Allahabad High Court
Omkar Singh vs State on 24 April, 2018
Bench: Pradeep Kumar Singh Baghel, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 2393 of 1988 Appellant :- Omkar Singh Respondent :- State Counsel for Appellant :- P N Misrha,Anil Pratap Singh Raghav,D P Singh Counsel for Respondent :- A.G.A. Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Harsh Kumar,J.
(Delivered by Hon'ble Harsh Kumar, J.) The present appeal has been filed against the common judgment and order of conviction passed by 3rd Additional Sessions Judge, Bareilly on 10.10.1988 in S.T. Nos. 387 of 1986 & 615 of 1987, convicting the four appellants for the offences under Sections 302/34 & 307/34 I.P.C. and sentencing them with imprisonment for life and rigorous imprisonment for a period of 7 years respectively, for the two offences.
The brief facts relating to the case are that on written report of Narender Singh, a F.I.R. under Section 307 I.P.C. was lodged at P.S. Bishartganj, District Bareilly at 1:25 a.m. on 5.7.1986 at Case Crime No. 70 of 1986 against the four accused-appellants. As per averments made in F.I.R. the incident in question did take place at about 10:00 p.m. on 4.7.1986. The allegations of F.I.R. lodged by Narender Singh are as follows:-
"the Khandhar ([k¡Mgj) of applicant/informant and his cousin brother Ahibaran and others is adjoining to the fields and gher (?ksj) of Netrapal Singh and Chatrapal Singh sons of Nanhe Singh and over its boundary (esM+) hot talks have been exchanged at several times; that on 4.7.1986 when applicant/informant put demarcation (ckM+) for sowing vegetables over his plot, Ashok Kumar Singh and Omkar Singh raised objections and exchanged hot talks with him and his family members and Ashok Kumar left with threatening; that at about 10:00 p.m. when they were sitting and talking in the courtyard (?ksj) of Ahibaran and lantern was on under Khapdail ([kiM+Sy), Ashok Kumar armed with licensed gun, Omkar and Sarvesh Pal Singh armed with pistols and Suresh Pal Singh armed with Lathi came there; that Suresh Pal Singh and Sarvesh Pal Singh sons of Nanku Singh, belongs to the party of Ashok Kumar Singh; that Suresh Pal Singh asked the informant as to why he has raised boundary by extending it in the house of Ashok, upon which his nephews Vijay Kumar Singh, Shreepal Singh and brother-in-law Ahibaran Singh, residents of District Pilibhit intervened with their reply, upon which Suresh Pal asked Ashok and Omkar to cause their death and Omkar and Ashok with an intention to cause their death fired at them with their pistols and gun causing injuries to Vijay Kumar Singh and Shreepal Singh; that on their alarm Bihari Singh, Prempal Singh, Saddhu Singh and Ahibaran Singh, who were present there called the accused persons, who fled away".
The written report Ext. A-1 was scribed by Ahibaran Singh on the basis of which Chik F.I.R. Ext. A-3 was prepared at P.S. Bisharatganj, District Bareilly. The two injured Vijay Kumar Singh and Shreepal Singh were sent to District Hospital, Bareilly and by the time of reaching District Hospital, Bareilly injured Shreepal succumbed to the gunshot injury caused by accused-appellants while medical examination of injured Vijay Kumar Singh was done by the Medical Officer at District Hospital, Bareilly. The I.O. after preparing the inquest report of Shreepal deceased, collecting the injury report of Vijay Kumar Singh, post-mortem report of Shreepal Singh deceased, preparing the recovery memos of lanterns, blood stained and simple earth etc. and taking them in custody, making enquiry from and recording the statements of witnesses under Section 161 Cr.P.C. completed the investigation and submitted charge-sheet Ext. A-9 against the accused-appellants Sarvesh Pal Singh, Suresh Pal Singh and Omkar Singh and supplementary charge-sheet against accused-appellant Ashok Kumar Singh under Section 302/307 I.P.C. The case of accused-appellants Sarvesh Pal Singh, Suresh Pal Singh and Omkar Singh was committed to Sessions and registered at S.T. No.387 of 1986 and subsequently upon submission of charge-sheet against co-accused appellant Ashok Kumar Singh and committal of his case to Sessions it was registered at S.T. No.615 of 1987. Since the two sessions trial arose out of one and same criminal incident dated 4.7.1986, the two sessions trials commenced and proceeded together and evidence was recorded in leading Sessions Trial No.387 of 1986.
