JUDGMENT Vinod Prasad, J.
1. The three siblings Sant Pal, Budh Pal and Suresh Pal, all sons of Ram Lal, have challenged their conviction and sentences, Under Section 302 read with Sections 34 and 323 read with Section 34 IPC, for imprisonment of life on the first count and six months' R.I. on the second count, imposed by Sessions Judge, Badaun vide his impugned judgment and order dated 28.2.1981, in S.T. No. 215 of 1980 State v. Sant Pal and Ors.
2. The prosecution allegations encapsulated from the FIR were that Ram Lal and Dwarika were real brothers being sons of Tula Ram. Dwarika had two wives. One Fakeeri is the son of his first wife and Chhotey Lal (deceased) and Om Pal, (informant) P.W. I are the sons of his second wife. The accused appellants Sant Pal, Budh Pal and Suresh Pal (since deceased) are the sons of Ram Lal and hence are the first cousins of the informant. There was bad blood between the informant and the accused as they were pairokar of Fakiri, (the step brother of the informant and deceased Chhotey Lai) who was litigating for 1/2 share in inheritance over the agriculture land left by their deceased father Dwarika. Three years prior to the incident, appellant Budh Pal had lodged an FIR Under Section 307 IPC against Om Pal (informant), Chhotey Lal (deceased) and Rammu (uncle of the informant), in which case, after trial the accused were acquitted aggravating the animosity between cousins. To avoid hostility Chhotey Lal (deceased) had left the. village and had gone to stay at his in-laws house at Ajmabad, P.S. Jaitipur, district Shahjahanpur but he had returned few days prior to the date of incident. On 27.2.1980 the three accused, hankered with the idea of taking revenge by annihilating the informant and his brother laid themselves on the northeast corner of the wheat field of Jagan of their village. When the ... deceased alongwith Khem Karan s/o Tula Ram, Mahi Pal s/o Khem Karan, Fakiri (P.W. 2) s/o Shobhi were proceeding towards Dataganj market to make purchases for Holi festival by the chak road and reached near the field of Basant Singh s/o Devi Singh at about 10.30 A.M., Budh Pal armed with gun and Sant Pal and Suresh armed with lathies came out from the wheat field of Jagan, surrounded them and on the instigation of Budh Pal appellant, all the three accused started assaulting the deceased with gun and lathies. The informant and other witnesses tried to save the deceased; consequently informant was also assaulted and was caused injuries. On the alarm being raised by the informant and companion witnesses, Siphar s/o Sardar Ahir also reached at the spot and all of them tried to save the deceased. Accused Budh Pal fired a shot towards interveners but they eluded the shot on them. The assailants after committing the murder of Chhotey Lal escaped in the Arhar field and eloped in jungle.
3. Om Pal informant leaving the corpse of Chhotey in vigil of villagers went to the Police Station Data Ganj and lodged an oral FIR at 12.30 in the noon same day after covering the distance of six miles north. H.C. Lajja Ram P.W. 5 recorded the FIR at the dictation of the informant and after getting its contents verified from him got his signature on chik FIR (Ex. Ka 1) and he also noted his injury. He prepared the GD of institution of the case Ex. Ka 11. The Sub Inspector Munsi Lal P.W. 3, who was the second officer at the Police Station in absence of Station Officer heralded the investigation, got the informant medically examined and then noted down his statement Under Section 161 Cr. P.C. He conducted the inquest on the dead body of the deceased and prepared the memo of jnquest and other papers Ex. Ka 2 to Ex,. Ka 9. Sealing the dead body, he dispatched it for post mortem through constable Nankai Lal and C.P. 558 Mohd. Raza P.W. 7. He also collected the blood stained and plain earth, empty and filled cartridges from the place of incident (Ex.1 to Ex. 4), prepared recovery memos Ex. Ka 7 and Ex. Ka 8. He conducted the spot inspection and prepared site plan Ex Ka 9 and thereafter recorded the statements of the witnesses. Subsequent investigation of the crime was conducted by S.I. Hoshiyar Singh, SO. P.W. 4 who after completion of the same submitted the charge sheet Ex. Ka 10 in the Court.
