Ram Bai Patel vs State of M.P. & Ors.

(1) Since both the appeals are connected and arise out of the common judgment dated 07/04/1998, passed by Third Additional Sessions Judge, Bhind (MP) in Sessions Trial No.99/1993, they are decided by the present common judgment.

(2) The appellants of Criminal Appeal 213/1998 have filed this appeal challenging the aforesaid judgment whereby each of them has been convicted on three count charges of Section 302 or 302/34 of IPC and one count charge of Section 307 or 307/34 of IPC and sentenced to life imprisonment with fine of Rs.1,000/- on each count charge of Section 302 or 302/34 of IPC and eight years'' rigorous imprisonment with fine of Rs.500/- for offence under Section 307 or 307/34 of IPC .

(3) The State has preferred Criminal Appeal 290/2006 against the various accused persons who were acquitted by the trial Court in the aforesaid judgment.

(4) Facts of the case, in short, are that there was enmity between the complainant Ramavtar (PW4) and the accused persons. Except the accused Kallu alias Kalyan, various accused persons were close relatives of each other. On 20/10/1992 at about 06:55 pm, the complainant Ramavtar (PW4) lodged the FIR Ex.P11 that at about 06:30 pm he was sitting in front of the hall of his house at township of Mehgaon. His uncle deceased Murat Ram, servant Iqbal Khan and niece Snehlata were also sitting in that hall. Shutter of the hall was opened. The witnesses Viswambar, Vidyaram (PW10) and Brijmohan (PW5) were also present with the complainant Ramavtar. Suddenly, the accused persons armed with guns, lathis and farsas appeared in front of the hall. The accused Prem Sagar fired with a gun on the complainant Ramavtar causing injury on his leg. Ramavtar immediately went below the wooden plank on which he was sitting. Thereafter, the accused Narendra Sharma fired with a double barrel gun. A bullet struck on the head of the deceased Murat Ram and he died at the spot. Thereafter, the accused persons fired for four- five times and, therefore, Snehlata, niece of the complainant Ramavtar, was also injured. The accused Subhash fired with a gun causing injury to the servant Iqbal Khan. When Iqbal Khan tried to run away, the accused Shiv Narayan fired with a gun causing injuries to the deceased Iqbal Khan and he died at the spot. Remaining accused persons surrounded the door so that family members of the complainant Ramavtar could not escape. After lodging of the FIR, the complainant Ramavtar and the deceased Snehlata were sent for their medico-legal examination and treatment. Looking to the condition of these two persons, they were treated by the doctors but no formal medico-legal report could be recorded and these persons were referred for their treatment to Higher Centre. Dr. AK Dubey (PW15) treated the complainant Ramavtar and he produced the treatment papers Ex.P30 on the record. It was found that there was a gunshot injury on his leg. The deceased Snehlata was referred for X-ray examination. Dr. RK. Chakravarti (PW12) examined her radio-logically and gave a report Ex.P24.According to him, various radio opaque shadows were found in the abdomen and right side of the abdomen near the backbone of the deceased Snehlata. There was a shadow of gas on the left diaphragm. Dr. Chakravarti also examined the complainant Ramavtar radio-logically and gave a report Ex.P22.He found a fracture on right femur bone of complainant Ramavtar.

(5) The deceased Snehlata succumbed to the injuries and thereafter, her body was sent for postmortem. Dr.JN Soni (PW13) performed the postmortem on the body of the deceased Snehlata and gave a report Ex.P28. According to him, surgical injuries were found on her abdomen and pus formation was found. The incident took place on 20/10/1992 whereas the postmortem on the body of the deceased Snehlata was performed on 23/11/1992 and fus formation was found in the wounds of her abdomen and she died due to such injuries caused to her abdomen. The dead bodies of the deceased Murat Ram and Iqbal Khan were also sent for postmortem. Dr.RK Taneja (PW7) performed the postmortem on their bodies and gave the reports Ex.P15 and Ex.P17 respectively. He found that both the deceased persons had died due to gunshot injuries.

(6) On the request of concerned Investigating Officer, Naib Tahsildar Pramod Garg (PW14) took the Dying Declaration of the deceased Snehlata as Ex.P29. The Investigating Officer visited the spot and prepared a spot map Ex.P8 whereas clothes in sealed condition obtained from the hospital of various deceased persons, were seized. The Investigating Officer took the bloodstained stone and soil along-with plain soil from the spot and prepared a recovery memo Ex.P10. One empty cartridge was found at the spot which was pressed due

to crowd by a seizure memo Ex.P9. One Dunali (double barrel gun) was recovered from the house of Dhanniram by a seizure memo Ex.P14 on the intimation given by the accused persons. All the recovered articles were sent for Forensic Science Examination. The Forensic Science Laboratory by its report Ex.P39 gave the opinion about the bloodstains whereas a report Ex.P40 was given relating to firearms and ammunition. After due investigation, the charge-sheet was filed before the JMFC, Mehgaon who committed the case to the Court of Session.

