JUDGMENT
Uma Nath Singh, J.
1. This is an appeal against the judgment and findings recorded by the Sessions Judge, Raisen in the S.T. No. 74/90 whereby accused persons were held guilty of offences under Sections 148, 333, 307/149, 302/149 and 396, IPC and sentenced to R.I. for 2 years, 2 years, 5 years and life imprisonment respectively but no separate sentence was recorded for offence under Section 396 in view of the sentence awarded under Section 302/149, IPC.
2. The alleged incident occurred on 10-11-87 at 5 p.m. in the Karvoli Forest, taking a toll of two lives, namely Rajendra Bhargava, a forest guard, on the complainant side and Kashiram, on the accused. In the same incident, complainant Bhagwan Singh (PW 1), a forest guard, also received serious injuries. On the said date, Bhagwan Singh (PW 1), while on duty as a beat guard, was informed by deceased Rajendra Bhargava, a forest guard, that the accused persons were illegally felling teak woods, therefore, he rushed to the spot with other forest personnel. Deceased Rajendra Bhargava forbade the accused from doing so, but they just ignored his words, and rather, threatened the forest staff to go away or face dire consequences. They scuffled and in a melee injured Rajendra Bhargava and Bhagwan Singh. Apprehending a serious danger to their lives, Bhagwan Singh fired from his licenced gun twice which further aggravated the situation. His gun was snatched and badly damaged and he was forced to run for life. The accused surrounded Rajendra Bhargava and struck fatal blows with axes which resulted in his death. Bhagwan Singh lodged a report at police station Bamhori on the same date. After usual investigation, a challan was laid and charges were drawn up against all the accused for offences under Sections 148, 333, 396, 307/149 and 302/149, IPC which they denied and pleaded false implication. The learned trial Judge on a minute scrutiny of the evidence On records passed the impugned judgment.
3. Shri A.K. Jain, learned counsel for the appellants, led us through the appeal records and strenuously contended that it appears to be a case of over implication of the accused for the facts that out of five injuries noticed on the body of deceased, only two are incised wounds and that too, only one on a vital part; that the post-mortem report revealed that the deceased also received a pallet injury from the gun shots fired by Bhagtwan Singh (PW 1) and that PW 1 admitted in his cross-examination that he did not recognize some of the accused. Shri Jain placing reliance on the dictum of the Apex Court in the matter of Kalinder Bharik v. State of H.P., AIR 2000 SC 3618 urged that the offence in question at the most, amounts to culpable homicide not amounting to murder and alternatively, he canvassed to fasten liability only for individual acts. Shri S.K. Rai, learned Panel Counsel for the respondent/State, supported the impugned judgment and argued that in view of consistent evidence and incriminating materials on records against the accused, the impugned judgment does not call for our interference.
