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Madhya Pradesh High Court · body

2008 DIGILAW 984 (MP)

HET SINGH v. STATE OF M P

2008-08-07

A.K.SHRIVASTAVA, B.M.GUPTA

body2008
Judgment ( 1. ) THE judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No. 295 of 1997, Balbir Singh and Ors. v. State of M. P. and Criminal Appeal No. 195 of 1999, Ranbir Singh v. State of M. P. ( 2. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 21. 7. 1997 passed by learned II Additional sessions Judge, Bhind in Sessions Trial no. 150/94 convicting appellant Het Singh under Section 302 IPC and other appellants of this appeal and the appellants of connected Criminal Appeal No. 295/97 under section 302/149 IPC as well as convicting all the appellants of both the appeals under section 148 and also under Section 324/149 ipc and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, the appellants have preferred these two appeals under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 3. ) APPELLANT Randhir Singh has filed separate appeal (Criminal Appeal No. 195v 99) against the judgment of conviction and order of sentence dated 26th March, 1999 passed in same Sessions trial. On going through the record it is gathered that after the entire prosecution and defence witnesses were examined this appellant randhir Singh absconded and his trial was separated. Later on, when he was arrested in the same Sessions trial, after hearing arguments on his behalf a separate judgment was passed by learned trial Court convicting him under Sections 148,302/149 and 324/149 IPC. ( 4. ) IN brief the case of prosecution is that on 17. 1. 1994 Bachan Singh along with his sons Roop Singh, Kamlesh Singh, Tahsildar singh and Bhupendra alias Bhoore Singh (hereinafter referred to as the deceased)went to cut Babool tree which was standing on their land. At the time of chopping the said Babool tree at 11 in the morning accused Het Singh with gun, other accused persons Naresh Singh and Bhanwar Singh with Farsa, Sobran Singh, Sarman Singh, sumer Singh and Balveer Singh with Lathi, randhir Singh with Lohangi and Brijendra singh alias Nemi Singh with Dharia came at the place of occurrence where the tree of babool was being cut. It is said that appellant Het Singh warned the complainant party not to cut the tree. It is said that appellant Het Singh warned the complainant party not to cut the tree. On this, Bachan singh told that the tree is standing on the land of their ownership and hence they are chopping the said tree. But, accused Het singh scolded on him and told that he will not permit to cut the tree, by that time the impugned tree was already chopped and was lying on the ground. It is the further case of prosecution that when appellant Het singh warned the complainant party not to cut the tree, they were going back after leaving aside the tree, at that juncture, all the accused persons scolded "mar Dalo Sale Ko" and thereafter it is said that accused Het singh with an intention to kill deceased fired the gun and bullet struck the left rib region of the deceased. On receiving gun shot injury, deceased became unconscious. On seeing this, Kamlesh Singh reached there and tried to snatch the gun from accused Het Singh. On this, other accused person, who were armed with lathi, Farsa, lohangi and Dharia, dealt the blows on kamlesh Singh, Tehsildar Singh, Roop singh and Bachan Singh. On hearing the sound of gun shot, Balveer Singh Bhadoriya and Ramveer Singh arrived at the place of occurrence and on seeing these persons, all the accused persons ran away towards the beehad. It is said that the deceased on account of receiving the injury of gun shot was lying unconscious. Balveer Singh and ramveer Singh were bringing the deceased and injured persons to their houses but the deceased could not survive and he died before he could arrive to his house. It is said that Roop Singh by leaving aside the dead body of the deceased went to lodge the report in police Station, Gormi, where he lodged the FIR. ( 5. ) ON lodging of the FIR, criminal law was triggered and set in motion. It is said that Roop Singh by leaving aside the dead body of the deceased went to lodge the report in police Station, Gormi, where he lodged the FIR. ( 5. ) ON lodging of the FIR, criminal law was triggered and set in motion. Investigating agency arrived at the spot; prepared the panchnama of the dead-body and sent it for post-mortem; sent the injured persons to the hospital for their medical treatment as well to obtain their MLC reports; prepared the spot map and seized the ordinary and blood stained soil; recorded the statements of the witnesses; arrested the accused persons and seized the gun from the possession of accused het Singh on his disclosure statement and other weapons from the other accused persons on the basis of their memorandum statement recorded under Section 27 of the evidence Act. ( 6. ) AFTER the investigation was over, a charge sheet was submitted in the competent Court, which on its turn, committed the case to the Court of Session and from where it was received for its trial. ( 7. ) THE learned trial Court, on the basis of averments made in the charge sheet against the accused persons, framed charges punishable under Sections 