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2014 DIGILAW 1018 (MP)

Rajeev Lochan Singh v. State of M. P.

2014-08-14

AJIT SINGH, N.K.GUPTA

body2014
JUDGMENT Gupta, J. -- 1. All the three appeals have been filed by different appellants against the judgment dated 26.12.2012 passed by the learned Additional Sessions Judge, Singrauli at Waidhan in S.T.No.12/2010 and therefore, these appeals are hereby disposed off with a common judgment. 2. The appellants have preferred these appeals against the aforesaid judgment, whereby the appellant Ajeet Singh @ Babbe Singh has been convicted of offence under sections 302, 148 of IPC and sentenced to life imprisonment with fine of Rs.200/- and one year’s rigorous imprisonment, whereas remaining appellants have been convicted of offence under sections 302/149, 148 of IPC and sentenced to life imprisonment with fine of Rs.200/- and one year’s rigorous imprisonment. All the sentences have been ordered to run concurrently. Default sentence of 3 months rigorous imprisonment was also imposed in lieu of payment of fine. 3. The prosecution’s case, in short, is that, the complainant Santosh Singh (PW1) was working as a time keeper in the office of PWD at Sidhi. In holi festival, he came to his house at village Kyutali (Police Station Gadhwa, District Singruli). On 9.3.2004, in the evening, he visited Khalihan (Granary) (a portion of field where grains are separated from fodder), where his servants were cleaning the crop of Masoor. The appellant Ajeet Singh alias Babbe Singh (‘alias’ in short ‘@’) and accused Tej Bahadur Singh and Sandeep Singh visited the Khalihan and Tejbahadur Singh and Sandeep Singh warned the complainant that he and his companions would be assaulted. At about 8 p.m., the complainant along with his labourers, brother deceased Virendra Singh, other relatives Omprakash Singh (PW11), Pintu @ Gyanendra Singh (PW12), Arvind Kumar Singh (PW10) and others went towards his house. Near the shop of Shiv Kumar suddenly the appellants and other accused in all 17 persons surrounded them. The accused assaulted various victims including Santosh Singh by lathis (sticks). The appellant Dalpratap Singh extorted them to fire. The appellant Nagendra and one Rammu Singh held the hands of deceased Virendra Singh and thereafter, the appellant Ajeet Singh @ Babbe Singh fired from a 12 bore gun. Deceased Virendra Singh fell down on the ground after getting injuries through the gun shot. The complainant Santosh Singh had also sustained some injuries. Thereafter, the complainant Santosh Singh visited the Outpost Nowdihawa of Police Station Gadhwa and loged an FIR, Ex.P-2. Deceased Virendra Singh fell down on the ground after getting injuries through the gun shot. The complainant Santosh Singh had also sustained some injuries. Thereafter, the complainant Santosh Singh visited the Outpost Nowdihawa of Police Station Gadhwa and loged an FIR, Ex.P-2. Thereafter, he took his brother Virendra Singh to the hospital at Gherawal (U.P.), where the concerned doctor declared Virendra Singh to be dead. Again the complainant Santosh Singh visited the Police Station Gadhwa and lodged a merg intimation, Ex.P-1 at about 9 a.m. Dead body of the deceased was sent for post-mortem. Dr.Yashwant Singh (PW3) had performed post-mortem on the body of deceased Virendra Singh at Community Health Center, Singrauli and gave his report, Ex.P-4. He found a single injury in oval shape on the deceased on his left side of sternum, which was a gun shot injury and the deceased Virendra Singh died due to that injury. On the same day, he examined the complainant Santosh Singh and gave his report, Ex.P-5. He found 5 injuries to victim Santosh Singh, caused by hard and blunt object. After due investigation, the charge-sheet was filed before the JMFC Deosar, who committed the case to the Sessions Judge, Singrauli and ultimately, it was transferred to Additional Sessions Judge, Singrauli at Waidhan. 4. The appellants abjured their guilt. They did not take any specific plea but, they have stated that they were falsely implicated in the matter. However, defence witness Maqsood Ali (DW1) was examined to prove that there was no electric connection in the temple of Lord Shankar near the spot. Retired DSP Arvind Singh (DW2) was examined for the appellant Rajeev Lochan Singh to show that on enquiry he found a plea of alibi of the appellant Rajeev Lochan Singh to be true and he gave such a report. Muneem Kumar Parte (DW3) was examined for all of the appellants to show that on the date of incident the complainant Santosh Singh was working at Sidhi and he was not present at the spot. 5. The learned Additional Sessions Judge, after considering the evidence adduced by the parties, convicted and sentenced the appellants Ajeet Singh @ Babbe Singh, Nagendra Singh, Dalpratap Singh and Rajeev Lochan Singh as mentioned above, whereas remaining 9 accused persons were acquitted of all the charges. 6. We have heard the learned counsel for the parties at length. 7. 5. The learned Additional Sessions Judge, after considering the evidence adduced by the parties, convicted and sentenced the appellants Ajeet Singh @ Babbe Singh, Nagendra Singh, Dalpratap Singh and Rajeev Lochan Singh as mentioned above, whereas remaining 9 accused persons were acquitted of all the charges. 6. We have heard the learned counsel for the parties at length. 7. Present case is mainly based upon the testimony of eye-witnesses. In the present case, Santosh Singh (PW1), Arti Singh (PW2), Smt. Indu Singh (PW6), Shriram Singh (PW8), Arvind Kumar Singh (PW10), Omprakash Singh (PW11), Pintu @ Gyanendra Singh (PW12), Dharmendra Singh (PW14), Vandana Singh (PW15), Brajesh Singh (PW18) were examined as eye-witnesses, out of them, Brajesh Singh, Vandana Singh, Dharmendra Singh (PW14) and Pushpraj Singh (PW16) have claimed that they reached the spot after firing from the gun was done and they found that deceased Virendra Singh was lying on the ground. The witness Devnarayan Singh (PW13) has also stated that he reached the spot after hearing sound of firing but has accepted that the complainant Santosh Singh had informed him that Ajeet Singh @ Babbe Singh had fired from the gun, causing fatal injury to deceased Virendra Singh. 8. In the present case, the complainant Santosh Singh is the star witness and the appellants have tried to show that he was not present at the spot, whereas he was the person, who lodged the FIR, Ex.P-2 and a merg intimation, Ex.P-1. In this context, defence witness Muneem Kumar Parte (DW3) was examined to show that the complainant Santosh Singh had worked in his office in the entire month except for those days which were declared to be holidays. He was suggested that distance from Sidhi to Kyutali was 90 to 100 kms and by motorcycle anyone can visit from Sidhi to Kyutali within two hours and he accepted the suggestion. However, the witness Santosh Singh did not claim that in those days, he was moving up and down from Sidhi to Kyutali. He has claimed that he took leave orally from his officers for holi festival and he was present at Kyutali even after 3 days of the holi festival. The complainant Santosh Singh had also sustained some injuries in the incident. He has claimed that he took leave orally from his officers for holi festival and he was present at Kyutali even after 3 days of the holi festival. The complainant Santosh Singh had also sustained some injuries in the incident. He had lodged the FIR, Ex.P-2, soon after the incident and if he was not present at the spot at the time of incident then, he could not do such activity as done by him before and after the incident. 9. The presence of the complainant Santosh Singh is corroborated by the FIR, Ex.P-2 lodged at outpost Nowdihawa and proved by ASI Mangal Prasad Mishra. In this context, the evidence of Dharmendra Singh (PW14) is of much importance. The witness Dharmendra Singh is not related to the deceased and the complainant Santosh Singh. He was declared hostile by the prosecution but, he has accepted that he took deceased Virendra Singh in injured condition to hospital at Gherwal in his tractor and he has also proved that Santosh Singh had accompanied the deceased Virendra Singh at that time. Under these circumstances, the witness who was declared hostile has also proved the presence of the complainant Santosh Singh soon after the incident. Acceptable portion of the testimony of a hostile witness can also be used in evidence. The witness Dharmendra Singh has claimed that he took deceased Virendra Singh to the hospital at Gherawal in his tractor then, for that fact his testimony cannot be disbelieved. 10. Santosh Singh has clearly stated that firstly he went to the outpost Nowdihawa and lodged an FIR, Ex.P-2 and thereafter, he took injured Virendra Singh to the hospital at Gherawal. ASI Shri Mangal Prasad Mishra (PW17) has stated that he recorded the FIR, Ex.P-2 as told by complainant Santosh Singh and thereafter, he transferred the case to the Police Station Gadhwa. According to the document, Ex.P-2, the incident took place at 8 p.m. and the FIR was lodged at 11 p.m., whereas the outpost was 12 kms away from the spot. On considering the nature of the incident and injuries caused to the complainant Santosh Singh, certainly he would have arranged a vehicle to take the injured deceased to the outpost and thereafter to the hospital. Under such circumstances, it cannot be said that FIR was lodged in delayed manner. On considering the nature of the incident and injuries caused to the complainant Santosh Singh, certainly he would have arranged a vehicle to take the injured deceased to the outpost and thereafter to the hospital. Under such circumstances, it cannot be said that FIR was lodged in delayed manner. FIR was lodged within three hours of the incident then, it can be said that it was promptly lodged. 11. Learned counsel for the appellant Nagendra Singh has submitted that FIR was lodged after delay of 3 hours and, therefore, it creates a doubt in the prosecution story. In support of his contention, he has placed his reliance upon the judgment passed by Hon’ble the apex Court in cases of Ganesh Bhavan Patel and another v. State of Maharashtra [ AIR 1979 SC 135 ], and Peddireddy Subbareddi and others v. State of Andhra Pradesh [ AIR 1991 SC 1356 ]. However, due to factual difference, view taken in those cases, cannot be applied in the present case. In case of Peddireddy (supra), there was delay of 15 hours in lodging the FIR, whereas in case of Ganesh Bhavan Patel (supra), the apex Court found inordinate delay in registration of FIR. The learned counsel for the appellant Nagendra Singh has also submitted that no compliance under section 157 of the CrPC was made by the SHO, Police Station Gadhwa, which creates a doubt that as to whether the FIR was timely lodged or not. On the other hand, the learned counsel for the State has submitted that the investigation officer could not be examined in the case due to his death and therefore, compliance of section 157 of the CrPC could not be strictly proved. The learned counsel for the appellant Babbe Singh @ Ajeet Singh has also submitted about non compliance of the provision of section 157 of CrPC and placed his reliance on the judgments passed by Hon’ble the apex Court in case of Shivlal and another v. State of Chhattisgarh [ AIR 2012 SC 280 ], and Birsingh and others v. State of Uttar Pradesh [ (1977)4 SCC 420 ], to show that if compliance of the provision of section 157 of CrPC is not complied properly then, the FIR shall come within the clouds of doubt. 12. 12. However, it would be apparent that no delay has been caused in the investigation and it was possible only when the FIR was promptly lodged. He has placed his reliance upon the judgment passed by Hon’ble the apex Court in case of Brahm Swaroop and another v. State of U.P. [ AIR 2011 SC 280 ], in which it is held that prompt lodging of FIR proved from check report and statement of complainant under section 161 of the CrPC, which was recorded immediately after lodging the FIR and therefore, chances of embellishment and concoctions stands rule out. Delay in compliance of section 157 of the CrPC is not fatal to prosecution’s case. He has also placed his reliance upon the judgment passed by the Cordinate Division Bench of this Court in case of State of M.P. v. Pattu @ Pratap Singh [2002(5) MPLJ 359], in which it is held that mere non-compliance of section 157 of the CrPC shall not itself lead to throwing out the case of the prosecution. Compliance of this provision is an external check provided in the Code to prevent ante dating the FIR. In the light of the aforesaid judgments, if the facts of the present case are considered then, it would be apparent that the investigation officer had started the investigation soon after he received the merg intimation. ASI Shri Mangal Prasad Mishra (PW17) has stated that he went to Gherawal along with SHO Shri M.S.Parihar. Deceased Virendra Singh died at 2:30 a.m. when it was dark at Primary Health Centre, Gherawal. He has denied the suggestion that no FIR was lodged by the complainant Santosh Singh at outpost Nowdihawa. After considering the statements of the the complainant Santosh Singh and ASI Mangal Prasad Mishra (PW17) and looking to the facts and circumstances of the case, it is established beyond doubt that FIR was promptly lodged. 13. Learned counsel for the appellants have submitted that the complainant Santosh Singh and other eye-witnesses could not tell the name of the accused, who assaulted the complainant Santosh Singh and therefore, his presence is doubtful. 13. Learned counsel for the appellants have submitted that the complainant Santosh Singh and other eye-witnesses could not tell the name of the accused, who assaulted the complainant Santosh Singh and therefore, his presence is doubtful. However, Dr.Yashwant Singh (PW3) has proved the MLC report, Ex.P-5 of the complainant Santosh Singh, in which he found that the complainant Santosh Singh had sustained six injuries caused by hard and blunt object at various places of his body like right eyebrow, left eye, right parietal region, right arm and right side of back. Such injuries could not be caused due to single fall and could not be self inflicted. Under these circumstances, looking to the duration and nature of such injuries, it would be apparent that the complainant Santosh Singh had sustained the injuries in the incident and therefore, his presence is duly established. The learned Additional Sessions Judge has mentioned that junior employees like time keeper would have been permitted by his officers to remain absent from his work orally and therefore, if his absence is not marked in the PWD office, Sidhi then, by such record, it cannot be said that he was not present at the spot at the time of the incident. Under these circumstances, by examination of defence witness Muneem Kumar Parte, no doubt is created relating to the presence of the complainant Santosh Singh at the time of the incident. 14. Santosh Singh, Arti Singh, Indu Singh, Ram Singh, Arvind Kumar Singh, Omprakash Singh etc. have claimed themselves to be eye-witnesses and each of them has stated that the appellant Ajeet Singh @ Babbe Singh placed a barrel of his gun on the chest of deceased Virendra Singh and fired. It is true that the witness Indu Singh has accepted in para 5 that when the fire took place, she and her sister-in-law Arti Singh were on the way, whereas her mother-in-law had already reached near the temple. Hence, it can be said that Arti Singh and Indu Singh had reached the spot soon after the incident. A lengthy cross-examination was done to various eye witnesses. However, no material contradiction could be established in such a cross-examination. The learned counsel for the appellants have submitted that most of the witnesses are relatives to the deceased and therefore, their statements cannot be believed as such. A lengthy cross-examination was done to various eye witnesses. However, no material contradiction could be established in such a cross-examination. The learned counsel for the appellants have submitted that most of the witnesses are relatives to the deceased and therefore, their statements cannot be believed as such. In this context, the learned counsel for the appellant Nagendra Singh has placed his reliance upon the judgment passed by Hon’ble the apex Court in case of Ram Ashrit and others v. State of Bihar [ AIR 1981 SC 942 ], relating to interested and partisan witnesses. However, the ratio laid in the case may be read as under : “All the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny.” Hence, the testimony of the interested witness shall not be thrown away because he is interested witness. On the contrary, his evidence should be examined with the test of close and severe scrutiny. On closely examining the evidence given by different witnesses, it would be apparent that Arti Singh and Indu Singh had reached the spot, after firing of the gun. It is true that they left their house when their nephew Jittu informed about the surrounding of the appellants over the complainant Santosh Singh and Virendra Singh but, they could not reach the spot before firing took place and after firing, nothing much was done by the accused persons. Hence, it cannot be said that the witnesses Arti Singh and Indu Singh were the eye-witnesses. Similarly, Pintu @ Gyanendra Singh (PW12) could not tell about the distance between barrel of gun and the chest of deceased Virendra Singh. If he would have seen the incident then, certainly he could tell about such a position. 15. Remaining witnesses have stated about the incident in detail and no material contradiction is visible in their statements with their previous statement. The learned counsel for the appellants have invited the attention of this Court to the judgment passed by Hon’ble the apex Court in case of Ganesh Bhavan Patel (supra), that if the case diary statements of the witnesses were recorded with a huge delay then, a doubt is created in the testimony of such witnesses. The learned counsel for the appellants have invited the attention of this Court to the judgment passed by Hon’ble the apex Court in case of Ganesh Bhavan Patel (supra), that if the case diary statements of the witnesses were recorded with a huge delay then, a doubt is created in the testimony of such witnesses. However, if such a fact is examined for the eye witnesses then, it would be apparent that the incident took place on 9.3.2004 and Santosh Singh, Pintu @ Gyanendra Singh etc. were examined on 15.3.2004 and 20.3.2004 subject to their availability. The witnesses Arti Singh and Indu Singh were examined on 30.5.2004. As discussed above, the testimony of Arti Singh and Indu Singh has already been discarded as eye-witnesses, whereas the statements of other witnesses may be brushed aside due to delay in recording their case diary statements. 16. The appellants have examined Maqsood Ali (DW1) to show that there was no electric connection in the temple of Lord Shankar. However, he could not deny that one wire was taken from the house of Devnarayan Singh and some bulbs were giving light in the temple of Lord Shankar. It appears that the defence witness Maqsood Ali did not physically examined as to whether bulbs or tubelights were fitted in the temple or not. He gave his evidence on the basis of his official record. Devnarayan Singh (PW13) was examined before the trial Court, whereas dispute relating to availability of light was raised before various witnesses prior to his examination. House of the witness Devnarayan Singh was close to the temple and shop of Shiv Kumar but, no question was asked to this witness about availability of any source of light. In spot map, Ex.P-10, it is mentioned that temple of Lord Shiv was of Devnarayan Singh and, therefore, he was a competent person to tell about the availability of any arrangement of light in the temple. Under these circumstances, if the witnesses have stated that they could see the entire incident in the light available in the temple then, their testimony cannot be discarded. If the witness Maqsood Ali would have given his statement after a physical inspection of the temple then, his testimony could be believed. 17. Under these circumstances, if the witnesses have stated that they could see the entire incident in the light available in the temple then, their testimony cannot be discarded. If the witness Maqsood Ali would have given his statement after a physical inspection of the temple then, his testimony could be believed. 17. Learned counsel for the appellant Nagendra Singh has also placed his reliance upon the judgment passed by Hon’ble the apex Court in case of Gorle S. Naidu v. State of Andhra Pradesh and others [ AIR 2004 SC 1169 ], to show that the testimony of the complainant Santosh Singh cannot be accepted being an injured witness. The judgment passed in case of Gorle S. Naidu (supra), is not applicable in the present case due to factual difference. In that case the injuries of the injured witness were not proved. He was not examined by the doctors, whereas in the present case, injuries of the complainant Santosh Singh have been proved by Dr.Yashwant Singh (PW13) and injuries caused to him were of such nature that those could not be caused by a single fall or those could not be self inflicted. Hence, the testimony of the injured eye-witness Santosh Singh is believable. 18. On the basis of the aforesaid discussion, it would be apparent that the testimony of the eye-witnesses relating to crime committed by Ajeet Singh @ Babbe Singh is acceptable, which is duly proved by timely lodged FIR, Ex.P-2 and postmortem report, Ex.P-4. Witnesses have stated that the appellant Ajeet Singh @ Babbe Singh kept the barrel of gun on chest of the deceased and thereafter, he fired. Their testimony is duly corroborated with the fact that the gun used by the appellant Ajeet Singh @ Babbe Singh was a 12 bore gun and if it had been fired from a distance then, pellets would have been dispersed and the deceased Virendra Singh had sustained multiple injuries caused by pellets. In the present case, all the 34 pellets along with plastic cap and packaging material of the cartridge were found inside the wound of deceased Virendra Singh, which indicates that barrel of the gun was kept on the skin of deceased Virendra singh otherwise, all the pellets along with plastic cap and packaging of cartridge would not go inside the wound. In such a case, when the entire material discharged from the gun went inside the body of deceased Virendra Singh then, there was no question of separate tatooing on his skin. Hence, the post-mortem report has duly corroborated the statements of eye-witnesses. The learned counsel for the appellant Ajeet Singh @ Babbe Singh has submitted that in absence of tatooing it shall be presumed that the gun was fired from the distance and hence the medical evidence (the post-mortem report) shall make the eye-witnesses disbelievable. He has placed his reliance upon the judgment passed by Hon’ble the apex Court in case of State of Madhya Pradesh v. Dharkole @ Govindsingh and others [ 2005 CrLJ 108 ]. However, as discussed above, presence of plastic cap and packaging of cartridge inside the wound clearly indicates that medical evidence and occular evidence are not contradictory. Both such evidence corelates each other. 19. On the basis of the aforesaid discussion, the prosecution has proved beyond doubt that the appellant Babbe Singh @ Ajeet Singh kept the barrel of gun on the chest of the deceased and fired from the gun, causing death of the deceased. 20. If the entire circumstances are considered then, according to the eye-witnesses, the appellant Ajeet Singh @ Babbe Singh was in search of Virendra Singh and he along with his companions had hidden in the field of Arhar till deceased Virendra, complainant Santosh Singh and others etc. passed from that way and thereafter, he surrounded the deceased Virendra Singh with help of his companions and ultimately fired from his gun on the chest of the deceased which was a vital part of his body. Under these circumstances, it is duly established that the appellant Ajeet Singh @ Babbe Singh had intended to kill deceased Virendra Singh and therefore, the learned Additional Sessions Judge has rightly convicted the appellant Ajeet Singh @ Babbe Singh for offence punishable under section 302 of IPC for causing murder of the deceased Virendra Singh. 21. On considering the evidence given by the eye-witnesses, it would be apparent that more than 5 accused had surrounded the deceased Virendra Singh. Some of them had participated in the crime of murder, whereas some of them assaulted the victim Santosh Singh. 21. On considering the evidence given by the eye-witnesses, it would be apparent that more than 5 accused had surrounded the deceased Virendra Singh. Some of them had participated in the crime of murder, whereas some of them assaulted the victim Santosh Singh. Some of the eye-witnesses have claimed that they had been assaulted by the accused persons by lathis but, in absence of any MLC report, relating to their injuries, their such contention cannot be accepted. Hence, it would be apparent that more than 5 persons had participated in the crime and, therefore, an unlawful assembly was constituted. 22. However, the crime of each appellant shall be assessed to consider his common object or intention along with the main accused Ajeet Singh @ Babbe Singh. First of all if case of appellant Rajeev Lochan Singh is considered then, it is apparent that his plea of alibi was accepted by the police and, therefore, his name was not added in the charge-sheet. However, his name was added thereafter by the trial Court under section 319 of the CrPC. The defence witness Arvind Singh (DW2) who was working as DSP in the concerned area has proved his report to show that the appellant Rajeev Lochan Singh was not present at the spot. On the contrary, he was present at Piparjhar, so that his daughter Mamta Singh could appear in the examination. Learned counsel for appellant Rajeev Lochan Singh has placed his reliance upon the judgment passed by Hon’ble the apex Court in case of Jyantibhai Bhenkaarbhai v. State of Gujarat [ AIR 2002 SC 3569 ], in which it is laid that if plea of alibi was constraint and supported by documentary evidence of unimpeachable veracity, then the accused would get the benefit of doubt. However, due to factual difference, the aforesaid judgment passed by Hon’ble the apex Court in case of Jyantibhai Bhenkaarbhai (supra), cannot be applied in the present case. It was expected from the appellant Rajeev Lochan Singh to prove his alibi with documentary evidence of unimpeachable veracity, whereas he has examined the retired DSP Arvind Singh, who has stated that he enquired the matter and gave his report and found that plea of alibi taken by Rajeev Lochan Singh was correct. It was expected from the appellant Rajeev Lochan Singh to prove his alibi with documentary evidence of unimpeachable veracity, whereas he has examined the retired DSP Arvind Singh, who has stated that he enquired the matter and gave his report and found that plea of alibi taken by Rajeev Lochan Singh was correct. When a case is given to a police officer for investigation then, there is no provision of any parallel enquiry done by any other police officer under CrPC and, therefore, if any enquiry was done by Arvind Singh in the matter then, his enquiry has no evidentiary value. It was for the appellant Rajeev Lochan Singh to prove his alibi that he was not in a position to come from Piparjhar and to participate in the incident. His relatives could say in his favour and therefore, it cannot be said that his plea was supported by any documentary evidence of unimpeachable veracity. 23. Almost all eye-witnesses have denied about the plea of alibi suggested by the defence to them for the appellant Rajeev Lochan Singh. Arvind Kumar Singh (PW10) has stated the names of the accused persons, who surrounded the deceased and his companions and he did not mention the name of Rajeev Lochan Singh amongst those accused persons but, that omission may be due to excessive number of culprits. Under these circumstances, it was not proved beyond doubt that appellant Rajeev Lochan Singh was present at Piparjhar at the time of incident. However, there is no specific allegation made against appellant Rajeev Lochan Singh by the eye witnesses. When the witnesses were examined after addition of appellant Rajeev Lochan Singh then, the eye-witnesses told against him. Smt. Indu Singh has stated that Rajeev Lochan Singh told that he would kill all the persons of that family. Shriram Singh has stated that Rajeev Lochan Singh told that he would fire if anyone tries to escape. Arvind Kumar Singh in his additional statement has stated that he could not see appellant Rajeev Lochan Singh at the spot. Omprakash Singh and Pintu @ Gyanendra Singh have not stated specifically about the overtact of appellant Rajeev Lochan Singh. Santosh Singh (PW1) has stated that appellant Rajeev Lochan Singh was present with a double barrel gun and he provoked appellant Ajeet Singh @ Babbe Singh to fire from gun. Omprakash Singh and Pintu @ Gyanendra Singh have not stated specifically about the overtact of appellant Rajeev Lochan Singh. Santosh Singh (PW1) has stated that appellant Rajeev Lochan Singh was present with a double barrel gun and he provoked appellant Ajeet Singh @ Babbe Singh to fire from gun. If appellant Rajeev Lochan Singh would have participated in the crime then, his participation would have observed by all the eye-witnesses and there must be a uniform allegation against appellant Rajeev Lochan Singh. If appellant Rajeev Lochan Singh was interested to kill deceased Virendra Singh then, it was not necessary for him to provoke coaccused Ajeet Singh @ Babbe Singh to fire. He himself could fire from his gun. Under these circumstances, by mere presence of appellant Rajeev Lochan Singh, his common intention or common object cannot be presumed. Presence of appellant Rajeev Lochan Singh is shown with an allegation that he had a double barrel gun with him but, neither he had assaulted any of the eye-witnesses including the complainant Santosh Singh with the gun, nor he fired with the gun. Under these circumstances, no overtact of appellant Rajeev Lochan Singh is proved beyond doubt to show that he had intended to kill deceased Virendra Singh or to cause injury to the complainant Santosh Singh. No overtact of appellant Rajeev Lochan Singh is proved that in furtherance of the common object, he participated in the unlawful assembly and therefore, appellant Rajeev Lochan Singh cannot be convicted either for offence under section 148 or 302 of IPC either directly or with help of section 149 or 34 of IPC. The learned Additional Sessions Judge has committed an illegality in convicting appellant Rajeev Lochan Singh of the aforesaid offence. 24. Similarly, it is stated against appellant Nagendra Singh that he had held the hands of deceased Virendra Singh along with one Rammu Singh. In the FIR, Ex.P-2, it is mentioned that when the complainant and other persons tried to leave the place then, appellant Dalpratap Singh told other accused persons to fire from the gun otherwise, the targeted persons were leaving the spot and thereafter, Nagendra Singh, Rammu Singh held the deceased Virendra Singh and thereafter, appellant Ajeet Singh @ Babbe Singh had fired from his 12 bore gun. In this connection, the witness Arvind Kumar Singh (PW10) has stated that appellants Nagendra and Pushpendra held the deceased. In this connection, the witness Arvind Kumar Singh (PW10) has stated that appellants Nagendra and Pushpendra held the deceased. The witnesses have also stated that appellant Nagendra Singh tried to drag deceased Virendra Singh. However, if the injuries of deceased Virendra Singh are considered then, it would be apparent that appellant Ajeet Singh @ Babbe Singh kept the barrel of his gun on the chest or abdomen of deceased Virendra Singh and fired. The fact of dragging of deceased Virendra Singh is not mentioned in the FIR, Ex.P-2. If one has to fire from a gun at a particular target and target is so near to that person that he may touch his gun then, certainly there is no need to anyone to hold the target. If someone held the victim then, possibility cannot be ruled out that the person holding the victim will also receive injuries of pellets. Under these circumstances, the allegation made against appellant Nagendra Singh appears to be unnatural. 25. According to the FIR, Ex.P-2 when the victims were surrounded by the assailants then, they tried to leave the spot and started running from the spot then, a person who is leaving the spot cannot say definitely as to whether deceased Virendra Singh was held by someone or not. Since appellant Ajeet Singh @ Babbe Singh had fired from the gun by touching the barrel of gun on the skin of deceased Virendra Singh then, there was no possibility that someone would have held deceased Virendra Singh and, therefore, the testimony of these eye-witnesses cannot be accepted that appellant Nagendra Singh had caught hold of the hands of deceased Virendra Singh. Learned counsel for the State has invited the attention of this Court to the decision of cordinate Division Bench of this Court in case of Ramesh s/o Trimbak Rao Jadhav v. State of M.P. [2004(2) MPLJ 336], and Vijay Singh and others v. State of M.P. [ 2009(4) MPLJ 666 ], to show that common intention of appellant Nagendra Singh should be presumed with the main accused Ajeet Singh @ Babbe Singh. 26. Common intention of the accused may be examined on the basis of his overtact and his participation in the crime. 26. Common intention of the accused may be examined on the basis of his overtact and his participation in the crime. If it is found that appellant Nagendra Singh did not hold the hands of deceased Virendra Singh then, there is no allegation against him that he assaulted the deceased Virendra Singh by any weapon though he had a lathi with him. There is no allegation against appellant Nagendra Singh that he had provoked Babbe Singh to kill the deceased or that he assaulted the complainant Santosh Singh by Lathi and therefore, there is no evidence beyond doubt to prove the conduct of appellant Nagendra Singh that he had common intention with co-accused Ajeet Singh @ Babbe Singh or he did something in furtherance of common object of the unlawful assembly. Hence, appellant Nagendra Singh could not be convicted either of offence under sections 148 or 302/149 of IPC. The learned Additional Sessions Judge has committed an error in convicting appellant Nagendra Singh of aforesaid crime. 