Madhya Pradesh High Court
Kartar Singh vs State Of M.P. on 14 November, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRA No. 615/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE SANJAY YADAV
AND
HON. SHRI JUSTICE S.K.AWASTHI
Criminal Appeal No. 615/1999
Kartar Singh
Versus
State of Madhya Pradesh
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Shri V.K.Saxena, learned senior counsel with Shri
Aditya Singh, counsel for the appellant.
Shri Prakhar Dhengula, learned Additional Public
Prosecutor, for the respondent/ State.
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AND
Criminal Appeal No. 375/2000
State of Madhya Pradesh
Versus
Kartar Singh and another
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Shri Prakhar Dhengula, learned Additional Public
Prosecutor, for the appellant/ State.
Shri R.K.Sharma, learned senior counsel with Shri
V.K.Agrawal and Shri Raghuvir Singh, counsel for the
respondents.
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JUDGMENT
(14/11/2017) Per S.K.Awasthi, J.:
This judgment shall govern the outcome of Criminal Appeal No. 615/1999 and Criminal Appeal No. 375/2000, which have been preferred against the judgment dated 30.10.1999 passed in Sessions Trial No. 105/1998 whereby the Trial Court has convicted the appellant of Criminal Appeal No. 615/1999 for -( 2 )- CRA No. 615/1999 commission of offence punishable under Section 325 of IPC and sentenced him to undergo seven years Rigorous Imprisonment and Rs. 1000/- fine with default stipulation of three months Simple Imprisonment whereas in Criminal Appeal No. 375/2000, the State has preferred an appeal to challenge the portion of judgment dated 30.10.1999 whereby the Trial Court has acquitted the accused persons of charge under Section 302 read with Section 149 as well as under Section 148 and Section 323 read with Section 149 of IPC.
2. The facts which emerge for adjudication are that on 23.07.1997, the respondent received an information about the incident that occurred on same day in evening, that the accused persons, namely, Kartar Singh, Makhan Singh and Amar Singh and three other persons, had constituted an unlawful assembly and were equipped with weapons such as Lohangi, Lathi, Farsa, Mouser and 12 Bore Rifle, in order to inflict fatal injury to Virendra Singh (deceased) on account of a dispute relating to theft of a Buffalo. According to the prosecution story, the appellant in Criminal Appeal No. 615/1999 was equipped with Mouser and Lohangi whereas Malkhan Singh was equipped with Farsa and Amar Singh was carrying a Rifle. As per the allegations, all the accused persons forcefully inflicted as many as 26 injuries on Virendra Singh which included an injury on the head of the deceased which was concluded to be fatal according to Post Mortem Report (Ex. P-14). It is categorically indicated in the P.M. Report that the injuries caused resulted in Cardio-Respiratory Failure which resulted in death of the deceased.
3. The respondent proceeded to record an FIR bearing Crime No. 138/1997 (Ex. P-10) and named all -( 3 )- CRA No. 615/1999 the accused persons, including unknown persons, for commission of offences punishable under Section 302, 307, 326, 148 read with Section 149 of IPC.
4. The respondent on the basis of evidence collected during the course of investigation and the medical evidence which had come on record proceeded to present the chargesheet against the accused persons including the present appellant in Criminal Appeal No.615/1999 and the respondent in Criminal Appeal No. 375/2000. Consequently, the charges were framed on 29.07.1999 against all the accused persons for commission of offences punishable under Section 302 of IPC read with Section 149 of IPC as also for commission of offences punishable under Section 323 read with Section 149 of IPC and Section 148 of IPC.
5. The prosecution was given an opportunity to lead evidence and as many as sixteen witnesses were examined by the prosecution which included the statements of Karan Singh (PW-6), Kehri Singh (PW-8), Rakesh (PW-10) and Tilak Singh (PW-12), who were presented as eyewitnesses to the incident. In rebuttal to the evidence led by the prosecution, the appellant presented two defence witnesses to establish the fact that there existed a civil dispute amongst the parties and therefore, the present appellant has been falsely implicated in the instant case. The appellant also submitted a copy of the plaint (Ex. D-4) in which one of the complainants has been shown as party to civil proceedings.
