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Madhya Pradesh High Court · body

2017 DIGILAW 713 (MP)

Kok Singh v. State of M. P.

2017-05-24

N.K.GUPTA, S.K.AWASTHI

body2017
JUDGMENT Gupta, J. 1. The appellants have preferred the present appeal being aggrieved by the judgment of conviction and order of sentence dated 16.12.2005 passed by the First Additional Sessions Judge, Dabra, District Gwalior (M.P.) in Sessions Trial No.198/2005 whereby each of the appellants has been convicted of offence under sections 302 or 302/149, 326/149, 324/149, 147 and 148 of IPC and sentenced to life imprisonment with a fine of Rs.100/-, seven years' RI with a fine of Rs.100/-, three years' RI, one year's RI and two years’ RI respectively. 2. The prosecution's case, in short, is that on 13.3.2005 at about 8:00 a.m., the complainant Raghvendra Singh (PW1) lodged the FIR Ex.P-1 at Police Station Dabra, District Gwalior (M.P.) to the effect that he was the resident of village Chitawani. The appellants Kok Singh and others were also the residents of the same village who had tried to get the possession of the barn (Khalihan) of the complainant and his father and, therefore, they lit fire to the cow-dung cakes, in the barn (Khalihan) that were brought by the appellants and, therefore, a quarrel took place between the parties. On 13.3.2005 at about 7:30, the appellants came near the house of the complainant Raghvendra Singh (PW1). The appellant Kok Singh, Bharat Singh and Mohan had guns and other appellants including the absconded accused Lakshmi, Rati and Shakuntala had daggers and other weapons. When deceased Mangal Singh, father of the complainant Raghvendra Singh (PW1), came out of the house, the appellant Bharat Singh fired with a gun causing injuries on the right side of the back of the deceased Mangal Singh and the bullet crossed the entire chest and exited from the left side of the chest. The appellant Kok Singh fired with a half barrel gun causing injuries to the deceased Mangal Singh through the discharge of pellets. The appellants Harishankar and Kaptan Singh assaulted the complainant Raghvendra Singh (PW1) with daggers causing injuries on his head and fingers of left hand. When Smt. Kranti (PW3), the aunt of the complainant Raghvendra Singh (PW1), rushed to the spot to save him then she was restrained by Lakshmi and thereafter, Laxmi and Shakuntala gave blows of dagger causing injuries on her head, back and back-bone. The appellant Mohan Singh was also firing a half barrel gun and exhorted the other accused persons. When Smt. Kranti (PW3), the aunt of the complainant Raghvendra Singh (PW1), rushed to the spot to save him then she was restrained by Lakshmi and thereafter, Laxmi and Shakuntala gave blows of dagger causing injuries on her head, back and back-bone. The appellant Mohan Singh was also firing a half barrel gun and exhorted the other accused persons. Various witnesses like Rakesh Rawat (PW2), Devi Singh (PW5) and Shaitan Singh (PW6) etc. intervened in the matter and as a result the complainant Raghvendra Singh (PW1) could be saved. The deceased Mangal Singh, the complainant Raghvendra Singh (PW1) and victim Smt. Kranti (PW3) were taken to the hospital for their medico-legal examination and treatment. Dr. S.C. Gupta (PW11) examined the deceased Mangal Singh, victim Smt. Kranti (PW3) and the complainant Raghvendra Singh (PW1) and gave his reports Ex.P-19 to P-21 respectively. He found one entry wound on the back of the deceased Mangal Singh and corresponding exit wound on left side of the chest. One entry wound was found on middle of the left hand and the corresponding exit wound was also present. He found two incised wounds to Smt. Kranti (PW3) whereas one incised wound was found to the complainant Raghvendra Singh (PW1) and blunt injury was found on his head. A few injuries were found on the other parts of his body. The victims were referred for their X-ray examination. Dr. Ramesh Mangal (PW20) performed the radiological examination of the victim Smt. Kranti (PW3) and gave a report Ex.P-38. A fracture of right parietal bone was found sustained by her. Ultimately, the deceased Mangal Singh succumbed to his injuries. After observing various formalities, his body was sent for post mortem. Dr. P.L. Gupta (PW12) performed the post-mortem on the body of the deceased Mangal Singh and gave a report Ex.P-23. He found the aforesaid four injuries as indicated by Dr. S.C. Gupta (PW11) and on opening of the body he found that various vital organs of the body were damaged and the deceased died due to aforesaid injuries. ASI Mr. SCS Parmar (PW15) went