Ambikavaran & Another vs State Of Madhya Pradesh

S.K. Awasthi, J

The present appeal is directed by the appellants under Section 374 (2) of Code of Criminal Procedure (In short Cr.P.C.) feeling aggrieved by the

judgment dated 29.09.2003 passed by the Fourth Additional Sessions Judge, Bhind in Session Trial No.74/1991 whereby each of them has been

convicted for the offence under Sections 148, 302 read with Section 149 (on three counts) of IPC and sentenced to 2 years R.I. and life imprisonment

with fine of Rs.1,000/- (on each count) with default stipulation. Appellant Syamvaran has also been convicted for the offence under Section 27 of

Arms Act and sentenced to suffer 3 years R.I. with fine of Rs.1,000/-.

In short the prosecution story is that there was enmity between the complainant -Shivkumar (PW-1) and accused persons and all the accused

persons were close relatives. On 15.03.1990 about 10:15 pm, the complainant Shivkumar Sharma lodged the FIR (Ex.P-1) stating that at about 06-15

pm he was in his house located at village Didona, Akolai Ka Pura, District Bhind. At the same time, Nathuram and Karan, residents of his village

came to his house and told him that the tractor of his father and brothers has been surrounded at Bechirag near village Didona and firing was

occurring. After hearing, he along with his brother Baburam and other persons of the village reached village Didona where he found that his younger

brother Guddan @ Dinesh was lying in injured condition. He sustained gun-shot injury on left pelvis and the dead bodies of his father Shivnath and

brother Arun @ Kadore were lying near the tractor. They also sustained gun-shot injuries as well as injuries caused by axe. Guddan @ Dinesh told

him that Gayaram and his sons Ramvaran, Shyamvaran, Ambikavaran, Priyomvaran, Shriomvaran, residents of village Didona and Ramprasad and his

sons, residents of village Raipura stopped the tractor. At the same time, Shyamvaran, Ambikavaran and Ramprasad were equipped with guns while

Shriomvaran, Priomvaran, Ramvaran and sons of Ramprasad were having axe whereas Gayaram was standing there carrying with lathi. Gayaram

told 'kill them', then Ramprasad fired on Shivnath by his 12 bore double barrel gun. After seeing this, Arun started running from there, then

Shyamvaran fired on him. After that, he also tried to escape but Ambikavaran fired on him. When Arun fell down then Pahua, son of Ramprasad

gave a blow of axe on Arun and father Shivnath. Ramvaran also inflicted injury to Shivnath by axe. At the time of incident Mayaram, Gopalji and

Krishnagopal were also present sitting on tractor and they had witnessed the incident. Injured Dinesh was brought by tractor to District Hospital,

Bhind, where he was declared dead.

After recording the FIR, SHO Pawai Ashok Kumar Ghanghoriya visited the spot and prepared spot-map (Ex.P/6) as well as lash panchnama of

deceased Shivnath and Karode @ Arun Kumar. One axe was stuck on back side of shoulder, which was seized vide seizure memo (Ex.P/8). He also

collected blood-stained soil and plain soil from the spot and prepared relating seizure memo (Ex.P/7). Nine empty cartridges of 12 bore gun were

found on the spot, which were seized by seizure memo (Ex.P/9). Dead bodies of deceased Shivnath and Karode @ Arun Kumar were sent for post-

mortem. He recorded the statements of the witnesses and arrested the accused persons. At the instance of accused Shriomvaran, he recovered an

axe vide seizure memo (Ex.P/18). He recorded memorandum of accused Shyamvaran and on that basis he recovered one 12 bore gun and prepared

seizure memo (Ex.P/34). On the basis of disclosure statement of Priyomvaran, he recovered one blood-stained shirt and prepared seizure memo

(Ex.P/33). He also seized blood-stained shirt vide seizure memo (Ex.P/34) from accused Shriomvaran. One stick was recovered from accused

Gayaram vide seizure memo (Ex.P/27). Seized articles were sent to Forensic Science Laboratory for examination.