4. Autopsy on the body of the deceased Chhotey was conducted by Dr. N.P. Singh, P.W. 6 on 28.2.1980 at 11 30 A.M. vide Ex. Ka 12. He found the age of the deceased to be 25 years with average built and one day had elapsed since his death. On his body 16 following ante mortem injuries were found:-
1. Lacerated would 2-1/2 cm. x 1/2 cm. scalp deep over right Side forehead 6 cm. above eyebrow
2. Lacerated would 1cm. x 1/2 cm. x bone deep over front of Forehead 6 cm. above route of nose.
3. Lacerated would 1-1/2 cm. x 1/2cm. x scalp deep over the top of head in midline.
4 Lacerated would 3-1/2 cm x 1/2 cm x bone deep over right parietal region 11 cm. above ear.
5. Lacerated would 2-1/2 cm. x 1/2 cm. x bone deep over left occipital region 8 cm. behind ear.
6. Lacerated would 3 cm. x 1/2 cm. x bone deep over back of head in mid line 4 cm. internal to injury no. 5.
7. Lacerated wound 2 cm. '1/2 cm. x bone deep 2 cm. outer to injury no. 6.
8. Lacerated wound 4 cm, x 1 cm. x bone deep over right occipital region 6 cm. behind ear.
9. Contusion 1 cm. x 1/2 cm. over right-side forehead 2 cm. above eyebrow.
10. Multiple contusions over right side of face in an area of 12 cm. x 6 cm.
11. Multiple contusions on right side of upper lower- lip in an area of 6 cm. x 4 cm.
12. Multiple contusions on right side and front of neck in an area of 8 cm. x 4 cm.
13. Contusion 16 cm. x 2 cm. across the back 4 cm. below inferior angle of left scapula.
14. Gun shot wound of entry 5 cm. x 3 cm. x exit wound over outer side of left calf 11 cm. above knee, muscles tenders and blood vessels exposed. Blackening present Wound is directing upward and slightly backward.
15. Gun shot wound of exit 8-1/2 cm. x 4-1/2 cm. over outer side of left leg 3 cm. above injury no. 14.
16. Three gun shot wounds of entry each 0.25 cm. x 0.25 cm. x skin deep over front of left fore arm in an area of 6 cm. x 2 cm. just above wrist.
5. On internal examination, he found the right frontal, right parietal, left occipital and right occipital bones fractured. Blood was coagulated and brain congested under these injuries. According to his opinion the contusions and lacerated wounds were possible by lathi and dandas and the sustained injuries were sufficient in the ordinary course of nature to cause death. He also found 10 pellets beneath injury no. 14 and 16 and according to him the death was possible at the time of the incident.
6. Om Pal (informant) was examined by Dr. Aditya Kumar P.W. 8 of PHC Data Ganj, on 27.2.1980 at 1.30 P.M. vide Ex. Ka 13 with following sustained injuries.
1. Lacerated wound scalp 2 cm. X l/4 cm. and skin deep lying supro inferiorly over right side of scalp situated about 6 cm. lateral to external occipital protuberance.
2. Contusion about 4 cm, x 4 cm. around injury No. 1.
3. Contusion about 5 cm. x 5 cm. over tight scapular region upper part.
4. Contusion upper one-third lateral aspect of right thigh.
7. The injuries were caused by blunt weapon and were fresh in nature and could be caused at the time of the incident.
8. At the trial the prosecution, for proving the guilt of the accused and "cementing the offences on them, examined 8 witnesses, out of whom Om Pal P.W. 1 and Fakiri P.W 2 werewitnesses of fact. Munshi Lai, S.I. P.W.3 the first I.O. Hoshiyar Singh S.O. P.W.4, the second I.O. H. C. Lajja Ram P.W, 5,who wrote chik FIR and GD. Dr. N.P. Singh P.W. 6, who conducted the post mortem Mohd. Raza Constable no. 558 (through affidavit) P.W 7, who carried the body for post mortem and Dr. Aditya Kumar P.W. 8,' who examined the injured Om Pal informant were the other witnesses.
9. The accused in their statements Under Section 313 Cr. P.C. definied the incriminating circumstances appearing against them. Accused Sant Pal took the defence that he and Chhotey had patched up and had become friends, Chhotey, Om Pal and Rammu were on ojne side; Jangi, Rammu Zamadar, Moti and Fakiri were on other side and at the time of the incident the firing was going on from both the sides he (Sant Pal) was on his field, he went to intervene he received pellet injuries ran away, then both sides assaulted each other with lathies; he has been implicated in the case falsely. Accused appellant Budh Pal stated that he had been falsely implicated due to enmity.