to the spot and prepared the spot map Ex.P-2. He took blood stained and plain soil from the spot and remains of a bullet fired by the 12 bore gun and a recovery memo Ex.P-3 was prepared. He took the statements of various witnesses. ASI Mr. SCS Parmar (PW15) went to the spot and prepared the spot map Ex.P-2. He took blood stained and plain soil from the spot and remains of a bullet fired by the 12 bore gun and a recovery memo Ex.P-3 was prepared. He took the statements of various witnesses. He arrested the appellant Kaptan Singh and Harishankar and prepared the arrest memos Ex.P-10 and P-11. On interrogation, these two accused persons gave information about the weapons and thereafter one dagger each was recovered from the appellants Kaptan Singh and Harishankar. On 21.3.2005, ASI SCS Parmar (PW15) arrested the appellants Bharat Singh and Mohan Singh. On interrogation, they gave information about the 12 bore guns and those were recovered from them vide recovery memos Ex.P-29 and P-30. Similarly, the appellant Kok Singh was arrested and one 12 bore gun was recovered from him vide seizure memo Ex.P-18. 3. On investigation, it was found that the women accused i.e. Rati Bai, Lakshmi Bai and Shakuntala were absconding. They could not be traced. The investigating officer sent various articles like articles received from hospital, from the spot and from the accused persons for forensic analysis. A report Ex.P-34 of Forensic Science Laboratory was received relating to the ballistics expert. The guns were sent to the reserve inspector for their mechanical examination. The armourer Mr. Lal Singh (PW18) examined the guns of Bharat Singh, Mohan Singh and Kok Singh and gave the reports Ex.P-35 to 37 respectively. The prosecution sanction for offence under section 25 of the Arms Act was obtained as Ex.P-24 from the concerned Additional District Magistrate. After due investigation, the charge sheet was filed before the Judicial Magistrate First Class, Dabra, Gwalior showing the women accused persons to be absconding. The Judicial Magistrate First Class, Dabra, Gwalior committed the case to the Court of Session and ultimately it was transferred to the First Additional Sessions Judge, Dabra, District Gwalior (M.P.). 4. The appellants abjured their guilt. They did not take any particular defence, however, one Ajab Singh (DW1) was examined as defence witness. Ajab Singh (DW1) is the father of accused Laxmi who is absconding and it is not clear from his statement that on which point he was examined as a defence witness. 5. The trial Court, after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above. 6. Ajab Singh (DW1) is the father of accused Laxmi who is absconding and it is not clear from his statement that on which point he was examined as a defence witness. 5. The trial Court, after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above. 6. We have heard the learned counsel for the parties at length. 7. First of all, it is to be considered as to whether the death of the deceased Mangal Singh was homicidal in nature or not. In this connection, the evidence given by Dr. P.L. Gupta ((PW12) is important who performed the post mortem on the body of the deceased Mangal Singh and gave his report Ex.P-23. He found the following injuries on the body of the deceased Mangal Singh:- “1. Firearm entrance wound over back of neck base, just right lateral to mid-line at the end of 2nd right rib, wound is lacerated type, margins are bruised and inverted size 1-1/2x1-1/2 cm circular, loosely stitched by two stitches, serum blood mixed liquid coming out from the wound. This is at the 153 cm high from heal (right). From this place a trait is formed traversing towards left lateral wall of chest perforating left pleura and left lung and emerging from left lateral wall genest forming; 2. Wound of exit, size 2x2 cms averted margins, loosely stitched, by two stitches. This is at the 138 cms high from left toe. In this wound, 2nd left rib and 2nd vertebra is fractured (thoracic vertebra). There is no tattooing, blackening or smoke around these wounds (1st and 2nd); 3. Firearm entrance wound in the left arm back just above the left elbow size 1 x 1 cm circular, inverted margins, loosely stitched, no blackening or tattooing from this point or trait is formed traversing distally and reaching up to middle of forearm forming; 4. Wound of exit 2 x 2-1/2 cms averted margins 22 cms away from wound No.3. In this trait, muscled and subcutaneous tissue and blood vessels are lacerated.” According to Dr. P.L. Gupta (PW12), there were two entry wounds. The size of first entry wound was big whereas the size of second entry wound was small. Wound of exit 2 x 2-1/2 cms averted margins 22 cms away from wound No.3. In this trait, muscled and subcutaneous tissue and blood vessels are lacerated.” According to Dr. P.L. Gupta (PW12), there were two entry wounds. The size of first entry wound was big whereas the size of second entry wound was small. The first entry wound was on right side of the back near the neck and the bullet came out from left side of the chest damaging the left lung and various other organs within its path. The second vertebra, second rib, pleura and left lung were found ruptured whereas through the second entry wound no fatal or grave injury was caused. The pellet entered on left arm above left elbow and it came out from the other side. According to Dr. P.L. Gupta (PW12), the deceased died due to aforesaid injuries, especially injuries No.1 and 2. Those injuries were fatal in nature and sufficient to cause his death in the ordinary course of his life. Dr. P.L. Gupta (PW12) found the same set of injuries as found by Dr. S.C. Gupta (PW11) who had performed the MLC of the deceased Mangal Singh and gave a report Ex.P-19. Since no blackening or charring was present on the entry wound, the fire was made from a distance and therefore such injuries could not be self inflicted. Similarly, such injuries could not be caused due to an accident. Hence, the death of the deceased Mangal Singh was neither accidental nor suicidal and therefore the opinion given Dr. P.L. Gupta (PW12) appears to be correct that the death of the deceased Mangal Singh was homicidal in nature. 8. In the present matter, various eye witnesses like Raghvendra Singh (PW1), Rakesh Rawat (PW2), Smt. Kranti (PW3), Dashrath Singh (PW4), Devi Singh (PW5) and Shaitan Singh (PW6) were examined who have clearly stated that the appellants except Bharat Singh surrounded the house of the deceased Mangal Singh and started quarrelling with the complainant Raghvendra Singh (PW1). When they tried to assault the complainant, his aunt Smt. Kranti (PW3) and his father the deceased Mangal Singh came out of the house to save him. The appellant Bharat Singh who was standing on the terrace of his house fired with a gun causing injury to the deceased Mangal Singh on right side of his back. When they tried to assault the complainant, his aunt Smt. Kranti (PW3) and his father the deceased Mangal Singh came out of the house to save him. The appellant Bharat Singh who was standing on the terrace of his house fired with a gun causing injury to the deceased Mangal Singh on right side of his back. Also the appellant Kok Singh fired with a half barrel gun and pellet of which struck on the back of the deceased Mangal Singh. The deceased Mangal Singh fell down on the ground. The women accused persons assaulted Smt. Kranti (PW3) by means of a dagger causing injuries on her head and various other places. Appellants Kaptan Singh and Harishankar assaulted the complainant Raghvendra Singh (PW1) with a dagger causing injuries to his head and fingers of his left hand. Appellant Mohan Singh fired a half barrel gun exhorting the other accused persons to kill the victims. The witnesses Rakesh Rawat (PW2), Dashrath Singh (PW4), Shaitan Singh (PW6) etc. intervened and saved the victims. Thereafter, the complainant Raghvendra Singh (PW1) went to the Police Station Dabra, District Gwalior (M.P.) and lodged the FIR Ex.P-1. 9. If the cross-examination of all of the eye witnesses is considered then the details of the family were obtained but nothing else of importance could be brought out in the cross-examination. It is apparent from the cross-examination of the eye witnesses that there was prior enmity between the parties and on the previous day of the incident a quarrel had taken place between the parties relating to making a barn (Khalihan). But nothing significant could be obtained to show that the witnesses were telling a falsehood relating to the crime committed by the appellants. There is uniformity in the evidence of the witnesses about the assaults made by any particular appellant. The learned counsel for the appellants has submitted that in the FIR Ex.P-1, it is not mentioned that the appellant Bharat Singh was standing on the terrace of his house and it appears that by getting the post-mortem report, the witnesses have found that the gunshot was fired downward from higher ground and, therefore, the position of appellant Bharat Singh was shifted to the terrace of his house whereas it was not mentioned clearly in the FIR Ex.P-1. In this connection, if the entire FIR Ex.P-1 is examined then presence of appellant Bharat Singh is shown but it is not made clear as to whether he was standing along with other accused persons or he was on the terrace of his house. However, ASI Mr. SCS Parmar (PW15) who investigated the matter had prepared a spot map within one hour of the incident in which he had shown that at place B the appellant Bharat Singh was standing and that place B is shown to be the terrace of the house of the appellant Bharat Singh and therefore, the submission made by the learned counsel for the appellants is not acceptable that only after getting the post mortem report, the position of the appellant Bharat Singh was concluded by the eye witnesses. Though, there was enmity between the parties, an enmity is a double edged weapon. Due to enmity, one can implicate his enemy falsely or a crime can be committed against the enemy and hence, in such cases the evidence of the witnesses should be examined carefully. In the present case, there is no material contradiction between the statements of various eye witnesses and out of all these eye witnesses a few are independent eye witnesses, hence, their testimony is believable. Also, their evidence is corroborated by the timely lodged FIR Ex.P-1 which was lodged by the complainant Raghvendra Singh (PW1) and recorded by ASI SCS Parmar (PW15). According to the complainant Raghvendra Singh (PW1), he arranged for a tractor and the various injured victims were taken to the Police Station Dabra, District Gwalior (M.P.) on it. The incident had taken place at 7:30 am and the police station was eight kms away. The FIR was lodged at 8:00 am. If the period of transportation is deducted then the FIR is timely lodged. Though compliance under section 157 of CrPC is not exactly proved but it appears that the investigating officer had started investigation soon after the FIR was lodged and the name of various accused persons were shown along with their position in the spot map Ex.P-2 which was prepared on the same day at 9:00 am. Though compliance under section 157 of CrPC is not exactly proved but it appears that the investigating officer had started investigation soon after the FIR was lodged and the name of various accused persons were shown along with their position in the spot map Ex.P-2 which was prepared on the same day at 9:00 am. Hence, though strict compliance under section 157 of CrPC is not proved but in this connection the judgment passed by the Apex Court in the case of State of U.P. v. Gokaran and others [ AIR 1985 SC 131 ], may be referred in which it is held that if investigation is started soon after lodging the FIR then it cannot be said that the FIR was ante-timed or ante dated and therefore if compliance under section157 of CrPC is not proved then such FIR cannot be discarded. In the present case, the FIR Ex.P-1 cannot be discarded as it was timely lodged by the complainant Raghvendra Singh (PW1) which corroborates the testimony of eye witnesses. 10. In this connection, it is also important to note that the complainant Raghvendra Singh (PW1) and Smt. Kranti (PW3) were the injured eye witnesses. According to the complainant Raghvendra Singh (PW1), the appellants Kaptan Singh and Harishankar assaulted him with daggers causing injuries on his head and fingers of left hand. In this connection, Dr. S.C. Gupta (PW11) proved the MLC report Ex.P-21 of the complainant. He found the following injuries to the victim Raghvendra Singh (PW1): 1. Incised wound 1”x1/4” skin deep over the left forearm posteriorly; 2. Abrasion 1/2” x 1/4” over the scalp left parietal region; 3. Abrasion 1/2” x 1/4” middle of scalp; 4. Contusion 1/2” x 1/2” over the right parietal region of scalp; 5. Abrasion 1/2” x 1/2” over the right knee joint anteriorly; 6. Abrasion 1” x 1/2” over the right ankle joint.” 11. From the injuries as proved by Dr. S.C. Gupta (PW11), the allegation made by the complainant Raghvendra Singh (PW1) is duly confirmed. Similarly, Smt. Kranti (PW3) has stated that she was assaulted by the women accused persons, namely, Rati Bai, Lakshmibai and Shakuntala whereby Smt Kranti (PW3) sustained injuries on her head and left hand. Dr. S.C. Gupta (PW11) had proved the MLC report of Smt. Kranti (PW3) as Ex.P-20. Similarly, Smt. Kranti (PW3) has stated that she was assaulted by the women accused persons, namely, Rati Bai, Lakshmibai and Shakuntala whereby Smt Kranti (PW3) sustained injuries on her head and left hand. Dr. S.C. Gupta (PW11) had proved the MLC report of Smt. Kranti (PW3) as Ex.P-20. He found one incised wound on left parietal region of victim Smt. Kranti (PW3) and one incised wound on her right scapular region. Also, Dr. Ramesh Mangal (PW20) examined her radiologically and gave his report Ex.P-38. A fracture was found on her right parietal bone due to injury No.1. Hence, the allegations as made by the victim Smt. Kranti (PW3) are duly corroborated by the medical evidence. Thus, there is no reason to discard the testimony of these eye witnesses. 12. The testimony of the eye witnesses is duly corroborated by the medical evidence including the evidence given by Dr. P.L. Gupta (PW12) who performed the post mortem on the body of the deceased Mangal Singh. The learned counsel for the appellants has submitted that it is alleged that appellant Kok Singh fired with a 12 bore gun and the pellets of which had struck on the back of the deceased Mangal Singh including the hand but no such pellet was found on the back of the deceased Mangal Singh and a single injury on his left hand near elbow was found and thus the possibility cannot be ruled out that the shot made by the appellant Bharat Singh exited from left side of chest and that same shot entered on the arm of the deceased Mangal Singh and exited from other side of the skin. Hence, there is no evidence that Kok Singh had fired with a gun. However, Dr. P.L. Gupta (PW12) was suggested about that fact and in para 4 of his statement he opined that both the entry wounds were due to different gunshots. He did not accept that the bullet which entered on first entry wound and exited from first exit wound would have again entered on second entry wound. Under these circumstances where the expert has categorically opined that the deceased Mangal Singh received at least two shots and looking to the size of second entry wound it appears that a pellet had entered in that wound and that could have been discharged from the gun of appellant Kok Singh. Under these circumstances where the expert has categorically opined that the deceased Mangal Singh received at least two shots and looking to the size of second entry wound it appears that a pellet had entered in that wound and that could have been discharged from the gun of appellant Kok Singh. It is possible that the eye witnesses would have seen that pellets were discharged from the gun of appellant Kok Singh but they could not exactly see as to how many pellets had struck on the body of the deceased Mangal Singh but at least one pellet was found to have struck on the left hand of the deceased Mangal Singh and, therefore, it cannot be said that Kok Singh did not fire upon the deceased Mangal Singh. Hence, after considering the evidence of eye witnesses, timely lodged FIR Ex.P-1 and various medical reports including the post-mortem report Ex.P- 23 proved by Dr. P.L. Gupta (PW12), it is proved beyond doubt that the appellant Bharat Singh fired with a gun causing a fatal injury to the deceased Mangal Singh and due to that injury he died. It is also proved that the appellant Kok Singh fired with a 12 bore gun and one of the pellets discharged from the gun struck on the left hand of the deceased Mangal Singh causing a simple injury. The appellants Kaptan Singh and Harishankar assaulted the victim Raghvendra Singh (PW1) causing simple injuries whereas the women accused persons had assaulted the victim Smt. Kranti (PW3) with daggers causing a fracture on her right parietal bone. 13. The learned counsel for the appellants, at this stage, has submitted that no unlawful assembly was constituted. For constitution of unlawful assembly, there should be a common object of the various accused persons. If common object of the unlawful assembly is considered after taking note of the acts of various other appellants then except the appellants Bharat Singh and Kok Singh, no one caused any harm to the deceased Mangal Singh. Except appellants Kaptan Singh and Harishankar nobody had caused any harm to the complainant Raghvendra Singh (PW1) and except the women accused persons nobody had made any harm to Smt. Kranti (PW3) and therefore no set of five persons was present at the spot who had a common object to harm the deceased Mangal Singh, complainant Raghvendra Singh (PW1) or victim Smt. Kranti (PW3). In this connection, the judgment passed by the apex Court in the case of Parsuram Pandey and others v. The State of Bihar [ AIR 2004 SC 5068 ], is referred in which it is held that if common object of five or more persons is not established then it cannot be presumed that unlawful assembly was constituted. Hence, it is submitted that the appellants should be dealt with for their individual acts. The submission made by the learned counsel for the appellants is acceptable. There were no five persons or more who had a common object to kill the deceased Mangal Singh. Similarly, only two persons had assaulted the victim Raghvendra Singh (PW1) and three women accused persons had assaulted the victim Smt. Kranti (PW3). When various appellants were standing on the ground and suddenly the appellant Bharat Singh fired with a gun from the terrace of his house then it cannot be said that such firing was preplanned. Similarly, in the beginning, nobody knew that Smt. Kranti (PW3) would come and intervene during the quarrel, hence, it cannot be said that the appellants had any common intention or object along with women accused persons to assault the victim Smt. Kranti (PW3). Similarly, the appellants Kaptan Singh and Harishankar assaulted the complainant Raghvendra Singh (PW1) but appellants Kok Singh, Mohan Singh and Bharat Singh did not take any interest in firing upon the complainant Raghvendra Singh (PW1). Hence, it is not proved that five or more persons had entered the spot for a particular object to kill the deceased Mangal Singh or to cause grievous injury to the victim Smt. Kranti or causing injuries to the complainant Raghvendra Singh (PW1). Hence, no unlawful assembly was constituted at the spot. The trial Court has committed an error in convicting the appellants of offence under section 148 or 147 of IPC and also in convicting them with the help of section 149 of IPC, however, in this connection the judgment passed by the Apex Court in the case of Bhoor Singh and another v. State of Punjab [ AIR 1974 SC 1256 ], may be referred in which it is held that when main charge under section 302 of IPC is framed and the charge under section 302/149 of IPC is also framed then the accused can be convicted of offence with the help of section 34 of IPC. Since the accused knew that the charge under section 149 of IPC was framed and hence he has to defend the case for the overt act committed by others then if accused is convicted for a particular offence under section 34 of IPC then no question of prejudice shall arise and such conviction can be done. Under these circumstances, the overt act of the various appellants should be considered by taking note with the pretext as to whether by such overt act other accused persons can be convicted of the same offence under section 34 or not. 14. In the present case, it is established that none of the appellants had tried to assault the victim Smt. Kranti (PW3) and therefore there was no common intention of these appellants with women accused persons to cause grievous injury to victim Smt. Kranti (PW3) with the help of sharp cutting weapon and hence none of the appellants could be convicted of offence under section 326 of IPC with the help of section 34 of IPC. The trial Court has committed an error in convicting the appellants for the offence under section 326 of IPC relating to the victim Smt. Kranti (PW3) with the help of section 149 of IPC. Similarly, the appellants Kaptan Singh and Harishankar had voluntarily caused hurt to the complainant Raghvendra Singh (PW1) with a sharp cutting weapon but none of the appellants had assaulted the complainant Raghvendra Singh (PW1) anymore and, therefore, by their mere presence their common intention cannot be presumed and hence the trial Court has wrongly convicted the appellants Kok Singh, Mohan Singh and Bharat Singh for offence under section 324 of IPC with the help of section 149 of IPC. It is also important to note that in the absence of their overt act, their common intention cannot be presumed with the appellants Harishankar and Kaptan Singh. Consequently, the remaining appellants cannot be convicted of offence under section 324 of IPC relating to the complainant Raghvendra Singh (PW1) with the help of section 34 of IPC. 15. It is also important to note that in the absence of their overt act, their common intention cannot be presumed with the appellants Harishankar and Kaptan Singh. Consequently, the remaining appellants cannot be convicted of offence under section 324 of IPC relating to the complainant Raghvendra Singh (PW1) with the help of section 34 of IPC. 15. It is also apparent that except the appellants Kok Singh and Bharat Singh, nobody had caused any harm to the deceased Mangal Singh and it is apparent that the appellant Bharat Singh was on the terrace of his house when he fired the gun and, therefore, the remaining appellants could not know about his activity and thus their common intention cannot be presumed with the appellant Bharat Singh and hence, the trial Court has committed an error in convicting the various appellants except Bharat Singh and Kok Singh for offence under section 302 of IPC with the help of section 149 of IPC or any inferior offence of such nature either directly or with the help of section 34 of IPC. Hence, the conviction of such appellants should be set aside. 