4. Injured witness Bhagwan Singh (PW 1), is the author of the F.I.R. on whose evidence the contour of prosecution case pivots as other prosecution witnesses namely, Chandan Singh (PW 2), Tej Singh (PW 3), Inder Singh (PW 4) and Narayan Singh (PW 5) resiled from their police statements, and therefore, they were declared hostile. The FIR which was lodged in time unerringly implicates all the accused by giving a graphic description of the incident. PW 1, right from the inception in his evidence, appears to be credible and consistent. He deposed that on the information of deceased Rajendra Bhargava, about illegal felling of timbers, he went to the forest compartment No. 256 with six other forest personnel including the deceased and saw that all the 15 accused after illegally felling timbers, were merrily engaged in making logs and beams, which was remonstrated and threatened with seizure. The accused were warned against any attempt to remove the timbers from the forest. P.W. 1 has mentioned the names of accused as Babulal (A1), Sahab Singh (A2), Maniram (A3), Narayan Singh (A4), Hubbi (A5), Laxman Singh (A6), Roshan Lal (A7), Kanhaiya Lal (A9), Munna Lal (A10), Phool Singh (A12), Jahir Khan (A13), Kashiram Charnar (A14) and Kashiram Rajput (since shot dead from the accused side). He could not identify accused Hari (A8) present in the dock. In the last para of his cross-examination, P.W. 1 admitted that he did not know some of the accused and could recognise only accused Babulal (Al), Sahab Singh (A2), Mani Ram (A3), Narayan Singh (A4), Hubbi (A5), Laxman Singh (A6), Jahir Khan (A13), and Kashiram Charnar (A14). Though he left the name of accused Munna (A10) but the fact remains that he denied a suggestion that accused Babulal and Munna neither scuffled nor caused assaults to him. Further, as per arrest memo Ex. P27, a pellet injury was noticed on the right shoulder of accused Munna. PW1 admitted that Tej Singh Thakur (PW3), Chandan Singh (PW2) and Inder Singh (PW4), who were declared hostile, had given the names of some of the accused. As regards the injuries on his person, he stated that the first axe blow was given on his right elbow by accused Babulal Rajput (Al) and the second by accused Munnalal Adivasi (A10) on his head which landed on the left palm while trying to ward off. He also noticed the manners and authors of injuries of deceased Rajendra Bhargava as such as accused Maniram (A3) caused an axe blow on his head to be swiftly followed by another axe blow on his hand by accused Hubbi (A5). Thereafter, all the accused assaulted the deceased. Hence, he had to fire two shots from his licensed gun to save their lives. His gun was snatched, he ran for his life, and lodged a report (Ex. P/1) under his signature. He admitted that Kashiram (deceased on the accused side) and accused Munna (A10) sustained gun shot injuries but he denied that deceased Rajendra Bhargava was also hit by his pellets. He also denied a prior enmity with any of the accused.
5. Kailash Prasad Sharma (PW6) was posted as a Deputy Ranger who testified seizures of 16 pieces of freshly cut timbers and some other articles, G.S. Ahirwar (PW16) the investigating officer has corroborated Kailash Sharma (PW6) on the seizures. He drew up the spot map (Ex.P/59) and also prepared the inquest (Ex.P/60) of the dead body of deceased Rajendra Bhargava. He seized three live and two empty cartridges. He arrested all the accused and on their memorandum seized their weapons of offence namely, the axes and also some other incriminating articles which he having found blood stains there on, sent for chemical examination to the FSL Sagar as per Ex.P/66.
6. Nature and number of injuries as noticed on the body of deceased Rajendra Bhargava and mentioned in postmortem report as also in doctor’s evidence are as under:–
1. An incised wound over the (Rt.) side of the fore head. Its size was 6″ x 2 1/2″ x 3″. There was a fracture of bone and the brain matter was seen.
2. An incised wound over posterior aspect of the (Rt.) shoulder. Its size was 2″x 1″ x 2 W. The direction was horizontal. Injury was bleeding.
3. A bruise obliquely placed in the thoracic lumber region of the back. Its size was 6″x 1″.
4. A stab wound on the posterior aspect of the (Rt.) elbow. Its size was 1 x 1 1/2″ x 3″. The skin was black near margins and it was inverted in wound. The said injury could be caused by a gun shot but nothing was found inside of the wound, which was bleeding.
5. An incised wound on the (Rt.) hand ring finger. There was a bone fracture. Its first and second bones were broken.
Duration of injuries was found to be within 12 to 36 hours.
In the opinion of Doctor R.G. Malani (PW15, cause of death was shock due to excessive blood loss from various wounds. The doctor is emphatic that the injury No. 4 of the deceased was possible only from a gun shot. He maintained this opinion all through. Further this injury was found to be profusely bleeding.
7. As regards the medical examination of Bhagwan Singh (PW1), following injuries were noticed on his body:
(i) A lacerated wound on the ventral aspect of (Rt.) elbow joint. Size 2.5 cm x 1 emx muscle deep, obliquely placed. Adv: X-ray (Rt.) of elbow joint.
(ii) A contusion on the back (Rt.) side. Size 4 cm x 1 cm, vertically obliquely placed.
(iii) A lacerated wound on back (Rt.) lumber region. Size 1.5 cm, x 0.5 cm. x skin deep. Obligatory placed.
(iv) A contusion on (Lt.) aspect of chest. Size 4 cm x 2 cm, obliquely placed. Adv. X-ray Chest PA view. –
(v) A Contusion on the (Lt.) thigh middle. Size 30 cm x 2 cm. obliquely placed.
(vi) Incised wound on (Lt.) palm. Extending from base of thumb to base of (Lt.) little finger. Size 5 cm x O.5 cm. x muscle deep, obliquely placed. Adv. X-ray (Lt.) Palm.
Injury Nos. (i), (iv) and (vi) were advised X-ray.
Injury No. (vi) was found to have been caused by hand and sharp object, while rest of the injuries were caused by hard and blunt object.
8. On a careful reappraisal of the evidence as above, we are of the view that PW1 appears to be a truthful witness as he has admitted that names of some of the accused had been given by hostile witnesses and in the cross-examination, he has named only those accused whom he could identify. Hence, the accused whose names find mention in the cross-examination of PWJ as also in his examination-in-chief and the F.I.R. and further, from whom, incriminating articles had been seized are the persons whose presence and participation are proved beyond doubt. Accordingly accused Babulal (A1), Shaheb Singh (A2), Maniram (A3), Narayan Singh (A4), Hubbi (A5), Laxman (A6), Jahir Khan (A13), Kashiram (A14) and also accused Munna Lal (A10) about whom, PW1 has mentioned in cross-examination in answer to a pointed question regarding his participation, are held to have been present on the spot and have participated in the incident. However, taking into consideration, such facts, that in the evidence of the doctor (PW15), it is mentioned that the injury No. 4 was possible from a gun shot; that none of the accused carried a gun, and also that PW1 is said to have fired two gun shots, the accused cannot be held liable for the offence under Section 302/99 of the IPC. That apart, the gun shot injury of the deceased was noticed to be profusely bleeding and excessive blood loss has been found to be the cause of death.
9. Under the circumstances, the acts of accused Babulal (A1), Saheb Singh (A2), Maniram (A3), Narayan Singh (A4), Hubbi (A5), Laxman (A6), Jahir Khan (A13), Kashiram (A14) and Munna Lal (A10) amount to culpable homicide not amounting to murder. Accordingly, the conviction and sentence of the said accused for offence under Section 302/149, IPC as recorded by the trial Court are set aside, and instead, they are held guilty of the offence under Section 304-311/149, IPC, and sentenced to a period of ten years rigorous imprisonment each. Further in view of our conclusion that the offence does not amount to murder, we set aside the conviction of all the accused under Section 396, IPC and instead, the aforesaid accused who have been found guilty of offence under Section 304-311/149 are held liable and convicted for offence under Section 395, IPC and sentenced to a period of 10 years R.I. each, which is to run concurrently. However their conviction and sentenced on other counts i.e. for offences under Sections 148, 333, 307/149, IPC are affirmed. As accused Babulal (Al), Shaheb Singh (A2), Mani Ram (A3), Narayan Singh (A4), Hubbi (A5) and Laxman Singh (A6) are in jail more than fourteen years, they are directed to be released forthwith. However, since accused Munnalal (A10), Jahir Khan (A13) and Kashiram (A14) are on bail in terms of the order dated 13-8-91, they are directed to surrender to their bail bonds to undergo the sentence as above.
10. As regards other accused namely Hari Singh (A8), Kanhaiya Lal (A9), Shanker Singh (Al 1), Phool Singh (A12) and Roshan Lal (A7), they are acquitted of all the charges for the reasons stated hereinabove. Accordingly, their conviction and sentence as recorded by the learned trial Judge are set aside and since they are on bail in terms of the order dated 13-8-91. their bonds shall stand discharged.