JUDGMENT
Sham Sunder, J.
1. This judgment shall dispose of the aforesaid three appeals, bearing Criminal Appeal Nos. 590-DB of 2001 filed by Kulbir Singh and six others, 618-DB of 2001 filed by Kulbir Singh and 619-DB of 2001 filed by Darbara Singh arising out of three separate judgments of conviction, and the order of sentence dated 12.10.2001 rendered by the Court of Additional Sessions Judge, Gurdaspur vide which they were convicted and sentenced as under:
(i) Accused Kulbir Singh, Sukhwinder Singh, Makhan Singh, Darbara Singh, Balkar Singh, Dhian Singh and Jaswant Singh were sentenced to undergo R.I. for a period of one year each under Section 148 IPC;
(ii) Accused Sukhwinder Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of payment of fine to undergo R.I. for a period of two years under Section 302 IPC. Whereas accused Kulbir Singh, Makhan Singh, Darbara Singh, Balkar Singh Dhian Singh and Jaswant Singh were sentenced to undergo imprisonment for life each, and to pay a fine of Rs. 10,000/-each and in default of payment of fine to further undergo RI for a period of two years each under Section 302 read with Section 149 IPC.
(iii) Accused Balkar Singh was sentenced to undergo RI for one year under Section 323 IPC; Whereas, accused Kulbir Singh, Sukhwinder Singh, Makhan Singh, Darbara Singh, Dhian Singh and Jaswant Singh were sentenced to undergo RI for a period of one year each under Section 323 read with Section 149 IPC.
(iv) Accused Dhian Singh was sentenced to undergo RI for a period of one year under Section 324 IPC. Whereas, accused Kulbir Singh, Sukhwinder Singh, Makhan Singh, Darbara Singh, Balkar Singh and Jaswant Singh were sentenced to undergo RI for a period of one year each under Section 324 read with Section 149 IPC.
Accused Kulbir Singh, Sukhwinder Singh, Makhan Singh,Darbara Singh, Balkar Singh Dhian Singh and Jaswant Singh were sentenced to undergo RI for a period of one year each under Section 323 read with Section 149 IPC.
Accused Kulbir Singh, Sukhwinder Singh, Makhan Singh,Darbara Singh, Balkar Singh Dhian Singh and Jaswant Singh were sentenced to undergo RI for a period of three months each under Section 447 IPC.
Accused Kulbir Singh, Sukhwinder Singh, Makhan Singh,Darbara Singh, Balkar Singh Dhian Singh and Jaswant Singh were sentenced to undergo RI for a period of one year each under Section 379 IPC.
Accused Kulbir Singh was sentenced to undergo RI for one year and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for three months under Section 25 of the Arms Act in Crl. Appeal No. 618DB of 2001.
Accused Darbara Singh was sentenced to undergo RI for one year and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for three months under Section 25 of the Arms Act in Crl. Appeal No. 619DB of 2001.
All the substantive sentences were ordered to run concurrently. However, Jagir Singh, Tarsem Singh, Kashmir Singh and Sohan Singh, accused were acquitted.
2. The law was set in motion, by Balwan Singh, Sarpanch of Village Miani Jhamela by making his statement before Jarnail Singh, Sub Inspector, Police Station Dina Nagar, on 12.11.1992 to the effect that 400 acres of land, including shamb land of Village Panchayat, is located in their village. Out of this land 30 killas of land was given on lease for two years on payment of Rs. 5000/-per year to Attar Singh s/o Sukhdev Singh, r/o Village Shamsher Pur. Attar Singh and Kulwant Singh had jointly sown Basmati in 10 killas of land. Attar Singh (deceased) harvested crop to the extent of his share whereas the crop relating to the share of Kulwant Singh was standing. On 12.11.1992, Attar Singh along with his sons Surinder Singh @ Shinda and Dogar Singh @ Bittu went on a tractor to plough that land. Kundan Singh was havesting Basmati crop with the help of labour. Balwan Singh also reached there. At about 1.00 P.M. Kulbir Singh armed with Barcha, Sukhwinder Singh armed with toki, Makhan Singh armed with datar, Darbara Singh armed with Kirpan, Jagir Singh armed with toki, Kashmir Singh armed with Barchi, Balkar Singh armed with Barchi, Tarsem Singh armed with toki, Dhian Singh armed with toki, Sohan Singh armed with toki and Jaswant Singh armed Kulhari came there. They were raising exhortations saying Attar Singh that they would teach him a lesson, for ploughing the land. Kulbir Singh gave a barcha blow, at Attar Singh which was stopped by him, with his left hand, and at the same time he fired a shot from his licensed double barrel 12 bore gun, in the air, to scare them away. Sukhwinder Singh gave a toki blow on the head of Attar Singh. Makhan Singh gave a datar blow which fell near the right ear of Attar Singh. Darbara Singh gave a kirpan blow, on his right leg. Attar Singh