Dr. S.R.Sharma (PW-10) performed the post-mortem on the dead bodies of deceased Shivnath, Kadore @ Arun Kumar and Dinesh Kumar and

gave reports Ex.P/19, P/20 and P/21, respectively. He found that deceased died due to gun-shot injuries. After due investigation, the charge sheet was

filed before the JMFC, Bhind, who committed the case to the Court of Sessions, which was ultimately transferred to Fourth Additional Sessions Judge,

Bhind.Â

Appellants/accused abjured their guilt. They took a plea that they are innocent and have been falsely implicated in the matter. Appellant/accused

Ramvaran took a plea of alibi that he was working as Conductor in MP State Road Transport Corporation from 30.11.1988 to 30.11.1992 and on the

date of incident, i.e., 15.3.1990, he was on duty from 9 am to 7 pm. On the aforesaid date, he also received overtime allowance from the Head

Cashier at about 5 to 6 pm and then he came to his rented room where Conductor Ramnaresh Mudgal was also residing with him. Accused

Ramprasad took a plea that deceased Shivnath wanted to purchase his land in less price. However, he refused to sell the land and on account of this

enmity he has been falsely implicated in the crime, whereas other accused persons took a plea that due to enmity on the point of cultivation they were

falsely implicated. In defence, appellants examined Ramlakhan Das (DW-1), Ramnaresh Mudgal (DW2), Ramsewak Sharma (DW-3) and Jagdish

Prasad Kulshrestha (DW-4). Accused Ramvaran Thapak examined himself as DW-5.

To bring home the charges framed against the appellants/accused the prosecution has examined as many as 18 witnesses, namely, Shivkumar (PW-

1), Rameshwardayal (PW-2), Ramlakhan (PW-3), Chandra Udaiveer Singh (PW-4), Nathuram (PW-5), Mahesh (PW-6), Ramniwas Sharma (PW-7),

Brijkishore (PW-8), Bhanwar Singh (PW-9), Dr. S.R.Sharma (PW-10), Chhavinath Singh (PW-11), Gopalji (PW-12), Ramsaran (PW-13), Mayaram

(PW-14), Murari Das (PW-15), Surendra Kumar Jain (PW16), R.S. Solanki (PW-17) and Investigating Officer Ashok Kumar Ghanghoriya (PW-18),

out of them Ramlakhan (PW3), Nathuram (PW-5), Mahesh (PW-6), Ramniwas Sharma (PW-7), Brijkishore (PW-8), Bhanwar Singh (PW-9) and

Chhavinath Singh (PW-11) were declared hostile by the prosecution. The trial Court after considering the evidence adduced by the parties convicted

and sentenced the appellants as mentioned above.

We have heard learned counsel for the parties at length and perused the record.

First of all, it is to be considered as to whether all the three deceased namely, Shivnath, Karode @ Arun and Dinesh @ Guddan died of homicidal

death. In this concern, it is established by the prosecution that deceased Shivnath and Karode @ Arun Kumar died on spot whereas Guddan @

Dinesh was declared dead when he was brought to the District Hospital, Bhind and no treatment could be given to him. Dr. S.R.Sharma (PW-10)

performed the post-mortem on the body of deceased Shivnath and gave a report (Ex.P/19). He found following injuries on the body of deceased

Shivnath :-

(i) Wound of entry, size 7 cm in diameter over mid-sternum area anterior chest wall;

(ii) Wound of entry size 8 cm. on right side of the chest;

(iii) Extensive firearm wound over right forearm and hand, cork and pallets visible â€" sealed;

(iv) Multiple pallets palpable on post chest wall;

(v) Firearm wound size 10 cm. in diameter on left forearm.

On opening of the body, sternum, plura, both the lungs, heart, blood vessels, membranes of intestines and small intestine, liver etc. were found

damaged. All the aforesaid injuries were anti-mortem and according to the opinion of doctor, deceased Shivnath died due to the injuries sustained on

vital parts of the body and excessive bleeding. The duration of death was 12 to 24 hours and death of Shivnath was homicidal in nature.

Dr. S.R.Sharma (PW-10) performed the post-mortem on the body of deceased Arun Kumar @ Kadore and gave a report (Ex.P/20). He found

following injuries on the body of deceased Arun Kumar @ Kadore:-

(i) Wound of entry, size 2 cm in diameter on medial side of right thigh;

(ii) Wound of entry medial to right nipple, size 4 cm. in diameter, blackening around the wound;

(iii) Wound of entry size 10 cm on right side of neck extending up to supra-clavicular;

(iv) Wound of exit size 25 cm in diameter both wounds communicating with each other situated supra scapular region.

