Hon'ble Rajeev Singh, J.
(Per Ramesh Sinha, J. for the Bench) (1) The four persons, namely, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh were tried by the Additional Sessions Judge, Court No. 5, Barabanki in Sessions Trial No. 256 of 2007 : State Vs. Bade Lal and others for offences punishable under Sections 302/34, 307/34, 426, 504 and 506 of the Indian Penal Code. In addition, appellant-Kailash was also tried in the aforesaid sessions trial for the offence punishable under Section 3/25 of the Arms Act by the Additional Sessions Judge, Court No.5, Barabanki. Vide judgment and order dated 30.07.2009, the learned Sessions Judge acquitted appellants, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh, for offences punishable under Sections 307/34, 504, 506 and 426 of the Indian Penal Code but convicted and sentenced them in the manner stated hereinafter :--
(i) Under Section 302/34 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs.2000/- each, in default to undergo additional one year each rigrous imprisonment; and
(ii) Under Section 323 read with Section 34 of the Indian Penal Code to undergo six months' R.I.
The trial Court directed the sentences of appellants on all the counts to run concurrently.
(2) Aggrieved by his convictions and sentences, Kailash preferred before this Court Criminal Appeal No. 1989 of 2009, whereas Badey Lal, Munna Lal and Sipahi alias Nanh preferred Criminal Appeal No. 1982 of 2009.
(3) Since both these appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by a common judgment.
(4) Shortly stated the prosecution case runs as under :--
The informant Nagesar Lonia (P.W. 1) is the younger brother of the deceased Khushi Ram, who was handicapped by leg. At the time of the incident, the informant Nagesar Lonia (P.W.1), deceased Khushi Ram, Smt. Ranjeeta Devi (P.W.2), Devi Deen (P.W.3), Ram Lakhan (P.W.4), and appellants, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh, were living in village Kyontala Majhari, Police Station Mohammadpur Khala, District Barabanki.
(5) Prior to the incident, enmity was subsisting between father of appellants, namely, Ratan on one hand and father of the informant, namely, Devi Deen (P.W.3) on the other with regard to a land.
(6) On 09.12.2006, at about 2.30 p.m., on seeing that goats of appellant Bade Lal, who is the pattidar of the informant-Nagesar Lonia, were grazing and damaging the crop of Lentil and Pea sowed in the field of the informant, then, the wife of the informant, namely, Ranjeeta Devi (P.W.2), was trying to oust the goats from the field. The wife of appellant Kailash, who was also present there, started altercation and on listening the hue and cry, the informant-Nagesar Lonia (P.W.1), father of the informant (Devi Deen P.W.3), and elder brother of the informant (Khushi Ram, deceased) reached on the spot and at the same time, appellants Badey Lal, Munna Lal and Sipahi alias Nanh and Kailash came there with lathi, danda and illegal firearm and by using abusive language to the informant, his father Devi Deen (P.W.3), wife Ranjeeta Devi (P.W.2) and his elder brother Khushi Ram (deceased) on the spot also. On seeing this, informant, his father Devi Deen (P.W.3), wife Ranjeeta Devi (P.W.2) and his elder brother Khushi Ram (deceased) fled due to fear, upon which, appellants chased them and with intention to kill elder brother of the informant, Khusi Ram, who was handicapped by leg, appellant-Kailash fired upon him with a countrymade pistol at the west of the field of the chakroad, to which elder brother of the informant, Khushi Ram, died on the spot. Thereafter, appellants besieged the informant, his wife Ranjeeta Devi and his father Devi Deen also near the chak road and, thereafter, seriously injured them by beating them from Lathi, danda and butt of the illegal firearm. This incident was seen by Ramesh and Shiv Bhagwan, sons of Lal Bahadur and other persons of the village, who were present there. Thereafter, appellants fled away from the spot by threatening the informant to kill his family members. Due to non-availability of the conveyance, the informant left the deadbody of the deceased under the supervision of other family members on the spot and carried the injured persons to the police station.
(7) The informant got the FIR scribed by Jugal Kishore Dwivedi, resident of Village & Police Station Mohammadpur Khala, district Barabanki, who after scribing it read it over to him. He thereafter affixed his thumb impression on it. He then proceeded to Police Station Mohammadpur Khala and lodged it.
