Gokuldas vs Atal Bihari & Anr.

All these criminal appeals are arising out of common judgment, and therefore, they are being decided by this common judgment.

These Criminal Appeals have been filed by the appellants/accused persons being aggrieved by judgment dated 23.12.2004 passed by the Court of Additional Sessions Judge, Pichhore, Distt. Shivpuri, in Sessions Trial No.88/2003 convicting them under Sections 148, 302 / 149 and 323 / 149 of IPC and sentencing them to suffer one year RI, life imprisonment with fine of Rs.1,000/- and six months RI respectively.

In Sessions Trial No.88/2003 there were five accused persons, namely Amar Singh son of Bhaiyalal, Mahendra Singh son of Bahoran Singh, Brijesh son of Baijnath, Narendra Singh @ Chainu son of Babu Singh Bais and Shivraj Singh son of Roop Singh Yadav. This Sessions Trial No.88/2003 originated after committal of the case by the Chief Judicial Magistrate, Pichhore, in Criminal Case No.794/2002 vide order dated 5.4.2002.

There were in fact six accused persons out of which two namely, Narendra Singh @ Chhainu son of Babu Singh and Shivraj Singh son of Roop Singh were acquitted in Sessions Trial No.88/2003 vide judgment dated 23.12.2004. Sixth accused Santosh was separately tried in S.T.No.36/2005, whose Criminal Appeal No.945/2006 against judgment dated 16.10.2006 is pending before this Court.

On 14.9.2002 at 5 am intimation was received at police Station, Khaniyadhana, that seven accused persons had committed the offence under Sections 302 / 307 / 147 / 148 / 149 / 34 of IPC on 13.9.2002 at 5.30 pm at Jhunda Ka Teela, Khaniyadhana Road. This FIR was lodged by Asharam, brother of deceased Ramratan. He had named four persons, namely Mahendra Singh, Amar Singh, Brijesh Lodhi and Santosh Pandit and three unknown persons. This FIR was registered as Crime No.103/2002. The delay in the FIR was shown as fear & due to night. FIR was lodged on the next morning.

As per the contents of the FIR when complainant Asharam with injured Achchelal, Hariram and Harprasad alongwith Devlal, Betal and Ramratan were going to their brother-in-law Harprasad''s place at Sinawal Khurd and reached close to Jhunda Teela Road, at that point of time Harprasad, Betal and Devlal Pal were a few yards ahead, then due to old enmity accused persons, namely Mahendra Singh Yadav armed with a Katta and Lathi, Amarsingh Yadav armed with Lohangi, Brijesh Lodhi with Lathi and 315 bore gun, Santosh Pandit with 315 bore gun alongwith three others carrying Lathi, appeared from the field of maize with common intention and Mahendra Singh started beating Achchelal with Lathi, as a result Achchelal fell down. Thereafter, Hariram and others started running, then Amarsingh hit Hariram with Lohangi on his left shoulder.

Firearm was also used when Asharam was hiding himself, then he saw that Mahendra Singh alongwith his accomplices left Achchelal at that very place and caught hold of his younger brother Ramratan. Mahendra then fired at Ramratan which hit him on the right side of ribs and blood started oozing from the wound. Second fire was made on Ramratan by Santosh which hit on the right side of his head and thereafter third fire was made by Brijesh Lodhi which hit Ramratan on his right ear. Thereafter, Mahendra Singh alongwith three others started beating Ramratan causing multiple injuries.

In the meanwhile, Harprasad, Devlal and Betal came back and challenged the assaulting party, then they ran away towards the river threatening them not to lodge any report, else all will be killed. Thereafter, when they were taking Ramratan to Pichhore for treatment, he died.