6. Upon cumulative consideration of the material on record and statement of witnesses produced by the prosecution, the Trial Court proceeded to pronounce impugned judgment dated 30.10.1999 and the appellant -( 4 )- CRA No. 615/1999 in Criminal Appeal No. 615/1999 was convicted for commission of offence punishable under Section 325 of IPC. This judgment is the subject-matter of the instant appeals before this Court.
7. In view of the fact that the impugned judgment is common in both the appeals; however, the grounds of adjudication being separate and independent, it would be appropriate to deal with Criminal Appeal No. 375/2000 preferred by the State Government against the acquittal of the accused persons before adverting to Criminal Appeal No. 615/1999.
Criminal Appeal No. 375/20008. In the context of the prosecution, the learned counsel for the appellant had argued that the prosecution had produced several eyewitnesses who had categorically specified the role of the accused persons. However, the Trial Court has ignored the statements in which the present respondents have been clearly insinuated and it has clearly come on record that respondent No. 1, Kartar Singh, was equipped with Mouser and Lohangi whereas Malkhan Singh was equipped with Farsa. Further, it has categorically come in the statements of Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10) that Kartar Singh inflicted several blows on the deceased by using Lohangi as a weapon and Makhan Singh used the rear end of the Farsa to cause fatal injury to the deceased. Therefore, in light of overwhelming eyewitness account, the impugned judgment is clearly erroneous and deserves to be set aside. It has also been argued that in a case where charges have been framed under several provisions of -( 5 )- CRA No. 615/1999 IPC read with Section 149 of IPC, it is well-established that there is no requirement to establish overt act of each individual who is member of the unlawful assembly and only the fact about knowledge and common object is relevant and is sufficient to convict the persons under substantive provisions of IPC. Therefore, it was vehemently contended that the judgment to the extent it relates to acquittal of respondents for commission of offences punishable under Section 302 read with Section 149 of IPC deserves to be set aside.
9. Per contra, learned counsel for the respondents submitted that the Trial Court has passed a well- reasoned judgment with respect to the offence punishable under Section 302 of IPC, in view of the fact that the appellant had produced four eyewitnesses out of which of one of them turned hostile and the remaining eyewitnesses clearly improved their statements in comparison to their statement recorded under Section 161 of Cr.P.C. To highlight few of such instances, the learned counsel for the respondents submitted that Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10) had stated under Section 161 of Cr.P.C. that Makhan Singh wielded Farsa which resulted in injuries on the person of the deceased; however, according to the Post Mortem Report (Ex. P-14), there was no incised wound observed on the person of the Deceasd, which obviously means that the eyewitnesses were stating wrong facts whereas in order to cure this lacuna in the prosecution case, Karan Singh (PW-6), Kehari Singh (PW-
8) and Rakesh (PW-10), improved their versions of the story and stated that Makhan Singh used rear portion of Farsa to inflict injuries on the deceased, in order to align the description of injuries mentioned in Post Mortem -( 6 )- CRA No. 615/1999 Report (Ex. P-14) with their statements. Consequently, it has been argued that the impugned judgment does not suffer from any infirmity and deserves to be affirmed.
10. In order to bring home these submissions, the learned counsel for the respondents has placed reliance on the following judgments (for the purpose of convenience, the ratio of the cases are mentioned opposite to each case):-
(2014) 3 SCC 366 (Badal Murmu and others vs. State of West Bengal) - In cases of multiple injuries, unless specific role is ascribed to the appellant in relation to infliction of a fatal injury, it is difficult to award punishment under Section 302 of IPC. In such light, the Court in the instant case instead of awarding punishment under Section 302 awarded punishment under Section 304 Part II of IPC.
(1994) 5 SCC 188 (Meharaj Singh vs. State of UP) - The testimonies of interested witnesses cannot be simply discarded for the simple fact that they are interested or related; however, it certainly puts the Court on its guard to scrutinize their evidence more carefully if the eyewitnesses are introduced after thought deliberations.