fell down. When Attar Singh fell down, Jagir Singh gave a toki blow, on his left ear. Thereafter, Dogra Singh son of Attar Singh came forward to save him, Balkar Singh gave a barchi blow, on his left wrist. Tarsem Singh gave two blows, on his left, and right shoulder, from the reverse side of toki. When Surinder Singh intervened, Dhian Singh gave a toki blow, on his chin. He fell down, and Sohan Singh gave a toki blow, from its reverse side on his right cheek. Jaswant Singh gave two dang blows on his right shoulder and right hip. Balwan Singh, Surinder Singh and Dogra Singh raised alarm of ‘killed killed’. When Kundan Singh came there to save them, Makan Singh gave two datar blows on his head. Darbara Singh gave kirpan blow. on his right arm. Jaswant Singh gave a kulhari blow on his left leg. Balkar Singh gave a barchi blow on his person. On seeing all this, Balwan Singh ran away, out of fear. All the accused put Attar Singh, Dogra Singh, Surinder Singh and Kundan Singh, in a tractor trolley, and took them away along with tractor No. PB06-8544 belonging to Attar Singh and his double barrel gun. Balwan Singh started searching his brother and other injured. During the course of search , he reached Civil Hospital, Gurdaspur, where his nephews Dogra Singh, Kundan Singh and Surinder Singh were found admitted, for medical treatment. His brother Attar Singh died due to the injuries, sustained by him, in the aforesaid occurrence, at the hands of the accused. It was further stated by Balwan Singh that Kulbir Singh, Sukhwinder Singh, Jaswant Singh, Dhian Singh, Balkar Singh, Makhan Singh, Darbara Singh, Jagir Singh, Kashmir Singh, Sohan Sigh and Tarsem Singh with a common intention killed his brother and caused injuries on the person of the injured. The aforesaid statement Ex.PQ was recorded and after admitting the same to be correct, Balwan Singh signed it. Endorsement Ex.PQ/1 was appended thereon. The statement of the complainant was sent to Police Station on the bass whereof FIR Ex. PQ/3 was registered.
3. Thereafter, Jarnail Singh, Sub Inspector went, to Civil Hospital, Gurdaspur and prepared Inquest Report Ex.PL of the dead body of Attar Singh. He sent the dead body for post mortem examination, along with request Ex.PK. He moved applications Ex. PM, Ex. P.N. and Ex. PO seeking opinion of the doctor as to whether, Dogra Singh, Surinder Singh and Kundan Singh were fit to make statements. The Doctor vide endorsements PM and PN/1 and PO/I, on the applications, declared them fit to make statements. Their statements were accordingly recorded.
4. On 13.11.1992, Jarnail Singh, Sub Inspector, went to the place of occurrence, accompanied by the complainant. He lifted the blood stained earth from the spot, which was converted into a parcel. The parcel was sealed and taken into possession vide memo Ex.PR. The rough site plan Ex. PAA of the place of occurrence, was prepared. The clothes of the accused were produced before him, which were converted into a parcel and taken into possession vide memo Ex.PBB. Accused Sukhwinder Singh, Tarsem Singh, Dhian Singh and Makhan Singh were arrested on 16.11.1992. The remaining accused were also arrested.
5. In view of the disclosure statement made by Sukhwinder Singh, accused , on interrogation, tractor No. PB-06-8544 was recovered, which was taken into police possession vide memo Ex. PCC/1. Accused Darbara Singh was interrogated on 18.11.1992 and a double barrel gun Ex. P1 and seven live cartridges Ex.P2 to P.7 were taken into possession vide separate recovery memo. Makhan Singh made a disclosure statement on interrogation, as a result whereof, a datar was got recovered, by him, which was taken into possession vide Ex. PDD/1. Toki Ex.P-9 was recovered, in pursuance of the disclosure statement Ex. PEE, made by accused Dhian Singh, and the same was taken into possession vide memo Ex.PEE/1. Gandasi Ex.P-10, was got recovered, in pursuance of the disclosure statement Ex.PFF, made by accused Sukhwinder Singh, which was taken into possession vide memo Ex.PFF/1. Spear Ex.P.11 was got recovered on 22.11.1992, in pursuance of the disclosure statement, made by Kulbir Singh, which was taken into possession.
6. Balwan Singh, complainant, produced four receipts mark A to A.4 regarding the auction of land, which were taken into police possession. After the completion of investigation, the accused were challaned for the offences punishable under Sections 302, 307, 325, 323 read with Section 149, 148 and 379 IPC.
7. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 148, 302, 302/149, 323/149, 325, 325/149, 324, 324/149, 148, 447 and 379 was framed against the accused, to which they pleaded not guilty, and claimed judicial trial.