16. The learned counsel for the appellants has submitted that a single gunshot was fired by the appellant Bharat Singh and a fatal injury was caused and for such single shot, the appellant Bharat Singh could not be convicted of offence under section 302 of IPC. In this connection, the judgment passed by the Apex Court in the case of State of Rajasthan v. Daud Khan [(2016)1 SCC (Cri.) 793], is referred. If factual position of that case and the present case is considered then it would be apparent that when the deceased Mangal Singh came out of his house and did not cause any injury to any of the appellants, the appellant Bharat Singh had no reason to fire upon him. From a distant place he aimed at only the deceased Mangal Singh and a shot was made in such a manner that it should hit on his back specifically near the heart. Hence, in every case, it cannot be said that if a single shot is fired then there was no intention of the accused to cause death. From a distant place he aimed at only the deceased Mangal Singh and a shot was made in such a manner that it should hit on his back specifically near the heart. Hence, in every case, it cannot be said that if a single shot is fired then there was no intention of the accused to cause death. If the appellant Bharat Singh did not intend to kill the deceased Mangal Singh then there was no need for him to fire from the terrace of his house and to cause a fatal injury and to fire on the vital part of the body of the deceased Mangal Singh. In this connection the judgment passed by the apex Court in the case of Thangaiya v. State of T.N. [2005 SCC (Cri.) 1284], may be referred in which it is held that no straitjacket formula can be fixed that if a single shot was fired then the offence under section 302 of IPC shall not be constituted. It would be considered on the basis of factual position of each and every case. Under these circumstances, looking to the overt act of the appellant Bharat Singh, it is clear that he intended to kill the deceased Mangal Singh and when he was satisfied by his first shot that he caused fatal injury to the deceased Mangal Singh then if he did not fire second time then it makes no difference. The trial Court has rightly convicted the appellant Bharat Singh for offence under section 302 of IPC. 17. So far as the offence of the appellant Mohan Singh is concerned, it is alleged that he was firing with a gun but it was not mentioned by any of the eye witnesses or recorded in the FIR Ex.P-1 that whether appellant Mohan Singh fired in the air or he aimed at someone. The investigating officer ASI SCS Parmar (PW15) did not collect the empty cartridges from the spot and, therefore, there is no evidence that the appellant Mohan Singh fired with a gun and that any empty cartridge was dropped on the ground. The investigating officer ASI SCS Parmar (PW15) did not collect the empty cartridges from the spot and, therefore, there is no evidence that the appellant Mohan Singh fired with a gun and that any empty cartridge was dropped on the ground. Hence, though every eye witness has stated that appellant Mohan Singh fired with a gun but when it is not clear as to whether he himself aimed at someone or if he fired in the air and further no cartridge was collected from the spot, the testimony of the eye witnesses cannot be accepted that appellant Mohan Singh fired with the gun even though the gun was recovered from him. It is also stated by various witnesses that appellant Mohan Singh exhorted the accused person to kill the deceased Mangal Singh but it would be clear from the statements of eye witnesses that Mangal Singh was killed by means of the gunshot fired by the appellant Bharat Singh who was farther away from the spot and present on the terrace of his house. Therefore, it was not possible that he was exhorted by the words uttered by appellant Mohan Singh. The injuries were caused to deceased Mangal Singh, the complainant Raghvendra Singh (PW1) and Smt. Kranti (PW3) and it is not specific from the evidence of the eye witnesses that the appellant Mohan Singh exhorted the remaining accused persons to cause injuries to each of these three injured. Hence, in such omnibus allegations, it cannot be accepted that the appellant Mohan Singh exhorted anyone to commit any crime. The appellant Mohan Singh was wrongly convicted by the trial Court for the various offences. 