(8) The evidence of SI Jai Prakash Mishra (P.W. 6) shows that on 09.12.2006, he was posted as Head Constable at Police Station Mohammadpurkhala and on the said date, at 5:45 p.m., informant-Nagesar Lonia came and filed his written FIR on the basis of which he prepared the chik FIR.
(9) A perusal of the chik FIR shows that the distance between the place of incident and Police Station Mohammadpurkhala was 6 kilometers. It is significant to mention that a perusal of the chik FIR also shows that on its basis, a case crime no. 213 of 2006, under Sections 302/34, 307, 323, 504, 506, 427 I.P.C. was registered against appellants, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh. After lodging of the F.I.R., the informant, Dev Deen and Rajita Devi, who sustained injuries, were sent to Primary Health Centre, Fatehpur, wherein between 8.06 P.M. to 8.30 P.M., the Doctor examined them.
(10) The evidence of SI Omveer Singh (P.W. 12) shows that he took investigation of the case. At the time of incident, he was posted as Station Officer at Police Station Mohammadpurkhala. Immediately after lodging the F.I.R, he along with Constable Lalji Yadav and S.I. Sunil Kumar Singh (P.W.8) reached at the place of incident where deadbody of Khushi Ram was lying. On his direction, panchayatnama of the deadbody of Khushi Ram was conducted by S.I. Sunil Kumar Singh (P.W.8) on the next date of incident i.e. on 10.12.2006 as there was no proper arrangement of light. He sent the deadbody of deceased Khusi Ram for post-mortem along with Constable Lalji Yadav and also recorded the statement of informant, Nagesar Lonia, and on his pointing out, he inspected the place of incident and prepared the site plan. From the place of incident, he seized plain and blood stained earth in containers under a recovery memo. On 14.12.2006, he searched for the accused persons and at about 05:30 a.m., he arrested appellants Munna Lal, Sipahi Lal and Kailash and on searching at that relevant time, one illegal 12 bore countrymade pistol, one live catridge and one empty catridge were recovered from the possession of Kailash, who confessed that he used the recovered countrymade pistol for murder of Khushi Ram. Thereafter, seizures were made under recovery memos. On 18.12.2006, he recorded the statement of witness Ramesh, Shiv Bhagwan, injured Ranjeeta and Devi Deen. On 2.01.2007, appellant Badey Lal was arrested and his statement was also recorded. On 4.01.2007, permission to add offence punishable under Section 25 of the Arms Act against appellant Kailash was taken. On 18.01.2007, he sent the case details to the Chief Judicial Magistrate for trial. Immediately thereafter, he was transferred.
(11) The evidence of P.W.10-S.I. Yashwant Singh (Investigating Officer) shows that after transfer of Omveer Singh (P.W.12), the investigation was entrusted to him on 05.02.2007. After satisfying with the incriminating evidence collected during the course of investigation by his erstwhile Investigating Officer, he submitted charge-sheet against the appellants, Badey Lal, Munna Lal, Kailash and Sipahi Lal alias Nanh.
(12) The post-mortem on the dead body of Khusi Ram was conducted on 10.12.2006, at 3.00 p.m., by Dr. Vidya Bhushan Pathak (P.W. 5), who found on his person ante-mortem injuries, enumerated hereinafter :--
"Fire arm wound of entry present on left side of neck just supraclavicular region size 7.0 x 3.0 c.m. Margins abraded inverted. Depth 4.5 c.m. oblique going upto vertebral body C 5, 6.
On Opening & exploration :- Underlying major vessels of neck torn, all underlying muscles & tissue in line of injury damaged reaching up to the 5th & 6th cervical vertebra which is fractured. Pelural of unclear left side torn. Twelve metallic pellets recovered from unclear vertebra vessels & bone & tissue. About 1.0 litre fluid clotted blood recovered from left plural cavity. Left lung collapsed."
The cause of death spelt out in the autopsy reports of the deceased person was shock and haemorrhage as a result of ante-mortem fire arm injury, which he had suffered.
(13) It is significant to mention that in his deposition in the trial Court, Dr. Vidya Bhushan Pathak (P.W. 5) has reiterated the said cause of death and also stated therein that the ante-mortem injuries suffered by the deceased person could be attributable to a fire arms like katta (countrymade pistol).