(2011) 9 SCC 561 (Shivlal and another vs. State of Chhattisgarh) - Delay in or not sending a copy of the FIR to the Magistrate under Section 157 (1) of Cr.P.C. may adversely affect the case of the prosecution or cast a shadow. Procedural latches may not be individually sufficient to have an adverse effect on the prosecution version. But a combined effect of such factors must be taken into -( 7 )- CRA No. 615/1999 consideration.
(2010) Cri LJ 2791 (M.C.Ali and another vs. State of Kerala) - If two views are possible on the evidence adduced in a case, on pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
(2010) 10 SCC 374 (Sambhu Das alias Bijoy Das and another vs. State of Assam) -
Depending upon facts and circumstances, non- examination of material eyewitness may prove fatal to the prosecution's case, especially, when such fact is viewed in light of discrepancies and contradictions in evidence.
(1998) SCC (Cri.) 1350 (Rewa Ram vs. Teja and others) - Even in cases of multiples injuries, absence of evidence to show who caused fatal injuries to the deceased, may prove fatal to prosecution's case for convicting a person under Section 302 of IPC.
(2016) 12 SCC 389 (Ram Laxman vs. State of Rajasthan) - "7. In our considered view the Division Bench committed a serious error in relying upon the aforesaid judgment. No doubt, it is an established principle of criminal law in India that only on account of detecting some falsehood in the statement of a witness who is otherwise consistent and reliable, his entire testimony should not be discarded. It is equally settled law that if a witness -( 8 )- CRA No. 615/1999 is found undependable and unreliable his evidence cannot be split to grant benefit to some co-accused while maintaining conviction of another when in all respects he stands on the same footing and deserves parity."
11. We have given our anxious consideration on the contentions raised by the rival parties and we have perused the material available on record.
12. It is alleged that accused Makhan Singh was equipped with farsa and he caused injuries to Virendra Singh. The perusal of post-mortem report (Ex.P/14) clearly indicates that the deceased sustained as many as 26 grievous injuries whereas there is absence of injury alleged to be caused by sharp edged weapon. Therefore, there is no error committed by the trial Court in concluding that in order to cover the lacunae in the prosecution case, the prosecution witnesses Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10) have improved their version of the story so that the conviction to respondent No.2-Makhan Singh can be ensured. It is also difficult to lose sight of the fact that the statements of the eye-witnesses have many exaggerations with respect to the involvement of respondent No.2-Makhan Singh. As per the prosecution story, Makhan Singh is the resident of Village Jimedarpura, however in the contents of the FIR name of Makhan Singh is not mentioned and in his place the name of Malkhan Singh, resident of Village Tundila has come and the prosecution has not produced any evidence to prove that Makhan Singh is also called as Malkhan Singh. The FIR has been lodged by Rakesh (PW-10), who has conceded in his cross- examination that he did not know accused Makhan prior -( 9 )- CRA No. 615/1999 to the incident, therefore, it is not clear that how Rakesh has mentioned the name of Makhan Singh in Col. No.7 in the FIR as accused No.2 whereas in Col. No.12 of the FIR the role of Makhan Singh is absent and in his place it is alleged that Malkhan Singh has caused injury to the deceased Virendra Singh. The trial Court in para 22 of the judgment has considered all the aspects regarding false implication of Makhan Singh in the incident.
13. Having considered the facts of the present case, we are of the considered view that the trial Court did not commit any error in acquitting the present respondent No.2-Makhan Singh and Criminal Appeal No.375/2000 is dismissed to the extent it relates to acquittal of respondent No.2-Makhan Singh. Respondent No.2 is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
14. With respect to the involvement of respondent No. 1- Kartar Singh, the testimony of Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10) have remained intact and it has categorically come on record that the respondent No. 1 inflicted grievous injuries with the use of dangerous weapon i.e. Lohangi. The sequence of events narrated in the examination-in-chief of Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10), also finds support from the details mentioned in the FIR regarding the time of occurrence of the incident and its intimation to the Police, which has further gained strength from the statement of the Investigating Officer who had reduced the Complaint in writing and registered the FIR. In this regard, the statement of PW-15, R.A. Awasthi, is worth perusing, who had approved the fact that the incident was reported on -( 10 )- CRA No. 615/1999 23.07.1997.