8. The prosecution, in support of its case, examined Dr. H.S. Bajwa, Emergency Medical Officer, Civil Hospital, Gurdaspur (PW-1), Doctor R.B. Arora (PW-2), Dental Surgeon, Civil Hospital, Gurdaspur, Dr. Harbhajan Ram, (PW-3) Medical Officer, Civil Hospital, Gurdaspur, Dalip Kumar, Clerk office of DTO, Gurdaspur, Balwan Singh, PW-4, Balwan Singh, PW-5 Dogra Singh, PW-6, Dr. Jag Jiwan Lal, Radiologist, Civil Hospital, Gurdaspur, PW-7, Kashmir Singh, MHC, PW-8, Manjinder Singh, PW-9, Charan Dass, Patwari, PW-10 Surinder Singh, PW-11, Karnail Singh, PW-12, Gurpartap Singh, LC, PW-13 and Jarnail Singh, Inspector, PW-14. The Public Prosecutor for the State after tendering into evidence the report of the Serologist, Ex.PGG, report of the Chemical Examiner, Ex. PHH, and copies of the judgments Ex. PJJ, P.KK and Khasra girdawari Ex. PLL, the closed the same.
9. Sohan Singh, accused died during the pendency of the proceedings.
10. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Kulbir Singh, accused, in his statement under Section 313 Cr.P.C. stated that the place of occurrence was the land which had been on lease in the name of his sons namely Darbara Singh and Sukhwinder Singh, for the last more thant 4-5 years before the occurrence. Attar Singh deceased and others threatened his sons to dispossess them, from that land forcibly, and, ultimately, one of the cosharer and his son filed Civil Suits for permanent injunction against Attar Sigh in which Attar Singh and others were restrained by the Civil Court from interfering in their peaceful possession, except in due course of law. Attar Singh filed an appeal, which was dismissed by the District Judge. On the date of occurrence, Attar Singh, his sons and other accused assaulted him in the aforesaid land while he was harvesting Basmati. Attar Singh, fired a shot from the double barrel gun at him causing him injuries and in exercise of the right of self defence of his body. Hazara Singh, his relative snatched gandasi from his companion and caused injures to Attar Singh, Dogra Singh and Kundan Singh. It was further stated by him that rest of the accused were not present, at the relevant time, at the place of occurrence. The remaining accused, in their statements, under Section 313 Cr.P.C. pleaded their innocence, and asserted that they had been falsely implicated in this case.
11. In defence, the accused examined Manjit Singh (DW-1) and Dr. Harbhajan Ram, Medical Officer at the relevant time posted in Civil Hospital, Gurdaspur, DW-2 and thereafter, they closed their defence evidence.
12. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Kulbir Singh, Sukhwinder Singh, Makhan Singh,Darbara Singh, Balkar Singh, Dhian Singh and Jaswant Singh, as stated hereinbefore. It, however, acquitted Jagir Singh, Tarsem Singh, Kashmir Singh and Sohan Singh(deceased).
13. Feeling aggrieved, the instant appeals were filed by the appellants/accused.
14. We have heard learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
15. Learned Counsel for the appellants, at the very outset, contended that the accused, armed with lethal weapons, came to the place of occurrence, which was the land, on lease, in the name of the sons of Kulbir Singh, namely Darbara Singh and Sukhwinder Singh for the last 4/5 years to take forcible possession thereof, when Kulbir Singh was present, in that land, and a fire arm injury was caused on his person, by Attar Singh, and in self defence, Hazara Singh, his relative, who was present, with him in the said land, snatched gandasi from a companion of Attar Singh and caused injuries on the person of the injured. He further contended that the complainant party was the aggressor and he and his relative Hazara Singh were the aggressive. He further contended that the possession of his sons over the land, in question at the time of occurrence, was duly established, from the judgments rendered by the Civil Court. He further contended that no injury was attributed to Dhian Singh, Balkar Singh and Jaswant Singh on the person of the deceased, and their case is similar to the case of Jagir Singh,Tarsem Singh, Kashmir Singh and Sohan Singh, since acquitted, by the trial Court. He further contended that, they were falsely implicated and as such, were entitled to acquittal. He further contended that the trial Court was wrong, in recording, conviction and awarding sentence to the accused/appellants.
16. On the contrary, the Counsel for the respondent, contended that Attar Singh and his sons were present, in the land, the possession whereof, had already been surrendered, in their favour, by Amrik Singh, one of the co-sharers, who was earlier a lessee, in respect thereof. He further contended that the accused, were members of an unlawful assembly, and in prosecution of the common object thereof, they came to that portion of the land, possession whereof was with Attar Singh and his sons, with a view to take forcible possession thereof, caused injuries on his person, and on the person of other injured. He further contended that the portion of the land, the possession whereof had already been surrendered, in favour of Attar Singh and his sons by Amrik Singh, was not in possession of the accused. Thus, it could not be said that the members of the complainant party were the aggressors. He further contended that since, the accused were members of an un-lawful assembly, whether any one of them caused injuries on the person of the deceased, or on the person of the injured or not, they could not absolve themselves of criminal liability. He supported the judgment of conviction and the order of sentence rendered by the trial Court.