(14) The injuries of informant-Nagesar Lonia (P.W.1), Smt. Ranjeeta Devi (P.W.2) and Devi Deen (P.W.3) were conducted b y Dr.Abhay Goel (P.W.7) at Community Health Centre, Fatehpur on 09.12.2006 at 8.06 p.m. After examination, the following injuries were found by Dr. Abhay Goel (P.W.7) on the injured Nagesar Lonia (P.W.1), Ranjeeta Devi (P.W.2) and Devi Deen (P.W.3) :-
(15) As per the opinion of Dr. Abhay Goel (P.W.7), the aforesaid injuries were caused by trauma from hard blunt object. All the injuries were fresh & simple in nature. In his deposition, Dr. Abhay Goel (P.W.7) has stated that the said injured were brought by Constable Gaya Prasad Yadav. He stated that the aforesaid injuries may be caused by Lathi, danda and butt of the katta.
(16) The case was committed to the Court of Session by the Chief Judicial Magistrate on 28.05.2007 and the trial Court framed charge against appellants under Sections 302/34, 307/34, 426, 504, 506 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.
(17) During trial, in all, the prosecution examined 12 witnesses. Two of them, namely, the informant Nagesar Lonia (P.W. 1) and Dev Deen (P.W.3) were examined as eye-witnesses and other witnesses were the formal witnesses and their evidence have been discussed above.
(18) We would first like to deal with the evidence of Nagesar Lonia (P.W. 1). Since in paragraph 4, 5, 6 and 7, we have set out the prosecution story primarily on the basis of the recitals contained in his examination-in-chief, for the sake of brevity, the same is not reiterated. P.W.1 Nagesar Lonia deposed that his land/farm is near the north of his village, in which lentils and peas were sown. Prior to 7 ½ months, at about 2.30 p.m., the goats of his patidar Bade Lal were grazing and damaging the crop of lentils and peas sown in his aforesaid farm. The wife of accused Kailash was herding the goats in his farm. When his wife Ranjeeta Devi, who went to look after the farm saw it, she forbade the wife of Kailash to do so and began ousting the goats. On this, a verbal altercation took place between his wife Ranjeeta Devi and wife of Kailash. On hearing the hue and cry, he along with his father Devi Deen and his elder brother Khushiram reached the spot and began ousting the goats from the farm. Meanwhile, accused Bade Lal, Munna Lal, Sipahi Lal alias Nanhu carrying lathi-danda in their hands and accused Kailash carrying countrymade pistol, reached his farm hurling abuses. Thereafter, he, his father and his elder brother got scared looking these four persons and backed off. By the time, accused Kailash opened fire with the countrymade pistol held in his hand which hit his elder brother Khushi Ram, disabled with leg, who was just reaching the chakroad to the west of the farm. Having received the fireshot, he died on the spot itself. Bade Lal, Munna Lal and Sipahi Lal carrying lathis in their hands encircled and inflicted injuries to him, his wife Ranjeeta Devi and his father Devi Deen with intention to kill. On their clamour, his brother Naresh also known as Ramesh, Shiv Bhagwan and even other villagers arrived. When these persons forbade, all the aforesaid accused persons went away giving threats to kill us. Leaving the corpse of his brother Khushiram on the spot under the guard of villagers and family members, he, his wife and his father came to the police station through a hired jeep brought by his uncle. He got scribed the written report through Jugul Kishore Dwivedi in a hut shop outside the police station. Thereafter, he had scribed and read out the same whatever had been narrated by him. Then he marked his thumb impression on it and along with the injured persons, took the written report to the police station, handed over it to the Head Constable and got the case registered. The Head Constable saw their injuries and sent them on the same day with a constable to District Hospital Fatehpur for treatment where their medical examination had been conducted. They returned home after their medical examination had been conducted.
(19) P.W.1-Nagesar Lonia further in his deposition has also stated that the police officials had arrived at the spot in the night of incident. As there was no arrangement of light, they stayed there only. On the next day, in the morning, the Inspector took his statement at the place of occurrence, conducted inspection of the place of occurrence, prepared the Inquest Report in respect of the corpse of Khushiram, prepared other documents, sealed the corpse and handed over the same to the available constable for postmortem. The Inquest Report has been read out and he put thumb impression on that.