(7) The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter. The appellant Shiv Narayan took a plea that he was suffering from Parkinson disease since long and, therefore, he was not able to fire with a gun so that someone would have killed. The appellants Prem Sagar and Narendra Sharma took a plea of alibi that they were arrested by GRP police as they were travelling without ticket and they were not present at the spot. In defence, Dr.ND Vaishya (DW1), Dr. RLS Sengar (DW2), Coolie Kanhaiya Lal (DW3), Coolie Janved Singh (DW4), Dr. Anil Agrawal (DW5) Surendra Singh Jadon (DW6), TC- Akhilendra Tomar (DW7), Senior TC- Sajaldeep Tripathi (DW8) and ASI Ramswaroop Narwariya (DW9) were examined.

(8) The trial Court after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above,whereas the various respondents of Criminal Appeal No.290/2006 were acquitted from all the charges.

(9) We have heard the learned counsel for the parties at length.

(10) First of all, it is to be considered as to whether all the three deceased, namely, Murat Ram, Iqbal Khan and Snehlata have died of homicidal death and the complainant Ramavtar sustained a fatal injury? In this connection, it is established by the prosecution that the deceased Murat Ram and Iqbal Khan had died at the spot and no treatment could be given to them. Dr.RK Taneja (PW7) performed the postmortem on the body of the deceased Murat Ram and gave a report Ex.P15. He found the following injuries on the deceased Murat Ram:-

"Whole of right half of skull open from above right ear to near middle scalp and brain matter was coming out. There is open area of nearly 6''''x4'''' over right sided skull. There is blackening of skin below right eye near maxilla proceeds on cheek skin. Upper maxilla bone area skin right side bone missing after appearance of wound of entry. Scalp skin over right side behind ear near 4'''', pieces of bone are clear with bones of parietal region near middle scalp over and above ear where brain is congested. There is openly eyeball appear to be seen. No other wound was found on the back of skull and the bone of right side was misplaced. Near 6''''x4'''' margin no other part of bone was found'''' It would be apparent from the postmortem report prepared by Dr. RK Taneja that one gunshot injury was caused on his right eye and there was an entry wound on the right eye, having an exit wound on the back of head and the deceased Murat Ram had died due to head injury. Looking to the opinion of Dr.RK Taneja, there is no reason to disbelieve his opinion that the death of the deceased Murat Singh was homicidal in nature and caused by firearm.

(11) Dr.RK Taneja (PW7) has also performed postmortem on the body of the deceased Iqbal Khan and gave a report Ex.P17. He found the following injuries to the deceased Iqbal Khan.

"(1) There is oval wound 1.5cm x 1cm with blackening around wound margin of wound clear inverted. This wound was found on the left cheek over 1/3rd of left clavicle (wound of entry) (2) There is wound of exit nearly 4"x2" lacerated with torn of skin which was everted muscle and subcutaneous tissue and axillary artery and vein was congested. Wound present over left axillary line below axilla extended to near scapula left. (3) Multiple more than fifty blackening over and round shape nearly 0.5 deep cm with blackening and tattooing mark over right side of neck. Right cheek anterior above right shoulder. Nothing could be recovered from that back tattooing mark.''''

Looking to the description of the injuries, it would be apparent that one bullet struck on the left throat of the deceased Iqbal Khan and came out of left axilla whereas 50 injuries were found caused by pellets on right side of his neck, right cheek and shoulder. Blackening was found on those wounds. According to Dr. RK Taneja (PW7), the deceased Iqbal Khan died consequence of aforesaid injuries. Those injuries were fatal in nature and death of the deceased was homicidal in nature.

(12) The case of the deceased Snehlata is different. She was sent for her treatment to the hospital. Dr. RK Chakravarti (PW12) examined the deceased Snehlata radio-logically and gave a report Ex.24. He found so many radio opaque shadows on her abdomen and right side of the abdomen near the backbone. Shadow of gas was visible and gas was filled up in her diaphragm to show that stomach was punctured and gas was filled up in her diaphragm. Thereafter, it appears that a surgery was done of deceased Snehlata to remove the pellets etc. and removed. However, she succumbed to the injuries. Dr. JK Soni (PW13) performed the postmortem on the body of the deceased Snehlata and gave a report Ex.P28. He found various injuries on the abdomen of the deceased Snehlata which were caused due to surgery. However, she had died due to septicemia etc. If cumulative treatment proceedings are considered simultaneously, then it would be apparent that the deceased Snehlata sustained gunshot injury fired by a 12 bore gun on her abdomen and though such pellets were removed from her body she could not survive and, therefore, death of the deceased Snehlata appears to be homicidal in nature.