10. In their defence, the accused appellants examined Dr. A.K. Malhani as D.W. 1 and Prem Narain Saxena Deputy Jailer, District Jail Bareilly as D.W. 2. Dr. A.K. Malhani, D.W.1 had examined the injuries of appellant Sant Pal on 29.2.1980 at 4.45 P.M in district jail vide Ex. Kha 4. He also proved his x-ray report Ex. Ka 5 prepared by Dr. V.P. Kulshrestha. Prem Narain Saxena D.W. 2 had brought the admission register of convicts and evidenced that Fakiri P.W. 2 s/o Shobha Ram r/o Dhirpur Parti, PS. Data Ganj,district Badun was convicted Under Section 307/149 IPC and Under Section 399/402 IPC on 14.11.1964 with seven years' and five years' rigorous imprisonment. Thus he gave evidence to impeach the evidence of Fakin P.W. 2.
11. The trial court found that the prosecution has proved the guilt of the three accused to the hilt and that they attacked the deceased and the informant in the manner alleged by the prosecution and caused the murder of Chhotey Lal and injured Om Pal Consequently it held them guilty passing sentences as stated earlier. Hence this appeal.
12. During the pendency of the appeal, one of the appellants Suresh Pal died. As such his appeal stood abated vide order dated 18.11.2005. Now it survives only in respect of appellants Sant Pal and Budh Pal.
13. We have heard Sri P.N. Mishra learned senior courtsel assisted by Sri Apul Mishra Advocate On behalf of the appellants and Sri Devendra Upadhyay, learned AGA on behalf of the respondent State.
14. Learned senior Counsel firstly submitted that the prosecution case is false and it does not state the truth. He contended that there is absolutely no explanation of the injuries sustained by the accused Sant Pal which can not be manufactured being gun shot injuries and, therefore, the prosecution, has either suppressed the genesis of the incident or it is giving a false account of the incident. He contended that the defence of the accused Under Section 313 Cr.P.C. that there was cross firing from both the sides, as a result of which deceased and other person sustained injuries is probable on preponderance of probabilities. Secondly, he submitted that it is not known as to who caused the fatal injuries to the deceased and, therefore, no offence Under Section 302 IPC is made out and in any eventuality the case will not travel beyond the scope of offence under Section 304 part I IPC. He contended that the deceased had not received any injury on his hands and upper torso of the body, which indicates that only one person assaulted the deceased by lathi, and not two. He urged that the three real brothers have been falsely implicated. He argued that there was no intention pervading all the three appellants to murder the deceased and the same cannot be presumed. He further argued that the fact that firearm injury was caused on the feet also depicts- absence of common intention to murder. Lastly, he submitted that the gunshot wounds being on non-vital parts of the body of the deceased by one of the assailants, application of Section 34 IPC in the facts of the present case is not justified. He contended that there was no common intention for committing the murder of the deceased and, therefore, the trial court committed error in applying, Section 34 IPC read with 302 IPC. He further contended that actually the prosecution has not been able to establish the guilt of the accused and consequently instant appeal deserves to allowed and the conviction of the appellant is liable to be set aside.
15. Sri Devendra Upadhyay learned AGA on the contrary argued that the prosecution witnesses have fully proved the prosecution version and nothing has been elicited from the testimony of P.W. 1 and 2 to make their presence on the spot doubtful. They are eyewitnesses of the incident and they have specifically named the accused persons attributing specific role to them. He further contended that this was daylight incident and the accused were first cousins of the informant and Fakiri P.W. 2 and, therefore, their identity cannot be doubted and they would not be falsely implicated.
The State Counsel further argued that there was no obligation oh the part of the prosecution to explain the injuries of the accused Sant Pal as he did not receive injuries in the same incident and, therefore, he contended that the submissions made on behalf of the appellant, that the injuries of appellant Sant Pal remained unexplained and, therefore, the prosecution case is bereft of truth is not correct. He further submitted that Section 34 IPC is fully attracted on the facts and circumstances of the present case. All the three accused persons with common intention of murder started assaulting the deceased together and caused his death. Consequently the applicability of Section 34 IPC is unquestionable. He also argued that in the day light incident the merciless assaulting of the deceased by the appellants cannot be attributed less than the offence of murder and all the accused are guilty Under Section 302 IPC. and their appeal is liable to be dismissed.
16. For critically appreciating and judging the rival contentions, a narration of the evidence -and other material on record is indispensable requirement.