15. While we are examining the record in the context of the submissions advanced by the learned counsel for the appellant, we are unable to uphold the contention that once an unlawful assembly is proved, then the overt act of each individual loses its significance. However, an elementary issue ignored by the learned counsel for the appellant is that in order to secure application of Section 149 of IPC, it is a pre-condition that the unlawful assembly must consist of five or more persons whereas in the instant case, the chargesheet itself was presented against three persons including the present respondents and the statements of eyewitnesses about involvement of three unknown persons has not found credence from the police and therefore, the chargesheet was presented only against three persons and not against five persons or more. Thus, this contention will have no implication to the outcome of the case.
16. Be that as it may, the statements of eyewitnesses specifically indicate that, the respondent No.1-Kartar Singh had common intention with co-accused Amar Singh to cause injuries to the deceased which shall be sufficient in the ordinary course of nature to cause death. Dr. Vikram Singh Tomar conducted the post- mortem on the body of deceased Virendra Singh and found following injuries:-
(i) Lacerated wound present over the lower part of anterior aspect of right leg, 2x0.5 cm., bone deep placed vertical. Fracture of right tibia.
(ii) Lacerated wound present over the middle of the right leg anteriorly 2x1cmx1cm, fracture below it in right tibia vertically.
(iii) Abrasion present over the upper part of 1/3rd of right leg anteriorly 3x2 cm. X -( 11 )- CRA No. 615/1999 transversely.
(iv) Abrasion present over the right knee anterior aspect & medial aspect 12 cm. X 6.5 cm placed transversely.
(v) Lacerated wound present over the left leg in middle anterior aspect, 3x2 cm. X1 cm. Placed transversely, fracture below it in left tibia.
(vi) Red contusion present middle of the left leg anteriorly 10cm x 2.5cm, placed obliquely downward and medially.
(vii) Abrasion present over the great toe tip of left foot 2x1 cm. Vertical.
(viii) Abrasion present below the left knee anteriorly 2x1 cm. Vertical.
(ix) Contusion red over the medial part of left knee 12x3 cm. obliquely downward & medially.
(x) Red contusion present over the lower part of medial aspect of left thigh, 11.5x4.5 cm. obliquely downward & medially.
(xi) Red contusion present over the lower medial part of right thigh 6x2.5 cm.
Placed transversely.
(xii) Lacerated wound present in middle of right hand 1cm x 1cm x 1cm swelling aroiund it in 6 cm. Diameter.
(xiii) Abrasion present over the dorsal aspect of right hand 3x1 cm. vertical.
(xiv) Abrasion present medial aspect of right wrist 2x1 cm. transversely.
(xv) Red contusion present over the anterior aspect of right side of lower abdomen 16cm x 3cm placed transversely.
(xvi) Abrasion present over the anterio lateral aspect of right arm 19cm x 8cm vertical. (xvii) Red contusion present over the right shoulder joint annd anterio lateral aspect 6x4 cm. transversely.
(xviii) Abrasion present over the lateral aspect of right side of neck, 9x4 cm. placed transversely.
(xix) Lacerated would in middle of the head
vertical 2x0.5x0.5 cm. anterio-
posteriorly.
(xx) Lacerated wound present over the right
temporal region, 3x1cmx1cm anterio-
posterirly bone deep.
-( 12 )- CRA No. 615/1999(xxi) Lacerated wound present over the left frontal region 2x0.5x0.5 bone deep placed anterio posteriorly.
(xxii) Red contusio9n present over the left arm, lateral aspect 6x2.5cm. Placed transversely.
(xxiii) Abrasion present over the dorsal aspect of left forearm near left wrist 8x5cm.
placed longitudinaly.
(xxiv) Abrasion presewnt over the left elbow 2x2 cm. posteriorly.