(13) Dr. AK Jain (PW17) has stated that on 21/10/1992, he was on emergency duty at JA Hospital, Gwalior where the complainant Ramavtar was produced before him. One bandage was there on his thigh. He was admitted in the surgery department. He did not record any medico-legal report

because he expected that it was recorded by the doctor at Primary Health Centre, Mehgaon who referred the case to JA Hospital, Gwalior. However, he recorded the entry of admission etc. as Ex.P42. Thereafter, Dr.R.K Chakravarti (PW12) proved radio-logical test report of complainant Ramavtar as Ex.P22. He found a fracture of right femur bone to him. The injury as proved by Dr.AK Jain (PW17) and Dr. RK Chakravarti (PW12), it would be apparent that the complainant Ramavtar sustained a firearm injury, causing fracture on his right thigh.

(14) In the present case, mainly the eye-witnesses Ramavtar (PW4), Brijmohan (PW5), Vidyaram (PW10) were examined, who have stated about the incident. There is no much discrepancy in the statements of these witnesses. According to them, initially one fire was made by the appellant Prem Sagar causing injury on the leg of the complainant Ramavtar who immediately tired to hide himself below the wooden plank. The appellant Narendra Sharma fired with a gun causing injury to the deceased Murat Ram who died at the spot. Four- five fires were done on the deceased Snehlata and she sustained injuries. The appellant Subhash fired upon the deceased Iqbal Khan and when he tried to run away, a second fire was done by the appellant Shiv Narayan and thereafter he fell down and died. Various suggestions were given to these witnesses in their cross-examination but no material contraction could be found.

(15) Before accepting the testimony of these witnesses, the defence of various appellants should be considered. The appellants Prem Sagar and Narendra Sharma took a plea of alibi that they were arrested and produced before the Special Railway Magistrate, Gwalior on 20/10/1992 and, therefore, they were not present at the spot. The learned Senior Advocate for the appellants has read out the evidence given by Coolie Kanhaiyalal (DW3), Coolie Janved Singh (DW4), TC Akhilendra Tomar (DW7) Senior TC Sajaldeep Tripathi (DW8) and ASI Ramswaroop Singh Narwariya (DW9) to show about

the arrest and production of these appellants before the Special Railway Magistrate, Gwalior. The learned Senior Advocate for the appellants has pressed upon Rojnamcha Ex.D19-C which was recorded at 02:15 pm on 20/10/1992. According to that Rojnamcha, the appellants Prem Sagar and Narendra Sharma were arrested and since they did not deposit any fine amount they were kept in the custody. However, if Rojnamcha Ex.D20-C is perused, then at 03:00 pm, it is mentioned that these appellants were sent for their production before the Railway Magistrate. If summary-sheets relating to these appellants are seen as Ex.D28, Ex.D29, and Ex.D25, then it would be apparent that these appellants were produced before the Railway Magistrate and they have accepted that they would deposit the fine amount and therefore, on depositing the fine amount the case was closed and the appellants were released. The learned Senior Advocate for the appellants has invited the attention of this Court to Rojnamcha Ex.D22 in which a final report was mentioned in Rojnamcha of Police Station- GRP Gwalior that the accused persons, namely, Ashok Kumar, Prem Sagar and Narendra Sharma had deposited the fine amount before the Railway Magistrate and, therefore, they were sent and attention is invited that Rojnamcha Ex.D22 was recorded at 06:20 pm. However, it is proved that at about 03:00 pm these appellants were produced before the Railway Magistrate, then proceedings before the Railway Magistrate could be completed within 10-15 minutes and thereafter, if force of GRP returned to GRP police station at about 06:20 pm and a report of returning is mentioned in the Rojnamcha Ex.D22, then it cannot be said that the appellants were released at 06:20 pm. According to documents and evidence given by various coolies, TC, Senior TC and ASI Ramswaroop Singh Narwariya (DW9) the appellants Narendra Sharma and Prem Sagar were found without ticket and arrested, but they would have been released from the Railway Court up-to 03:30 pm and distance of Mehgaon and Gwalior is not much so that they would not have the opportunity to reach

at the spot at about 06:30 pm. Hence, by such defence the evidence of alibi could not be proved in favour of the appellants Prem Sagar and Narendra Sharma. They had a lot of opportunity to reach at the spot at about 06:30 pm after their release. The trial Court has rightly discarded the plea of alibi as told by appellants Prem Sagar and Narendra Sharma.