17. Heralding its case, the prosecution examined informant Om Pal as P.W. 1, who first proved the pedigree of the parties revealing their relationship. His father had died 18 or 19 years before and his mother embraced Rammu as her husband He further narrated that his father had 17 or 18 Bhighas of land, which was- cultivated by them jointly but-subsequently their stepbrother Fakiri started claiming half share, which was objected to by them, as they were ready to part away only with 1/3 share. Rammu was siding with the informant and his deceased brother while the appellants wsre fostering the cause of Fakiri. He (informant) with the deceased Chhotey possessed 2/3 share of the land and had left 1/3 for Fakiri He further stated that three years prior to the incident. Budh Pal was shot at in which he (informant) and Chhotey (deceased) were made accused but after trial they were acquitted. Fakiri was a witness of Budh Pal in that case. Chhotey deceased used to tease the appellants because of the said acquittal. To avoid animosity, Chhotey deceased went to his in-laws house at Ajmatpur, P.S. Jaitipur, district Shahjahanpur and was living there and used to visit the village of incident off and on to look for his agriculture. 15 or 16 days preceding the incident, Chhotey had informed him (informant that there was an abusive verbal exchange of words between him and Sant Pal and Sure'sh Pal. He further stated that 1 year and 3 months prior to the present incident, Chhotey was also shot at regarding which a case was instituted against Fakiri and others and in that case present appellant Sant Pal was a witness of Chhotey but ultimately he filed an affidavit denying to have witnessed the said incident. On the fateful day at about 9/10.AJ/M he (Om Pal informant), Chhotey (deceased), Khemkaran Mahipal and Fakiri P.W. 2 were going to Data Ganj for making purchases for Holi festival, and at 10.30 A.M when they reached near the field of Basant Singh on chak road the three appellants emerged from the field of Jagan where they had way-laid. Budh Pal was armed with gun and Sant Pal and Suresh were armed with lathies. On the instigation of Budh Pal, Sant Pal and Suresh Pal started belabouring the deceased with lathies. When he (informant) tried to intervene, he was also assaulted with lathi. Chhotey fell down because of the injuries and then Budh Pal fired at him. On hue and cry being raised, Siphar (not examined by the prosecution) reached there and tried to save the deceased but Budh Pal made another fire from his SBBL gun towards them to desist them from intervening. Chhotey deceased died on the spot the accused eloped in jungle towards Karanpur. Many people of the village had collected there and consequently he (informant) leaving the corpse in their vigil went to the police station and lodged the FIR by oral dictation. His injuries were examined on the same day On bertig cross-examined, he deposed that chak road was 2 or 3 paces wide and at the time of the incident they were empty handed. He further deposed that the appellant Budh Pal did not fire at the deceased while he was standing and he was shot at on his foot only when he had fallen down. He denied the defence suggestion that there was exchange of cross firing between him, Chhotey (deceased) and Ranmu on the one side and Fakiri, Rajju, Moti and Jangi Zamadar on the other and in that shoot out the deceased as well as Sant Pal appellant had received injuries. He further denied the suggestion that leaving Fakiri, the accused had been falsely implicated.
18. Fakiri P.W. 2gave practically the same evidence as that of the P.W. 1 and further deposed that it was wrong to say that he is the real maternal uncle of the informant and at the time of the incident some body from his side was carrying lathi. He further deposed that Budh Pal shot at the deceased on his foot when he had fallen down. He further deposed that the informant Om Pal also received injuries in that very incident. He denied the defence suggestion that he himself was a bad character and was accused in many cases.
19. Dr. N.P. Singh P.W. 6, who had conducted the autopsy on the body of the deceased, proved the post mortem examination report Ex. Ka 12. Nothing was elicited from this witness except the fact that he was not very sure that the deceased had received both the guns shot injuries from single fire or two fires.
20. Thus from the perusal of the evidence, it was clear that two witnesses of fact, Om Pal P.W. 1 and Fakiri P.W. 2 fully supported the prosecution case on all the pivotal aspects of the allegations and the defence was not able to dislodge their testimony in any manner at all, The narration of incident by them is consistent, coherent and believable. They are the witnesses who were present on the spot and their testimony inspires confidence. The accused persons as is culled out from their evidence, had the motive against persons on prosecution side. It was broad day light incident and as the appellants were the close relatives (first cousins of the P.W. 1 and 2), there could not be any chance of mistaken identity or of their false implication. Om Pal P.W. 1 himself is an injured witness and his presence on the spot cannot be doubted. The defence has not been able to shatter the testimony of two eyewitnesses in any manner. The post mortem report is consistent with the prosecution version and indicates that the deceased was done to death by assault by lathi and fire made by gun. Thus, the prosecution has been able to establish the participation of the appellants in the murder and the presence of witnesses at the spot.