The prosecution in order to prove the charges against accused-appellants produced Vijay Kumar Singh, injured eye witness as P.W.-1, Dr. A.B. Lal, the Medical officer, who conducted autopsy of the body of Shreepal Singh deceased as P.W.-2, Ashok Kumar Gaur, I.O. as P.W.-3 and Dr. D.K. Gupta, who examined and proved the injury report of injured Vijay Kumar Singh as P.W.-4. After completion of prosecution evidence the statements of accused-appellants were recorded u/s 313 Cr.P.C. and they did not produce any defence evidence despite opportunity given. After completion of evidence and hearing the learned counsel for the parties, learned trial court upon detailed discussion and analysis of evidence on record held the accused-appellants guilty of committing death of Shreepal Singh and attempting on the life of injured Vijay Kumar Singh and convicting them for the offences under Section 302 I.P.C. read with Section 34 I.P.C. and Section 307 I.P.C. read with Section 34 I.P.C. and sentenced each of them with imprisonment for life for the offence under Section 302/34 I.P.C. and for 7 years rigorous imprisonment for the offence under Section 307/34 I.P.C.
Feeling aggrieved, all the four accused/convicts have jointly preferred this appeal.
During pendency of appeal, accused-appellant no.1 Omkar Singh and accused-appellant no.4 Ashok Kumar Singh were reported to have died and the appeal in respect of them was abated.
As per prosecution case, two persons Shreepal and Vijay Kumar Singh sustained gunshot injuries and Shreepal succumbed to those injuries. The injuries of injured Vijay Kumar Singh aged about 16 years were examined at District Hospital Bareilly at 9:15 a.m. on 05.07.1986 and following injuries were found on his person, as per his injury report Exhibit A-20 duly proved by Medical Officer, Dr. D.K. Gupta in his statement on oath as PW-4.
(i) Gunshot wound of entry 3 cm × 1.5 cm, 4cm left to spinous process of C-7- margin of the wound is inverted.
(ii) Gunshot wound of exit 4.5 cm × 3 cm, 8cm below the tip of the left mastoid, 3cm in front of wound of entry margins are everted.
Both the entry and exit wound are communicating to each other.
The Medical Officer opined the injury about ½ day old and cause of injury firearm. The injuries were kept under observation.
As per the post mortem report of another injured Shreepal Singh, who is alleged to have succumbed to the injuries on way to Hospital and whose autopsy was conducted by Dr. A.B. Lal on 05.07.1986 at about 4:30 p.m., who proving the postmortem report exhibit A-2 in his statement on oath as PW-2 and stated that upon conducting the post mortem examination of the body of 30 years old Shreepal Singh at about 4:30 p.m. he found that his death was caused about half day before the post mortem, due to shock and haemorrhage as a result of following anti mortem injuries.
"Gunshot wound ¾ cm × ¾ cm × cavity deep on the uppermost part of the lateral side of left shoulder, blackening present. The track is directed medially and downwards upto the right armpit. A big bullet removed from there and there was fracture of humerus bone on left side.
We heard Sri Anil Pratap Singh, learned counsel for the appellants and Sri P.S. Yadav, learned A.G.A. for the State and perused the record as well as the record summoned from the court below.
Learned counsel for the appellants contended that the prosecution has neither produced first informant Narender Singh nor scribe of F.I.R. Sri Ahibaran Singh and has also failed to produce any of the independent witnesses Bihari Singh, Prempal Singh, Saddhu Singh and Ahibaran Singh; that learned Trial Court has acted wrongly and incorrectly in relying on the sole testimony of Vijay Kumar Singh PW1, who is an interested witness; that deceased Shreepal Singh and injured Vijay Kumar Singh were persons of criminal antecedents and appears to have sustained firearm injuries elsewhere by unknown persons, who could not be identified in darkness of night and appellants have been falsely implicated on the basis of suspicion; that appellants have no motive to cause death of Shreepal Singh or for causing injuries to or attempting on the life of Vijay Kumar Singh; that PW1-Vijay Kumar Singh has stated that the Investigating Officer neither made any enquiry from him nor recorded his statement while Investigation Officer has stated that he recorded his statement after inquiring him; that in his statement under Section 161 Cr.P.C. PW1-Vijay Kumar Singh has stated that the fire made by Ashok Kumar Singh hit Shreepal Singh on shoulder and that made by Omkar Singh hit him, but resiling from it in his cross-examination has stated that the two fires were made simultaneously and he cannot say as to whose fire hit whom; that above mentioned co-accused appellants Ashok Kumar Singh and Omkar Singh have died during pendency of appeal; that the accused-appellant Suresh Singh (who was allegedly armed with lathi) is not alleged to have used lathi or caused any injury to injured PW1 or deceased Shreepal with lathi and no fire is alleged to have been made by accused-appellant Sarvesh Singh so in any case even if the prosecution case is relied on its face, only co-accused Omkar Singh and Ashok Kumar Singh (both deceased) may be held guilty of committing death of Shreepal and attempting on life of Vijay Kumar; that the dispute was between the first informant-injured and deceased on one side and co-accused appellants Ashok Kumar Singh and Omkar Singh on the other side; that appellants Suresh Pal Singh and Sarvesh Singh had no right, title or concern with the land in question or with the encroachment allegedly made by first informant over the land of Ashok Kumar Singh and Omkar Singh and so they could not have any motive for causing death of Shreepal Singh or attempting on life of Vijay Kumar Singh or participating in the incident in question in common intention with Ashok Kumar and Omkar Singh or otherwise; that sole testimony of PW1 Vijay Kumar Singh may not be relied in view of the fact that he was interested witness and there is no evidence on record to corroborate his testimony.
Per contra, learned AGA submitted that the PW1 Vijay Kumar Singh is an injured witness and there is no reason to disbelieve his creditable testimony; that the first informant Narender Singh and scribe of the FIR Ahibaran Singh were murdered by accused-appellants, after one year of the occurrence in question and could not have been produced in evidence; that witnesses Bihari Singh, Prempal Singh and Saddhu Singh could not dare to come to witness box due to terror of accused-appellants as well as apprehension from them for committing murder of Shreepal, attempt on life of Vijay Kumar Singh followed by murders of Narender Singh and Ahibaran Singh and so no adverse inference can be drawn against the prosecution for not producing them in witness box; that the prosecution has proved its case beyond any shadow of reasonable doubt and the learned trial court has rightly held the accused appellants guilty of offences under Section 302, 307 IPC read with Section 34 IPC; that the appeal has been filed with absolutely false and baseless allegations and is liable to be dismissed.
In view of arguments advanced by both sides, we find that correctness of the impugned judgment and order can be tested on following points:-
(a) Place of occurrence
(b) Motive and common intention
(c) Reliability of sole testimony of P.W.-1 Vijay Kumar Singh
(d) Conclusions
(a) Place of occurrence The incident in question is alleged to have been committed in the courtyard (?ksj) of Narender Singh, the first informant at about 10:00 p.m. The I.O. has collected sample of simple and blood stained earth as well as lantern from the place of occurrence and has prepared site plan of the spot. The P.W.-1 Vijay Kumar Singh has proved the occurrence having been committed at the courtyard (?ksj) of Narender Singh and there is no contradiction in his statement to disbelieve him. It is pertinent to mention that the statement of P.W.-1 is duly corroborated by the statement of P.W.-3 I.O. and the description of incident given by P.W.-1 also gets corroboration from the medical examination report of P.W.-1 as well as post mortem report of deceased Shreepal Singh which shows blackening over the gun shot wounds. The suggestion put to P.W.-1 with regard to different place of occurrence has been denied by him. We find no force in the argument that the incident would have occurred elsewhere and P.W.-1 Vijay Kumar Singh and Shreepal Singh deceased would have been fired at some other place by some other persons.
(b) Motive and common intention F.I.R. of the incident in question occurred at 10:00 p.m. on 4.7.1986, has been lodged promptly at 1:25 a.m. on 5.7.1986 at P.S. Bisharatganj, Tehsil Aonla, District Bareilly at a distance of 8 Kms. naming the four accused persons therein. As per averments made in F.I.R., adjoining in East to the Khandhar ([k¡Mgj) of first informant Narender Singh and his cousin there is field and घेर of Netrapal Singh and Chatrapal Singh sons of Nanhe Singh and there was dispute over its limits (es<+) over which hot talks used to be exchanged oftenly and on 4.7.1986 when the first informant for sowing vegetables put boundary (ckM+) accused-appellants Ashok Kumar Singh and Omkar Singh sons of Netrapal Singh raised objections and threatened and in the same night when the first informant and family members were sitting in the courtyard of Ahibaran Singh, accused-appellant Ashok Kumar Singh with licensed gun, Omkar Singh and Sarvesh Singh with pistols and Suresh Pal with Lathi arrived there and upon asking by Suresh Pal from first informant about the encroachment over the ?ksj of Ashok Kumar Singh, his nephews Vijay Kumar Singh and Shreepal Singh intervened on which Suresh Pal called Ashok Kumar Singh and Omkar Singh to kill them and Omkar Singh and Ashok Kumar Singh with their pistol and gun, fired on them hitting Vijay Kumar Singh and Shreepal Singh. From the evidence on record it is crystal clear that there was dispute with regard to boundary between the Khandhar ([k¡Mgj) of first informant and his brother and Gher (?ksj) of Netrapal Singh, the father of accused-appellants Omkar Singh and Ashok Kumar Singh. The accused-appellants Suresh Singh and Sarvesh Singh are neither brothers nor relatives of Ashok Kumar Singh and Omkar Singh but as per averments made in the F.I.R. they belonged to the group of Ashok Kumar Singh so the possibility of their participation in the incident in question may not be ruled out, subject to evidence on record.
As far as the common intention of all the four accused persons named in the F.I.R. is concerned, there is no whisper in the F.I.R. that all the four accused persons came with common intention. It may not be disputed that the common intention of accused persons may also be gathered in view of the evidence on record. Admittedly there was a petty dispute regarding the temporary boundaries (esM+) on open pieces of land between the Khandhar ([k¡Mgj) of first informant and field/?ksj of Netrapal Singh, the father of co-accused appellants Ashok Kumar Singh and Omkar Singh. It is also stated that regarding the above dispute parties used to exchange hot talks oftenly and on 4.7.1986 when first informant put boundary (ckM+) over his land, it was objected by Ashok Kumar Singh and Omkar Singh.
The ckM+ is a temporary nature of boundary between the two segments, made by miscellaneous woods and can be removed or shifted on either side as and when required. The F.I.R. states that putting of boundary (ckM+) by the first informant was objected by accused-appellants Ashok Kumar Singh and Omkar Singh on ground of encroachment over their land due to which hot talks were exchanged and Ashok Kumar Singh also threatened the first informant. As per F.I.R., in the night of 4.7.1986 when the accused persons armed with gun, pistol and lathi arrived, they did not make any immediate assault, rather firstly accused-appellant Suresh Singh asked the first informant about the encroachment and stated that "bldk etk rqEgs ekywe gS D;k Hkqxruk iM+sxk" upon which injured Vijay Kumar Singh and Shreepal Singh allegedly intervened and were sustained with gun shot injuries by the fires made by Omkar Singh and Ashok Kumar Singh upon exhortation of accused-appellant Suresh Singh. Vijay Kumar Singh P.W.-1, the sole injured witness of fact has stated in his cross examination at page 27-28 of the paper-book that the I.O. did not take his statement under Section 161 Cr.P.C. and recorded it without inquiring from him. He has been contradicted during cross examination with his statement under Section 161 Cr.P.C. at page 28 of the paper book by placing his following statement verbatim, "Qk;fjax dsoy nks O;fDr;ksa us dh ckdh fdlh vkSj eqfYte us u rks Qk;fjax dh u dqN vkSj fd;k" and "v'kksd dk Qk;j Jhiky ds da/ks ,oa vksedkj dk esjs yxk fQj eq>s gks'k ugh jgk fd eq>s D;k gqvk gS".
P.W.-1 in his cross examination at page 36 & 37 of the paper-book has stated that accused persons were 4-5 steps away from the platform at the time of opening fire and no fire was made on Narender Singh, first informant or Ahibaran Singh (scribe) who were sitting on a cot. He has also stated that before firing, there was a scuffle between accused-appellant Suresh Singh and Shreepal Singh deceased for less than one minute and abuses were also exchanged but neither of the two felled down, nor clothes of any of them were torn and neither the lathi of Suresh felled down on the ground nor was wielded by him and as soon as the scuffle was over, fires were made.
From above evidence on record, it is clear that there was a petty dispute with the first informant Narender Singh, who had put the boundary (ckM+) by encroaching over the land of father of accused-appellants Ashok Kumar Singh and Omkar Singh, because of which they may have a motive to commit the incident and cause harm to Narender Singh or his cousin brother Ahibaran while accused-appellants Sarvesh Singh and Suresh Singh without having any direct motive are alleged to have joined them being member of their group.
In view of quite petty dispute of boundary between two adjoining tenements of neighbours first informant and Netrapal Singh, there appears very bleak chances of planning of murder of Narendra Singh and Ahibaran Singh by sons of Netra Pal Singh i.e. accused-appellants Omkar Singh and Ashok Kumar Singh. However in view of the fact that above boundary dispute was quite old, the possibility of motive behind incident may not be fully ruled out.
Considering the petty nature of quite old dispute and evidence of accused persons arriving and then asking for the encroachment, it is also quite possible that they may have motive only to teach a lesson to Narender Singh and his brothers so that the boundary dispute may be settled for ever in the way desired by them. In the circumstances accused-appellants Sarvesh Singh and Suresh Singh could have joined with them, only with common intention of teaching them a lesson to prosecution party and there are very bleak chances of their sharing common intention to cause death of Narender Singh or Ahibaran Singh or anybody else (even in case Omkar Singh and Ashok Kumar Singh may have). The fact of scuffle and exchange of abuses between Suresh Singh and Shreepal Singh, before firing also shows that firstly upon objections about encroachment raised by co-accused Omkar Singh and Ashok Kumar Singh hot-talks were exchanged between the two groups and when the young nephews of first informant Narender Singh Vijay Kumar Singh aged about 16 years and Shreepal Singh aged about 30 years aggressively intervened, a scuffle took place between Suresh and Shree Pal Singh following which the two accused Omkar Singh and Ashok Kumar Singh fired at them resulting in grievous injuries to Vijay and fatal injuries to Shreepal Singh resulting in his death.
Admittedly since there was old dispute of boundary between accused-appellant Ashok Kumar Singh and Omkar Singh on one hand and first informant Narender Singh and his brothers on the other, they could also have planned for causing death of Narender Singh or Ahibaran Singh or attempting on their lives but may not be having any pre-plan for causing death of their nephews Vijay and Shreepal who intervened on the spot. It is quite possible that after coming to Gher of Narender Singh and seeing high-handedness of his nephews, Omkar Singh and Ashok Kumar Singh would have formed intention on the spot to remove them and may have fired at them with such intention. In the circumstances accused-appellants Suresh Singh and Sarvesh Singh even if would have joined them at the time of incident with a common intention not only to teach lesson to them but also to cause death of Narender Singh and Ahibaran Singh there is no evidence on record to show that they also shared common intention with Ashok Kumar Singh and Omkar Singh, for causing death of Shreepal or attempting on life of Vijay Kumar Singh.
It is pertinent to mention that the deceased Shreepal and injured Vijay Kumar Singh have sustained one fire arm injury each. As per specific averments of F.I.R. above fires were made by accused appellants Omkar Singh and Ashok Kumar Singh with their pistol and gun, and neither Sarvesh Singh is alleged to have made any fire with pistol in his hand on the injured, deceased or first informant nor Suresh Singh is alleged to have wielded lathi on any of them. It is also pertinent to mention that despite the alleged scuffle between Suresh Singh and Shreepal Singh deceased (which fact does not get corroborated by any other evidence), Suresh Singh did not cause any injury to anybody. It is noteworthy that Suresh Singh and Sarvesh Singh have not been assigned with any overt act in the incident in question.
Upon careful consideration and analysis of the evidence on record, we find that though presence of Sarvesh Singh and Suresh Singh is proved on the spot, but since they are not alleged to have actively participated in the incident in question or caused any injury to anyone, in absence of any evidence of their sharing common intention to cause death of Shreepal and attempting on life of Vijay Kumar Singh, they may not be held guilty for the offences under Sections 302 & 307 I.P.C. committed by co-accused persons Omkar Singh and Ashok Kumar Singh, with the aid of provisions of Section 34 I.P.C.
(c) Reliability of sole testimony of P.W.-1 Vijay Kumar Singh The prosecution has produced Vijay Kumar Singh as P.W.-1 and no other witness of fact has been produced. P.W.-2 & P.W.-4 are medical officers, who have respectively conducted the post mortem of the body of Shreepal Singh deceased and examined the injured Vijay Kumar Singh and proved the Post-mortem and injury reports while the P.W.-3 is the I.O. Thus P.W.-2 to P.W.-4 are only formal witnesses, who have proved the documentary evidence on record. The F.I.R. has been lodged by Narender Singh upon being scribed by Ahibaran Singh and as per averments made in F.I.R. during the incident upon fires made by co-accused appellants Ashok Kumar Singh and Omkar Singh and raising of alarm by first informant and family members, Bihari Singh, Prempal Singh, Saddhu Singh and Ahibaran Singh called the accused persons, who fled away.