17. The first question, that requires determination, is as to whether, the occurrence took place in the land, in possession of the accused or in the land, the possession whereof, had been surrendered, in favour of Attar Singh and his sons by Amrik Singh, the person who was earlier in possession thereof, after he (Attar Singh) took the sameon lease from the Gram Panchayat and which party was the aggressor. There is, no dispute, about the factum, between the parties that the Gram Panchayat of Village Miani Jhamela owns 400 acres of land. Some of the land is in water. Since, Panchayat was owing the land, it was that body which could lease it out, in favour of any body, on year to year basis. It is evident from Ex.PP that Gram Panchayat passed a resolution dated 3.5.1992 that the auction of the land was to be held on 18.5.1992. The land of plot No. 1 bearing Khasra Nos. 34 Min, East, (36K-1 M) and 29 Min East (42-2) was auctioned in favour of Kundan Singh for the year 1992-93, 1993-94. This fact is clear from the auction proceedings Ex. PP/1. Similarly Plot No. 2 bearing Khasra No. 34 Min, West (42-0), 38 Min West (40-0) 39 Min West (39-18), 30 Min 54(0), 30 Min, (30-0), 31 Min (19-0) and 35 Min West (42-0) total land measuring 272 Kanals 18 Marlas was auctioned in favour of Attar Singh, deceased for the year 1992-93, 1993-94 vide the same proceedings Ex. PP/1.
18. Amrik Singh filed Civil suit bearing No. 161 of 28.5.1992 for permanent injunction restraining Attar Singh, from interfering in his peaceful possession over land measuring 49 Kanals bearing Khasra No. 30 Min. (30-0) and 31 Min (19-0) and moved an application under Order 39 Rule 1 and 2 read with Section 151 CPC for issuance of temporary injunction. That application was allowed vide order dated 6.11.1992 copy whereof is Ex. D4. Feeling aggrieved, Attar Singh filed Civil appeal bearing No. 52 of 1992, wherein, a compromise was effected and Amrik Singh admitted that he was not in possession of the land involved in the suit and, accordingly, the appeal was accepted vide judgment dated 6.11.1992, copy whereof is Ex.PJJ, It is, therefore, evident from Ex.PJJ, copy of the judgment of the Appellate Court that Amrik Singh admitted the possession of Attar Singh on land bearing Khasra No. 30 Min (30-0) and 31 Min (19-0). This land along with the other land referred to hereinbefore, was auctioned in his favour on 18.5.1992 vide proceedings Ex.PP/1.
19. Balkar Singh, Darbara Singh and Sukhwinder Singh sons of Kulbir Singh, accused, also filed Civil Suit for permanent injunction restraining Attar Singh, from interfering into their peaceful possession, over land measuring 260 Kanals bearing Khatoni No. 153 Khasra No. 34 Min West (36-0) 29 Min ( 42-0) Khatoni No. 154 Khasra No. 34 Min West (480) and 38 Min (53-0). Khasra Nos. 34 Min and 29 Min of khatoni No. 153 were auctioned in favour of Kulwant Singh son of Kundan Singh, whereas, the remaining land was auctioned in favour of Attar Singh vide the aforesaid auction proceedings. It was further mentioned in these proceedings, that only 24 Kanals of land and 40 Kanals, of land auctioned in favour of Kulwant Singh and Attar Singh was cultivable. There is, no dispute with regard to the factum that an application under Order 39 Rules 1 and 2 read with Section 151 CPC, was filed by Balkar Singh and was allowed by the trial Court. Civil Appeal No. 51 of 1992 preferred by the legal representatives of Attar Singh was dismissed vide judgment dated 29.4.1993 Ex.D-7. It is evident from the judgment Ex.D-8 that the land comprising Khasra Nos. 30 Min (30-0) and 31 Min (19-0) was not the subject matter of the civil suit, filed by Balkar Singh, and others. As stated above, Amrik Singh filed a civil suit referred to above to protect his possession over the said land. He admitted the possession of Attar Singh, deceased in the appeal as a result whereof, the compromise was entered into.