18. Similarly, the appellant Kok Singh had no knowledge on his own that the appellant Bharat Singh would fire upon the deceased from the terrace of his house but he separately fired with a 12 bore gun and his aim was not good. Only one pellet struck the deceased Mangal Singh specifically on the left arm causing a simple injury. Also the appellant Kok Singh did not repeat the fire. Hence, neither a common intention of the appellant Kok Singh may be presumed with the appellant Bharat Singh nor may his common intention be presumed that he intended to kill the deceased Mangal Singh. Also the appellant Kok Singh did not repeat the fire. Hence, neither a common intention of the appellant Kok Singh may be presumed with the appellant Bharat Singh nor may his common intention be presumed that he intended to kill the deceased Mangal Singh. In this connection, the judgment passed by the apex Court in the case of Kundan Singh v. State of Punjab [ AIR 1982 SC 62 ], may be referred in which it is held that when the accused was not intended to kill the deceased and by single firing if simple injury was caused then no offence under section 302 of IPC was constituted and instead of that offence only offence under section 324 of IPC shall constitute. In this case, it is apparent that shot of the appellant Kok Singh was not responsible for the death of the deceased Mangal Singh and when he had no common intention with the appellant Bharat Singh then he could not be convicted of offence under section 302 of IPC. At the most, he could be convicted of offence under section 307 of IPC. Since he did not cause grave or fatal injury to the deceased Mangal Singh, then, in the light of the aforesaid judgment passed in the case of Kundan Singh (supra), the appellant Kok Singh shall be liable for offence under section 324 of IPC relating to deceased Mangal Singh. 19. So far as the sentence is concerned, the trial Court has recorded a minimum sentence of offence under section 302 of IPC upon the appellant Bharat Singh and, therefore, no further dilution can be done. The appellant Kok Singh had committed the crime under section 324 of IPC with the help of a 12 bore gun and, therefore, it would be appropriate to sentence him of two years RI whereas the appellants Harishankar and Kaptan Singh have assaulted the complainant Raghvendra Singh (PW1) with daggers and their offence under section 324 of IPC is not so grave, hence, looking to their overt act each of them shall be sentenced for 10 months’ RI for offence under section 324 of IPC. 20. On the basis of the aforesaid discussion, the appeals filed by the various appellants are hereby partly allowed whereas the appeal filed by appellant Mohan Singh is accepted in toto. 20. On the basis of the aforesaid discussion, the appeals filed by the various appellants are hereby partly allowed whereas the appeal filed by appellant Mohan Singh is accepted in toto. The conviction and sentence recorded against the appellant Mohan Singh for various offences are hereby set aside. He is acquitted from all the charges. The conviction as well as sentence against the remaining various appellants are hereby set aside, however, the conviction and sentence of offence under section 302 of IPC is maintained for the appellant Bharat Singh whereas the remaining conviction and sentence is set aside. The appellants Kaptan Singh and Harishankar are liable for offence under section 324 of IPC only and, therefore, their conviction of that offence is maintained but the sentence is reduced for a period of 10 months RI. The conviction and sentence of the remaining offences are hereby set aside. Similarly, the conviction and sentence of various offences recorded against the appellant Kok Singh are hereby set aside and he is acquitted from the said charges but under the charge of section 302 of IPC, he is convicted of offence under section 324 of IPC and sentenced to two years' RI. Since the appellants Kok Singh, Harishankar and Kaptan Singh have already undergone the custody for more than the periods which are prescribed for their respective offences, hence, there is no need to arrest them again and to issue a super-session warrant. However, the super-session warrant be issued relating to appellant Bharat Singh who is in custody. 21. A copy of this judgment be provided to the appellant Bharat Singh through jail authorities with the information that he may file an SLP before the apex Court directly or with the help of High Court Legal Services Committee. 22. A copy of this judgment be sent to the Court below for information and compliance.