker and himself sustained injuries in the scuffle between accused and complainant-party. Although Balvindra Singh (PW-10) has alleged that this accused having fired but no recovery of any weapon whatsoever has been made at his instance.
Accused-appellant no.8 Sakil @ Shakil is also one such accused, who has been shown present at the scene of occurrence by Bagh Singh (PW-2), Roshan Singh (PW-3), Manindra Singh (PW-4), Mahendra Singh (PW-6), Pintu Singh (PW-7) and Kuldeep Singh (PW-12). But none of these witnesses have attributed any specific role to him with respect to injuries of either the deceased or the seriously injured. No recovery of any weapon or otherwise has been made at his instance. It is with regard to this accused that learned counsel for accused-appellants has argued that age of this accused Sakil @ Shakil has been shown to be merely 17 years in his arrest-memo (Exhibit P-41), though subsequently during trial he was held to have crossed the age of 18 years at the time of incident on the basis of his school record.
Accused-appellant no.13 Safi Mohammad has also been shown present at the scene of occurrence by Bagh Singh (PW-2), Manindra Singh (PW-4), Balvindra Singh (PW-10) and Kuldeep Singh (PW-12), but none of them has attributed any specific overt-act to him with respect to injuries of the deceased or the seriously injured, nor has alleged that he was having any particular weapon. Recovery of a bamboo 'lathi' has been shown at his instance vide recovery-memo Exhibit P-22. No overt-act has been attributed to him except Balvindra Singh (PW-10), who has named him along-with accused-appellant no.14 Sahun, for inflicting 'lathi' blows on the person of deceased Preetam Singh after he fell down on the ground. Preetam Singh received injuries by severe blows of 'farsi', 'kulhari', 'gandasa' etc. by ten accused named by him.
Accused-appellant no.14 Sahun has also been named as present at the scene of occurrence by Bagh Singh (PW-2), Manindra Singh (PW-4), Mahendra Singh (PW-6), Balvindra Singh (PW-10) and Kuldeep Singh (PW-12). Other witnesses have not attributed any specific overt-act to him except Balvindra Singh (PW-10) that he along-with accused Safi inflicted 'lathi' blows on deceased Preetam Singh after he fell down having received severe blows by 'farsi', 'kulhari', 'gandasa' and 'tanchia' etc. at the ends of ten accused named by them. Recovery of a bamboo 'lathi' has been shown at the instance of this accused vide recovery-memo Exhibit P-24.
In so far as the statement of Balvindra Singh (PW-10) is concerned, the same is not free from doubt for two reasons, firstly because deceased Preetam Singh has received fifteen injuries, 11 of which were incised wounds, two were bruises, one abrasion and one lacerated wound. If ten named accused already gave him severe beating by 'farsi', 'kulhari', gandasa', 'tanchia', possibility of these four minor injuries, apart from 11 incised wounds, being received thereby is quite strong. The statement of Balvindra Singh (PW-10) to that extent does not inspire confidence. His intention appears to implicate as many as accused as possible. This entitles accused-appellants Safi Mohammad and Sahun to benefit of doubt, despite recovery of 'lathi' at their instance.
Accused-appellant no.15 Mustaq has also been shown as present at the place of occurrence by Manindra Singh (PW-4) and Rajendra Singh (PW-9). No specific overt-act has been attributed to him by any of the witnesses in respect of injuries of the deceased or injured. All that has been alleged regarding him by Rajendra Singh (PW-9) is that he along-with Shakil, Asim, Rujdar dragged deceased Birju Singh from his house, but no other witness has supported his this allegation. No weapon, muchless any deadly weapon, has been recovered at his instance. All that has been shown recovered at his instance are the clothes of co-accused Shakil and Samsuddin from the common house vide recovery-memo Exhibit P-17. This was simply a way devised by the prosecution to some how connect him with the crime.
Accused-appellant no.16 Arsad also has been merely shown present at the scene on occurrence by Roshan Singh (PW-3), Manindra Singh (PW-4), Pintu Singh (PW-7) and Balvindra Singh (PW-10). No specific overt-act has been attributed to him in respect of injuries of the deceased or seriously injured. Balvindra Singh (PW-10) has stated that he along-with five other accused, namely, Sube Khan, Himmat, Asim, Ayub and Jamil, gave exhortation to co-accused Jalla and that he along-with five other accused dragged deceased Darshan Singh from his house. But, neither of these allegations have been supported by any other prosecution eye witnesses, though, some other prosecution eye witnesses have alleged dragging of Darshan Singh by the accused in general. The allegation against this accused also appears to be actuated by the motive of making false/over implication. No weapon has been shown to have been recovered at his instance. The police has shown recovery of blood smeared clothes of co-accused Alam Khan and Kasam Khan at the instance of accused Arsad from the common house vide recovery-memo Exhibit P-18, only with the view to connecting him with the crime.