20. According to the testimony of the prosecution witnesses it is very much clear, that the occurrence took place in land bearing Khasra No. 30 Min (30-0), the possession whereof, had been surrendered in favour of Attar Singh, and his sons, by Amrik Singh. Attar Singh had harvested Basmati in the said land. Even Jarnail Singh, the Investigating Officer, who visited the place of occurrence prepared the rough site plan Ex.PAA. In the said rough site plan he showed point ‘A’, where the occurrence took place. He lifted blood stained earth and converted the same into a parcel which was duly sealed and taken into possession. When that parcel was sent to the Chemical Examiner, human blood was found on the earth so lifted. He specifically stated that according to his investigation the possession over Khasra No. 30 Min (30-0) was that of Attar Singh. Not only this, Charan Dass, Patwari, PW-10 who prepared the scaled plan Ex.PX showed point ‘A’ in Khasra No. 30 as the place where the occurrence took place. He further stated that the area of Khasra No. 30 is 25 acres. Out of this Khasra, Attar Singh, had taken only land measuring 30 kanals on lease. From all this, it can be very much concluded that the accused were not in possession of Khasra No. 30 Min (30-0) and the same was in possession of Attar Singh, and his sons, and the occurrence took place, in this portion. Had the occurrence taken place, in the other land, in respect whereof, the permanent injunction was granted in favour of the accused, the Investigating Officer would have certainly found the blood stained earth there. Copy of the Khasra girdawari, produced as Ex.PLL, did not prove the possession of the accused in respect of Khasra No. 30 Min. On the other hand, it is proved, from the said document, that Surinder Singh son of Attar Singh was in possession of the land comprising Khasra No. 30 Min and 31 Min. In Ex.D5 and D-6, copies of the Khasra girdawaries the accused have not been shown to be in possession of land comprising Khasra No. 30 Min and 31 Min. On the other hand, Amrik Singh etc. are shown to be in possession of these khasra Nos. Since, Amrik Singh delivered possession of this land, in favour of Attar Singh, the accused, therefore, could not say that the members of the complainant party, came to the land, to take possession thereof. No suggestion was put to Jarnail Singh,Sub Inspector, during the course of cross examination that he incorrectly prepared the site plan Ex.PAA showing the place of occurrence in Khasra No. 30 Min. There was no reason, on the part of Jarnail Singh, Sub Inspector, to prepare a wrong site plan of the place of occurrence. Even, there was no reason, on the part of the Patwari, to prepare the scaled site plan incorrectly. In these circumstances, the submission of the learned Counsel for the appellants, that the members of the complainant party had come to take possession of the land, already in possession of the accused caused injuries on the person of Kulbir Singh, and in self defence, the injuries on the person of Attar Singh were caused by a relative of Kulbir Singh, cannot be said to be correct. The Trial Court was right in holding that the occurrence took place, in Khasra No. 30 Min which was in possession of Attar Singh, and his sons, as the possession thereof, had admittedly been delivered, in his favour by Amrik Singh, who was earlier in possession thereof. The trial Court was, thus, right in holding that the accused were the aggressors. This finding of the trial Court as to which party was in possession of the land where the occurrence took place and which party was the aggressors, is in consonance with the evidence, produced by the prosecution. The submission of the learned Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected.
21. The FIR, in the instant case, was promptly lodged. The occurrence took place at about 1.00 P.M. On 12.11.1992, in the area of Village Miani which is at a distance of six miles i.e. 9 k.ms from P.S. Dina Nagar, District Gurdaspur. Immediately after the occurrence, the injured were taken to the hospital, whereas, Attar Singh died on account of the injuries sustained by him, at the hands of the accused. The statement of Balwan Singh was recorded at 5.45 P.M. and the FIR on the basis thereof, was recorded at 6.40 P.M. According to Balwan Singh, the accused took away the injured. He kept on searching them, and, ultimately, found that they were in Civil Hospital, Gurdaspur. It must have taken sufficient time, in searching the injured by Balwan Singh. The Medical examination of Kundan Singh, injured was conducted at 12.10 P.M. on 12.11.1992, whereas the medical examination of Surinder Singh was conducted at 12.30, P.M. and the medical examination of Dogra Singh was conducted at 2.35 P.M. in Civil Hospital, Gurdaspur. Gurdaspur is at a distance of about 24 Kms. from the place of occurrence. The dead body of Attar Singh was brought to Civil Hospital at 2.05 P.M. on 12.11.1992, as is evident from the statement of Dr. Harbhajan Ram, PW-3, within the shortest possible time, after covering sufficient distance. The first concern of the kith and kin of the injured was to provide medical aid to them so as to save their life. The FIR, in the instant case contained the complete mode and manner, in which the occurrence took place, the names of the accused, the weapons being wielded by them, and the injuries, caused by them, on the person of Attar Singh (now deceased) and the other injured. Due to this reason, there was no time to concoct the story, to falsely implicate the accused and introduce false witnesses. No doubt, the occurrence was admitted by Kulbir Singh, but he stated, in his statement under Section 313 Cr.P.C., that except him, and his relative Hazara Singh, the other accused were not present, at the relevant time. However, prompt lodging of the FIR, belies this version of Kulbir Singh that the other accused were not present at the time of occurrence and they did not cause injuries. Prompt lodging of the FIR, lends assurance to the truthfulness of the prosecution case.
22. Dogra Singh, PW-6 and Surinder Singh, PW-11, injured, who sustained injuries, at the hands of the accused, in the present occurrence can be said to be the stamped witnesses. Both of them made consistent statements with regard to the date, time and place of occurrence, the names of the accused, the weapons being wielded by them and the injuries caused by them. Except for minor discrepancies, which cropped up during the course of their cross-examination, nothing came to the fore, which may go to discredit their evidence. Balwan Singh, PW-5, the first informant-cum-eye witness, also corroborated the statements of Dogra Singh and Surinder Singh, in all material particulars. Further corroboration to their evidence, was provided by the medical evidence of Dr. Harbhajan Ram, PW-3, at the relevant time posted in Civil Hospital in Gurdaspur who medico legally examined Kundan Singh, one of the injured, at 2.10 P.M. and found the following injuries on his person:
1. Incised wound 1.5 cm x 5 cm on the lateral side of lower third of right fore arm. Margins were well defined, profuse bleeding was present from the wound.
2. Diffuse swelling 3 cm x 3 cm on the lower third of right fore arm. Movements were restricted. Tenderness was present, underneath bone was fractured.