(xxv) Abrasion present over the middle finger of left hand, dorsal aspect 2x1 cm.
vertical.
(xxvi) Red contusion present over the left side of chest 8x3.5cm. vertifical. Fracture of left 4th, 5th, 6th ribs present.
In order to appreciate the nature of injuries sustained by the deceased, the opinion of Dr. Vikram Singh Tomar (P.W. 13) which finds mention in the post- mortem report Exhibit-P/14 is relevant, which reads as under:-
"Opinion - Death is caused by Cardio- Respiratory failure as a result of injuries to brain and lungs with haemorrhage."
17. The present respondent No.1 has based his contention on the fact that there is exaggeration on the story put forth by the prosecution witnesses and therefore, he submitted that their testimony deserves to be simply discarded and any consideration of the same would attach credibility to the statements which are full of inconsistencies, exaggerations and omissions. In the context of the above, we have carefully considered the statements of Karan Singh (PW-6), Kehari Singh (PW-8) and Rakesh (PW-10) and we find that, these witnesses have categorically stated in their examination-in-chief that the incident which has occurred was caused by the -( 13 )- CRA No. 615/1999 present respondent No.1. However, the role of Amar Singh, the other co-accused, has not been discussed, for the reason that he was declared as proclaimed offender and he is absconding since the date of incident.
18. At this stage, our decision is also influenced by the fact that the incident was timely reported to the police without any undue delay as also the description given by the eyewitnesses regarding the injuries caused is matching with the injuries suffered by the deceased which have been recorded in the Post Mortem Report (Ex.P-14).
19. The contention of the learned counsel for the respondents, so far as it relates to the factual scenario that the so called eyewitnesses are relatives of the deceased and therefore, their version cannot be considered as a gospel truth, is misconceived for the reason that it is now well-settled that merely because the witness is an interested one, his testimony is not be discarded by the Court. Further, the testimony has gathered more credibility in light of the fact that the same is being established by other circumstances such as timely intimation to the police and the injuries clearly match the description given by the said witnesses. It shall be profitable to refer to the judgment of the Hon'ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, in the following manner:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the -( 14 )- CRA No. 615/1999 evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
20. In another judgment by Hon'ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. Thewitness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested solewitness. The prosecution's non-production of one independentwitness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interestedwitness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
21. Now moving on to the judgments relied upon by the respondents, we are of the view that, these judgments would apply in the scenario where there is lacuna in the prosecution story with respect to the role -( 15 )- CRA No. 615/1999 of the accused persons. The judgment of the Apex Court in Badal Murmu (supra) will have no applicability to the facts of the present case as in that case, there were as many as 11 appellants and therefore, the role of each appellant was not clearly visible from the material brought on record by the prosecution and therefore the conviction was made under Section 304 Part-II of IPC. Apart from it, in that case, there were 14 injuries and most of the injuries were inflicted on non-vital parts of the body. Therefore, the court had converted the conviction under Section 302 of IPC into Section 304 Part-II of IPC read with Section 149 of IPC. Further, the decision in that case was influenced by the fact that the appellants had already served 14 years of sentence, whereas in the present case there are as many as 26 injuries which have been inflicted by two accused persons which includes repeated injury on the brain and chest which are vital organs of a body. Therefore, the said judgment will have no application to the facts of the case.
22. The judgment of the Apex Court in Sambhu Das alias Bijoy Das (supra) will have no applicability to the facts of the present case as it has been cited to bring home the submission that few eye witnesses who were vital to be examined have been left out by the prosecution which will have fatal impact on the prosecution case. A perusal of the judgment goes to show that the ratio of the case is against the stand of the present respondents because in paragraph No. 38, the Hon'ble Apex Court has clearly observed that mere non- examination of some persons does not corrode the vitality of prosecution version and that it is not necessary for the prosecution to examine every other -( 16 )- CRA No. 615/1999 witness cited by them in the chargesheet. Thus, in the facts of the present case, the judgment cited by the respondent has no applicability and is clearly distinguishable on facts.