Accused-appellant no.17 Pida has also has been merely shown present with about 100 persons by Bagh Singh (PW-2). Mahendra Singh (PW-6) has also shown him present along-with several other accused at the scene of occurrence. No specific overt-act has been attributed to him by any of the witnesses in regard to injuries of the deceased or the injured. All that has been alleged by Balvindra Singh (PW-10) is that he along-with three other accused gave exhortation. Recovery of 'lathi' has been shown at his instance vide recovery-memo Exhibit P-7.
Accused-appellant no.18 Aashin has also been shown present along-with about 100 other persons at the scene of occurrence, by Bagh Singh (PW-2). Roshan Singh (PW-3) has stated about his presence in the crowd of about 60 persons. Manindra Singh (PW-4) has named him amongst as many as 30 co-accused. Mahindra Singh (PW-6) has stated his presence at the scene of occurrence. Balvindra Singh (PW-10) has alleged his presence at the scene of occurrence and that he, along-with five other accused, was giving exhortation to Jalla Khan for killing Bagh Singh, and that he along-with Mustaq, Shakil and Rujdar dragged deceased Birju Singh to their house. But, no other witness has supported him in respect of allegation of exhortation or dragging of deceased Birju Singh, though they generally make such allegation against all accused. With respect to accused-appellant Aashin, Kuldeep Singh (PW-12) has alleged that this accused inflicted a 'farsi' blow on his head and Fakru inflicted a pipe blow on left temporal bone of his head but he cannot say with certainty as to who caused injury on his jaw. Injury-report of Kuldeep Singh has not been produced and exhibited on record, but his bed-head-ticket (Exhibit P-169) has been proved by Dr. Pradeep Gupta (PW-26). The bed-head-ticket indicates that it was a case of assault on 24.11.2005 and the patient came well oriented. There was fracture of left zygoma and mandible bone and swelling over face. X-ray of zygoma and mandible bone was advised. CT Scan for facial bone was advised. Fracture of Zygoma was found. After surgery, the zygoma was elevated to normal position and the fracture of fronto zygomatic was fixed with introsem wires. Dr. Pradeep Sharma (PW-26), who has proved this document, has in his statement merely proved the fact of the surgery of zygoma bone and that bones of the jaw and zygoma were found fractured. It has thus not been proved whether Kuldeep Singh (PW-12) received an injury on the head by 'farsi'. Besides, Kuldeep Singh (PW-12) has alleged that (1) Mohra had 'tanchia', (2) Rukku and (3) Munshi had 'danti', (4) Aashin, (5) Jalla, (6) Dina and (7) Samsu had 'farsi', and all of them gave severe beating to his brother Gagan Singh, on his head. They also gave beating to him (Kuldeep Singh) on his head, temporal bone and jaw. Fakru had hit him on his temple with pipe. Aashin delivered a 'farsi' blow on his head but he did not remember who caused injury on his jaw. Recovery of 'farsi' has been made at the instance of Aashin vide recovery-memo Exhibit P-27. Though, this witness has alleged that accused-appellant Aashin inflicted first blow on his head but there is no corresponding incised wound by sharp edged weapon on his head. Had there been any such injury, it would have certainly found mention in the bed-head-ticket (Exhibit P-168) proved by Dr. N.C. Punia (PW-25). The allegation therefore that all seven accused armed with sharp edged weapons, caused injuries on the head of injured Gagan Singh becomes doubtful because of lack of corresponding number of injuries on his head. Besides, the other six accused, namely, Mohra, Rukku, Munshi, Aashin, Jalla, Dina and Samsu, named by this witness on such allegation are already falling in the first category. Allegation against accused Aashin of causing this injury is therefore not proved beyond reasonable doubt. Neither any injury-report nor any X-ray report has been produced to prove any such injury. Allegation against him cannot be taken as proved by even 'two witness principle' propounded by the Supreme Court in Masalti, supra, because no other witness has supported this allegation against accused. The prosecution cannot therefore be taken to have proved guilt of even this accused for the injury of injured Kuldeep Singh, thus entitling him to benefit of doubt.
Accused-appellant no.20 Jameel has been shown present at the scene of occurrence along-with about 100 accused by Bagh Singh (PW-2). Manindra Singh (PW-4) has also shown presence of this accused Jameel. Mahindra Singh (PW-6) has also named him amongst many accused present at the scene of occurrence. Pintu Singh (PW-7) has also shown his presence on the scene of occurrence. Balvindra Singh (PW-10) has also shown presence of Jameel and alleged that he along-with several other accused was exhorting accused Jalla for killing injured Bagh Singh. Kuldeep Singh (PW-12) has also shown presence of accused Jameel with 25 named accused and others. None of the eye witnesses however attributed any overt-act to this accused either for the injuries of the deceased or the injured. No weapon has been recovered at his instance. The police has shown recovery of blood stained clothes of accused Munshi at his instance vide recovery-memo Exhibit P-32 from their common house only with a view to connecting him with the crime.