3. Incised wound 7 cm x 5 cm x 5 cm on the posterior surface of left leg. Margins were clean cut. Active bleeding was present from the wound. Advised x-ray.
4. Abrasion 2 cm x 1 cm on the medial border of right foot.
5. Lacerated wound 2 cm x 1 cm on the left side of skull, about 10 cms from the frontal hair line. Active bleeding was present from the wound. Kept for x-ray.
6. Reddish contusion 12 x 4 cm on the back.
7. Abrasion 1 cm x 1 cm on left side of lower back.
8. Reddish contusion 10 cm x 4 cm on the middle of back.
9. Lacerated wound 1.5 cm x 5 cm on the right side of skull, about 2 cms from the frontal hair line. Active bleeding was present from the wound.
10. Incised wound 2.5 cm x 5 cm x 5 cm of the middle of skull, about 9 cms from the occipit. Advised x-ray. Margins were well defined. Injury No. 2 was declared grievous, injury No. 3 and 5 and 10 were kept for X-ray examination, injuries No. 1, 4, 6, 7, 8 and 9 were declared simple in nature. Injuries No. 2, 4, 5, 6, 7, 8, and 9 were caused by blunt weapon. Injuries No. 1, 3 and 10 were caused by sharp weapon. Probable duration of the injuries was within about six hours. He further stated that after receipt of report, injuries No. 3, 5 and 10 were declared simple.
This doctor also medico legally examined Surinder Singh son of Attar Singh, injured who was brought at 2.25 P.M. and found the following injuries on his person:
1. Incised wound 3 cm x 1 cm x 5 cm on the left side of chin. Margins were well defined. Diffuse swelling also present 4 cm x 2 cm on the same site. Kept for x- ray.
2. Left lower incisor tooth and left lower canine and first pre-mouler left sided was missing. Fresh Bleeding was present from the sockets. No clue of injury on the inner side of cheek. Kept under observation for Dental Surgeon’s opinion.
3. Diffused swelling 3 cm x 3 cm on the middle of skull, about 4 cms from the occiput. Advised x-ray.
Injury No. 1 and 3 were kept for x-ray. Injury No. 2 was kept for dental surgeon’s opinion. Injury No. 1 was caused by sharp weapon and injuries No. 2 and 3 were caused by blunt weapon. Probable duration of the injuries was within six hours. On receipt of the report Ex.PB of the Dental Surgeon, he gave his opinion vide Ex.PD/2 declaring injury No. 2 on the person of Surinder Singh, as grievous. On receipt of X-ray report, injuries No. 1 and 3 were declared simple, in nature.
23. This doctor also medico-legally examined Dogra Singh, s/o of Attar Singh and found the following injuries on his person:
1. Diffused swelling 4 cm x 4 cm on the dorsal surface of left wrist joint. Movements were restricted. Advised X-ray.
2. Diffused swelling 6 cm x 4 cm on the dorsum of left foot. Tenderness present. Advised X-ray.
3. Complained of pain, left shoulder joint, tenderness present.
Injuries No. 1 and 2 were kept for x-ray examination. Injury No. 3 was declared simple in nature. All the injuries were caused by blunt weapon. Probable duration of the injuries was within about six hours. On receipt of x-ray report, injury No. 1 was declared simple in nature whereas injury No. 2 was declared as grievous in nature. This doctor also conducted post-mortem, on the dead body of Attar Singh, on 13.11.1992 at 11.35 A.M. and found the following injuries on same:
Incised wound 12 cm x 2 cm on the middle of skull. Underlying bone was cut. On dissection, brain memberanes raptured, right correbrum lacerated, blood and blood clots were present in the cranial cavity.
2. Incised wound 4 cm x 1 cm x 4 cm on the right side of the skull, 4 cms, behind right ear.
3. Incised wound 3 cm x 5 cm on the left side of skull, about 3 cms behind left ear.
4. Lacerated wound 2 cm x 1 cm on anterior border of lower half of right leg.
5. Incisedwound4cmx1cmx3cmonthepalmof left hand, between the index and middle finger, gaping of wounds present. Edges of the wound were red and swollen. Clotted blood was present in the wound. He opined that the cause of death was injury to the vital organ, i.e. brain. He further opined that this injury was sufficient to cause death, in the ordinary course of nature. All the injuries were ante-mortem in nature. The trial Court, was thus right in relying upon the cogent, convincing, reliable and creditworthy is ocular evidence duly corroborated by the medical evidence, and the evidence of recovery of weapons, and holding the accused/appellants, guilty for the commission of crime. There is no reason to interfere with such a finding of the trial Court.