(v) Extensive firearm wound on left forearm up to dorsal aspect of wrist. Both radius and ulna bones were fractured.

On opening of the body, pleura cavity was full of blood, throat, left and right lungs and heart were found ruptured. As per opinion of doctor, the

aforesaid injuries were anti-mortem and caused by firearm. These injuries were sufficient to cause death in normal course of nature and death of

Arun @ Kadore was homicidal in nature.

Dr. S.R.Sharma (PW-10) has also performed autopsy on the body of the deceased Guddan @ Dinesh and gave a report (Ex.P/21) and found

following injury on his dead body:

(i) Wound of entry over left iliac crushed medial to it, size 2 cm. in diameter, wound communicating with peritoneal cavity.

On internal examination, his peritoneal cavity was full of blood and damaged. The aforesaid injury was caused by firearm and death of deceased was

hemorrhage and due to shock. death of Guddan @ Dinesh was homicidal in nature.

Looking to the opinion of Dr. S.R.Sharma (PW-10), there is no reason to disbelieve that death of deceased Shivnath, Kadore @ Arun Kumar and

Guddan @ Dinesh was homicidal in nature and caused by firearm.

Shiv Kumar (PW-1) deposed that on 15.3.1990 his father Shivnath and brother Arun Kumar had gone to Bhind by tractor for selling mustard

whereas his younger brother Dinesh had also gone to Bhind for dropping his sister. All of them were coming back from Bhind to their village. Krishna

Gopal, Gopalji, Nathuram, Moharman and some other persons were also sitting on the tractor along with his father and brothers. At about 7 pm he

was at his home. At that time, Nathuram and Karan came there and they told him that some persons surrounded their tractor and they were firing.

After hearing this, he along with his brother Baburam and other villagers rushed to the spot. When they were on the way, Dinesh met them in injured

condition and informed them that Ramprasad, Ramvaran, Shyamvaran, Ambikavaran, Ramdulare, Shriomvaran and Priyomvaran killed father and

brother Arun Kumar. He also told this witness that Ramprasad fired from double barrel gun on Shivnath, whereas Ramvaran and Shriomvaran gave

axe blows to his father Shivnath. Shyamvaran fired on Arun and Ramdulare and Priyomvaran inflicted injuries to him by axe. When he ran away then

Ambikavaran fired on him, due to which he sustained injuries on his pelvis. On receiving this information from Dinesh, they reach the spot where the

dead bodies of his brother Arun and father Shivnath were lying near the tractor. One axe was stuck on the back side of shoulder of deceased Arun.

After that, he came back near his brother Dinesh and he brought him to the village with the help of Ramlaxman, Ramswaroop and Baburam.

Thereafter he sent injured Dinesh to District Hospital, Bhind, after reaching there Dinesh died. He lodged First Information Report (Ex.P/1) at Police

Station Pawai. This witness further deposed that their field is situated near the field of accused persons. When they took their tractor to their field

through the land of accused person, then the accused persons objected and due to this there existed enmity between them.

Gopalji (PW-12) and Mayaram (PW-14) deposed that seven years ago they were coming from Bhind to village Didona by tractor of Shivnath.

Krishna Gopal, Moharman, Nathuram, Shivnath, Arun @ Kadore and Dinesh @ Guddan were also sitting on the tractor. At about 4-30 pm when they

reached near village Goharkalan, accused Gayaram, his sons Ramvaran, Shyamvaran, Ambikavaran, Omvaran and Priyomvaran and other accused

Ramprasad and his son Ramdulare @ Pahua met them. Gayaram was having lathi, Ramvaran, Priyomvaran, Shriomvaran and Ramdulare @ Pahua

were carrying axe with them and Shyamvaran and Ambika were having 12 bore single barrel guns and accused Ramprasad was armed with 12 bore

double barrel gun. They stopped the tractor and told Moharman and Nathu to alight from the tractor, then all of them alighted from the tractor. After

that Ramprasad told that 'kill them'. Ramprasad fired on Shivnath, due to which Shivnath sustained injury. Arun @ Karode and Dinesh @ Guddan ran

away then Shyamvaran fired on Arun and Ambikavaran fired on Dinesh. After that, Ramvaran and Shriomvaran gave axe blow to Shivnath. Pahua

@ Ramdulare and Priyomvaran inflicted injury to Arun by axe. Due to these injuries, Shivnath and Arun @ Kadore died on spot. After committing the

aforesaid incident, the accused persons fled away to behad. The incident was committed by the accused persons on account of previous enmity with

Shivnath.