Adverting now to other thirteen injured, (1) Thakur Singh sustained one simple injury, being swelling with pain, vide injury-report Exhibit P-33. (2) Bagh Singh sustained three injuries, two abrasions and once incised wound, vide injury-report Exhibit P-39. (3) Roshan Singh sustained one simple injury vide Exhibit P-40, being complaint of pain. (4) Manindra Singh sustained five injuries vide injury-report Exhibit P-49, which were simple in nature. (5) Karan Singh sustained five injuries vide injury-report Exhibit-56, which were simple in nature. (6) Pintu Singh received three injuries vide injury-report (Exhibit P-57), which were simple in nature. (7) Gurvindra Singh sustained two injuries vide injury-report (Exhibit P-58), which were simple in nature. (8) Rajendra Singh sustained two simple injuries vide injury-report Exhibit P-59. (9) Balvindra Singh received one injury vide injury-report Exhibit P-60, which was complaint of pain over body. (10) Surjeet Singh had swelling with pain, which is clear from his injury-report Exhibit P-61. (11) Babban Singh received four injuries, three being swelling with pain and one abrasion, which is clear from his injury-report Exhibit P-65. (12) Smt. Surmi Kaur sustained two bruises, which is clear from the injury-report Exhibit P-166. (13) Baljeet Kaur received two injuries, one being bruise and another was complaint of pain with swelling, which is clear from injury-report Exhibit P-167. For one or two injuries of some of the injured, the opinion was kept reserved to await their X-ray examination. Dr. Atul Gaur (PW-22) has proved the injury-reports of all the aforesaid injured, except Baljeet Kaur, whose injury-report Exhibit P-167, has been proved by Dr. M.C. Gupta (PW-23). According to their statements, all the injured sustained simple injuries and after X-ray examination only injured Babban Singh was found to have fracture of a lower half of right forearm.
As already noticed above, the eye-witnesses produced by the prosecution have mostly named those ten accused, who fall in the first category, on specific allegation of causing injuries to all the deceased as well as injured. There are general allegations against those ten accused, who fall in second category which is found wanting in corroboration. There is no specific allegation by two or more of the witnesses against them for causing particular injury to either the deceased or the injured. In view of the general nature of role assigned to ten accused-appellants falling in second category and recovery of either only 'lathis' or clothes of other accused except 'farsi' at the instance of one of them viz. accused Ashina, whose case we have dealt with in detail, guilt of other nine accused in this category also cannot be held to have been proved beyond reasonable doubt, thus entitling them to benefit of doubt.
We therefore hold that only accused-appellants Jalla, Giddu, Safeda, Munshi, Aas Mohammad, Rukmuddin, Samsuddin, Mohar Khan @ Mohra, Deenu Khan and Mishri @ Misru, were members of unlawful assembly. Each of them would be vicariously responsible for the act of one another and guilty of murdering Darshan Singh, Preetam Singh and Birju Singh and, causing injuries to all sixteen injured including those three, who were seriously injured.
In view of the above discussion, the charges against accused-appellants, namely, Sube Khan, Mohammada, Sakil @ Shakil, Safi Mohammad, Sahun, Mustaq, Arsad, Pida, Aashin and Jameel, cannot be held proved beyond reasonable doubt and they are entitled to benefit of doubt. Accordingly, appeal of accused-appellants, namely, Sube Khan, Mohammada, Sakil @ Shakil, Safi Mohammad, Sahun, Mustaq, Arsad, Pida, Aashin and Jameel, arising out of Judgment dated 19.09.2007 of learned Additional District & Sessions Judge (Fast Track) Kishangarhbas, District Alwar, in Sessions Case No.2/2006, succeeds and is hereby allowed. They are acquitted of all the charges. Accused-appellants Sube Khan, Safi Mohammad, Sahun, Pida, Aashin and Jameel, are in jail. They be set at liberty forthwith, if not required in any other case. Accused-appellants Mohammada, Sakil @ Shakil, Mustaq and Arsad, are on bail as per order dated 01.05.2013 of the Supreme Court in Criminal Appeal No.680/2013 arising out of SLP (Crl.) No.945/2013. They need not surrender. Their bail bonds and sureties stand discharged.
Appeal filed by accused-appellants Jalla, Giddu, Munshi, Aas Mohammad, Rukmuddin, Samsuddin, Mohar Khan @ Mohra, Deenu Khan and Mishri @ Misru, is, however, dismissed. As per information given by learned counsel for accused-appellants, accused-appellant Safeda has died on 15.07.2013 and to substantiate this, learned counsel has produced death certificate dated 19.07.2013 issued by Municipal Corporation Jaipur. Hence, appeal of accused-appellant Safeda stands abated and is accordingly dismissed.
Appeal as well as revision petition filed by the State and the complainant against impugned judgment assailing acquittal of nine accused, are also dismissed.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants Sube Khan, Mohammada, Sakil @ Shakil, Safi Mohammad, Sahun, Mustaq, Arsad, Pida, Aashin and Jameel, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
(Nisha Gupta) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW