Naheed Ara Moonis, J.
These appeals have been preferred on behalf of the appellants, namely, Sangram Singh, Meher Sagar, Meher Sahai and Khalak Singh as well as Mohan Birthare, Jagbir Singh, Hari Singh @ Babli and Mahesh Yadav against the judgment and order dated 12.12.2002 passed by the learned Additional Sessions Judge, Jhansi in Sessions Trial No.156 of 1996 State Vs. Sangram Singh and others, arising out of case crime no.88 of 1993, Police Station Barua Sagar, District Basti whereby all the appellants have been convicted under Section 302/149 IPC for life imprisonment with fine of Rs.2000/- each, in default of payment of fine, one year simple imprisonment, under Section 148 IPC two years simple imprisonment to each of the appellants. Both the sentences u/S 302/149 and 149 IPC were directed to run concurrently.
All the appellants were acquitted of the charge under Section 147 IPC. Appellant Sangram Singh was acquitted of the charge under Section 25 of the Arms Act Sessions Trial No.157 of 1996 (State Vs. Sangram Singh) arising out of case crime no.89 of 1993, . Mahesh Yadav and Mohan Birthare were acquitted of the charge under Section 5 of the Explosive Substance Act in Sessions Trial No.25 of 1998 (State Vs. Mahesh and another), arising out of case crime no.90 of 1993.
Since both the abovementioned appeals are arising out of judgment and order dated 12.12.2002 passed by the learned Additional Sessions Judge, Court No.4, Jhansi against the conviction of the appellants under Sections 148, 302/149 IPC hence both the appeals are being decided by a common judgment.
During the pendency of appeal, the appellant Mahesh Yadav had expired hence the appeal on his behalf has stood abated by order dated 16.2.2016.
The prosecution case in a short conspectus is that an FIR was lodged by Gulzari Lal Rai (P.W-1) stating therein that he is a resident of Mohalla Khadi Qasba, Police Station Barua Sagar, District Jhansi. When he along with his son, Sunil on 26.9.1993 were sitting in front of the house of his brother Kamlapat Rai at about 3.45 P.M. Sangram Singh, Meher Sagar, Meher Sahai and Khalak Singh, Mohan Birthare, Jagbir Singh, Hari Singh @ Babli and Mahesh Yadav came in two trucks and two motorcycles from the station road and stopped their vehicles in front of the house of his brother. Meher Sagar, Sangram Singh and Meher Sahai were armed with countrymade pistol, Khalak Singh was armed with rifle, Mahesh was carrying bomb, Mohan Birthare was allegedly carried a bag containing some article, Jagbir was armed with iron rod and Hari Singh @ Babli was armed with hockey came near to them. Accused Sangram Singh asked the complainant that he poses himself leader and used to issue fictitious MM-II receipts and interfered in their contract. At this, the complainant asked the accused persons that they have some misconception, at this all the accused persons had started hurling abuses and vituperative words. When the complainant and others refrained them from doing so, Meher Sagar stated that they have met luckily today hence they should be killed. When the complainant and others tried to run away, accused Khalak Singh, Meher Sagar, Sangram Singh and Meher Sahai fired with their respective weapons i.e. rifle and countrymade pistol, which hit complainant's son Sunil who fell down and died on the spot. On the noise of fire as well as hue and cry, Kamlapat Rai, Surendra Rai, Prakash Ahirwar, Raj Kumar Jogi and Smt. Rataniya Kushwaha, who were present near by came at the spot. They had tried to nab the accused persons by surrounding them. There was ruckus amongst accused persons and they started firing indiscriminately here and there to create terror and ran away. Accused Sangram Singh was apprehended along with loaded countrymade pistol by the neighbours near lane of post office. The dead body of Sunil, the son of the complainant, was lying on the spot. The trucks and motorcycles were also standing at the site of incident. Some of the accused persons have been trapped by the neighbours, hence the report be lodged and action be taken.
The report was scribed by one Bhagwan Das which was submitted by the complainant Gulzari Lal Rai at police station Barua Sagar, Jhansi, pursuant to which, the FIR was lodged against the aforesaid named accused persons at 4.25 P.M. on 26.9.1993, which was registered as Case Crime No.88 of 1993, under Sections 147,148,149,302 IPC and Case Crime No.89 of 1993, under Section 25 of the Arms Act (State Vs. Sangram Singh).
After lodging of the FIR, the investigation was handed over to D.L. Sudhir (P.W-5). Recovery memo of countrymade pistol along with cartridge recovered from the possession of accused Sangram Singh was prepared which was sealed and signatures were obtained marked as Ext Ka-2.
During the course of investigation, on 26.9.2013 3 live bombs in a bag recovered from the possession of Mahesh Yadav and 2 bombs in a bag from Mohan Birthare as such a case was registered against them punishable u/S 25 of the Explosive Act. A hockey was recovered from accused Babli @ Hari Singh. All of them were arrested. The recovery memo was prepared of the seized articles which were sealed and signed at the spot.
The site plan was prepared by the investigating officer which was marked as Ext. Ka-3, memo of bomb marked as Ext. Ka-4, inquest report of the deceased marked as Ext. Ka-5, memo of slippers marked as Ext. Ka-6, sample of blood and plain earth marked as Ext. Ka-7, Form no.13 marked as Ext. Ka-8, Sample of seal marked as Ext. Ka-9, Photo lash marked as Ext. Ka-10, report of RI marked as Ext. Ka-11, report of CMO marked as Ext. Ka-12, memo relating to taken into custody of rifle marked as Ext. Ka-13
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, certified copy of the register marked as Ext. Ka-14, sanction for prosecution marked as Ext. Ka-15, charge sheet against Sangram Singh u/S 25 of the Arms Act marked as Ext. Ka-16, charge sheet submitted against all the accused persons marked as Ext. Ka-17, chik report marked as Ext. Ka-18, G.D. Entry marked as Ext. Ka-19, G.D. Entry of arrest memo of Mahesh Yadav and other accused persons marked as Ext. Ka-20, report regarding weeding out of G.D. Entry marked as Ext. Ka-21, copy of the FIR no.38 in respect of incident of dated 26.9.1993 at 11.05 P.M. marked as Ext. Ka- 22 and FIR against accused Mahesh and Mohan Birthare u/S 5 of Explosive Act marked as Ext. Ka-23 were produced in evidence.