21. Now adverting to the submission made by learned senior Counsel on behalf of the appellants that the prosecution had not been able to explain the injuries of the accused Sant Pal and hence has suppressed the true facts and genesis of the incident, we find one cogitation that the above submission does not hold good. In fact the perusal of the evidence of prosecution witnesses and defence witnesses, it is born out that Sant Pal appellant did not receive injury in the same incident in which the deceased lost his life and informant was injured. The defence did not set up a cross case. It was also not the defence case that prosecution side engineered the assault on appellant Sant Pal and in retaliation the injuries were caused to the deceased and the informant. The defence had come out with a new theory. It has taken a totally different version from that of the prosecution. To prove the said version was the responsibility of the accused as it was in their special knowledge The prosecution cannot be saddled with the responsibility of leading evidence in respect of a new case, taken by the accused The prosecution witnesses are absolutely clear in their testimony, which has not been shaken at all that they were unarmed and did not wield any weapon. They are clear, cogent and confident that they did not cause any injury to any of the accused. If the defence wanted to take benefit of the injury of the accused Sant Pal it was its responsibility to discharge the burden of proving by. preponderance of probability that the injury was received by Sant Pal in the very same incident (emphasis supplied). This burden has not been discharge by the accused'. It is significant to note that the defence did not suggest to P.W. 4 1.0 Hoshiyar Singh also that Sant Pal had received the injuries in the same incident in which the deceased was done to death while getting this elicited from him that accused Sant Pal had also some injuries. Consequently the various pronouncements by this court as well as by apex court, harbingering from AIR 1976 S.C.C. (Criminal) Page no. 671 Laxmi Singh v. State of Bihar cannot come to the rescue of the appellants in their submissions. The Evidence of Dr. A.K. Malhani D.W. 1 also does not help the accused. The witness had not stated at all that the injuries could be received by the appellant Sant Pal at the time of the incident. In our opinion the injuries were not caused to him at the time of the present incident. Both the injuries were superficial in nature. A perusal of the injuries of the appellant Sant Pal also indicates that they could not be caused in the incident of cross firing. One injury was on the left elbow joint with clotted blood and the other injury was on the front of right thigh. No blood stained cloth of the appellant Sant Pal was shown to the I.O. nor any other fact was pointed out by the accused to prove their new version. Thus, from the defence evidence also it is not proved even on probability that the appellant Sant Pal had received injury in that very incident, in which deceased lost his life. Thus the first submission of the learned Counsel for the appellant is not tenable and is hereby rejected.
22. So far as the other submissions of the learned senior Counsel for the appellant are concerned, a perusal of the injuries of the deceased as well as the statement of doctor indicate that though the deceased had received a good number of injuries on the head but it is difficult to perceive that two appellants wielding lathies one of whom Suresh Pal has died) shared the common intention of causing the death of the deceased. Some injuries are contusions with no damage to the body on lip, neck face and are superficial. It seems that there was no comety of purpose for murdering the deceased In our opinion, from the evidence, only this much can be said with certainty that the accused had an intention to chastise the deceased severely but did not have the intention to murder him. From the injuries caused to the deceased the knowledge can be imputed to the accused for committing the offence of capable homicide not amounting to murder punishable under part I of the Section 304 IPC. We are fortified in this view, also from the fact that the accused armed with fire arm never used it before the deceased fell down and even after his supine falling he shot him in his foot only once. Had the intention was to murder the deceased pervaded the three assailants a single injury on the chest or upper part of the body at the very outset or in the last by gun would have been the natural act, which is missing in the present case. Consequently, it is difficult for us to hold that all the three appellants shared a common intention of murdering the deceased. Thus, we are of the opinion that the offence which is andinted against the surviving two appellants, is that of Under Section 304 IPC part I IPC and not 302/34 IPC. Further they also committed the offence under Section 323 read with Section 34 IPC for causing injuries to Om Pal.
23. Thus, the appeal against the surviving appellants Sant Pal and Budh Pal is allowed in part. Their conviction and sentence Under Section 302 read with Section 34 IPC is set aside and instead they are convicted Under Section 304 part I read with Section 34 IPC and 323 read with 34 IPC, each of them is sentenced to 10 years rigorous imprisonment for the former and for six months rigorous imprisonment (as awarded by the trial court) for the latter. The sentences shall run concurrently.
24. Suresh Pal having died, appeal on his behalf has abated.
25. The appellants Sant Pal land Budh Pal are on bail. Chief Judicial Magistrate, Badaun will cause them to be arrested and lodged in jail to serve out the sentences as awarded. Complete the reporter with in two months.