(16) The appellant Shiv Narayan took a plea that he was suffering from Parkinson disease. In this connection, the Neurologist, namely, Dr. Surendra Singh Jadon (DW6) was examined. According to this witness, he examined the appellant Shiv Narayan on 20/12/1989. He has accepted that he found cross- tremor in both hands of the appellant Shiv Narayan. According to such a situation, the appellant Shiv Narayan could not fire with a gun without the help of any other person. In this connection, Dr.ND Vaishya (DW1) was examined, who gave the health condition of appellant Shiv Narayan of the date 03/03/1994. When someone suffers from Parkinson disease then symptoms of the deceased may increase from time to time and in the year 1994 the doctor could not opine about the infirmity as caused to the appellant Shiv Narayan, so that whether he could fire with a gun in October 1992 or not. However, Dr. ND Vaishya has opined that if a patient of Parkinson disease is taking treatment properly then he could do his work with his own hands. However, such opinion clearly indicates that the appellant Shiv Narayan was capable to fire with a gun in the year 1992.

(17) Similarly, Dr.RLS Sengar (DW2) Associate Professor, Neurosurgery, had examined the appellant Shiv Narayan in the year 1993 i.e. one year after the alleged incident and according to him, he referred the patient to Dr. Lowlekar. One Dr.Lowlekar was not examined by the defence. Dr.Anil Agrawal (DW5) examined the appellant Shiv Narayan on 17/07/1991. The appellant Shiv Narayan told him that he was suffering from Parkinson disease since last four- five years whereas to other doctors the appellant Shiv Naryan told that he was suffering from that disease since last 15 years. According to

Dr. Anil Agrawal, he examined the appellant Shiv Narayan and gave a treatment paper Ex.D12.He again examined the appellant on 20/05/1992. According to Dr. Anil Agrawal, such type of patient is capable of doing daily routine work. He has specifically asked that if Dr. ND Vaishya (DW1) has given the opinion that such type of person could fire with a gun, then he could not state anything on that issue but Dr. Anil Agrawal (DW5) did not contradict the opinion given by Dr.ND Vaishya (DW1). Dr.Anil Agrawal was the person who examined the appellant Shiv Narayan in May, 1992 and, therefore, he could explain the condition of the appellant Shiv Narayan of that day. According to various aforesaid doctors, Parkinson disease increases as age of the patient increases. However, Dr. Anil Agrawal was not a neurologist. He was MD Medicine and he gave his opinion on the basis of his treatment papers Ex.D12, however, his opinion was washed by the opinion given by Dr. ND Vaishya. If opinion of Dr.ND Vaishya is considered then the appellant Shiv Narayan was capable to fire with a gun though it is not exactly required that the gunshot would have caused the injuries at a particular place of the body of enemy.

(18) It is alleged that the appellant Subhash fired upon the deceased Iqbal Khan and thereafter, the appellant Shiv Narayan fired upon him. The deceased Iqbal Khan sustained two types of gunshot injuries; one was of bullet injury and second was 50 injuries of pellets found on his body. When a 12 bore gun is fired then though aim is not correct, various pellets shall be discharged from the gun and those may struck on a body of person not exactly on the heart or the head. It would be apparent from the postmortem report Ex.P17 proved by Dr. RK Taneja (PW7) that the injuries of various pellets were found on neck, right cheek and right shoulder which indicate that pellets stuck to the body of the deceased Iqbal Khan not on the chest but those pellets stuck on upper side of his body and possibility cannot be ruled out that 50 injuries of pellets were found to the deceased Iqbal Khan and a few pellets would have been stuck on the backside wall, if any. Hence, it

cannot be said that the appellant Shiv Narayan was not in a position to fire upon the deceased Iqbal Khan but his fire could not have a particular aim and, therefore, if opinion given by Dr. ND Vaishya is considered, then the defence taken by the appellant Shiv Narayan does not help him. He could fire with a 12 bore gun and such injury could be caused, as found on the body of the deceased Iqbal Khan.