(20) P.W.2-Smt. Ranjeeta Devi has supported the statement of P.W.1 Nagesar Lonia and has stated that prior to 9 months 9-10 days, at about 2:30 p.m., in the afternoon, wives of Badey Lal and Kailash were grazing their goats of her field, wherein Lentil and Pea were sowed. At that time, she was washing utensils at the door of her house. On seeing the goats grazing her crops, she gone there and began ousting the goats. On this, wives of Kailash and Badey Lal, abused her. On hearing the hue and cry, her husband (Nagesar Lonia), her father-in-law (Devi Deen) and her elder brother-in-law (Khushi Ram), who was handicapped by leg, came to her in the field and at the same time, all four accused persons among whom Kailash carried adhi (countrymade pistol) and other accused persons Bade Lal, Munna Lal, Sipahi Lal alias Nanhu carried lathi reached there hurling abuses. The accused persons, with intention to kill them, approached them. Due to fear, they went back in the western ridge of the field and when they reached at the chak road, Kailash armed with adhi (countrymade pistol) fired, which hit her brother-in-law Khushi Ram and consequently died on spot. The other accused persons assaulted her, her husband (informant) and her father-in-law (P.W.3-Devi Deen), for which injuries have been sustained by them. On our clamour, her brother-in-law Nagesar, Shiv Bhagwan and other villagers arrived, thereupon all the accused persons fled away. After the incident, she, her husband (informant) and her father-in-law went to police station and her husband (informant) had lodged the report. Thereafter, their medical examination was got conducted at the Government hospitals by the police officials.
(21) P.W.3-Devi Deen, who is father of the informant P.W.1-Nagesar Lonia, in his examination-in-chief, has deposed that the incident was about 4 months ago at 2-2:30 P.M. At that time, wife of his son Nagesar, namely, Ranjeeta Devi (P.W.2) was washing utensils, whereas he, his son Nagesar (P.W.1) and elder son Khushi Ram (deceased) sat at the door. At the place of farm land, wives of accused Badey Lal and Kailash were grazing the goats and when his daughter-in-law Ranjeeta gone to drive the goats and told her that they grazed the corps for which loss of paddy occurred, the wives of accused Badey Lal and Kailash abused her daughter-in-law. On hearing the hue and cry, he, Nagesar and Khushi Ram reached near Ranjeeta and at the same time, accused persons Badey Lal, Munna Lal, Sipahi Lal alias Nanh and Kailash came there. All the accused persons are real brothers. Kailash was armed with adha (countrymade pistol), wheras Munna Lal, Sipahi and Badey Lal was armed with lathi danda. When the accused persons came, they shouted "maro salo ko" (to kill them bastard), then, they moved backward and when Khusi Ram was at the boundary of the field co-joint to chak road, Kailash fired upon Khushi Ram by adha (countrymade pistol). Thereafter, he, his son Nagesar and his daughter-in-law went backward to the chak road, where Badey Lal, Munna Lal and Sipahi armed with lathi danda assaulted him, his son Nagesar Lonia and his daughter-in-law Ranjeeta, whereby they sustained injuries. On account of fire, Khushi Ram died on the spot. On hearing hue and cry, his son Ramesh and Shiv Bhagwan reached at the spot and they also seen the incident. Thereafter, he, his son Nagesar and his daughter-in-law Ranjeeta went to police station on the guard of other persons. His son Nagesar Lonia had lodged the report at the police station, from where they had been sent to hospital for medical examination by the police.
(22) The evidence of P.W.4 Ram Lakhan shows that the inspector and police came at 9:00 a.m. on next date of the incident and the deadbody of the deceased Khushi Ram was lying in the field of Devi Deen situate at the west side of land, wherein large number of people was there. The Inspector prepared inquest report and panchayatnama and after scribing it to him, he put thumb impresssion on it. Thereafter, deadbody of Khushi Ram was sent to post-mortam. The Inspector had also collected blood staind earth from the place of occurrence and kept in a container.
(23) The learned trial Judge believed the evidence of Nagesar Lonia (P.W.1), Smt. Ranjeeta Devi (P.W.2) and Devi Deen (P.W. 3) and found the appellants guilty for the offences punishable under Sections 302/34, 323/34 I.P.C. and, accordingly, convicted and sentenced the appellants in the manner stated in paragraph 1. He, however, acquitted the appellants for the offences punishable under Sections 307/34, 504, 506 and 426 I.P.C. Appellant-Kailash was also acquitted for the offence punishable under Section 25 read with Section 3 of the Arms Act.
(24) It is pertinent to mention that the State of U.P. has not impugned acquittal of the appellants under Sections 307/34, 504, 506 and 426 I.P.C. and appellant-Kailash under Section 25 (3) of the Arms Act by preferring an appeal under Section 378 (1) of the Code of Criminal Procedure.