148,302 and 324/149 of IPC against accused Het singh and rest of the accused were charged under Sections 148, 302/149 and 324/149 of ipc. Needless to emphasis, all the accused persons abjured their guilt and pleaded complete innocence. ( 8. ) IN order to prove the charges, prosecution examined as many as 12 witnesses and placed Ex. P1 to P39 the documents on record. ( 9. ) THE defence of accused persons is of false and maladroit implication and in support of their defence they also examined eight witnesses, they are Rameshwar (DW1), Omprakash Kushwah (DW2), kaptan Singh (DW3), Lal Singh (DW4), omprakash (DW5), Teekaram Singh (DW6), sumer Singh (DW7) and Mukund Singh (DW8 ). ( 10. ) THE learned trial Judge, after appreciating and marshalling the evidence placed on record, came to hold that appellant Het singh has committed the offences punishable under Sections 148, 302 and 324/149 of IPC and rest of the accused persons have committed the offences punishable under sections 148, 302/149 and 324/149 of IPC and eventually passed the sentences which are mentioned in the impugned judgment. ( 11. ( 11. ) IN this manner, the present appeal and the connected appeals have been filed by the appellants assailing the impugned judgment of conviction and order of sentence dated 21. 7. 1997 and 26. 3. 1999. ( 12. ) IT would be relevant to mention here, as stated by the learned counsel for the appellants that appellant-Het Singh has been released on probation by the State Government although Shri Bhadoriya, learned public Prosecutor, has expressed his inability to state anything in that regard. ( 13. ) SHRI Ankit Saxena, learned counsel for the appellants, submits that if the evidence of the prosecution witnesses is considered in proper perspective, it would reveal that conviction of appellant-Het Singh is bad in law because the witnesses are not firm and the learned trial Judge erred in believing the evidence of prosecution witnesses. Further it has been contended by the learned counsel that the involvement of other accused persons namely Naresh singh, Sobran Singh and Sarman Singh of this appeal and Randhir Singh of Criminal appeal No. 195/99 is doubtful. According to the learned counsel, the incident had occurred in two parts; in the first part; as per prosecutions own case appellant Het Singh scolded on the complainant party by saying that all of them should be killed and he only by his mouser gun fired aiming the deceased, as a result of which the deceased died. Thereafter, when Kamlesh Singh (PW4) came and caught hold of the gun which was carried by appellant-Het Singh, at that juncture, other accused persons caused injuries to Bachan Singh, Roop singh, Tehsildar Singh and Kamlesh Singh, therefore, the case of other accused would not rest under Section 302/149 of IPC. Apart from this, it has also been propounded by the learned counsel that the evidence which has been adduced prosecution on the point of Section 149 of IPC sharing common object is shaky and testimony of each witness is different. Therefore, it could not be said that other accused have shared common object to kill the deceased. In support of his contention, learned counsel has placed reliance on Maiyadeen and others v. State of m. P. ; Parshuram Singh v. State of Bihar and State of U. P. v. Jodha Singh and others. ( 14. Therefore, it could not be said that other accused have shared common object to kill the deceased. In support of his contention, learned counsel has placed reliance on Maiyadeen and others v. State of m. P. ; Parshuram Singh v. State of Bihar and State of U. P. v. Jodha Singh and others. ( 14. ) PER contra, learned Public Prosecutor submits that all the eye-witnesses in singular voice are saying that it was accused het Singh who caused gun shot on the person of the deceased as a result of which he died and for no rhyme of reason their evidence should be disbelieved. It has also been contended that learned trial Court rightly placed reliance on their evidence. By putting deep dent on the contentions of learned counsel for the appellants, it has been argued by learned Public Prosecutor that all the accused persons have shared common object in killing the deceased and if that would be the position, the learned trial judge has rightly convicted them with the aid of Section 149 IPC. Further contention of learned State counsel is that sharing of the common object can arise at the spot also. In support of his contention, learned State counsel has placed reliance on Mohinder singh and others v. State of Punjab, State of Rajasthan v. Nathu and others and bishna alias Bhiswadeb Mahato and others v. State of West Bengal. ( 15. ) HAVING heard learned counsel for the parties, we are of the view that this appeal as well as connected Balbir and others v. State of M. P and Randhir Singh v. State of M. P. deserve to be allowed in part. ( 16. ) IN the present case prosecution has cited four persons as eye-witnesses, they are kamlesh Singh (PW4), Roop Singh (PW5), ramveer Singh (PW7) and Bachana Singh (PW8 ). Injured eye-witness Roop Singh (PW5) is also the author of the FIR Ex. P7. We shall now examine the testimony of these eye-witnesses one by one. ( 17. ) IT would be fruitful to consider the evidence of Roop Singh (PW5) first because he is also the author of the FIR. According to this witness, on the fateful day this witness alongwith Bachan Singh, Tahsildar singh, Kamlesh Singh and the deceased went to chop the Babool tree. ( 17. ) IT would be fruitful to consider the evidence of Roop Singh (PW5) first because he is also the author of the FIR. According to this witness, on the fateful day this witness alongwith Bachan Singh, Tahsildar singh, Kamlesh Singh and the deceased went to chop the Babool tree. After cutting the said tree at 11 a. m. appellant Het Singh with his mouser gun alongwith Randhir singh, Naresh Singh, Sarman Singh and sobran Singh who were armed with Lathi lohangi and Farsa arrived there. They were also accompanied by Bhagwan Singh, sumer Singh and Brijendra alias Nemi and these persons were also carrying Lathi, farsa and Dharia at the place where chopped tree was lying. Thereafter appellant Het Singh asked why Babool tree has been cut which was standing on the joint land. On this, his father Bachan Singh told that said tree was standing on their land. Thereafter appellant Het Singh told that he will not allow to cut the tree. According to this witness thereafter complainant party including the deceased by leaving aside the chopped tree on the ground started going back. At that juncture, all the accused persons shouted "salon Ko Jan Se Mar Do Aisa mouka Phirnahin Milenga" (these persons should be killed because they may not get another chance ). Thereafter appellant Het singh by his mouser gun fired on the deceased, as a result of which bullet struck left region of his rib and came out from the body. The deceased became unconscious and fell down. Thereafter his brother tried to catch hold of the gun, at that juncture Het singh, sons of Bhagwan Singh and other accused persons started beating, the complainant party except the deceased. Thus from the testimony of Roop Singh it is proved that it was appellant Het Singh who caused gun shot injury on the person of the deceased, as a result of which he died. Roop singh has also proved his FIR Ex. P7. On going through FIR Ex. P7 it is revealed that specific allegation has been made against het Singh of causing gun shot fire on the deceased and, therefore, we have no scintilla of doubt that Het Singh with an intention to kill the deceased fired his mouser gun to the deceased resulting to his death. ( 18. P7. On going through FIR Ex. P7 it is revealed that specific allegation has been made against het Singh of causing gun shot fire on the deceased and, therefore, we have no scintilla of doubt that Het Singh with an intention to kill the deceased fired his mouser gun to the deceased resulting to his death. ( 18. ) THE evidence of Roop Singh (PW5)who is also the author of the FIR has been corroborated by the evidence Kamlesh singh (PW4), Tahsildar Singh (PW6) and bachan Singh (PW8 ). These witnesses were examined at length, but despite there being a roving cross-examination over them they remained vivid in their version. Learned counsel for the appellants could not point out how and in what manner their testimony should be disbelieved on the point of causing gun shot fire by appellant Het singh to the deceased. The evidence of eyewitnesses stating that appellant Het Singh caused fire on the deceased resulting to his death has been corroborated by the medical evidence as Dr. K. P. Rajoriya (PW10) in his post-mortem report Ex. P14 has found gun shot injury and has opined that deceased died on account of receiving gun shot injury and the injury was sufficient in the ordinary course of nature to cause his death. ( 19. ) WE have also given our anxious and bestowed consideration to the reasoning assigned by learned trial Court holding that appellant Het Singh caused fire by his mouser gun on the person of the deceased, as a result of which he died and we find those reasonings to be reasonable since after appreciating and marshalling the evidence learned trial Court has rightly come to the said conclusion. Thus we have no option except to uphold the said finding of the learned trial Court. Thus, we hereby affirm the judgment of learned trial Court convicting and sentencing appellant Het Singh under Section 302 IPC. ( 20. ) THE question now hinges is whether other accused persons have shared common object to kill the deceased. In this context we shall now marshal the evidence of the eye-witnesses. ( 21. ) BEFORE we advert ourselves to the statement of eye-witnesses, we would like to go through the FIR Ex. P7. In the FIR it has been stated that Het Singh was carrying a mouser gun and other accused persons were carrying Lathi, Lohangi, Farsa and Dharia etc. ( 21. ) BEFORE we advert ourselves to the statement of eye-witnesses, we would like to go through the FIR Ex. P7. In the FIR it has been stated that Het Singh was carrying a mouser gun and other accused persons were carrying Lathi, Lohangi, Farsa and Dharia etc. and all of them were saying that the complainant party should be killed and they will not get any other chance. Although, all the accused persons were carrying deadly weapons, but except appellant het Singh no other accused even touched the body of the deceased and only appellant het Singh caused fire on the person of the deceased. According to the prosecution the members of complainant party including the deceased, were bare handed and all the accused persons were carrying lethal weapons including the gun. According to us, had there been any intention of accused persons, except appellant Het Singh, to kill the deceased, definitely they would have caused injuries to the deceased, but except that they scolded on the complainant party no other physical role about the causing injury has been attributed to them. ( 22. ) S o far as the evidence of Roop Singh (PW5) who is also the author of the FIR is concerned, in para 8 of his testimony specifically he has admitted that Het Singh was angry and he was hurling abuses and was also saying Mar Do Salon Ko (they should be killed) and was moving very fast. ( 23. ) ON the other hand, Bachan Singh (PW8) in para 7 of his cross-examination has stated that appellant Het Singh was saying that he will not allow to cut Babool tree and thereafter some altercation took place between this witness and appellant Het Singh. Thereafter, when the members of the complainant party including this witness were going back, only at that juncture, appellant-Het Singh scolded and provoked other accused persons that they will not get any other chance and the complainant party should be killed and thereafter appellant het Singh fired the gun aiming the deceased. Thereafter, when the members of the complainant party including this witness were going back, only at that juncture, appellant-Het Singh scolded and provoked other accused persons that they will not get any other chance and the complainant party should be killed and thereafter appellant het Singh fired the gun aiming the deceased. The ratio decidendi of the decision of Parshuram Singh (supra) placed reliance by Shri Ankit Saxena, learned counsel for the appellants is applicable in the present case because in that case there was a dispute between appellant and the deceased over a timber tree standing on the boundary of the lands belonging to the accused and the complainant side. In that case also accused persons were having lathi but they did not inflict any injury and only made an oral exhortation and one of the accused was having pistol but he did not use and only gave threat in that situation it was held by the Apex Court that those persons cannot be made responsible for committing offence under Section 149, IPC and they were given benefit of doubt. In the present case also, as per prosecutions own case, although all the accused persons were carrying deadly weapons with them but they did not even touch the body of the deceased and it was only appellant-Het Singh who caused gun shot injury by his mouser gun. Thus from the evidence of this witness also sharing common object is not made out. ( 24. ) THE other eye witness is Tahsildar singh (PW6 ). According to this witness, some altercation took place between Het singh and the complainant side on the point of cutting Babool tree. Appellant Het Singh was saying that why the complainant party has cut the tree, on this, Bachan Singh told that it is his tree. Thereafter Het Singh again told that he will not permit to cut the tree. In para 10 of his cross-examination it has been specifically admitted by his witness that all the accused persons silently came at the spot and were standing 10-15 paces far away from the tree. Further in para 11 he has stated that all the accused persons were standing together was stated by him in his case diary statement Ex. D3, but this is an omission as this fact did not find place in his case diary statement. Further in para 11 he has stated that all the accused persons were standing together was stated by him in his case diary statement Ex. D3, but this is an omission as this fact did not find place in his case diary statement. In this view of the matter, it is difficult to hold from the evidence of this witness also that all the accused shared common object. ( 25. ) THE last witness is Kamlesh Singh (PW4 ). This witness too is saying in para 2 of his testimony that only accused Het Singh scolded that he will not permit to cut the tree and thereafter all the accused persons were saying to kill the complainant party and they will not get another chance. The supreme Court in Mohan Singh v. State of m. P. has held that if no lethal weapon was used and it was exhorted by saying Afar Sale ko at the most it could be a strong abuse and nothing more. Thus, according to us, even if it is held (although the evidence of each witness is inconsistent to each other)that all the accused persons were saying "salon Ko Jan Se Mar Do Aisa Mouka Phir nahin Milenga" (all of them be killed, they will not get another chance) in the peculiar facts and circumstances of this case because except Het Singh, other accused did not cause any injury by lethal weapons on the deceased, according to us, it cannot be said that they have shared the common object. The decision of Jodha Singh (supra) placed reliance by the learned counsel for the appellants is squarely applicable in the present factual scenario. We may also profitably place reliance on the Division Bench decision of this Court Maiyadeen (supra)wherein in para 18 it has been held that firing of the gun