(19) All the eye-witnesses have stated about the overt act of these persons. It is stated that the appellant Prem Sagar fired with a gun causing injury on the right thigh of the complainant Ramavtar. The appellant Narendra Sharma fired with a gun causing death of the deceased Murat Ram. The appellants Subhash and Shiv Narayan have fired with the guns causing various injuries to the deceased Iqbal Khan and thereafter he died. The witnesses have omnibusly stated against various accused persons that they fired with the guns causing injuries to the deceased Snehlata. However, if medical evidence relating to the deceased Snehlata is considered, then it would be apparent that she sustained the injuries caused by pellets discharged from 12 bore gun on her abdomen and near the abdomen and, therefore, it is possible that she would have sustained injuries from a single gunshot done by anyone of the accused persons. No eyewitness has sated about the name of the culprit who fired upon the deceased Snehlata. Under these circumstances, where the fires were done by the culprits from outside the shutter of the hall and everyone was tried to save himself, it is possible that the eye-witnesses could not see the culprit who fired upon the deceased Snehlata. Under these circumstance, it cannot be said as to who fired upon the deceased Snehlata but looking to the overt act of these appellants, it can be said that all of these appellants wanted to kill the complainant Ramavtar and his family members present in the room and, therefore, though actual culprit could not be located, all of the appellants are liable for causing murder of the deceased Snehlata under Section 34 of IPC.

(20) The learned Senior Advocate for the appellants has

submitted that the incident took place at 6:30 pm and no arrangement of light was done by any of the eyewitness shown in the spot map Ex.P8 whereas the witnesses have claimed that light was on inside and outside the house. It would be apparent that the incident took place at about 06:30 pm in the month of October. Hence, it cannot be said that at 06:30 pm there was non-availability of natural light so that the witnesses could not see the culprits. Hence, if it is not mentioned in the spot map Ex.P8 about the source of light, then it makes no difference. The learned Senior Advocate for the appellants has placed reliance upon the judgment passed by the Apex Court in the case of ''''MC Ali and Another vs. State of Kerala'''' [2010 CrLJ 2791 (SC)], in which it is held that incident took place in the night and there was no arrangement of light found, then evidence of the eye-witnesses was highly doubtful. In the present case, the incident took place at 06:30 pm in the evening and, therefore, in the absence of any evidence relating to arrangement of light it makes no difference. Due to factual difference, the law laid down by the Apex Court in the case of MC Ali (supra) cannot be applied in the present case.

(21) The learned Senior Advocate for the appellants has submitted that there is inconsistency between the oral and medical evidence relating to distance of fire. He has placed the reliance upon the judgment passed by the Apex Court in the case of '''' State of UP vs. Ram Bahadur Singh and Others '''' [2004 SCC (Crl) 1463], in which it is held that if there is inconsistency between oral and medical evidence, then it should be taken into consideration. If distance from where the fire was done is different, then in the absence of any satisfactory explanation such inconsistency should be relevant to knock down the evidence of eye-witnesses. The learned Senior Advocate for the appellants has also invited the attention of this Court to Modi''s Medical Jurisprudence and Toxicology, 23rd Edition on its page Nos.709 to 724 to show that blackening shall be found on the wounds if fire is done from a nearer place. In the present case, Dr. RK Taneja (PW7) has found blackening on

the wounds of the deceased Murat Ram and Iqbal Khan whereas the complainant Ramavtar has stated that if someone was sitting on the wooden plank then through right shutter of the hall that person could see upto 10-12 feet. He has stated in para 14 that he saw the appellants 7-8 feet away when he stood up from wooden plank seeing the accused persons. The learned Senior Advocate for the appellants has submitted that the fire was done from 7-8 feet and in such a case, no blackening could be found on the wounds of deceased Murat Ram and Iqbal Khan by quoting various cases and opinions given in Medical Jurisprudence and Toxicology prepared by Shri Modi. After considering the submissions made by learned Senior Advocate for the appellants, it would be apparent that no evidence was received from any corner about the exact distance of shutter from the wooden plank. In spot map Ex.P8, it is not mentioned that what was the distance between open shutter and the wooden plank. The complainant Ramavtar told that distance to be 6-7 feet. With the help of principles of Medical Jurisprudence the minimum distance was not asked to any doctor so that the fire could not be done by the culprits from a distance of 6 feet so that blackening could not be caused. Dr. RK Taneja (PW7) has accepted in para 22 of the cross-examination that looking to the injury no.3 i.e. various wounds relating to pellets the barrel of the gun could be 4-5 feet away when it was fired. It is accepted by the complainant Ramavtar that no accused came inside the hall but injury no.3 caused to the deceased Iqbal Khan was caused by a 12 bore gun and, therefore, the appellant Shiv Narayan could insert the barrel of double barrel gun inside the hall without coming inside the hall and, therefore, where complainant Ramavtar has given a distance of wooden plank to the opening of the hall by approximation and not by actual measurement, then it cannot be said that since there was blackening on the wounds fired, and they could not be caused from the entry of the hall. Looking to the factual position of the case, the judgment passed by the Apex Court in the case of Ram Bahadur Singh

(supra) cannot be applied as it is because it was not proved beyond doubt that the distance of the appellants with the deceased persons was so long, so that on firing the blackening could not be caused. There was no material inconsistency found between oral evidence and medical evidence.