(25) As mentioned earlier, aggrieved by their convictions and sentences Kailash preferred Criminal Appeal No. 1989 of 2009 before this court and Badey Lal, Munna Lal and Sipahi alias Nanh also preferred another appeal i.e. Cri. Appeal No. 1982 of 2009 and since these appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by common judgment.
(26) Heard Sri Shishir Pradhan, learned counsel for the appellant of Criminal Appeal No. 1989 of 2009 and Sri Desh Ratan Mishra, learned Counsel for the appellants of Criminal Appeal No. 1982 of 2009 and Ms. Nand Prabha Shukla, learned AGA for the State.
(27) Sri Shishir Pradhan, learned Counsel for the appellant of Criminal Appeal No. 1989 of 2009 has submitted that appellant-Kailash is in jail since 14.12.2006 i.e. since 14 years and three months. He submits that it is a case of sudden and grave provocation. The incident is the result of the sudden quarrel between the wife of the informant and the wife of appellant-Badey Lal on account of grazing of crop by the goats. According to the prosecution case, on hearing the altercation, all the accused who are real brothers from one side and the informant, his brother and father on the other side, came on the spot and altercation ensued between them. The intention of the appellant-Kailash was to create pressure upon opposite side. It has been argued that P.W.1, informant, had stated that he never ran away when he saw appellant-Kailash armed with Katta (countrymade pistol). This shows that the appellant-Kailash had no intention to kill but when appellant-Kailash was returning from place of occurrence, then, he open single fire in a heat of passion. Therefore, it is a case under Section 304 Part-II I.P.C. and not under Section 302 I.P.C.
(28) Elaborating his submission, Mr. Pradhan has submitted that in the F.I.R., appellant-Kailash has a role of single fire by Katta. As per post-mortem report, there is single fire arm injury to the deceased. This shows that there is no repetition of fire by Katta (countrymade pistol), hence the case would not travel beyond offence under Section 304 Part-II I.P.C. It has been further argued that appellant-Kailash was acquitted under Section 3/25 of the Arms Act by the trial Court as there was no independent witness to prove the recovery of countrymade pistol and the cartridges from him.
(29) Mr. Pradhan has relied upon the case of Vineet Kumar Chauhan Vs. State of U.P. : AIR 2008 S.C. 780 and Sadhu Singh Harnam Singh Vs. The State of Pepsu : AIR 1954 SC 271 has submitted that in a single fire case, conviction under Section 302 I.P.C. is converted into under Section 304 Part-II I.P.C. and the sentence be reduced to already undergone as the appellant has already served more than 14 years, which would meet the ends of justice.
(30) Shri Desh Ratan Mishra, learned Counsel for the appellants of Criminal Appeal No. 1982 of 2009 has contended that the present incident arose at the spur of moment as the goats were grazing in the field claim by both the parties and the ladies of both the side entered into quarrel resulting the altercation of the accused persons and informant party. Appellants are said to have assaulted injured persons only with Lathi and Danda as a result of which they have received simple injuries. It has been argued that the deceased Khushi Ram has received only one injury in the nature of fire arm wound, which resulted in his death and about whom co-accused/appellant Kailsh was assigned the role of firing of single shot at the deceased. There is no allegation that Badey Lal, Munna Lal and Sipahi alias Nanh has exhorted to Kailash to fire at the deceased. He submits that on account of altercation between the parties, co-accused Kailash has fired firstly at the deceased and the appellants, Badey Lal, Munna Lal and Sipahi alias Nanh, who were armed with Lathi and Danda, have assulted the injured persons, who have received simple injury and they did not have any common intention to murder the deceased, who was shot dead by co-accused Kailash, hence their conviction under Section 302/34 I.P.C. by the trial Court is against the evidence on record and be set-aside.
(31) To strengthen his submission, Sri Mishra learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Dharam Pal and others Vs. State of U.P. : 1997 SCC (crl.) 1203 and Pundalik Mahadu Bhane and others Vs. State of Maharashtra : 1998 SCC (Cri) 202, respectively.