23. The next judgment relied upon by the respondent is Shivlal (supra). We have carefully perused the judgment, however, we are unable to find the factual similarilty which prompted the learned counsel for the respondent to rely upon the said judgment. We are assuming that this judgment has been highlighted to indicate that in the event of material contradictions, the statements of witnesses or where the recovery of weapons is doubtful, the cumulative effect of these factors would entitle the accused persons be granted benefit of doubt. The facts which influence the Hon'ble Apex Court to give benefit of doubt to the accused persons are that there was delay in sending the copy of the FIR to the Magistrate which meted a major dent on the reliability of the prosecution story. Therefore, in the facts of the present case, neither there is any material contradiction except few exaggerations by the eye witnesses (although the consequence of such exaggerations has already been discussed in the preceding paragraphs, and in the judgments rendered by Hon'ble Apex Court in the case of Seeman v. State, (2005) 11 SCC 142 and Jayabalan v. UT of Pondicherry, [2010) 1 SCC 199]) nor there is any material on record to indicate non-compliance of Section 157 of CrPC. To the contrary, the statement of Investigating Officer is establishing the fact about timely intimation of incident to the police which resulted in the registration of the FIR.
24. A perusal of the judgment rendered by the Apex -( 17 )- CRA No. 615/1999 Court in Ram Laxman (supra) appears to be relied upon by learned counsel for the respondent to submit that once the trial court has extended benefit in favour of respondent No.2 by passing order of acquittal, then on the basis of same set of evidence, respondent No.1 could not have been convicted. We are of the considered view that in the case relied upon by the respondents, there was no appeal preferred by the State to challenge the acquittal of one of the accused persons, whereas in the facts of the present case, an appeal has been preferred to submit that the trial court committed grave error in passing the order of acquittal with respect to respondent No.2 and convicting the respondent No.1 only under Section 325 of IPC whereas he ought to have been convicted under Section 302 of IPC. Therefore, the facts of the case are clearly distinguishable and have no applicability to the present case.
25. In the light of the judgments discussed above, we find that the other judgments in the cases of Meharaj Singh, M.C.Ali, and Rewa Ram (supra) can also be distinguished. Since there is no quarrel about the law laid down by the Apex Court in the case of Meharaj Singh (supra), that the testimony of interested witnesses are to be cautiously scrutinized, we have carefully considered the testimony of interested witnesses and have already concluded in preceding paragraphs that the eye witnesses have graphically described the incident and have given clear role to each accused person which cannot be ignored. Further, we are in agreement with the legal position that if two views are possible regarding the guilt of the accused, then the view favouring the accused should be adopted. However, the applicability of the said legal position to the facts of -( 18 )- CRA No. 615/1999 the present case is to be examined. In the facts of the present case, we have discussed about the statements of eye witnesses and how their testimony is corroborated by the medical evidence. Therefore, there is no question of any other view but the one indicating the guilt of the accused.
26. Lastly, the reliance placed on Rewa Ram (supra) (supra) is also misplaced because in that case, the prosecution witnesses did not ascribe role to each accused persons in the incident, whereas in the present case, the eye witnesses have clearly indicated about the involvement of the accused persons, the weapon wielded by them in order to cause injury to the deceased. Thus, we are unable to give any advantage of the judgment relied upon by the respondents to them.