Naksha Panchayatnama (Ex.P/2) was prepared and thereafter one Lohangi was seized from Amarsingh vide seizure memo (Ex.P/3). Blood stained soil etc. were recovered vide memo Ex.P/6 and thereafter requisition for postmortem was sent and postmortem of deceased Ramratan was performed vide Ex.P/7. In the postmortem report, following injuries were found by Dr. P.K.Khare (PW-4) :-

"1. Multiple contusion right upper arm, postero laterally bluish discolouration of skin arranged irregularly, multiple contusions right forearm antero laterally arranged irregularly bluish discolouration of skin. 2. Lacerated margin penetrating wound right side of chest directed upward and medially. Probing done in chest cavity. There are multiple wounds of entrance of pellets in skin around the wound of entrance 5 cm x 8 cm. Size of entrance wound 2.5 cm x 2 cm in 6th ribs Ant. auxiliary line. Blackish pigments at lower margin present. 3. Lacerated wound with loss of right ear pinna, irregular and everted edges 12 cm x 10 cm with contusion right side of neck. Wound of exist fenced. 4. Lacerated wound right preauricular region with haematoma in scalp deep to bone 10 cm 5 cm . Temporal bone fractured and depressed."

Dr. P.K.Khare of PHC, Khaniyadhana, opined that cause of death is profuse excessive haemorrhage in chest and abdomen as a result of injury of liver and lungs and death was homicidal in nature which had occurred 12 to 24 hours of death.

Requisition was also sent vide Ex.P/8 for MLC of Achchelal in which following injuries were found:-

"1. Defuse swelling with tenderness left elbow and upper forearm. Movement restricted. 2. Multiple contusions left scapular and infra scapula regions, arranged irregularly, length varying from 4 cm to 12 cm and width 2.5 cm to 4 cm. Bluish discolouration. 3. A contusion right infra scapular region 6 cm to 2.5 cm. Bluish red discolouration. 4. Contusions left thigh middle 1/3rd postero laterally. 5. Lacerated wound left occipital 1.5 x 1 cm." The doctor opined that all the injuries of Achchelal were caused by hard and blunt object. Achchelal had voluntarily refused to undergo x-ray suggested by the doctor vide Ex.P/9.

Similarly, requisition for medical of Harisingh was sent and vide Ex.P/10 swelling with tenderness on left shoulder joint was found. It was opined that movement of joint was not restricted and injury was simple in nature caused by hard and blunt object.

Police took the statements of Achchelal (Ex.P/11) and that of Hariram (Ex.P/12). In these statements, they made the similar statement as is recorded in the FIR.

According to the appellants, they are innocent and have been falsely implicated on account of old enmity. Learned counsel for the appellants submits that except a Lohangi, no other weapon was seized from any of the accused persons. It is also submitted that because of old enmity between the warring factions, the appellants have been falsely implicated and they were not even present at the scene of crime and the injuries of Achchelal and Harisingh were simple in nature and could have been self inflicted as well.

It is further submitted that out of eye-witnesses, Devlal (PW-2) and Harprasad (PW-6) cannot be termed as eye- witnesses because as per their own admission they were quite a distance away and had not seen the incident. It is also submitted that witness Achchelal (PW-7) has turned hostile and his testimony is not helpful to the prosecution. It is also submitted that Hariram (PW-8) has turned hostile for Amarsingh which demonstrates that Hariram was giving statements contrary to the statements given by him under Section 161 of Cr.P.C., therefore, his Court statement being contrary to the statement given by him to the police deserves to be discarded in totality and cannot be used to convict even other accused persons as this witness was not reliable.

Appellants'' counsel further submits that in fact the conviction is based on the statements of two witnesses, namely Asharam (PW-5) and Dr. P.K.Khare (PW-4). It is further submitted that since injured witnesses Achchelal (PW-7) and Hariram (PW-8) have not supported the prosecution story, therefore, appellants are entitled to be given benefit of doubt and be acquitted. It is also submitted that there is time gap of 12 hours in lodging the FIR, whereas the place of incident was only 6 kms away from the police Station, and therefore, prosecution has not assigned any proper reason for such delay in lodging the FIR and on account of such delay also, the appellants are entitled to be discharged.

Learned counsel for the appellants has taken this Court through the seizure memo (Ex.P/3) and submits that incident had taken place on 13.9.2002 and vide seizure memo Ex.P/3 Logangi has been seized on 20.9.2002, whereas from the arrest/surrender memo (Ex.P/20), row below column No.8, it is mentioned that no recovery was made from the accused. It is submitted that accused Amar Singh was arrested at 5 pm on 20.9.2002 and no recovery of weapon was shown from him and all of a sudden in Ex.P/3 a Lohangi is shown to have been seized from him on 20.9.2002, which demonstrates that Lohangi was introduced subsequently and was not seized from Amarsingh.

Referring to FSL report (Ex.P/25), learned counsel for the appellants submits that In-charge Officer of Regional Forensic Laboratory, City Center, Gwalior, has opined that blood stains on Article B were insufficient for Serum Examination, therefore, he emphasized that there is no corroboration of human blood stains being available on Lohangi. It is also submitted that since no other weapon has been seized from any other accused person, it is possible that deceased Ramratan was murdered by his own people because of enmity for land and they have been falsely implicated as they earlier had a transaction/dealing in relation to land.

Learned counsel for the appellants has also drawn attention of this Court to the statement of Dr. P.K.Khare (PW-4) who has categorically mentioned that there was only one entry wound inflicted by firearm on right side of chest and one exit wound which was on the right side of neck on the posterior of jaw and near ear. Thus, placing reliance on such postmortem report (Ex.P/7), it is submitted that since there is only one firearm injury, the allegation that three firearm shots were made is belied on the face of it and since there is no mention of any firearm injury on the right ear or on the right side of head, allegation of firing three gunshots has been wrongly mentioned in the prosecution story which renders the prosecution story doubtful. Learned counsel for the appellants also submits that prosecution story is also doubtful inasmuch as Mahendra has been shown to be armed with Lathi and Katta. It is alleged that Mahendra earlier hit Achchelal with Lathi and then Ramratan with Katta. It is submitted that it is common knowledge that a person wielding two weapons, cannot use both of them simultaneously on his own and to this extent the story of the prosecution creates doubt about bonafide of its narration. It is also submitted that there is variation in the prosecution story and the statements given by witnesses inasmuch as in the FIR its author Asharam has mentioned that Santosh had fired on the head of Ramratan, whereas Brijesh had fired which hit near right ear, while Asharam (PW-5) in his Court statement has mentioned that Brijesh had fired which hit Ramratan on his head and Santosh had fired which hit near ear. This contradiction is fatal to the prosecution story and on the basis of such omissions and contradictions, it is submitted that all the accused persons need to be acquitted.

Attention of this Court has been drawn to the statement of Harprasad (PW-6) who according to the appellants was not present at the scene of crime and has been planted. It is submitted that he has admitted in para 5 of his deposition that he had an old enmity with Mahendra and a case was pending against this witness (Harprasad) of beating Mahendra and others in Khaniyadhana Court. Further, it is submitted that this witness Harprasad has stated that he is a teacher and he was at a distance of a Furlong from Ramratan etc. This witness has also admitted in para 9 of his cross-examination that when he crossed the maize field, then he had not seen anything and after about 5 minutes, he heard the sound of firearm. He also admitted that when accused persons ran away, then he reached the place of incident. Thus, placing reliance on such testimony of Harprasad (PW-6), learned counsel for the appellants submits that testimony of this witness is not reliable to maintain the conviction. It is also submitted that similarly, Hariram (PW8) has stated that three persons were armed with gun and three were armed with Katta which is contradictory to the version mentioned in the FIR wherein it is mentioned that three persons were armed with Katta/gun and three were armed with Lathis. In para 5 of the cross-examination, Hariram (PW-8) stated that Mahendra, Santosh and Narendra were wielding guns, therefore, there is a material omission inasmuch as Brijesh has been excluded of the fact that he was holding a gun. Another notable statement is that other three persons have been shown to be wielding Katta or Addhi, but he was not knowing them beforehand. He has also mentioned that he had not given the name of Amarsingh to the police. Therefore, it is apparent that statement of Hariram (PW-8) does not corroborate the statement of Dr. P.K.Khare (PW-4) wherein except one gunshot injury, other injuries have been opined to have been caused by hard and blunt object. He has admitted in para 14 that he did not go with Asharam for lodging the FIR. In para 16, he admits that he was knowing Brijesh beforehand as he was a conductor of Sheetla bus.

Learned counsel for the appellants submits that C.P.Singh Bais, ASI, (PW-9) was confronted with the fact that in fact FIR was lodged after ascertaining the cause of death and accordingly narration in the FIR was recorded, therefore, FIR was not only delayed, but was not reliable. It is also submitted that there are allegations of making several gunshots, but no empty cartridges were recovered from the scene of crime and this also belies the prosecution story.

Learned counsel for the appellants submits that in defence appellants had examined Kasiya Bai wife of Kunja (DW- 1), who was Sarpanch of village Sinawal. She submitted that Mahendra had sold his land to Harprasad and Harprasad had only paid half of the sale consideration, and therefore, when Mahendra Singh demanded remaining amount, then there was a quarrel between the two as a result of which Mahendra Singh and Amar Singh were beaten by Gadariyas. She has also submitted that at the time of incident Mahendra Singh and Amar Singh were not present at Jhunda Teela and they have been falsely implicated on account of land dealings. Similarly, Ajab Singh (DW-2) deposed that Amar Singh is his tenant and he had informed him about quarrel with Gadariyas and that he was beaten by them at village Sinawal.

In view of such testimony, learned counsel for the appellants submits that this is a fit case for acquittal and accordingly all the appellants be acquitted of the charges under Sections 148, 302 / 149 and 323 / 149 of IPC.

Learned Public Prosecutor on the other hand has supported the conviction of the appellants and submits that there were in fact three gunshot injuries respectively caused by Mahendra, Brijesh and accused Santosh and because the head of Ramratan was mutilated, therefore, two other injuries could not be recorded by Dr. P.K.Khare (PW-4) who conducted postmortem over the body of Ramratan. It is further submitted that Dr. P.K.Khare (PW-4) has stated that when a wooden stick was inserted in the wound in chest, it was easily reaching upto the chest and there were several small entrance wounds around the entry wound below the 6th rib. There was blackish colour skin on the lower part of the wound and pinna of right ear was not found and there was a lacerated wound below the ear in the neck measuring 12 cm x 10 cm. Pointing such medical evidence, he submits that all the three wounds caused by the firearm got mixed up, and therefore, he submits that conviction is based on ocular evidence duly corroborated by medical evidence, and hence, it deserves to be maintained.

As has been mentioned above, out of 7 persons against whom FIR was lodged, Sessions Case No.88/2003 was tried against five persons and thereafter Sessions Case No.36/2005 was conducted against 6th accused Santosh. There is no mention of 7th accused nor there is any memorandum of any of the accused persons/convicts to verify the identity of 7 th accused. Out of five accused who were tried in Sessions Case No.88/2003, Narendra Singh @ Chainu and Shivraj Singh have been acquitted. There is no State appeal against their acquittal. Sessions Court has respectively convicted Amarsingh, Mahendra Singh and Brijesh under Sections 148, 302 / 149 and 323 / 149 of IPC.

Learned Sessions Court has noted that Asharam (PW-5) was already knowing accused Mahendra, Amar Singh and Brijesh, whereas he had seen accused Narendra Singh and Shivraj Singh for the first time. It has also noted that no test identification parade was conducted during investigation and Asharam (PW-5) had for the first time identified these accused persons before the Court.

Prosecution witness Harprasad (PW-6) in para 12 and 16 of his statement mentioned that he was already knowing accused Narendra Singh and Shivraj Singh, but in his statement Ex.D/1, names of Narendra Singh and Shivraj Singh have not been mentioned. It is also relevant to mention that in Ex.P/13, FIR, Asharam has mentioned that he had gone to police Station to lodge FIR alongwith Harprasad. In para 10 of his cross- examination, Harprasad (PW-6) admitted that before lodging of the police report they had a conference and thereafter Asharam had recorded the FIR. Therefore, it is very unnatural that if Harprasad was already knowing Narendra Singh and Shivraj Singh, then why he had not disclosed their names to Asharam or in his police statement Ex.D/1, and therefore, the Sessions Court has rightly held that taking of these names of Narendra Singh and Shivraj Singh cannot be said to be reliable. Therefore, presence of these two unknown accused Narendra Singh and Shivraj Singh besides third one, who has not been identified by anybody and in whose relation no memorandum was prepared from other accused persons, has not been established.

In the light of above analysis, it is apparent that in fact there were only four accused persons available at the scene of crime and not seven. Besides this, it was necessary for the trial Court to have recorded a finding in regard to common object of unlawful assembly to hold a person guilty with aid of Section 149 IPC. In the present case, there is no such finding holding the accused persons guilty of having a common object. In the case of Ram Nath Madhoprasad and others v. State of M.P . as reported in AIR 1953 SC 420, the Supreme Court has held that where there was no evidence whatsoever of any pre- meditation or of a pre- arranged plan by the assailants of murdering the deceased the mere fact that all the accused were seen at the spot at the time of firing could not be held sufficient to prove or even to infer a common intention. Similarly, in the case of Ugar Ahir and others Vs. State of Bihar as reported in AIR 1965 SC 277 it has been held that it is the duty of the Court to scrutinize the evidence carefully and in terms of the felicitous metaphor, separate the grain from the chaff. Recently, the Supreme Court in the case of Daya Kishan Vs. State of Haryana as reported in (2010) 5 SCC 81 has held that Section 149 IPC creates a constructive or vicarious liability on the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of the constructive guilt under Section 149 IPC is mere membership of the unlawful assembly with the requisite common object or knowledge. It has been held that there are two essential ingredients of Section 149, namely (i) commission of an offence by any member of an unlawful assembly, and (ii) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Therefore, to attract provisions of Section 149 Court has to record finding that these two ingredients are fulfilled for holding every person who at the time of committing that offence was a member of the assembly guilty of that offence. In the present case, the second ingredient of common object of that assembly has not been fulfilled, and hence act of each individual is to be seen so to decide their culpability and pass order on their sentence.

As per the prosecution story and the postmortem report (Ex.P/7) since Dr. P.K.Khare (PW-4) has deposed that all the injuries were ante-mortem in nature and injuries to chest, lung and liver and right preauricular area are caused by firearm weapon and other injuries of body are caused by hard and blunt object, therefore, it is apparent that there was no gunshot injury on the head and as per the version of Dr. P.K.Khare (PW-4) since entry wound was in the chest and exist wound was close to right ear i.e. right preauricular area, further corroborating that there was only one firearm wound consisting of one entry and one exit wound, prosecution story that there were three gunshot fires is not corroborated.

As per the prosecution story, Amar Singh was wielding Lohangi and Mehendra, Brijesh and accused Santosh were wielding guns/Katta and three unknown accused persons were wielding Lathis. It is apparent that there was one firearm injury which was caused and remaining injuries were caused by hard and blunt object. None of the prosecution witnesses have alleged that appellants Mahendra and Brijesh, who were wielding guns/Katta, had used other side of the gun i.e. butt causing injuries with hard and blunt object. In view of such facts and the prosecution story as narrated by Asharam (PW-5), there is no allegation of any injury being caused by hard and blunt object on the body of deceased Ramratan by Mahendra and Brijesh. Dr. P.K.Khare (PW-4) has admitted that the reason of death was excessive bleeding caused due to injuries of lungs and liver. There is consistency of evidence starting from Asharam (PW-5) who has deposed that Mahendra Singh had fired with a Katta which hit in the ribs of Ramratan. He has also deposed that Brijesh had fired with Katta on the head of Ramratan and Santosh also fired with 315 bore gun which hit Ramratan near ear. Similarly, Harprasad (PW-6) has deposed that Mahendra Singh had fired with a Katta after getting hold of Ramratan causing injury to his right ribs. This deposition that gunshot injury was caused at right ribs to Ramratan with close proximity corroborates with medical evidence of blacking at the entry wound as has been deposed by Dr. P.K.Khare (PW-4), but the statement regarding firearm injury on head or near ear is not corroborated by medical evidence. Similarly, Hariram (PW-8) has deposed that Mahendra Singh had fired at Ramratan, so also Brijesh and Santosh. He did not mention as to on which part of the body each of the persons armed with gun/Katta had fired. This statement of Asharam (PW-5) and Harprasad (PW-6) is corroborated with medical evidence of Dr. P.K.Khare (PW-4) only in regard to appellant Mahendra Singh, but the ocular evidence in regard to appellant Brijesh is not corroborated by medical evidence, and therefore, in the opinion of this Court, appellant Brijesh has been wrongly convicted under Sections 148, 302 / 149 and 323 / 149 IPC and deserves to be acquitted and is hereby acquitted.