24. There was also motive with the accused to cause injuries. The motive was set up by Balwan Singh, PW-5, the first informant, in his statement, made first in point of time, which led to the recording of First Information Report as also in his statement in the Court as PW-5. The motive was also proved from the documentary evidence, referred to above. The accused had already been granted injunction, with regard to the land in their possession which they had taken on lease earlier but even after the expiry of the lease, they were in possession, thereof. As stated above, the occurrence took place in Khasra No. 30 Min, which was in possession of Attar Singh and his sons. The possession thereof had been delivered, in their favour, by Amrik Singh, on the basis of a compromise, which was duly proved from the copy of the judgment of the Appellate Court Ex.D-6, referred to above. No doubt, motive is a double edged weapon. Had the motive been on the part of the members of the complainant party, it would not have cared for the pendency of the suit filed by Amrik Singh, for permanent injunction in respect of Khasra No. 30 Min (30-0). Attar Singh (now deceased) waited for the decision of the suit filed by Amrik Singh. When it was decided against him, appeal was filed by him, which was decided in his favour vide judgment dated 6.11.1992, on the basis of compromise (exhibited in that appeal as A-1), wherein Amrik Singh admitted his possession in respect of Khasra No. 30-Min (30-0). The accused armed with lethal weapons went to the land in possession of Attar Singh and his sons, to take forcible possession thereof and caused injuries on the person of Attar Singh (now deceased), Dogra Singh, Surinder Singh and Kundan Singh. The proof of motive set up by the prosecution, lends assurance to the ocular version. The trial Court was also right, in holding, that there was motive with the accused, to cause injuries on the person of the deceased and the injured. The findings of the trial Court, in this regard, are in consonance with the evidence, produced, on record.
25. Now coming to the participation of the accused, in the commission of crime, it may be stated here, that a number of serious and grievous injuries on the person of Attar Singh, Surinder Singh, Dogra Singh and Kundan Singh were caused, by the accused. The injuries which, were found, on their person, matched with the weapons, being wielded by the accused. Since, the members of the complainant party were in possession of Khasra No. 30 Min in which the occurrence took place, the accused, with a view to take forcible possession thereof, armed with lethal weapons referred to above, in the form of an unlawful assembly went there and in prosecution of the common object of said assembly caused the death of Attar Singh, and injuries on the person of Surinder Singh, Dogra Singh and Kundan Singh. The principle of law, laid down, in Shamshul Kanwar v. The State of U.P. , was to the effect, that actual participation, in the attack, by all the members of an unlawful assembly, is not necessary, once it is proved that they had the common object, to do a criminal act. In Masalti v. State of Uttar Pradesh , it was observed as under:
What has to be proved against a person, who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly, the common object as defined by Section 141 IPC. Section 142 provides that however, being aware of facts, which render any assembly an unlawful assembly if he intentionally joins that assembly or continues in it, he is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case, is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question it becomes relevant to consider whether the assembly consisted of some persons, who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context, that the observations made by this Court in the case of Baladin (s) assume significance; otherwise in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed illegal overt-act or had been guilty of some illegal ommission, in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who, at the time of the committing of that offence is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
In Lalji v. State of U.P. it was observed as under:
Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this Section created a specific and distinct offence. In other words it created a constructive and vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the Section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence, committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural result of the combination of the acts in which he joined. It is not necessary that all the persons, forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathies and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt- act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the act of each, and all, merely because he is a member of an unlawful assembly. While overt-act and active participation may indicate common intention of the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly with the requisite common object or knowledge.
26. Even if, it is assumed, for the sake of arguments, though not admitted, that some of the accused did not cause injuries on the person of the deceased and the injured, they could not escape their liability regarding the commission of crime, being the members of unlawful assembly. Balwan Singh, PW-5, in his statement Ex. PQ, on the basis whereof, FIR was recorded, gave complete details of the injuries caused by the accused on the person of the injured and deceased with various types of weapons. Those details were reiterated by him, in his statement, while appearing as PW-5. His statement to this extent, was fully corroborated by Surinder Singh and Dorgra Singh in all material particulars. Had there not been prompt lodging of FIR, it would have certainly been said, that the chances of concoction of story, or false implication of the accused, could not be ruled out. Since, in the instant case, there was a prompt lodging of the FIR, concoction of story or false implication of Dhian Singh, Jaswant Singh and Balkar Singh, accused, as suggested by the learned Counsel for the appellants, was completely ruled out. The trial Court was right in holding that their case was not similar to the case of the acquitted accused. The trial Court was, also right in coming to the conclusion that all the accused (appellants) caused injuries, on the person of the deceased, and the three injured. The submission of the learned Counsel for the appellants, therefore, stands rejected.
27. The next submission of the learned Counsel for the appellants to the effect that the injuries on the person of Kulbir Singh sustained in the same occurrence, were not explained by the prosecution witnesses and, as such, it could be said that the very genesis of the occurrence was suppressed and therefore, the case of the prosecution was doubtful is also not correct. No doubt Harbhajan Ram, DW-2, who medico- legally examined Kulbir Singh, one of the appellants at 2.30 P.M. on 12.11.1992 found the following two injuries on his person.
1. Lacterated wound 0.4 cm in diameter on the latteral surface of right shoulder joint. Margins were inverted. No blackening. Active bleeding present from wound. Kept under observation for x-ray and surgical opinion.
2. Lacerated wound 1x 0.2 cm on the back of right shoulder joint.
3. Reddish contusion 4 x 1 cm on the back of right shoulder joint.
Injury No. 1 was kept under observation for x-ray examination and surgical opinion. Injuries No. 2 and 3 were simple caused by blunt weapon. Injury No. 1 was caused by fire-arm. Probable duration of the injuries was within about six hours.