(22) The learned Senior Advocate for the appellants has submitted that the fire which was lodged by the complainant Ramavtar within 25 minutes appears to be ante-timed and, therefore, it should be discarded. He has placed his reliance upon the judgment passed by the Apex Court in the case of '''' Maharaj Singh vs. State of UP '''' [1994 SCC (Crl) 1390] in which it is mentioned that FIR is a vital part of the evidence and compliance under Section 157 of CrPC should be done. However, the prosecution has relied upon the judgment passed by the Apex Court in the case of '''' Amar Singh vs. Balwinder Singh and others '''' [2003 SCC (Crl) 641], in which it is held that delay in lodging FIR is not sufficient to draw adverse inference against the prosecution case, other relevant circumstances are to be considered.

(23) In the present case, it would be apparent that out of various injured persons, the complainant Ramavtar was not seriously injured. He sustained a gunshot injury on his thigh and, therefore, he was in a position to lodge the FIR. The FIR was lodged at about 6:55 pm in the evening i.e. within 25 minutes of the fire. It would be apparent that immediately the injured persons were sent for their medico-legal examination and treatment and those were referred to Higher Centre for examination. Since condition of Snehlata was bad, the duty doctor of Primary Health Centre, Mehgaon did not record the MLC of either the deceased Snehlata or the complaint Ramavtar but it would be apparent that the police after recording the FIR had started its investigation. SHO, Mehgaon Shri BD Sharma (PW16) has accepted in para 2 of his statement that after recording the FIR he reached the spot soon after 07:00 pm and, therefore, he did not perform any further investigation at the spot. The victim Ramavtar was

admitted in JA Hospital, Gwalior in the night of 20/10/1992 and his treatment was started. The FIR Book kept in a Police Station cannot be shifted. If the complainant Ramavtar was admitted in JA Hospital, Gwalior at about 10:00 pm then he would have started from Mehgaon at 9:00 pm, then no FIR could be recorded ante-timed after 9:00 pm. Looking to the injuries caused to deceased Snehlata and complainant Ramavtar and steps taken by Investigating Officer for that treatment, it is clear that police machinery had started its duty soon after registration of FIR and, therefore, if compliance under Section 157 of CrPC is not proved, then it is not fatal to the prosecution. In this context, the judgment passed by the Apex Court in the case of '''' State of UP vs. Gokaran and Others '''' [AIR 1985 SC 131] may be referred, in which it is held that if the Investigating Officer has initiated the investigation or inquest soon after lodging of the FIR then non-compliance of Section 157 of CrPC or delay in making so shall not be fatal and the FIR cannot be considered as ante-timed.

(24) The learned Senior Counsel for the appellants has also invited the attention of this Court that Dr. RK Taneja found semi-digested food in the stomach of the deceased Iqbal Khan and Murat Khan and it is submitted that they would have died within two-three hours of taking the food. However, in connection to this submission, no evidence was adduced as to when these two deceased persons had taken their lunch or any snacks after the lunch. Possibility cannot be ruled out, if lunch was taken with delay i.e. at about 03:00 or 04:00 pm then semi-digested food could be found in the stomach of the deceased Murat Ram and Iqbal Khan. Similarly, if they would have taken snacks at about 4:00-4:30 pm then situation of semi-digested food could be found. Hence, only on the basis of the position that semi-digested food was found in the stomach of deceased persons, it cannot be said that time of incident is not correct or since they did not take their dinner and, therefore, semi-digested food couldn''t be there in their stomach. By such submissions, it cannot be said that the FIR

is delayed or time of incident was different or late in the night.