As per the statement of Shiv Kumar (PW-1), it is evident that at the time of incident he was not present on the place of occurrence and, therefore,

he has not witnessed the incident. As per the FIR (Ex.P/1), Nathuram and Karan came to the house of Shiv Kumar and they informed him about the

incident and after that he reached on spot.

Learned counsel for the appellants submitted that Gopalji (PW-12) and Mayaram (PW-14) claimed that they have witnessed the incident. These

witnesses are relating to the deceased persons, despite being related to deceased Shivnath, after seeing the incident they did not go to the house of

Shivnath. It is further interesting to notice that Mayaram (PW-14) deposed that he did not narrate the incident to any person. Although Mayaram

stated that he reached village Didona and informed about the incident to complainant Shiv Kumar, however this fact does not find place in the FIR that

he has informed complainant Shiv Kumar or any other person as to how the incident occurred. In these circumstances, it appears that Gopalji (PW-

12) and Mayaram (PW-14) are got up witnesses and the trial Court has committed error in placing reliance on the evidence of these witnesses.

From the perusal of the FIR (Ex.P/1), it appears that although it is not mentioned that Gopalji (PW-12) and Mayaram (PW-14) informed the

incident to the complainant Shiv Kumar (PW-1), however, in the FIR their presence at the time of incident is shown. The police recorded the

statement of Mayaram (PW-14) on the date of the incident, i.e., 15.3.1990 and statement of other witness Gopalji (PW12) was recorded on

16.3.1990. The police also prepared lash panchnama of Shivnath and Karode @ Arun in presence of Mayaram (PW-14).

Shiv Kumar (PW-1) deposed in paragraph 17 of his cross-examination that when he reached at the place of incidence, alleged eye-witnesses of

the incident, Krishna Gopal, Nathuram, Moharman and Mayaram were not there and they had fled away. Mayaram (PW-14) accepted that after

seeing the incident he fled away and did not return back to the scene of occurrence and he came to the house of Shiv Kumar at about 8 pm but by

that time Shiv Kumar had already proceeded to the spot, therefore, he could not narrate the incident to Shiv Kumar. When police came to the house of

Shiv Kumar then he accompanied with the police.

Gopalji (PW-12) deposed that he did not flee away from the spot and he hid in the nearby bushes, from where he witnessed the whole incident.

When other persons reached the spot then he came out and narrated them about the incident.

Although the presence of Gopalji (PW-12) and Mayaram (PW-14) was disputed by the learned counsel for the appellants, however in the FIR it is

mentioned that they were sitting in the tractor when the accused persons stopped the tractor and accused persons told them for alighting from the

tractor and as they alighted, the accused persons assaulted Shivnath and his sons, then they fled away from the place of occurrence. Their statements

were also recorded within a period of 24 hours from the date of incident and they narrated the story which they had witnessed. In these

circumstances, presence of Gopalji (PW-12) and Mayaram (PW-14) on the spot could not be doubted merely on the ground that they have not

narrated the story to complainant Shiv Kumar, who reached on spot. These witnesses who were bare-handed and they were afraid of their own lives

and so they escaped to save their lives when accused persons were making fires. In these circumstances, if they have not narrated the incident to the

persons who came to the spot, their testimony cannot be discarded. Reference in this regard may be made to the law laid down in Sheikh Sintha

Madhar alias Jaffer alias Sintha, Etc. v. State by Inspector of Police (2016 Cri.L.J. 2356).

From the plain reading of the evidence of witnesses Gopalji (PW-12) and Mayaram (PW-14), there does not appear any glaring inconsistency in

their statements. On the other hand, cross-examination seeking to elicit irrelevant material cannot be cited as diluting the straightforward evidence of

these witnesses. There could be no denial on the fact that the accused persons were armed with guns and axe and they have assaulted on the

deceased persons. These witnesses to the incident having stood the taste of cross-examination cannot be characterized as a got-up witnesses merely

because they have not informed the complainant regarding the incident.