by one of accused is his individual act and other members cannot be held liable for it. The Division Bench further held that from the conduct of all other members of the unlawful assembly, it does not appear that they had in any manner any intention or object to kill the deceased. In the present case also on x-raying the testimony of the eyewitnesses we do not find any material in order to hold that other accused persons shared common object or assisted appellant-Het Singh. In the present case also on x-raying the testimony of the eyewitnesses we do not find any material in order to hold that other accused persons shared common object or assisted appellant-Het Singh. Merely because all of them came together and went away together after gun was fired, ipso facto in the peculiar facts and circumstances of this case, would not mean that they have shared common object. ( 26. ) THE decision of Mohinder Singh (supra) placed reliance by learned Public Prosecutor is not applicable in the present case because in that case members of the unlawful assembly knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. In that case, object was developed at the spot. In the said case also the Supreme court held that common object of all the accused must be shown to be in existence at any time before the actual occurrence. In the present case also although it is said that all the accused persons were exhorting but despite they were having lethal weapons and the members of the complainant party were bare handed, and they did not even touch the. deceased therefore, the case relied by learned Public Prosecutor is not helpful to the prosecution. The decision of Nathu (supra) placed reliance by learned Public prosecutor is also not applicable in the present factual scenario for the simple reasons that in the said case all the accused persons by forming an unlawful assembly went to kill (PW1) of that case against whom they were having long standing animosity and the quarrel ensued 7-8 days prior to the incident. In the present case, it has not come in the statement of the witnesses that there was any long standing animosity between the parties. The incident had occurred because the Babool tree was chopped and therefore this decision of Supreme Court is also not applicable. The last decision Bishna alias Biswadeb Mahato (supra) placed reliance by learned Public Prosecutor speaks about the principles and there cannot be any deviation from the principles. The question is whether those principles are applicable in the present case or not. The last decision Bishna alias Biswadeb Mahato (supra) placed reliance by learned Public Prosecutor speaks about the principles and there cannot be any deviation from the principles. The question is whether those principles are applicable in the present case or not. We have already discussed in detail that except appellant Het singh no other accused person even touched the body of the deceased although they were having occasion to cause Marpeet to him as they were having lethal weapons with them and the members of the complainant party were bare handed. Thus, according to us, learned Trial Court erred in convicting appellants Naresh Singh, Sobran Singh and sarman Singh of this appeal as well as appellants Balbir Singh, Sumer Singh, bhanwar Singh and Brijendra alias Nemi of Criminal Appeal No. 295/97 and also appellant Randhir Singh of Criminal Appeal no. 195/99 under Section 302/149 IPC. Their conviction under Section 302/149 IPC is hereby set aside and they are acquitted from the said charge and for similar reason their conviction under Section 148 IPC is also set aside. ( 27. ) ON going through the testimony of kamlesh Singh (PW4), Roop Singh (PW5), tahsildar Singh (PW6) and Bachan Singh (PW8) as well as their corresponding MLC reports Exs. P15 to P18 which have been proved by Dr. K. P. Rajoriya (PW10), it is revealed that all the accused persons have shared common object in causing injuries to the injured persons. Therefore, according to us, learned Trial Court did not commit any error in convicting the accused persons under Section 324/149 IPC. We are of the view that each of the accused appellant shall be punished with one year rigorous imprisonment; and fine as imposed by learned trial Judge. Appellant Het Singh has already suffered the sentence awarded under Section 324/149 IPC. The other accused persons shall surrender themselves in order to serve out the remaining part of the sentence if they have not suffered the sentence of one year. However if they have already undergone the said sentence they need not to surrender and in that case their bail bonds shall stand discharged. ( 28. ) WE would like to mention here that if appellant Het Singh has been released on probation by State Government, as stated by the learned counsel for the appellants, this judgment will not come in his way. ( 29. ( 28. ) WE would like to mention here that if appellant Het Singh has been released on probation by State Government, as stated by the learned counsel for the appellants, this judgment will not come in his way. ( 29. ) FOR the reasons stated here-in-above, this appeal and the connected appeals are hereby allowed in part and disposed of accordingly. Appeal allowed partly.