(25) The learned Senior Advocate for the appellants has also submitted that the witnesses Brijmohan (PW5) and Vidyaram (PW10) were the chance witnesses and there was no reason so that they would have visited the place of incident when the incident took place. However, Brijmohan has given an explanation that though he was a regular student of Madhav College, Gwalior and he was residing at the house of his brother-in-law Dhirendra situated at Shinde Ki Chawani, Lashkar, Gwalior but prior to the incident he visited his house and, therefore, he was present at the spot along-with the complainant Ramavtar. The witness Vidyaram (PW10) has categorically stated that he is cousin of the complainant Ramavtar and soon after the incident, Ramavtar was taken in a handcart. His case diary statement Ex.D3 was recorded on 15/12/1992 whereas the incident took place in the month of October. Hence, if this witness was present then there was no problem to the police to write down his case diary statement soon after the incident. This witness has accepted in para 11 that he resided for four- five days along-with Ramavtar in the hospital and thereafter from Gwalior he directly went to Delhi, his native place but there is no reason shown by the Investigating Officer as to why his statement under Section 161 of CrPC was not recorded in those four- five days. Hence, it is doubtful that the eyewitness Vidyaram was present at the spot or he was not a concocted witness, otherwise if he was an eyewitness he would have been available to the Investigating Officer to record his statement.

(26) However, if evidence of other witness is discarded then still the testimony of injured witness cannot be discarded without any substantial reason. In this connection, the judgment passed by the Apex Court in the case of '''' Abdul Sayeed vs. State of Madhya Pradesh '''' [(2010) 3 SCC (Crl) 1262], may be referred in which it is held that testimony of injured witness shall be presumed to be reliable unless it is rebutted. Hence, the evidence of the complainant Ramavtar cannot be

discarded. When the hall was closed by two shutters and opening of shutter was quite big, then it cannot be said that the complainant Ramavtar could not see the culprits when he had hidden himself below the wooden plank. Also, he has seen the accused persons when first fire was done upon him. His statement is also corroborated by the timely lodged FIR Ex.P11. There is no inconsistency between the evidence given by complainant Ramavtar and medical evidence.

(27) On the basis of aforesaid discussion, no evidence could be established by the appellants Prem Sagar, Narendra Sharma and Shiv Narayan to be removed from the present case. Evidence of the complainant Ramavtar is duly corroborated by timely lodged FIR Ex.P11 and other eyewitness, namely, Brijmohan (PW5). There is no material contradiction between the evidence of Ramavtar and Brijmohan so that their statements can be discarded. The statement of the complainant Ramavtar is also corroborated by medical evidence. Dr.RK Taneja (PW7) has proved the postmortem report of the deceased Murat Ram and Iqbal Khan. According to ocular evidence, two gunshots were sustained by the deceased Iqbal Khan and Dr. RK Taneja found one injury of gunshot caused by bullet and multiple injuries caused by pellets. Similarly, a single shot is alleged relating to the deceased Murat Ram and Dr. RK Taneja (PW7) found such injury which was alleged by the eye-witnesses. Similarly, it was proved that the deceased Snehlata sustained injury of pellets on her abdomen and right side of abdomen near the backbone. Under these circumstances, the trial Court has rightly believed the testimony of the complainant Ramavtar and eye-witness Brijmohan.

(28) The learned Panel Lawyer for the State has submitted that the trial Court has rightly discarded the Dying Declaration Ex.P29 given by the deceased Snehlata. If the Dying Declaration Ex.P29 is considered as it is, then initially she told that Shiv Narayan, Hannu and Prem Sagar fired with the guns and they were accompanied with Narendra Sharma. Again,

she added that accused Jagveer, Haranjit and Amar Singh were also present. When the Naib Tahsildar Pramod Garg (PW14) had categorically asked about the features of the appellant Shiv Narayan, she could not tell about his features. According to her, only three persons have fired with the guns, out of them Hannu has been acquitted by the trial Court and she did not know the features of the appellant Shiv Narayan. When the Executive Magistrate asked specific question at the time of closure of her evidence, then she accepted that elder brother of his father had told the names and, therefore, it would be apparent that she gave her Dying Declaration due to tutoring. If her statement was correct then as to why she did not state against the appellant Narendra Sharma and Subhash Sharma from the very beginning. It is not told by her that the appellant Narendra Sharma fired with a gun. Under these circumstances, her Dying Declaration was nothing but a presentation of tutoring done by her relatives. Hence, the trial Court has rightly discarded the Dying Declaration Ex.P29.

(29) SHO, Shri BD Sharma (PW16) has stated about the seizure memo Ex.P13 that he searched the house of Dhanniram on 19/12/1992 and recovered a 12 bore gun from his house and a memo Ex.P14 was prepared. Such memo was confirmed by Pooran Prasad (PW6). However, it is not made clear by SHO, Shri BD Sharma (PW16) that whether such search of house of Dhanniram was taken in consequence of any information given by any of the accused and, therefore, seizure of that gun could not be connected with the present case. No gun is found seized from the appellants. However, if guns were destroyed by the accused persons, then it was not possible for the Investigating Officer to seize any gun from the concerned accused. Hence, if seizure of guns did not take place from the appellants then that shall not be an adverse circumstance against the prosecution when there is a case of eye-witness.