Learned counsel for the appellants further submitted that there are certain discrepancies in the testimony of the prosecution witnesses Gopalji

(PW-12) and Mayaram (PW14) and such discrepancies should be considered in favour of the accused. The Hon'ble Apex Court in the case of

Krishna Mochi and others v. State of Bihar (2002 Cr.L.J. 2645) held as follows:

in a case of discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, but if the same are boulders the Court should not

attempt to jump over the same.

In Baijnath and another vs. State of MP [ILR (2009) MP 3041], it has been held by the Hon'ble Apex Court :

“5. We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true that the trial

court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that some of the findings

recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of evidence in a criminal matter have been

laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we respectfully produce the same:-

 “...........Over much importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot beexpected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is

replayed on the mental screen.

(2) ordinarily it so happens that a witnessis overtaken by events. The witness could not have anticipated the occurrence which so often has an element

of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ fromperson to person. What one may notice, another may not. An object or movement might emboss its image

on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accuratelyrecall a conversation and reproduce the very words used by them or heard by them. They can only recall

the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident,or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the

moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends

on the timesense of individuals which varies from person to person.

(6) Ordinarily a witness cannot beexpected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A

witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, isliable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of

nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious

mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and

honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

(8) Discrepancies which do not go to theroot of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue

importance. More so when the all important ""probabilitiesfactor"" echoes in favour of the version narrated by the witnesses.â€​

In the instant case, some discrepancies have been brought to the notice of the Court by learned counsel for the appellants/accused in the

statements of eye-witnesses Gopalji (PW-12) and Mayaram (PW-14), however, it is to be kept in mind that their statements have been recorded after

a period of seven years of the incident. Both the persons are of village background. More so, three murders have been committed in front of them and

that too of their close relatives. The psychology of the witnesses after seeing the incident, cannot be said to remain unaffected. The chances of

emotional set back can also not be ruled out. Keeping all these factors in view, we are not at all interested to allow the truth to be sacrificed at the

altar of hyper technicality by making the society a casualty. Normal phenomenon, robust common sense are the guiding factors to arrive at a

conclusion.

Learned counsel for the appellants submitted that socalled eye-witnesses Gopalji (PW-12) and Mayaram (PW14) are the near relatives of the

deceased persons, therefore, they are interested witnesses and so it would be unsafe to rely on them. In this regard, we may say that it is settled law

that merely because the witnesses may be related to the victim or the complainant, their testimonies may not be rejected. There is no legal canon that

only unrelated witnesses shall be considered credible. On the contrary, we are of the view that it is not natural for the related witness to implicate a

person falsely leaving aside the actual culprit. It is pertinent to note that only interested witnesses want to see the real culprit is brought to book. In this

regard, Hon'ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, has held 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

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.â€​

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. The witness 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 sole witness. 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.â€​

In the context of the above reproduced portion of the judgment, if the contention of the learned counsel for the appellants is examined, then we

have no hesitation to conclude that the statements of Gopalji (PW-12) and Mayaram (PW-14) are consistent and establish the prosecution version of

the story. These witnesses clearly narrated the events which happened on 15.3.1990 and the role played by the appellants which found support from

the post-mortem reports (Ex.P/19 to P/21). Therefore, merely because these witnesses are relatives of the deceased persons, their testimony cannot

be discarded. Hence, we are unable to accept the argument advanced by learned counsel for the appellants.

Although Dr. S.R.Sharma (PW-10), who performed the autopsy of the dead bodies of the deceased persons, opined that the cause of death of the

deceased persons was gunshot injuries and he has not found any incised wound on the bodies of deceased Shivnath and Arun, however, the eye-

witnesses clearly stated that accused Shriomvaran, Ramvaran and Priyomvaran were equipped with axe and they have inflicted injuries to Shivnath

and Arun by axe. This fact has also come in the statement of Investigating Officer Ashok Kumar Ghanghoriya (PW-18), who stated in his

examination-in-chief that one axe was stuck behind the shoulder of deceased Arun, which was removed by him. From the lash panchnama of

deceased Shivnath and Arun, it is also reflected that incised wounds were present on the right shoulder of Arun whereas incised injuries were

observed on both the hands of deceased Shivnath. This fact also corroborates the version of the eye-witnesses. We believe that merely for the reason

that no incised wounds were found on the bodies of the deceased persons in autopsy reports, the statements of Gopalji (PW-12) and Mayaram (PW-