(32) Per contra, learned AGA, while supporting the impugned jumdgment, has vehmently argued that the trial Court, after relying upon version of the eye-witnesses, namely, P.W.1 Nagesar Lonia, Ranjeeta Devi (P.W.2) and Devi Deen (P.W.3), has rightly held guilty to the appellants for the offences punishable under Sections 302/34 and 323/34 I.P.C. It has been argued that under the penal code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicarioulsy responsible. The doctor, who opined that injuries sustained by the injured, may be caused by a blunt object, like lathi, danda and butt of the katta. As per the prosecution case, the appellants, with common intention, chased the informant, his wife, his elder brother (deceased) and his father and after that appellant-Kailash fired a shot with countrymade pistol and thereafter, appellants injured the informant, his wife and his father by lathi, danda and butt of the countrymade pistol. Therefore, the trial Court has rightly punished the appellants under Section 302/34 and 323/34 of the Indian Penal Code. There is no illegality or infirmity in the impugned order.
(33) To stregthen her submission, learned AGA has placed reliance upon Balvir Singh Vs State of M.P. : 2019 (199) AIC 242 (S.C.), Virendra Singh Vs. State of Madhya Pradesh : (2010) 8 SCC 407.
(34) We have examined the rival contentions advanced by the learned Counsel for the parties along with the impugned judgment and order passed by the trial Court and also perused the lower Court record.
(35) It transpires from the prosecution case that against four accused persons, namely, Badey Lal, Munna Lal, Sipahi alias Nanh, Kailash, a First Information Report was lodged by P.W.1-Nagesar Lonia for murder of his brother Khushi Ram (deceased) and injuries sustained by him (P.W.1-Nagesar Lonia), his wife Smt. Ranjeeta Devi (P.W.2) and his father Devi Deen (P.W.3) by the aforesaid accused persons.
(36) It is the specific case of the prosecution that deceased Khushi Ram was done to death by accused-appellant Kailash, who fired upon him with a countrymade pistol, which he carried at the time of incident. The injured witnesses, namely, P.W.1-Nagesar Lonia, Smt. Ranjeeta Devi (P.W.2) and Devi Deen (P.W.3) have categorically deposed that accused-appeallants, namely, Badey Lal, Munna Lal and Sipahi alias Nanh had assaulted by lathis and injured them.
(37) From perusal of the post-mortem of deceased Khushi Ram, it is apparent that he received one single injury on his person, which was a fire shot and the same has been attributed to the accused-appellant Kailash. The other three accused-appellants Badey Lal, Munna Lal and Sipahi alias Nanh had assaulted the injured with Lathis and Dandas. The deceased Khushi Ram did not receive any injury of blunt object except fire arm injury. The injured witnesses P.W.1-Nagesar Lonia, P.W.2-Smt. Ranjeeta Devi and P.W.3-Devi Deen had received injuries of blunt object, which were caused by accused-appellants Badey Lal, Munna Lal and Sipahi alias Nanh with Lathis and Dandas but the injuries were found to be simple in nature.
(38) Sri Desh Ratan Mishra, learned Counsel for the appellants has contended that conviction of appellants Badey Lal, Munna Lal and Sipahi alias Nanh under Section 302/34 I.P.C. for committing murder of deceased Khushi Ram and sentenced them for life by the trial Court for the said offence is contrary to the evidence on record.
(39) On examining the aforesaid argument of Mr. Mishra, learned Counsel for the appellants, it is apparent that though the incident had taken place for grazing by goats of accused-appellant Badey Lal in the field of the informant Nagesar Lonia, which was objected by the wife of the informant, namely, Smt. Ranjeeta Devi (P.W.2), who, on seeing the goats distructing her crops, went to oust the goats from her field, on which wife of the appellant Badey Lal started altercation. On hearing the hue and cry, injured P.W.1-Nagesar Lonia and P.W.3-Devi Deen and deceased Khushi Ram reached there and at the same time, accused-appellant Kailash armed with countrymade pistol and accused-appellants Badey Lal, Munna Lal and Sipahi alias Nanh armed with lathies and dandas arrived at the place of occurrence. On seeing the accused appellants, informant P.W.1-Nagesar Lonia, his wife P.W.2 Smt. Ranjeeta Devi, his father P.W.3 Devi Deen and his brother Khushi Ram (deceased), who was a handicap by one leg, got scared and had moved backward and when Khushi Ram was at the boundary of the field co-joint to chak road, the accused-appellant Kailash, who was carrying countrymade pistol, fired shot to brother of informant, Khushi Ram, as a consequence thereof, the brother of informant Khushi Ram sustained fire arm injury, due to which he died on spot. This shows that appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh could not be said to have any common intention to commit the murder of the deceased Khushi Ram along with appellant Kailash. Appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh also did not assualt the deceased Khushi Ram with Lathies and Dandas. Therefore, the conviction of appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh under Section 302/34 I.P.C. and sentenced them for life by the trial Court cannot be sustained in the eyes of law as at the most, appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh are responsible for their individual act and not vicariously. Moreover, the prosecution has also not brought any evidence on record to show that appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh had any prior knowledge of the fact that deceased Khushi Ram would be shot by the accused-appellant Kailash, who was also running away from the place of occurrence because of the fact that accused-appellants had arrived with Lathis, dandas and countrymade pistol.