As far as the non-production of any other witness of fact is concerned, reference may be made to the statement of P.W.-1 Vijay Kumar Singh in examination-in-chief at page 26 of the paper-book "bl ?kVuk ds yxHkx ,d o"kZ ckn vfgoju flag ,oa ujsanj flag dk dRy eqfYteku v'kksd] vksadkj o losZ'k rFkk muds vkSj lkfFk;ksa us dj fn;k o lkFk esa ujsanj dh yM+dh xk;=h dks Hkh dRy dj fn;k gSA"
It is settled principle of law that if an averment made by a witness in his examination-in-chief is left uncrossed and the other party avoids asking question in cross-examination, it will be deemed that the other party accepts the correctness of such averment. The defence counsel has not cross examined P.W.-2 on his above statement made in examination-in-chief and so there is sufficient ground to accept his above statement at least to the extent of murder of Ahibaran Singh, Narender Singh and Gayatri daughter of Narender Singh by accused persons, subsequent to the incident in question and so the question of producing Ahibaran Singh and Narender Singh does not arise and no adverse inference can be drawn against prosecution for non-production of above two material witnesses as they are dead. As far as non-production of other surviving witnesses Bihari, Prempal and Saddhu is concerned, in view of alleged murders of as many as two important star witnesses of the incident in question, by the accused-appellants Omkar Singh, Ashok Kumar Singh and their associates, a common villager may not be expected to dare to give evidence against such culprits and prosecution had reasonable cause and justification for not producing above three persons, who allegedly arrived at the spot subsequently. In above circumstances there is no sufficient ground to draw adverse inference against the prosecution and prosecution case may not be disbelieved or thrown out for non-production of above witnesses.
Undisputedly P.W.-1 Vijay Kumar Singh is related to first informant Narender Singh but he is injured witness having sustained grievous gun shot injuries with pistol of accused-appellant Omkar Singh, and gun of Ashok Kumar Singh, so his presence on the spot may not be disputed. The above P.W.-1 has no enmity with accused-appellants and has made a natural and honest description of the incident in his statement on oath. The above witness has stated that after lodging of F.I.R. they left for District Hospital, Bareilly with the Metador arranged by first informant Narender Singh, which went out of order after 2 Kms. and they were detained on railway crossing till next morning when they got bus at 07:00 a.m. Nothing incriminating has come in the statement of P.W.-1 for which his credibility may be doubted except some natural discrepancies with regard to his statement under Section 161 Cr.P.C. It is settled principle of law that related witness may not be disbelieved only on the ground of relationship and he is not expected to spare the real culprit and falsely implicate innocent persons. There is nothing on record that P.W.-1 would have falsely implicated and upon careful analysis of his statement, we find it trustworthy.
(d) Conclusion On the basis of discussions made above, we are of the considered view that the prosecution has successfully proved its case and charges beyond doubt against accused-appellants Omkar Singh and Ashok Kumar Singh for committing murder of Sri Shreepal Singh and attempting on life of Sri Vijay Kumar Singh in common intention with each other, but has failed to prove by any cogent, reliable and trustworthy evidence that accused-appellant Suresh Pal Singh and Sarvesh Singh also shared any such common intention with them in committing the offence. The trial court has rightly held accused-appellants Omkar Singh and Ashok Kumar Singh guilty of offences under Sections 302/34 and 307/34 I.P.C., but in absence of any evidence to the effect it has acted wrongly in presuming common intention of co-accused appellant Suresh Pal Singh and Sarvesh Singh also in committal of offence in question, as well as in convicting them for the offences under Sections 302/34 I.P.C. and 307/34 I.P.C.
The appeal in respect of conviction and sentence of accused-appellants Omkar Singh and Ashok Kumar Singh was abated on their death during the pendency of appeal vide orders dated 9.3.2017 & 27.4.2017 and so appeal in their respect stands dismissed as abated. The appeal in respect of appellants Suresh Pal Singh and Sarvesh Singh is allowed. Their conviction and sentence under Sections 302/34 & 307/34 I.P.C. is set-aside. They are found not guilty and are acquitted of the charges framed against them.
Accused-appellants Suresh Pal Singh and Sarvesh Singh are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.
Let lower court record be sent back to court below along with a copy of judgment in this appeal, forthwith.
Material Exhibits, if any, be disposed of in accordance with rules.
Order Date :- 24/04/2018 Kpy