14) cannot be discarded as primacy has to be given to the ocular evidence particularly where prosecution documents clearly reflected sharp-cutting

injuries on the person of the deceased. It is well settled law that if there are inconsistencies between ocular and medical evidence and statements of

witnesses are found trustworthy then ocular evidence may be given weightage instead of medical evidence, which is simply an opinion of the doctor.

In the case of Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476, the Hon'ble Supreme Court has held :

“…. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless

the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions

between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-Ã -vis medical evidence and when

medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only

when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true

at all, that the ocular evidence is liable to be disbelieved.â€​

The autopsy report (Ex.P/21) indicates that deceased Dinesh @ Guddan received only one gun-shot injury on his left iliac region. As per

complainant Shiv Kumar (PW-1), when he reached the place of occurrence, he found Dinesh in injured condition, who was in a position to narrate the

incident. Injured Dinesh narrated the incident to him and this fact also finds place in the FIR (Ex.P/1). In the FIR, it is clearly mentioned that accused

persons attempted to commit murder of Dinesh by firing gun-shot and police also registered a case under Section 307 of the IPC in this connection,

which discloses that at that time Dinesh was alive. Rameshwar Dayal (PW-2) also accepted in his crossexamination that when he reached on the

spot, at that time injured Dinesh was alive and he was in a position to communicate till he was brought to the hospital, which also supports the

statement of Shiv Kumar (PW-1). Although Rameshwar Dayal (PW-2) deposed in paragraph 5 of his statement that after hearing about the incident,

Shiv Kumar fell down and went unconscious but it does not mean that Shiv Kumar remained unconscious for a long time, otherwise he could not go to

the police station and lodge the FIR. Therefore, the statement of Shiv Kumar (PW-1) cannot be disbelieved that Dinesh was in a position to speak and

narrated entire incident to him which he has deposed in his examination-in-chief.

Now comes to the motive. From the statements of the witnesses it is also evident that there was dispute between the appellant and deceased Shiv

Kumar regarding passing of tractor through the field of accused persons. The accused persons also took a plea in their statements recorded under

Section 313 of CrPC that there was dispute between them. In these circumstances, there was enmity established by the prosecution between the

victims and the appellants.

The police has also recovered weapons used by the accused persons in the crime and blood-stains were found on the axes which were recovered

from the accused Priyomvaran, Shriomvaran and licenced guns were also recovered from the accused Shyamvaran. The blood-stained clothes of the

deceased persons were also recovered and all these articles were sent to the FSL for chemical analysis and as per the FSL report (Ex. P/47), blood-

stains were found on the axe recovered from accused Priyomvaran.

Learned counsel for the appellants submitted that there is no evidence regarding blood-group or the fact that blood-stains belonged to the blood-

group of the deceased persons is forthcoming but in the absence of evidence regarding blood-group cannot be fatal to the prosecution. The finding

recorded by the trial Court about the presence of human blood on the axe recovered at the instance of appellant/accused Priyomvaran has not been

questioned and no explanation was offered by the aforesaid accused persons in respect of presence of human blood on the axe. These circumstances

are also enough to implicate the appellants in the present crime.

The incident took place on 15.3.1990 at about 6-15 pm and the FIR was lodged on the same day at about 10.15 pm, whereas police station was 10

kms. away from the spot, however the explanation given by complainant Shiv Kumar (PW-1) is worth acceptance that when three persons of his

family were killed and after receiving the information about the incident he reached the spot and brought his injured brother to the village then

sufficient time was required for him to come out of shock, thereafter it was for the complainant Shiv Kumar to manage for a vehicle and to send the

injured Dinesh to the hospital, for such procedure sufficient time was required. Hence, if the FIR was lodged after four hours it cannot be termed that

it was lodged with delay.