27. Now adverting to the fact that there are only two accused persons who are shown to be involved in the commission of the offence and therefore as discussed above, the ingredients of Section 149 of IPC are not satisfied as there is necessity of five or more persons to be involved in the commission of the offence to attract the provision of common object. However, the power of the court to fetch Section 34 of IPC in place of Section 149 of IPC is well recognized. In the facts of the present case, there is clear material to indicate that the accused persons inflicted repeated wounds on the deceased in order to cause injuries which are sufficient in ordinary course of nature to cause death which finds strength from the fact that they were holding dangerous weapons such as lohangi. Therefore, the provisions of Section 149 of IPC may not apply, but the respondents can be convicted under Section 34 of IPC. In this regard, we may profitably rely on the judgment of the Apex Court in -( 19 )- CRA No. 615/1999 the case of Jawahar Punekar & Ors. v. State of Maharashtra, Criminal Appeal No. 1040 of 2008 decided on December 5, 2012, in which the power of the Court to convert applicability of Section 149 into Section 34 of IPC has been discussed in the following manner:-
"13. Since we have doubted the presence of A5 and A6 in the commission of offence, the charge against A1 to A4 requires to be modified from Section 302 read with Section 149 of the IPC to that of an offence under Section 302 read with Section 34 of the IPC. It must be pointed out that the evidence on record makes it abundantly clear that the common object of the unlawful assembly so formed was intentionally to cause the death of the deceased. This Court in Bhagwan Baksh Singh v. State of U.P., Cr. A. No. 37 of 1957, decided on 18.08.1958, had upheld the conversion of conviction under Sections 302 read with 149 to Sections 302 read with 34 of the IPC in similar set of circumstances, i.e., benefit of doubt being given to seven out of ten accused persons and intention in commission of offence being clearly made out in the charge-sheet. Therefore, A1 to A4 had ample notice of the charge of common intention. In the light of benefit of doubt extended to A5 and A6, the conviction of A1 to A4 is modified to Section 302 read with Section 34 of the IPC."
28. Learned counsel for the respondent No.1 submits that the prosecution witnesses Kehari Singh (PW-8), Tilak Singh (PW-12) and Investigating Officer Mahipal Singh (PW-14) have deposed that when the deceased Virendra Singh was brought to the Police Station Malanpur, he was conscious and his statement was recorded by the police but such statement has not been -( 20 )- CRA No. 615/1999 produced by the prosecution with the charge sheet which is major dent to the prosecution case. In the considered opinion of this Court, this contention also deserves to be repelled because during the course of argument we find that the statement of Virendra Singh is placed on record and a copy of this statement has also been supplied to the accused persons.
29. Taking this view of the matter, we are of the considered view that the Trial Court committed error in passing order of acquittal in favour of respondent No.1- Kartar Singh. Consequently, Criminal Appeal No.375/2000 is allowed to the extent it relates to acquittal of respondent No.1-Kartar Singh. Respondent No.1-Kartar Singh is convicted under Section 302 read with Section 34 of IPC and is sentenced to undergo rigorous life imprisonment with fine of Rs. 20,000/- and his custody period shall be adjusted towards his main jail sentence. In default of payment, he shall suffer additional rigorous imprisonment of two years. If the appellant has deposited the fine amount of Rs.1000/-, imposed by the trial Court while convicting him for the offence punishable under Section 325 of IPC, the same shall be adjusted towards the fine imposed by this Court in this appeal, i.e., Criminal Appeal No.375/2000.
30. The respondent No.1-Kartar Singh is on bail. His bail bonds are now cancelled. He is directed to surrender before the trial Court without any delay so that he may be sent to jail for execution of remaining part of his jail sentence.
31. A copy of the judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of respondent No.1- Kartar Singh and to get the sentence executed by him.
-( 21 )- CRA No. 615/1999 Criminal Appeal No. 615/199932. Upon consideration of the fact that the Criminal Appeal No.375/2000 preferred by the State has been allowed in part and the respondent No.1-Kartar Singh has already been convicted under Section 302 of IPC, there is no need to convict the appellant-Kartar Singh for the offence punishable under Section 325 of IPC.
In view of the aforesaid, Criminal Appeal No.615/1999 stands disposed of in terms of the judgment passed in Criminal Appeal No.375/2000.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
(Yog)
Digitally signed by YOGESH VERMA
DN: c=IN, o=HIGH COURT OF M.P.
YOGESH
BENCH GWALIOR, ou=P. S.,
postalCode=474011, st=Madhya
Pradesh,
2.5.4.20=889c4a2578297426c1270c0d VERMA e17102f878f45780a0a192172cfb3f19c 42bd8f7, serialNumber=7a1847f91146e3696bda 7e01806b1d1b5defbec7f5a9185deec3 4ac2fd29e8db, cn=YOGESH VERMA Date: 2017.11.15 12:48:17 +05'30'