(40) In the aforesaid backgrounds, Sri Mishra learned Counsel for the appellants had placed reliance upon the judgment of the Apex Court in Dharam Pal and others Vs. State of U.P. (supra) and argued that the offence, if any, for which the appellants could be convicted and setenced, is under Section 323/34 I.P.C. as appellants Badey Lal, Munna Lal and Sipahi alias Nanh have only inflicted lathi and danda blows upon the three injured persons, who sustained simple injuries on their person and no internal damage was caused to them, as at the most, they may be said to have common intention to cause simple hurt to the three injured persons but certainly not any common intention to kill the deceased, who was shot dead by the accused/appellant Kailash and the deceased died on the spot. He has contended that in the case of Dharam Pal and others Vs. State of U.P. (supra), the Apex Court in a similar situation had set-aside the conviction of the accused under Section 302/34 I.P.C. and convicted the one of the accused under Section 325 I.P.C., who had caused lathi injuries to one of the prosecution witnesses.
(41) The other case, which has been relied by the learned Counsel for the appellants of Criminal Appeal No. 1982 of 2009, is the judgment of the Apex Court rendered in the case of Pundalik Mahadu Bhane and others Vs. State of Maharashtra (Supra) and in support of his contention, he has pointed out that the Apex Court had observed that in case of sudden and free fight between two groups, each of the persons involved therein would be liable for his individual act and not vicariously. In the said case, the accused assaulted the deceased with sticks resulting in grivous injuries on his person, the Apex Court has observed that the accused are liable to be convicted under Section 325 I.P.C. and not under Section 302/34 I.P.C.
(42) Taking into consideration the law laid down by the Apex Court, as has been referred to above and examining the evidence of P.W.1-Nagesar Lonia, P.W.2 Smt. Ranjeeta Devi and P.W.3-Devi Deen, we are of the considered view that conviction of the appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh under Sections 302/34 I.P.C. and sentenced them to life by the trial Court is not sustainable as it is contrary to the evidence on record, as it is not borne out from the evidence on record that the said three appellants had any common intention to kill the deceased, who was killed by the accused/appellant Kailash with a countrymade pistol and the deceased died on the spot, hence their conviction and sentence by the trial Court under Section 302/34 I.P.C. is liable to be set-aside. However, conviction of appellants Badey Lal, Munna Lal and Sipahi Lal alias Nanh under Sections 323/34 I.P.C. and their sentence to undergo six months' R.I. by the trial Court is liable to be confirmed as they with a common intention assaulted the three injured persons with lathies and dandas, who suffered simple injuries on their persons.
(43) So far as appellant Kailash is concerned, it has been argued by Sri Shishir Pradhan, the learned Counsel for the appellant of Criminal Appeal No. 1989 of 2009 that it is a case of sudden quarrel between the parties and the appellant Kailash had only caused single injury by fire arm weapon on the deceased Khushi Ram and no repeated shot was fired by him, hence his conviction under Section 302/34 I.P.C. is liable to be set-aside as the case would not travel beyond the offence under Section 304 Part-II of the Indian Penal Code. Appellant Kailash had already served out more than 14 years in jail, hence, he may be released to the period already undergone. The aforesaid argument of Mr. Pradhan has no substance at all. It is to be noted that the prosecution case right from its inception is that the appellant Kailash was carrying a deadly weapon i.e. countrymade pistol at the time of the incident and he shot the deceased Khushi Ram, who was going back towards the chak road on seeing the accused/appellants arrived at the place of occurrence with lathi, danda and countrymade pistol. But the appellant Kailash shot with the countrymade pistol on the deceased Khushi Ram, who was a disabled person (not having one leg), as a consequence thereof, Khushi Ram succumbed to his injury on the spot and the incident was witnessed by P.W.1-Nagesar Lonia, P.W.-2 Smt. Ranjeeta Devi and P.W.3-Devi Deen, who were the real brother, brother-in-law and father, respectively, of the deceased Khushi Ram and are the injured witnesses also.