Admittedly the first informant of this case was not present at the place and time of occurrence. What he has described in the FIR is based on the

information given to him by injured Dinesh @ Guddan. Hence, the FIR in this case is not based on first hand information resulting in some omissions in

the FIR. Even though the FIR (Ex.P/1) is a good corroborative piece of evidence which corroborates the testimony of witnesses Shiv Kumar (PW-1),

Gopalji (PW-12) and Mayaram (PW-14). The evidence of the eyewitnesses is also corroborated by medical evidence, which clearly indicates that the

deceased persons have sustained gun-shot injuries and trial Court has rightly found that appellants Shyamvaran and Ambikavaran fired with their guns

and caused injuries to victim Shivnath, Arun @ Kadore and Dinesh @ Guddan. Presence of co-accused Ramvaran, Ramdulare, Shriomvaran and

Priyomvaran was also found on the spot and they were also equipped with axe and their overt act was narrated by the eye-witnesses which was

corroborated by the statement of Investigating Officer Ashok Kumar Ghanghoriya and lash panchnama (Ex.P/3, P/4 and P/5).

Accused Ramvaran has taken a plea of alibi that at the time of incident he was not present on the spot and he was on duty in the concerned depot

of MPSRTC from 9 am to 7 pm and he had also received overtime allowance from the Head Cashier between 5 to 6 pm but he neither produced

copy of duty register nor examined Cashier Laxmi Narayan and Depot Manager A.K.Jain to substantiate the fact that on 15.3.1990 he was present in

the depot of MPSRTC at Guna and he has received overtime allowance. Therefore, the trial Court has rightly rejected his plea of alibi.

It is also pertinent to note that although appellants have constituted unlawful assembly and being members of unlawful assembly accused

Shyamvaran, Ramprasad and Ambikavaran fired with guns and killed three persons. Hence, it is also immaterial that who caused injury to particular

deceased or victim/ The common object of the appellants Shyamvaran, Ramprasad and Ambikavaran is very well established with co-accused

Ramvaran, Ramdulare, Shriomvaran and Priyomvaran and, therefore, if any one sustained injury due to firing done by one of the appellants then all the

appellants are liable for the offence punishable under Section 302 of the IPC for concerned death with the help of Section 149 of the IPC and the trial

Court has convicted all the accused persons for the offence under Section 302 read with Section 149 of the IPC. Therefore, in our considered opinion,

the trial Court has rightly found the appellants/accused persons guilty of the offence punishable under Sections 148 and 302 read with Section 149 of

the IPC (on three counts). Investigating Officer Ashok Kumar Ghanghoriya (PW-18) deposed that on 10.4.1990 at the instance of accused

Shyamvaran he had recovered one 12 bore single barrel country made gun vide recovery memo (Ex.P/34) and on this point no challenge has been

made in the cross-examination of this witness.

Appellant Shyamvaran has not filed any to licence to to possess aforesaid gun. Prosecution has also obtained permission from the District Magistrate

regarding prosecution of appellant Shyamvaran for the offence under Sections 25 and 27 of the Arms Act. In these circumstances, the trial Court has

rightly found appellant Shyamvaran guilty of the offence punishable under Section 27 of the Arms Act.

So far as the sentence is concerned, the trial Court has recorded the minimum sentence for the offence punishable under Section 302 read with

Section 149 of the IPC and directed that the sentences shall run concurrently and, therefore, no further dilution can be done. When the Court records

sentence of life imprisonment then before the Court it means the imprisonment for remaining life of the accused and it is the domain of the competent

Government to commute that sentence of life imprisonment into particular years and, therefore, it should be a premature act of mentioning something

about remission etc.

On the basis of aforesaid discussion, there is no substance in the present appeal filed by the appellants Ambikavaran, Shyamvaran, Priyomvaran,

Shriomvaran and Ramvaran. There is no ground to make any interference in the impugned judgment passed by the trial Court. Consequently, the

appeal filed by the appellants is hereby dismissed.

Appellants No.1-Ambikavaran, No.2-Shyamvaran and No.4-Shriomvaran are in jail. Registry is directed to provide copy of this judgment to the

aforesaid appellants through the concerned jail authority. Appellant No.1-Priyomvaran and appellant No.5-Ramvaran are on bail after suspending their

sentence by this Court. They are directed to immediately surrender before the trial Court to serve out their remaining jail sentence.

A copy of this judgment be sent to the trial Court for information and compliance.