Besides this deceased's pant marked as Ext.1, shirt marked as Ext.2, underwear marked as Ext.3, Vest marked as Ext.4, watch marked as Ext.5, slippers marked as Ext.6 and pen exhibited as Ext.7 were filed. A countrymade pistol and cartridge recovered from accused Sangram Singh were exhibited as Ext.8 & 9.
The defence has produced the injury report of Sangram Singh as Ext. Kha-1 and produced DW-1 Dr. Prem Behari Manocha who had examined the injuries of Sangram Singh and D.W-2 Khhachu Ram Ojha who is the dealer of the firearm shop had proved his signature which was exhibited as Ext Kha-2.
The charges were framed against all the accused appellants under Sections 147,148,302/149 IPC on 25.11.1997. Against the accused Sangram Singh charge was framed u/s 25 Arms Act. Against accused Mahesh and Mohan Birthare charge was framed u/s 5 Explosive Act on 26.3.1998.
All the appellants were read over the charges in Hindi who had abjured the charges and claimed to be tried.
To prove the prosecution case, P.W-1 Gulzari Lal Rai, the complainant and father of the deceased and P.W-2 Kamlapat Rai, the brother of P.W-1 were examined as witnesses of fact while Dr. S.M. Agarwal, medical officer, who had conducted the postmortem of the deceased Sunil was examined as P.W-3. Constable-725 Chhavi Nath, who had brought the dead body of the deceased to the mortuary was examined as P.W-4. Sub Inspector D.L. Sudhir, who had conducted the investigation and submitted the charge sheet was examined as P.W-5. Head Constable-87 C.P. Raj Narayan Tripathi, who had registered the FIR and proved the chik FIR and G.D. Entry was examined as P.W-6.
The defence had produced two witnesses, namely, Dr. Prem Behari Manocha who had examined the injuries of Sangram Singh was examined as DW-1 and Khhachu Ram Ojha who has a work shop of repairing guns was examined as D.W-2.
P.W-1 Gulzari Lal Rai, while reiterating the prosecution case as mentioned in the FIR, had stated in examination-in-chief that the incident was of 26.9.1993. It was at about 3.45 P.M. when he was sitting in front of his brother's house Kamlapat Rai (P.W-2), his son Sunil was sitting there, at that juncture, two trucks and two motorcycles came from station road and stopped in front of the house. Sangram Singh, Meher Sahai, Meher Sagar, Khalak Singh, Mahesh, Mohan Birthare, Jagbir and Babli @ Hari Singh alighted from the trucks and motorcycles. Sangram Singh, Meher Sahai and Meher Sagar were armed with countrymade pistol, Babli @ Hari Singh having hockey, Khalak Singh was armed with rifle, Jagbir was armed with lathi, Mahesh was carrying bomb and Mohan Birthare was having a bag. Sangram Singh asked the complainant that he poses himself as a big leader and used to issue fake receipt of MM-II and also interfere in their work. At this the complainant said that they have misconception hence the accused persons started hurling abuses to him and at his son Sunil. When they refrained from uttering vituperative words, Meher Sagar exhorted that they have got the opportunity today to kill them by firing. At this, Khalak Singh fired with rifle upon his son Sunil who was standing at the door of Kamlapat Rai from a distance of 8-10 paces at the platform nearby road. Sangram Singh, Meher Sagar and Meher Sahai also fired with their countrymade pistol which hit to his son Sunil on the right side of neck behind ear who fell down at the spot and on account of firearm injury died instantaneously. This incident was witnessed by Kamlapat Rai, Surendra Rai, Raj Kumar, Rataniya Kushwaha and Prakash Ahirwar and many other persons who exhorted the accused persons, then they took to their heels towards lane of post office.
Accused Sangram Singh was arrested after overpowering him by public near the lane of post office. Sangram Singh was having loaded countrymade pistol which was forcibly taken by Chhannu, Maniram, Ghaniram and Narayan in the presence of the complainant. The complainant asked his neighbour to take Sangram Singh to the police station. Thereafter he went to his house where an FIR was written by Bhagwan Das on his dictation and thereafter he put his signature signed and on the basis of which the FIR was lodged. The complainant proved the FIR which was marked as Ext Ka-1. The neighbours, namely, Chhannu, Maniram, Narayan and others had taken away Sangram Singh on a trolley to the police station where he had given the report to the head moharrir. The head moharrir had prepared memo of countrymade pistol and cartridges and had put the seal thereupon. The complainant proved the memo of countrymade pistol and cartridges which was marked as Ext. Ka-2.
It was stated by P.W-1 in his examination-in-chief that for the year 1992-93 the contract of barua nala was given to accused Mahesh Yadav who is the son of Sangram Singh's aunt. For the year 1993-94 the said contract was obtained by his brother Kamlapat Rai by giving higher bid from Sangram Singh and Mahesh Yadav. Another contract of border of Madhya Pradesh was in the name of Siyaram which was given by Sangram Singh and others. At the time when the incident taken place the auction bid of barua nala was again to take place and hence this incident had occurred to deter the complainant to give higher bid in the forthcoming auction bid.
It was further stated that his contract was coming to an end on 30.9.1993, his rate of sand was less than the accused persons and hence no customer used to come at the latter's shop. On account of this the accused persons were bearing enmity. A power of attorney was got executed from Siyaram by the accused persons for not raising higher bid only with intent to cause annoyance to the complainant. Jagbir was partner in the said contract along with Sangram Singh and Babli @ Hari Singh who are brothers. Meher Sagar and Meher Sahai are also brothers. Khalak Singh, Meher Sagar and Meher Sahai used to keep their licensee rifle. Mahesh Yadav who is the son of Sangram Singh's aunt was also a partner. Jagbir's house and shop were in the name of Ram Sahai and Jaswant and on this account they had committed the incident after consultation and meeting. On the day of incident his son Sunil was wearing dark colour paint and printed shirt. He was also having electronic watch. The paint and shirt were exhibited as Ext-1 and Ext-2he under wear and vest were marked as Ext-3 and Ext-4. Electronic watch was marked as Ext-5. The slippers and pen of the deceased was marked as Ext-6 & Ext-7. The countrymade pistol and cartridge recovered from Sangram Singh were identified by the complainant which were marked as Ext-8 and Ext-9. He had stated that at the time of incident the land was wet where the victim fell down as water was flowing. The land was also wet where Sangram Singh was apprehended and water was flowing. The complainant further stated that he knows about all the accused persons personally who are known to him since before. He had identified Meher Sagar, Khalak Singh, Mohan Birthare and Sangram Singh in court while other accused persons were not present in court when his statement was recorded. It was further stated by the complainant that the deceased Sunil was lying at the place of occurrence where the floor was wet and water was flowing. However, from where the accused Sangram Singh was arrested place was not wet as no water was flowing. D.W-1 was cross-examined by the respective counsel of the accused persons.
The brother of the complainant Kamlapat Rai is eyewitness of the incident and was examined as P.W-2. He had stated that 26.9.1993 was the date of incident. He was sitting at his door in front of his house, his brother Gulzari Lal Rai and his son Sunil were also sitting there. It was about 3.45 P.M. when two trucks, one motorcycle (hero honda) and one TVS moped arrived from the station road. The number of trucks were URY 525 and MPT 9203, in which 8 persons, namely, Sangram Singh, Meher Sahai, Meher Sagar, Khalak Singh, Mohan Birthare, Mahesh Yadav, Jagbir Singh, Hari Singh @ Babli were sitting. Khalak Singh was armed with licensed rifle, Meher Sagar, Meher Sahai and Sangram Singh were armed with countrymade pistols, Mahesh Yadav having bomb, Mohah Birthare was carrying something in his bag, Jagbir was having iron rod and Babli @ Hari Singh was having hockey. Sangram Singh had stated that the complainant poses a big leader and have issued fake M.M.-2 receipts and used to interfere in giving contract. At this, Sunil and Gulzari Lal Rai had stated that they have misconception but Sangram Singh started hurling abuses and vituperative. When Sunil asked him not to utter vituperative words Meher Sagar exhorted that they have met today luckily hence they should be killed. When Gulzari Lal Rai asked his son Sunil to run away to home. At this Khalak Singh had fired upon Sunil with rifle which hit him on his right side neck from back side and in the meantime, Meher Sagar, Meher Sahai and Sangram Singh had also fired with their respective countrymade pistols, which hit to Sunil and also hit to the wall. Sunil succumbed to his injuries on the spot on account of firearm injuries. On hue and cry several other persons of the locality, namely Surendra Prakash Narayan, Raj Kumar and others arrived their and tried to nab the accused persons, yet the accused persons ran away hither and thither firing in the air to panic. Sangram Singh was apprehended by the mob after overpowering him and from his possession a loaded country made pistol along with cartridge was recovered. Thereafter he went near the dead body and his brother Gulzari Lal Rai left from the place to lodge the FIR.
According to P.W-2 Kamlapat Rai, the incident had taken place as contract of sand of U.P. 1991-92 was in the names of Sangram Singh and Mahesh Yadav and thereafter after giving higher bid the contract was obtained by the P.W-2 Kamlapat Rai of the year 1992-93. On account of this, accused persons were bearing enmity and in the forthcoming contract they could not give highest bid, hence this incident occurred. He has reiterated about the relationship of the accused persons with each other as stated by the P.W-1 Gulzari Lal Rai in his examination-in-chief. P.W-2 was also put for lengthy and searching cross-examination by the defence counsel.
Dr. S.M. Agarwal was examined as P.W-3 who had conducted autopsy of the deceased Sunil on 27.9.1993 at 2.30 P.M. He had stated that Constable Ram Ratan Gupta and Constable Chhavi Nath had brought the dead body in a sealed cover. He had conducted the postmortem of the deceased. According to his opinion, the body of the deceased was average built. Rigor mortis was passed from head and neck. Abdomen was of greenish colour. The body was redish. The following ante-mortem injuries were found on the body of the deceased.
Wound of entry:There is a wound of entry size 5.5cm x 2cm tissue track deep on the right side back of neck 7cm transversely behind the right ear lobule oval in shape, above down direction track leading to injury no.II through muscular and trachea part of wind pipe of the neck. Margins are inverted ecchymose;
Wound of Exit: Lacerated wound 11x 10cm x track deep towards injury no.1 on the right lateral frontal side of neck with showing off all the deep tissues and laceration of trachea at thyroid cartilage level with fracture of right mandible and maxilla bone edges of wound are ragged torn out. It is in a fashion of wound inverted and irregular. Also big vessels of neck damaged. Lacerated wound of size 2.5 x 2cm x 1cm deep circular in shape on the top of right shoulder. Margins of the wound inverted and tattooed. No dissection. No piercing body found inside.
Lacerated wound of size 2.5x 2cm x 1cm deep circular in shape on the top of right shoulder. Margins inverted and tattooed . No dissection. No foreign body found inside.
Cause of death in the opinion of the Doctor was shock and haemorrhage due to anti-mortem firearm injury.
On internal examination, the lungs were found congested. Both the chambers of heart were empty. The duration of death was one day earlier. According to the Doctor, the victim died on account of injuries of rifle and countrymade pistol. He had proved the postmortem which was exhibited as Ext. Ka-2. He had handed over the clothes and electronic watch taken from the body of the deceased to the Constable along with sealed dead body.
P.W-4 Chhavi Nath deposed that on 26.9.1993 he was posted at Police Station Barua Sagar. The papers were given to S.I. Lajja Ram. The dead body was taken to the mortuary on 26.9.1993 and on account of night, the postmortem was conducted on 27.9.1993. After conducting the postmortem the dead body was handed over to the family members and relevant sealed bundles were handed over at the police station.
Inspector D.L. Sudhir was examined as P.W-5 posted as U.P. Vigilance, Lucknow, who had conducted the investigation of the case had stated that he was posted as S.O. Barua Sagar in September 1993 the case crime no.88 of 1993 was registered in his presence who was entrusted with the investigation. The investigation was started on 29.9.1993. He recorded the statement of the complainant and at his pointing site plan of the place of occurrence was prepared. He had proved naksha nazri which was exhibited as Ka-3. He had recorded the statement of Surendra Rai, Prakash Ahirwar, Raj Kumar Jogi and Smt. Rataniya Kushwaha and scribe of the FIR Bhagwan Das. He had arrested on 27.9.1993 the named accused persons, namely, Mahesh Yadav, Mohan Birthare and Babli. From the possession of Mohan Birthare and Mahesh Yadav he had recovered explosive articles and bombs. From the bag of Mahesh Yadav three live bombs and from the bag of Mohan Birthare two bombs were recovered, of which memo was prepared and the same was deposited in the malkhana. The memos which were prepared by the investigating officer have already been discussed in the preceding paragraphs. After arresting the named accused persons their statement were recorded. The statement of accused Sangram Singh was recorded at medical college, Jhansi. The inquest of the deceased was conducted on 26.9.1993 by Lajja Ram on his direction which was proved by him as Ext. Ka-5. Lajja Ram had collected the slippers and pen of the deceased from the spot, of which the memo was prepared and exhibited as Ka-6. He had recorded the statement of the witnesses of inquest Ram Gopal, Barey Lal and Chimman on 29.9.1993. On 1.10.1993 the statements of accused Jagbir, Meher Sagar and Meher Sahai were recorded. On 11.10.1993 the statement of accused Khalak Singh was recorded. On 15.10.1993 statement of S.I. Lajja Ram, Constable Chhavi Nath and Ram Ratan Gupta, the driver of the truck Munna and the Doctor who had conducted the postmortem of the deceased were recorded. The trucks and motorcycles were taken into custody from the spot and were lodged at police station. He recorded the statement of Head Moharrir Raj Narayan Tripathi on 25.10.1993. He had taken the custody of rifle (M/s Khhachu Ram Ojha, Sheopuri, Madhya Pradesh) of Khalak Singh, of which recovery memo was prepared and the signature of witness was obtained on 30.10.1993. After perusal of the register of M/s Khhachu Ram Ojha, Arms Dealer Sheopuri the witness had signed on it and photocopy of the same was taken into custody. The photocopy of the same was certified by Khhachu Ram Ojha himself which was exhibited as Ext. Ka-14.
The investigating officer had stated that the firearm was deposited by the owner of the shop earlier whereas weapon was deposited after the incident. Thus the arm was deposited in back date. It was stated by the investigating officer that in the repairing arm register one Topidar Bandook was deposited by Hira Lal on 10.9.1993 at serial no.16 and below the same the rest of the part was found blank in which any arm can be shown to have been deposited on any date. The deposit of the firearm in question has been shown in a fraudulent manner as paper No. 70 A. Nothing has been transcribed even no signature of person who had deposited the firearm was mentioned.
The investigating officer had also stated that a case was registered u/s 25 of the Arms Act against the accused Sangram Singh after taking prior sanction. The sanction order was proved by him as Ext. Ka-15. He had submitted the charge sheet against Sangram Singh u/s 25 of the Arms Act as Ext. Ka-16. He had stated that after conducting the investigation, he has submitted the charge sheet against all the accused persons under Sections 147,148,149,302, 504 IPC which was proved by him as Ext. Ka-17. After chemical analysis of the bomb it was destroyed.
Head Constable-87 C.P. Raj Narayan Tripathi who was examined as P.W-6 had deposed that on 26.9.1993 on the written report of the complainant Gulzari Lal Rai the FIR was registered as Case Crime No.88 of 1993 against eight accused persons u/s 147,148,149,302,504 IPC and against accused Sangram Singh a case was also registered u/s 25 of the Arms Act as Case Crime No.89 of 1993. Sangram Singh was brought in an injured condition on a trolley at the police station Barua Sagar and his countrymade pistol and live cartridges were deposited. He had proved the FIR as Ext. Ka-18 and the GD Entry as Ext. Ka-19. Sangram Singh was sent to the government hospital on jeep in custody of police at medical college, Jhansi. On the basis of the report no.29 at 6.30 P.M. on 26.9.1993 cases against Mahesh Yadav and Mohan Birthare were registered as Case Crime Nos.90 of 1993 and 91 of 1993 respectively, under Section 3/5 Explosive Substance Act. He had proved the same as Ext. Ka-20. Trucks and motorcycles were deposited, of which the GD Entry No.38 was weeded out, hence the same was proved as Ext. Ka-21. G.D. Entry No.38 was marked as Ext. Ka-22. Section 3/5 Explosive Act relating to G.D. was proved by him as Ext. Ka-23.
DW-1 Dr. Prem Behari Manocha had examined the injuries of Sangram Singh on 26.9.1993 at 4.30 P.M. The following injuries were found on the person of Sangram Singh:
1. Circular lacerated wound cm in diameter v depth kuo (adv-xray), on lower end of right upper arm on postero lateral aspect 5cm away from elbow, blood clot and fresh bleeding present;
2. Lacerated wound 1.5cm. X cm x muscle deep vertically situated on postero lateral aspect of right upper arm 7cm away from elbow blood clots present, on cleaning fresh bleeding from wound. kuo;
3. Redish contusion 5cm x 1 cm transcursually present on upper end of right forearm on lateral aspect;
4. Redish contusion 6cm x 1 cm with swelling obliquely situated postero lateral aspect of right forearm middle third part kuo;
5. Redish contused swelling 2.5cm x 1cm on back of right forearm 6cm away from right wrist with cm x cm skin deep abrasion on it, on cleaning oozing of blood kuo;
6. Redish contused swelling on back of right hand 4cm x 3cm kuo;
7. Lacerated wound 2cm x 1/2cm x scalp deep 5cm away from right ear on left side of head, blood clot and fresh bleeding present kuo;
8. Lacerated wound on right side of head 1cm medial to the injury no.1, 2.5cm x1/2cm x scalp deep blood clot and fresh bleeding present kuo;
9. Lacerated wound on right side of head 7cm away from right ear obliquely present, measuring 3.5cm x cm x scalp deep blood clot and bleeding present kuo;
10. Lacerated wound 1cm x .3cm x muscle deep on outer side of left ankle fresh bleeding present kuo;
11. Redish contused swelling left ankle inner side with abrasion 1/2cm x 1/2cm skin deep, on cleaning oozing of blood;
12. Abrassed red contusion 3cm x 2cm with abrasion 1cm x cm x skin deep on posterior side of left wrist, oozing of blood on cleaning kuo.
Inference:- Injury nos.2,3,4,5,6,7,8,9,10,11 & 12 are caused by hard and blunt object.
Injury no.1 kept under observation for nature and cause. 2,4,5,6,7,8,9,10,11,12 kept under observation. Advised X-ray.
Right arm with elbow AP/Lat. 2. forearm with hand AP/Lat right. 3. Skull AP/Lat. 4. Left ankle AP/Lat. 5. Left wrist with forehand AP/Lat. Injury No.3 simple in nature. All injuries are fresh in duration.
D.W-1 denied that he has falsely shown the condition of Sangram Singh. The injury report proved as Ext. Kha-1.
D.W-2 Khhachu Ram Ojha who was examined in defence had stated that in 1987 he used to repair guns which were usually deposited. According to the register, on 29.9.1993, 315 bore of gun was deposited for repairing and polishing the gun remained in his shop till 30.10.1993. On the same day, Sub Inspector D.L. Sudhir of police station Barua Sagar had taken it away which is evident from the register at pages 23 & 7. He had proved the register and marked as Ext. Ka-2. This register was checked by SDO between 1.3.1994 to 22.3.1994.
On the appraisal of the entire oral and documentary evidence on record, the learned trial court arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against the appellants, hence convicted them to undergo sentence of life imprisonment.
Heard Sri Gopal Chaturvedi, learned Senior Advocate assisted by Sri Prem Shanker, learned counsel for the appellants, Sri Satish Trivedi, learned Senior Advocate assisted by Sri A.K. Ojha, learned counsel for the complainant and Sri Syed Ali Murtuza, learned Additional Government Advocate appearing on behalf of State.
The main thrust of the arguments of the learned counsel for the appellants is that the entire prosecution case has been concocted to falsely implicate all the appellants. The witnesses are highly partisan and interested. No independent witness was examined, though several persons have been named in the FIR. All the appellants belong to different places and their presence at the spot to commit the offence was highly improbable. At least four persons who have been named in the FIR have not been assigned any specific overt act and hence Section 149 IPC will not apply to fasten the guilt of offence under Sections 302/149 IPC against them. Mere presence does not make a person, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly. The test applied by the trial court in convicting the appellants is mechanical.
No motive is established against second set of accused persons. According to prosecution case, four persons have not been assigned any specific role, except others, hence they have no common object with those who have been specified specific role. The story of recovery of countrymade pistol along with cartridge from the possession of accused Sangram Singh at the time of incident is falsified by the testimony of D.W-2 Khhachu Ram Ojha who is the arms repair dealer that it was deposited on 20.9.1993 and remained for repairing till 30.10.1993. Two persons who were allegedly carrying bombs have already been acquitted for the charge under Section 5 of the Explosive Act which also creates dent in the prosecution case with respect to the manner of incident.
Learned counsel Shri Prem Shanker appearing on behalf of accused Mohan Birthare has emphasized that no specific role has been assigned to Mohan Birthare who was allegedly carrying bag. It was also pointed out that neither the truck nor any motorcycle were seized during the course of investigation. The statement of the witnesses are inconsistent, yet the learned trial court has committed manifest error in recording conviction against them for the offence under Sections 147,148,149,302 IPC.
Learned A.G.A. as well as learned counsel for the complainant have supported the findings recorded by the learned trial court and contended that the eyewitness account of the prosecution witnesses cannot be disbelieved, even if the motive is not proved though it has been elaborately stated by both the prosecution witnesses in their statement. They are natural witnesses who were present at the time of incident when the son of P.W-1 was killed by firing indiscriminately by the accused persons who were carrying firearm weapons. Some were armed with firearm weapons and others were having iron rod, bomb and hockey with which they have eliminated the son of the complainant on the exhortation of Sangram Singh and Meher Sagar. The incident had taken place in a brought-day-light assigning weapons and their specific roles with which the accused persons have committed ghastly murder. They arrived there on trucks and motorcycles to prevent the complainant's brother to obtain a new contract as the contract of mines of the complainant was to expire on 30.9.1993. The enmity was deep rooted in respect of mines and election rivalry. The fire was made by four accused persons who were armed with rifle and countrymade pistol. It is not necessary to count the injuries caused to the deceased by several persons or that the injuries were less than accused persons who really hit the victim.
The presence of those who had not been assigned any specific role itself shows the truthfulness of the prosecution case with regard to the presence of the appellants along other persons in sharing the common object.
It is absolutely wrong to say that in the absence of overt act of other accused persons, their conviction with the aid of Section 149 IPC cannot be sustained as the law is well settled that a member of an unlawful assembly cannot be acquitted for lack of corroboration as to their participation. Their presence at the place of occurrence has not been disputed hence sufficient to hold them guilty even if no overt act is imputed to them.
Learned A.G.A. has placed reliance upon the decisions of Hon'ble the Apext Court in Masalti vs State of U. P. 1965 AIR 202 as well as the decision of Lal Ji Vs. State of Uttar Pradesh 1989 Law Suit (SC)26, Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539 and Hardhan Das Vs. State of West Bengal 2013(2) SCC 197.
The abovenoted decisions will be dealt with at the appropriate stage.
It is also contended that the minor variation in the testimony of the reliable witnesses will not topple down the entire prosecution case. It is not necessary that fire made by all the accused persons should really hit to the victim. One of the accused Sangram Singh who had fired at the deceased was overpowered by the local resident after thrashing and was taken to the police station. The recovery memo of countrymade pistol recovered from the possession of Sangram Singh was prepared at the time of lodging of the FIR who was also taken into custody which do not create any suspicion about the incident.
No doubt that the appellant Sangram Singh had sustained injuries who was also examined by Dr. Prem Bihari Manocha, except injury nos.7 and 8 all injuries were on hand and leg which shows that while he was caught at the spot he was beaten up by the public. In the FIR this fact was also mentioned that he was overpowered by the local resident after putting some assault. The defence has tried to make false story which does not fit with the prosecution case.
The learned trial court has appraised the evidence on record in correct perspective and arrived at the conclusion that all the accused persons formed unlawful assembly and committed ghastly incident eliminating the son of the complainant in a devilish manner. Hence the conviction of the appellants is liable to be sustained.
We have considered the submissions advanced by the learned counsel for the appellants as well as the learned A.G.A. for the State and the counsel for the complainant and have also perused the entire record of the case.
We are of the firm opinion that the death of Sunil is homicidal which has not been disputed by the defence. The FIR was lodged at 4.25 P.M. on 26.9.1993 in respect of the incident which had occurred at 3.45 P.M.. The distance from police station to the place of occurrence was about Km which clearly shows that the FIR has been promptly lodged i.e. within 45 minutes of the incident.
Contrary argument that the FIR was not lodged as shown in the record, but it was lodged subsequently which is anti-timed cannot be accepted, as the prompt lodging of the FIR diminishes the chance of false implication. The FIR has been lodged assigning specific role to all the accused persons who were involved in the offence. At the time of conducting of inquest of the deceased, it mentions about the crime no.88 of 1993 and the reason of cause of death was shown as on account of firing.
The medical examination of one of the accused Sangram Singh, who was brought by the constable in custody, had taken place at about 5.30 P.M. on 26.9.1993. The medical report of Sangram Singh has been exhibited as Kha-1. The nabbing of Sangram Singh at the spot has clearly been mentioned in the FIR and as such it cannot be said that the incident had not taken place as mentioned in the FIR or the injuries of the accused persons is not explained.
Hence we do not find any force in the submission that the anti-time FIR was lodged after deliberation and consultation. The lodging of the FIR promptly is proved by the two prosecution eyewitness at the given time and date which is also proved by other attending circumstances beyond all reasonable doubt.
So far as motive is concerned it has been mentioned that in order to deter P.W-2 Kamlapat Rai to get the contract of barua nala accused persons were bearing enmity as for the year 1992-93 the contract of barua nala was given to the accused appellants, namely, Sangram Singh and Mahesh Yadav by giving highest bid from Kamlapat Rai. Another contract of border of Madhya Pradesh was taken in the name of Siya Ram by Sangram Singh. When the incident had taken place the date of auctioning of barua nala was fixed. On 30.9.1993 the contract of Kamlapat Rai was to expire and hence not to allow Kamlapat Rai to participate in the auction, all the accused persons arrived at his house there and exhorted the P.W-1 and exchange of heated words with regard to issuing receipts of M.M.-II and interfering in the contract of mining which converted into firing by the accused persons in which the son of the complainant has lost life. In this regard the statement of P.W-2 which fully supports the prosecution case is reproduced here as under:
The same is also quite evident from the statement of P.W-1 that the contract for the year 1992-93 was in the name of accused Mahesh Yadav, who is the son of aunt of Sangram Singh. Meher Sagar, Jagbir, Mahesh Yadav and Sangram Singh had taken a power of attorney from Siya Ram in respect of contract of border of Madhya Pradesh. They all were co-partners in the said contract. The accused Jagbir was also partner with Sangram Singh.
Accused Babli @ Hari Singh is the brother of Jagbir. Meher Sagar and Meher Sahai are also brothers. Khalak Singh, Meher Sagar and Meher Sahai were having licensed rifle. Meher Sagar and Meher Sahai were the bodyguard of Khalak Singh. Accused Mohan Birthare was also the friend of the abovementioned accused persons. Thus all the accused persons were known to each other and were together in company when the incident had taken place. Therefore, it is a case of deep routed business rivalry which has been proved by the two prosecution witnesses in their deposition who have faced searching cross-examination of the defence, but nothing could be elicited to create doubt or disbelieve their testimony in any manner.
On account of indiscriminate firing by the accused persons who were carrying firearm weapon, the son of the complainant had sustained injuries over the vital part on the right side of neck upon ear and on account of receiving firearm injury he fell down and died on the spot instantaneously. The postmortem report of the deceased shows three injuries. Injury nos.1and 2 were caused by one fire which were entry and exit wound. The entry wound was behind the neck with dimension of 5.5 x 2cm.
It is not necessary if injuries are less than the accused persons who opened fire at the victim, to create doubt about the manner of incident and involvement of the accused persons.
It is also not possible to count the number of firing made by each of the accused persons at the time of incident. If there is any lapse on the part of the investigating officer with respect to showing the presence of the accused persons making target at the complainant or the deceased which will not effect the fabric of the entire prosecution case.
It was also argued that the eyewitness account cannot be relied upon because there is conflict with medical evidence. According to the prosecution case, four accused persons had fired indiscriminately, but the injuries found on the body of the deceased were only three, out of which, one injury is entry and exit wound. The deceased had suffered firearm injury which is consistent with the testimony of eyewitness that four of the assailants were armed with firearm weapon and as soon as they reached they started firing after exchange of heated words with the complainant.
It was argued by the defence counsel that the injuries could not have been caused by rifle. As per the medical jurisprudence entry wound is always smaller than the size of exit wound. According to the dimension as mentioned in the postmortem report of the deceased, the exit injury is the back of the ear and the Doctor has opined that the injury could have been caused by rifle. All the accused persons were exhorting to kill him and to shoot him. At this Khalak Singh who was having rifle had fired at the deceased. The injury no.2 is the exit wound of the injury no.1 which shows that the injury was caused from behind. The exit wound is on the trachea thyroid cartilage mandible bone. On account of injury trachea at thyroid, cartilage and mandible bone maxilla were got fractured which was the impact of firing made by the rifle. The injuries were sufficient to cause death. The medical evidence is fully corroborated with the statement of both the prosecution witnesses.
The Apex Court in the case of Thaman Kumar vs State Of Union Territory of Chandigarh reported in 2003(47) ACC 7 has held as under:
"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."
Much has also been argued by the defence counsel that it has not been mentioned in the site plan as to from which place the accused persons, namely, Sangram Singh, Meher Sagar and Meher Sahai were firing with their respective weapons. If the investigating officer has not described the place from where the accused persons fired at the deceased could not be sole basis to reject the cogent and reliable testimony of the eyewitnesses.
In this regard the statement of P.W-1 who is the father of the deceased and brother of the P.W-2 with regard to the manner of incident is delineated here as under:
The aforesaid statement of P.W-1 is fully corroborated by the P.W-2 who is the uncle of the deceased. There is no scope for any confusion about the place of occurrence by picking up some portions from the evidence of the eyewitnesses.
The postmortem report and the site plan prepared by the investigating officer coupled with the statement of the eyewitnesses clearly show that the deceased had sustained injuries over his neck and shoulder and mark of pellets were also found on the walls. The court will act upon the substance of the case rather than delving into technicalities.
The defence has tried to prove that Khalak Singh had not fired at the deceased. According to the defence, the rifle of Khalak Singh was deposited on 20.9.1993 in the shop of repairing firearm of Khhachu Ram Ojha and as such no question arises of using rifle on the date of occurrence i.e. on 26.9.1993. In this regard Khhachu Ram Ojha was produced as D.W-2 who had proved the entry no.17 showing that the rifle was deposited at M/s Khhachu Ram Repairing Shop on 20.9.1993 signed by Khalak Singh and it was to be returned on 15.10.1993 after repair. Khhachu Ram had stated that polish of the rifle butt and repair of magazine were performed. The gun was deposited on 20.9.1993. He had deposed as he has many work in his shop and he has only one labour for doing repairing work hence it takes 2-4 days to complete repair work. On 30.10.1993 Shri D.L. Sudhir, P.S. Barua Sagar had taken away.
From perusal of the register the gun which was deposited on the same day was returned after 5-7 days but he has not put forth any explanation as to why the rifle was kept at his shop when its delivery was shown on 15.10.1993 which clearly shows that when the gun was deposited there was no other work to D.W-2 and on 10.9.1993 a gun at serial no.6 had already been returned. Thus there was no other weapon for any repair then there was no justification to keep the weapon in question for a long period. It clearly shows that fake entries were made in the register and in order to create defence, the plea was taken that the rifle was already deposited in the shop of Khhachu Ram on 20.9.1993 . The signature of Khalak Singh as mentioned in the register was also not tallied with various other documents signed by him during trial, which shows that a gun was deposited after committing offence on an anti-date.
In the cross-examination of P.W-1 the suggestion was made by the defence that Kamlapat Rai and others were surrounding the truck and when Sangram Singh and Mahesh Yadav were present at the spot, Kamlapat Rai had assaulted Sangram Singh with sariya on account of which he fell down on the spot. This suggestion itself shows the presence of Sangram Singh and Mahesh Yadav at the time of the incident.
The suggestion that Kamlapat Rai, Sunil and Ram Babu were standing around the truck and they were demanding money and Sangram Singh had assaulted Kamlapat Rai. Gravel (Bajri) was not taken from him. Hence when they were demanding money and on account of this dispute incident had taken place in which Kamlapat Rai had assaulted Sangram Singh with sariya. This story has been set up by the accused appellant in his statement recorded u/s 313 Cr.P.C. and evolved a different story that on 26.9.1993 he was coming towards nala at about 3.30 P.M. Kamlapat Rai, Sunil and Gulzari had stopped him and started assaulting, on account of which Sangram Singh had sustained injuries and fell unconscious. According to him, the truck was standing in front of house of Kamlapat Rai which was also found during investigation, hence it is evident from the statement of the investigating officer that motorcycle and the truck were also taken into custody and deposited at police station which was entered in the Diary no.38, dated 26.9.1993 at 23.05 hours. The suggestion put forth by the accused persons are self contradictory with their statement under Section 313 Cr.P.C. and hence the defence has miserably failed to dislodge the prosecution case.
The testimony of eyewitnesses cannot be disbelieved to be untruthful witness merely because no independent witness was examined.
In the case of Seeman @ Veeranam vs State 2005(52) ACC 502 SC, the Hon'ble Apex Court had observed that the prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness 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. The mechanical rejection of the evidence of related witnesses would lead to failure of justice.
In the case of Birendra Rai And Others Vs. State of Bihar (2005) 9 S.C.C 719, the Apex Court had observed as under:
"Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eyewitnesses shy away from giving evidence for obvious reasons."
It is also well settled that proposition of law while appreciating the evidence of eye-witnesses, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
It has also been argued by the defence that the prosecution has not given any explanation to the injuries of the accused Sangram Singh. When the incident had occurred various persons arrived there and indiscriminate firing had taken place and they chased accused persons. They ran towards the post office lane 72-80 paces and thereafter only Sangram Singh could be apprehended by them. These injuries could not be said to be during the course of incident when the accused persons were trying to escape. Sangram Singh was apprehended by the local people and in that course injuries suffered by him is quite obvious which has been narrated in the First Information Report itself.
So far participation of each and every accused persons is concerned the defence had tried to emphasize that all the accused persons cannot be termed to be member of unlawful assembly. It is argued that according to the prosecution case, there is evidence of only four persons, namely, Khalak Singh, Sangram Singh, Meher Sagar and Meher Sahai who had fired with their respective weapon while no other overt act has been committed by any other named accused persons. Hence it cannot be said that they cannot be liable to be prosecuted for sharing common object. One person cannot be held to be vicariously liable for the act of another.
Learned counsel for the appellants has also argued that the common object is necessary ingredients to carry prior to the incident and it is hard to accept that other accused persons who were only standing had also shared the common object that the deceased would be killed.
In this regard two cases, namely, Masalti (Supra) and Lal Ji (Supra) cited by the learned A.G.A. would apply in the present facts and circumstances of the case.
Section 149 IPC consists of two parts; the first part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the commission of an offence by any member of the unlawful assembly in a situation where other members of that assembly are known to be likely to be committed in prosecution of the object. In that case every member of unlawful assembly is guilty of the same offence committed in prosecution of common object.
In the instant case, the offence was committed with the common object of the unlawful assembly of which the accused appellants were the members and as such the offence was such as the members knew was likely to be committed.
All the accused persons are either connected or related to each other which has already been discussed above and need no repetition.
Mahesh Yadav and Sangram Singh were bearing enmity in relation to business rivalry of getting licence of mining and on account of which, all the accused persons came together. This clearly shows their common object of bearing enmity with the complainant-party and in order to accomplish their motive, Meher Sagar had asked to kill Gulzari Lal Rai and his son Sunil and to fire upon them. This itself shows their common intention which has been consistently stated by the prosecution witnesses and cannot be termed as irrational or unreasonable.
The facts of the case of Masalti (Supra) is not identical, but the principle with regard to applicability of Section 149 IPC has been dealt with in extenso by the Hon'ble Apex Court which is reproduced hereinbelow.
"Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 per- sons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not."
It is not necessary that all the persons forming an unlawful assembly must do some overt act when they assembled together armed with firearm weapons lathi and bomb. They were the parties to the assault and hence the prosecution is not obliged to prove which specific overt act played by each of the accused. The mere presence in the unlawful assembly may fasten vicarious liability under Section 149 IPC. In the case of Masalti (Supra) the Hon'ble Apex Court upheld the conviction of 28 persons for life imprisonment and altered death sentence of 3 persons into transportation to life.
It would be travesty of justice to acquit some of the appellants who were members of unlawful assembly on the ground that they themselves did not perform any overt act or that there was no corroboration of their participation.
Common object of the unlawful assembly is a matter which has to be decided on the facts and circumferences of each case. In the present case the conduct of the members of the unlawful assembly both before and after the commission of the offence lead to the conclusion that each and every person had common object. There is no material on record to authenticate that the witnesses had any motive to falsely implicate the accused appellants.
In the case of Lal Ji (Supra) the Apex Court had observed that acquitting those who did not participate doing so would amount to forgetting the very nature and essence of the offence created by Section 149 IPC. The court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society and reversed the finding of the High Court in the abovenoted case while observing that "from the above evidence on record it could not be held that Milkhi and Bhagwati were not members of the unlawful assembly at the relevant time. Whether any specific injury could individually be attributed to them or not could not at all be material. The submission that the two be acquitted on ground of lack of corroboration has, therefore, to be rejected."
This extract is taken from Lal Ji v. State of U.P., (1989) 1 SCC 437 : 1989 SCC (Cri) 211 at page 443 "In the facts and circumstances of the case it is not open to this Court to apply the reasoning of the High Court to acquit members of the unlawful assembly for lack of corroboration as to their participation."
In the case of Yunis @ Karia (Supra) the Hon'ble Apex Court in the concluding part has observed that "the learned Counsel appearing for the appellant-Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149, IPC. This argument, in our view, has no merit. Even if no overt act is imputed to a particular person, when the charge is under Section 149, IPC, the presence of the accused as part of unlawful assembly is sufficient for conviction. The fact that Liyaquat was a member of the unlawful assembly is sufficient to hold him guilty. The presence of Liyaquat has not been disputed. All the appeals are accordingly dismissed."
On the touch stone of the aforesaid decisions and considering the entire prosecution case and the findings recorded by the learned trial court, we find no convincing reason to upset the finding of conviction recorded by the learned trial court whereby convicting the appellants for the offence punishable under Sections 302/149, 148 IPC.
Conviction and sentence of the appellants are hereby maintained and affirmed.
Both the appeals lack merit and are hereby dismissed.
The appellants, namely, Sangram Singh, Meher Sagar, Meher Sahai and Khalak Singh, Mohan Birthare, Jagbir Singh, Hari Singh @ Babli and Mahesh Yadav are on bail. Their bail bonds are hereby cancelled. The CJM Jhansi shall cause the abovementioned appellants to be arrested forthwith and be lodged in jail to serve out the sentence.
Judgment be certified and be placed on record.
Office is directed to certify this order to the court concerned forthwith alongwith the lower court record for necessary compliance.
Let a copy of this order be placed in connected Criminal Appeal No.5461 of 2002.