27. Similarly, if case of appellant Dalpratap Singh is considered then, his overtact as told by eye-witnesses that he told the accused Ajeet Singh @ Babbe Singh to fire and thereafter, appellant Ajeet Singh @ Babbe Singh fired from the gun. In this context, if the entire story as told by the eye-witnesses is considered then, first part of the story was that the appellant Ajeet Singh @ Babbe singh went to Khalihan of the complainant Santosh Singh in search of Virendra Singh to kill him and nothing was done to Santosh Singh and other eye-witnesses there because appellant Ajeet Singh @ Babbe Singh could not trace the deceased Virendra Singh at Khalihan. Thereafter, accused persons surrounded the deceased Virendra Singh and the complainant Santosh Singh and others including labours accompanied with the deceased Virendra Singh but such labours had already left the spot immediately and, therefore, no such labour was examined as an eye-witness in the case. If appellant Ajeet Singh @ Babbe Singh had intended to kill the deceased Virendra Singh from very beginning then, he was not required to wait for any command from the appellant Dalpratap Singh and therefore, there was no need to appellant Dalpratap Singh to ask the appellant Ajeet Singh @ Babbe Singh to fire. 28. If appellant Ajeet Singh @ Babbe Singh had intended to kill the deceased Virendra Singh from very beginning then, he was not required to wait for any command from the appellant Dalpratap Singh and therefore, there was no need to appellant Dalpratap Singh to ask the appellant Ajeet Singh @ Babbe Singh to fire. 28. On the basis of the aforesaid discussion, the prosecution could not prove beyond that appellant Dalpratap Singh provoked coaccused Ajeet Singh @ Babbe Singh to do fire. No other overt-act of appellant Dalpratap Singh is proved by the prosecution that he participated in assault caused to the deceased or complainant Santosh Singh. It is also not proved that he facilitated the accused Ajeet Singh @ Babbe Singh in committing the crime and therefore, by mere presence of appellant Dalpratap Singh, his common intention with the main accused cannot be presumed. The prosecution could not prove any overtact of appellant Dalpratap Singh to show that he had done something in furtherance of common object of the unlawful assembly. Hence, appellant Dalpratap Singh could not be convicted either for offence under sections 148 or 302 of IPC with help of provision under section 149 of IPC. The learned Additional Sessions Judge has committed an illegality in convicting appellant Dalpratap Singh of the aforesaid offences. 29. The learned counsel for the appellants have submitted that overtacts of appellants Rajeev Lochan Singh, Nagendra Singh and Dalpratap Singh could not be proved beyond doubt and it is also not proved that they participated in the crime, therefore, their common intention could not be presumed with coaccused Ajeet Singh @ Babbe Singh. In this context, they relied upon the judgment passed by Hon’ble the apex Court in case of Mithu Singh v. State of Punjab [ AIR 2001 SC 1929 ], in which it is held that merely because accused knew that coaccused was himself armed with a gun and also had knowledge about previous enmity between co-accused and deceased, inference that accused had common intention to kill cannot be drawn. In the light of aforesaid judgment and considering the overtacts of these appellants as not proved beyond doubt by the prosecution, it would be apparent that the prosecution failed to prove their common intention with appellant Ajeet Singh @ Babbe Singh. 30. In the light of aforesaid judgment and considering the overtacts of these appellants as not proved beyond doubt by the prosecution, it would be apparent that the prosecution failed to prove their common intention with appellant Ajeet Singh @ Babbe Singh. 30. So far as the sentence is concerned, the trial Court has granted the minimum sentence to appellant Ajeet Singh @ Babbe Singh of offence under section 302 of IPC and, therefore, there is no need to interfere on the sentence passed by the trial Court of offence under section 302 of IPC. Since the sentence of offence under sections 302 and 148 of IPC had to run concurrently and the appellant is in custody since long, sentence of offence under section 148 of IPC had already been executed, therefore, it makes no difference if his sentence under section 148 of IPC is reduced. Under these circumstances, there is no need to interfere in the order of sentence passed by the trial Court relating to appellant Ajeet Singh @ Babbe Singh. 31. On the basis of the aforesaid discussion, the appeal filed by appellant Ajeet Singh @ Babbe Singh cannot be accepted either on merits or on order of sentence and, therefore, it is hereby dismissed by maintaining the judgment, order of conviction and sentenced passed by the trial Court against appellant Ajeet Singh @ Babbe Singh. However, appeals filed by the remaining appellants i.e. Rajeev Lochan Singh, Nagendra Singh and Dalpratap Singh appear to be acceptable. They are entitled to get the benefit of doubt. Consequently, appeals filed by appellants Rajeev Lochan Singh, Nagendra Singh and Dalpratap Singh are hereby allowed. Conviction and sentence directed against these appellants by the trial Court are hereby set aside. These appellants are acquitted of all the charges. 32. The appellant Nagendra Singh is in jail and, therefore, Registry is directed to issue release warrant, so that he may be released forthwith. The appellants Dalpratap Singh and Rajeev Lochan Singh are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. .............