(30) When testimony of the eye-witnesses is acceptable then according to these eye-witnesses the appellant Prem Sagar

fired with a gun causing injury to the complainant Ramavtar. Though Ramavtar sustained a fracture on his femur bone and the leg is not a vital part of the body, but it would be apparent that the appellant Prem Sagar continued to fire with the gun thereafter and Ramavtar could save himself as he had hidden himself below the wooden plank. Hence, though the complainant Ramavtar did not sustain any fatal injury, overt act of the appellant Prem Sagar clearly indicates that he intended to kill the complainant Ramavtar and, therefore, he was rightly convicted of offence under Section 307 of IPC. Similarly, it is proved beyond doubt that the appellant Narendra Sharma fired with a gun causing death of the deceased Murat Ram. When these appellants went to the place of spot simultaneously armed with firearms and opened firing on the person who was the family member of the complainant Ramavtar then their common intention was much apparent that they had intention to kill the persons present in the hall whatsoever relations they may have with the complainant Ramavtar. Hence, the trial Court has rightly convicted the appellant Narendra Sharma of offence under Section 302 of IPC for death of deceased Murat Ram. Similarly, according to the witnesses, appellant Subhash fired with a gun causing fatal injury to the deceased Iqbal Khan and thereafter, the appellant Shiv Narayan by a second fire, killed him. Hence, the trial Court has rightly found the intention of the appellants Subhash and Shiv Narayan and, therefore, rightly convicted them for the offence under Section 302 of IPC relating to death of the deceased Iqbal Khan.

(31) Though it is not proved beyond doubt that who fired upon the deceased Snehlata whereas she sustained injury from a single fire of 12 bore gun and pellet discharged from that gun had stuck on her abdomen and right side of the abdomen but when all the culprits having guns had participated in the firing then their common intention is proved that they wanted to kill everyone who was present in that hall and related to the complainant Ramavtar, therefore, the actual culprit of the deceased Snehlata could not be ascertained still

all the appellants are liable for offence of murder relating to the deceased Snehlata with the help of Section 34 of IPC. Similarly, all the appellants though did not participate specifically to kill the deceased Murat Ram or Iqbal Khan separately, but when they fired upon at least one person who was present in the hall, therefore, their common intention was apparent from the record that they wanted to kill everyone related to the complainant Ramavtar who was present in the hall and, therefore, they are responsible for all the three murders and one offence under Section 307 of IPC committed to the complainant Ramavtar under Section 34 of IPC. The trial Court has rightly convicted the appellants for the aforesaid offence.

(32) So far the remaining accused persons are concerned who were named in the FIR, it would be apparent from the evidence of eyewitnesses that except for the firing done by the appellants no other person had participated in the assault to any of the deceased or injured Ramavtar and, therefore, by mere presence it cannot be said that they were involved in the crime. No overt act of the respondents of Criminal Appeal No.290/2006 could be established on record so that their common intention with the appellants Narendra Sharma, Prem Sagar, Shiv Narayan or Subhash could be accepted. The trial Court has rightly acquitted those respondents in absence of their common intention or common object. Since not more than four persons were found involved in the crime, the trial Court has rightly found that no unlawful assembly was constituted and, therefore, if all the accused persons have been acquitted from the charge of Section 147 or 148 of IPC then no mistake has been committed by the trial Court. Under such circumstances, the appeal filed by the State against various respondents has no substance and it is liable to be dismissed.

(33) So far as the sentence is concerned, the trial Court has recorded the minimum sentence for various murders and it is also directed that the sentences shall run concurrently and therefore, no much dilution can be done. Similarly, the trial

Court has recorded eight years'' rigorous imprisonment for the offence under Section 307 or 307/34 of IPC and the appellants have remained in the custody for more than that period and therefore, it is not necessary to modify that sentence or to reduce the period of sentence passed by the trial Court for the offence under Section 307 of IPC.

(34) On the basis of aforesaid discussion, the appeal filed by the State is not acceptable and, therefore, the same is hereby dismissed. Similarly, the trial Court has rightly found the appellants guilty of various offences and a reasonable sentence has been passed. There is no reason to make any interference in the judgment passed by the trial Court. Consequently, the appeal filed by the appellants Narendra Sharma, Prem Sagar, Shiv Narayan Sharma and Subhash Sharma is hereby dismissed.

(35) It is informed that some of the appellants are on bail and some of them are in custody. The appellants who are on bail, are directed to surrender before the trial Court without any delay so that remaining part of jail sentence may be executed.