(44) All three prosecution witnesses, namely, P.W.1 Nagesar Lonia, P.W.2 Ranjeeta Devi and P.W.3 Devi Deen, who are injured witnesses, have categorically stated that it was appellant Kailash who fired shot on the deceased Khushi Ram with countrymade pistol, due to which, Khushi Ram succumbed to his injuries on the spot. The ocular testimony of the said three witnesses is also corroborated with the post-mortem report of the deceased as twelve metallic pellets were also recoverd from the body of the deceased during the course of post-mortem. It is to be noted that the intention to kill the deceased was apparent from the conduct of the appellant Kailash, who did not spare the deceased Khushi Ram was a disabled person, hence he is individually responsible for his act of murdering the deceased.
(45) Sri Pradhan, learned counsel in support of his submission has placed reliance upon the judgment of the Apex Court in the case of Vineet Kumar Chauhan Vs. State of U.P. (supra), which, in our view, is not helpful to the appellant Kailash as from the facts of the said case, it is apparent that in the said case, the case was registered against accused under Section 302 I.P.C. and after six months, injured died on account of septicemia and toxemia due to bedsores, therefore, the case was converted into Section 304, Part II, I.P.C. Similarly, other case, which has been relied by the learned Counsel for the appellant of Criminal Appeal No. 1989 of 2009 i.e. Sadhu Singh Harnam Singh Vs. The State of Pepsu (Supra), is also not of any help to the appellant Kailash because from the facts of the said case, it is apparent that it was a case of rash and negligent act and the Apex Court in the said case has set-aside the conviction under Section 302 I.P.C. and convicted the accused under Section 304 I.P.C. Thus, both the cases are distinuguishable from the facts and circumstances of the present case.
(46) It is true that appellant Kailash, who was also tried by the trial Court for the offence under Section 25 of the Arms Act but the trial Court found that evidence of recovery of the countrymade pistol on the pointing out of the said appellant cannot be reliable as no independent witnesses have supported the recovery of countrymade pistol. Moreso, no site-plan for recovery of the said countrymade pistol and catridges has been made by the Investigating Officer, but that alone cannot be a ground to acquit the appellant Kailash from the charges levelled against him because of the latches on the part of the investigating agency as the incident had taken place in a broad day light and the injured witnesses supported the prosecution case against appellant Kailash, which is fully corroborated by the medical evidence. Thus, the prosecution has proved his case beyond reasonable doubt against appellant Kailash and his conviction and sentence for the murder of deceased is fully jusified.
(47) In view of the foregoing discussions, we pass the following order :--
(A) Criminal Appeal No. 1989 of 2009:--
The conviction and sentence of the appellant Kailash for the murder of deceased Khushi Ram does not call for any interference by this Court as we are of the opinion that the appellant Kailash has murdered the deceased with a deadly weapon i.e. countrymade pistol, which was his individual act and he is responsible for the same, hence, he is convicted for the offence under Section 302 I.P.C. as ''simpliciter', therefore, his conviction under Section 302/34 I.P.C. by the trial Court is modified to Section 302 I.P.C. and sentence to life imprisonment, accordingly. The conviction and sentence of the appellant Kailash for the offence under Section 323/34 I.P.C. by the trial Court is also hereby confirmed.
Appellant Kailash is in jail and he shall serve out the sentence as ordered by the trial Court.
The appeal stands dismissed.
(B) Criminal Appeal No. 1982 of 2009 :-
The conviction and sentence of appellant Badey Lal, Munna Lal and Sipahi alias Nanh by the trial Court for offence punishable under Section 302/34 I.P.C. is hereby set-aside. Hence, they are acquitted for the charges under Section 302/34 I.P.C. However, their conviction and sentence under Section 323/34 I.P.C. by the trial Court is hereby confirmed. Their sentences are reduced to already undergone. They are on bail and they need not surrender. Their bail bonds are cancelled and sureties discharged.
Appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973.
The appeal is partly allowed.
(48) Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
(49) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
(50) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Rajeev Singh, J.) (Ramesh Sinha, J.) Order Date : 21.05.2021 Ajit/-