28. Kulbir Singh stated in his statement under Section 313 Cr.P.C. that Attar Singh, caused injuries on his person and in self defence after snatching a gandasi from one of the injured. Hazara Singh, his relative caused injuries on the person of the deceased and the injured. This version has already been rejected. The injuries on the person of Kulbir Singh were minor and superficial in nature. It was, thus, not necessary, on the part of the prosecution witnesses, to explain the same. It is not that, in every case, the prosecution witnesses are required to explain injuries found on the person of the accused. In Shahjahan and Ors. v. State of Kerala and Anr. 2007 (2) RCR (Criminal) 503 (S.C.) it was held that it could not be said that, in each and every case, where the prosecution fails to explain the injuries, found on some of the accused, its case should automatically be rejected, without any further probe. Where the evidence is clear, cogent and creditworthy, and where the Court can distinguish the truth, from falsehood, the mere fact that the injuries are not explained by the prosecution, cannot by itself, be a sole basis, to reject such evidence. Where injuries sustained by the accused, are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of omission, on the part of prosecution to explain the injuries, the case of the prosecution does not become doubtful. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. As stated above, as many as 10 injuries, referred to above were found on the person of Kundan Singh out of which one injury was declared grievous in nature, 3 injuries were found on the person of Surinder Singh injured out of which one injury was declared grievous in nature, 3 injuries were found on the person of Dogra Singh out of which one injury was declared grievous in nature and 5 incised wounds of different dimensions, on the skull of Attar Singh, (now deceased) were found. These injuries, as per the opinion of the doctor, were sufficient to cause death in the ordinary course of nature. On the other hand, as stated above, only three minor and superficial injuries were found on the person of Kulbir Singh. As stated above, the evidence of Balwan Singh, Surinder Singh and Dogra Singh, duly corroborated by the medical evidence, as also the circumstantial evidence, relating to the recovery of weapons of offence, on reappraisal, has been found to be clear, cogent and creditworthy. In these circumstances, it could not be said that non-explanation of injuries, on the person of Kulbir Singh, accused amounted to the suppression of the very genesis of the occurrence. In these circumstances, non explanation of minor and superficial injuries, on the person of Kulbir Singh, accused, did not in any way, affect the case of the prosecution. The submission of the learned Counsel for the appellants, being without merit, must fail and the same stands rejected.
29. From the statement of Jarnail Singh, at the relevant time Sub Inspector, P.S. Dina Nagar. It is evident that on 18.11.1992 he interrogated Darbara Singh, who made disclosure statement Ex. PD that he had concealed a double barrel gun along with seven live cartridges in a heap of chaff at a specified place and could get the same recovered by pointing out. Thereafter, he got recovered the double barrel gun and 7 live cartridges, from the pre-disclosed place, which were taken into possession vide memo PDD/1. The disclosure statement and the recovery memo were attested by Ajit Singh, PW-3, examined in Session trial No. 92 of 15.5.1993. The accused could not produce any licence for the possession of the double barrel gun, and the cartridges. The trial Court, in our opinion, was thus, right in recording his conviction and awarding him sentence, for the offence punishable under Section 25 of the Arms Act.
30. Similarly, Jarnail Singh, at the relevant time Sub Inspector, when appeared as PW-14 in Sessions trial No. 91/RBT 94 on 15.5.1994, deposed that on 22.11.1992, Kulbir Singh, accused was taken out of the lock up of the Police Station, who was already arrested in this case registered against him and other accused, in the presence of Balwinder Singh and Gurmukh Singh, Constable, was interrogated when he made a disclosure statement Ex.PA that he had concealed a Barcha in the heap of chaff in the area of Village Miani Jhemala and could get the same recovered by pointing out. His disclosure statement Ex.PA was recorded which was thumb marked by him and attested by the witnesses. Thereafter, the police got recovered the spear, from the heap of chaff. Sketch Ex.PB/1 was prepared and the same was taken into possession vide memo Ex.PC. The statement of Jarnail Singh was duly corroborated by Balwan Singh. The trial Court was, thus, right in holding that the accused was found in possession of Barcha, an arm, without any valid licnece. The trial Court was, thus, right in recording conviction and awarding sentence to him, for the offence punishable under Section 25 of the Arms Act.
31. We are of the considered opinion that the trial Court was right in holding that the defence version was a concocted one. We have also reappraised the defence evidence, and conclude that the same being an after thought and concocted, was rightly rejected by the trial Court.
32. No other point was urged, by the learned Counsel for the parties.
33. In view of the above discussion, it is held that the judgments of conviction and the orders of sentence, rendered by the trial Court are based on the correct appreciation of evidence, and law on the point. The same do not warrant any interference, and are liable to be upheld.
34. For the reasons recorded hereinbefore, Criminal Appeal Nos. 590-DB, 618-DB and 619-DB of 2001 are dismissed. The judgments of conviction and the orders of sentence recorded by the lower Court, are upheld.