As far as Amarsingh is concerned, Asharam (PW-5) has alleged that Mahendra and Amarsingh caught hold of Hari and thereafter Amarsingh had hit Hariram on his shoulder with Lohangi, but Hariram freed himself from the grip and ran away. There is no allegation against Amarsingh attempting any attack on deceased Ramratan. Hariram son of Shabdal resident of village Badera (PW-8) has denied mentioning name of Amar Singh and he has also denied that Amarsingh had hit him with Lohangi. But Sessions Court has convicted Amarsingh on the premise that there were blood stains on his Lohangi, but at the same time, it has come in the FSL report (Ex.P/25) that the blood stains on the said Lohangi, Article B, were insufficient for Serum Examination. In the same report Ex.P/25, it is mentioned that for matching of blood group, concerning part of Article was sent to the FSL, Sagar, but there is no report from FSL, Sagar, on the record, therefore, in absence of corroboration of blood stains of deceased Ramratan, it cannot be said that blood stains found on Lohangi were that of Ramratan, specially when there is no allegation on Amarsingh of attacking Ramratan with Lohangi by any of the witnesses, therefore, in the opinion of this Court involvement of Amarsingh also appears to be doubtful inasmuch as Dr. P.K.Khare (PW-4) has categorically mentioned that death was caused due to excessive bleeding from the lungs and liver and Asharam (PW-5) has stated that Amarsingh is son of Mahendra''s uncle and his brother-in-law had purchased four Beegha of land from Mahendra and shown his ignorance about the fact that because of fight with his brother-in-law, Amar Singh and his father had left village Sinawal and were settled in village Pura. Similarly, Harprasad (PW-6) admitted that other three persons who were wielding Lathis had hit Ramratan with Lathi and further deposed that he had reached at the scene of crime after the incident was over. Hariram (PW8) has turned hostile for appellant Amarsingh and even Dr. P.K.Khare (PW-4) in para 9 of cross-examination has admitted that Achchelal has not suffered any injury which could cause his death. He admitted that injury caused on the back of head could have been caused due to fall. Similarly, Harisingh had not sustained any injury capable of causing death and if he would have fallen on the side of shoulder or would have hit some object, then such injury could have been caused on his shoulder. Hence, it appears that even Amarsingh was not responsible for causing death of deceased

Ramratan or is guilty of offence under Section 323 / 149 of IPC. Thus, even Amar Singh has been wrongly convicted under Sections 148, 302 / 149 and 323 / 149 of IPC and he also deserves to be and is hereby acquitted.

Consequently, Criminal Appeal No.26/2005 and Criminal Appeal No.174/2005 are allowed and appellants Amar Singh and Brijesh are acquitted from all the charges. Acquitted appellants Amar Singh and Brijesh shall be entitled to get the fine amount back if they had deposited the same before the trial Court. Appellant Amar Singh is on bail, his bail bonds are discharged. Appellant Brijesh is in custody, he be released forthwith if not required in any other case. Criminal Appeal No.79/2005 filed by appellant Mahendra Singh is dismissed, however, his conviction under Sections 302 / 149 and 323 / 149 of IPC is set aside, instead he is convicted under Section 302 and 323 (for causing injury to Achchelal) of IPC with the sentence as imposed by the trial Court. It has come on record that he was released on temporary bail on 27.8.2008 and thereafter he is absconding and perpetual warrant of arrest has already been issued against him, therefore, he be immediately taken into custody and sent to jail for undergoing remaining jail sentence.