JUDGMENT
F.C. Bansal, J.
1. This appeal is directed against the judgment dated February 20, 1998 passed by learned Special Judge, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Cases cum Additional Sessions Judge, Alwar whereby the appellants were convicted and sentenced as under-
Appellant
Mahendra Singh
u/S. 148 IPC
R.I. for six months.
u/S. 302 IPC
imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine to further suffer two months’ R.I.
U/S. 307/149 IPC
R.I. for 5 years and a fine of Rs. 500/-, in default to further suffer one month’s R.I.
u/S. 325/149 IPC
R.I. for one year and a fine of Rs. 200/-, in default to further suffer R.I. for 15 days.
u/S. 325/149 IPC
R.I. for three month.
Appellant
Bhupendra Singh
u/S. 148 IPC
R.I. for six months.
u/S. 302/1 49 IPC
Imprisonment for life and a fine of Rs. 1,000/-, in default to further suffer R.I. for two month.
u/S. 307 IPC
R.I. for 5 years and a fine of Rs. 500/-, in default of payment of fine to further suffer R.I. for one month.
u/S. 325/149 IPC
R.I. for one year and a fine of Rs. 200/-, in default to further suffer R.I. for 15 days.
u/S. 323/149 IPC
R.I. for three months.
u/S. 3/25 Arms . Act
R.I. for one year and a fine of Rs. 500/-, in default to further suffer R.I. for one month.
Appellants
Amar Singh, Battu
and Natveer Singh
@ Dholya each
u/S. 147 IPC
R.I. for four months.
u/S. 302/149 IPC
Imprisonment for life and a fine of Rs. 1000/-, in default to further suffer R.I. for two months.
u/S. 307/149 IPC
R.I. for 5 years and a fine of Rs. 500/-, in default of payment of fine to further suffer R.I. for one month.
u/S. 325/149 IPC
R.I. for one year and a fine of Rs. 200/-, in default to further suffer R.I. for 15 days.
u/S. 323 IPC
R.I. for three months.
Appellants
Sardar, Prabhu
and Yogendra Singh
each
u/S. 147 IPC
R.I. for four months.
u/S. 302/149 IPC
Imprisonment for life and a fine of Rs. l.000/- in default to further suffer R.I. for two months.
u/S. 307/149 IPC
R.I. for 5 years and a fine of Rs. 500/-, in default of payment of fine to further suffer R.I. for one month.
u/S. 325/149 IPC
R.I. for one year and a fine of Rs. 200/-, in default to further suffer R.I. for 15 days.
u/S. 323/149 IPC
R.I. for three months.
2. All the substantive sentences were ordered to run concurrently.
3. Briefly stated the facts of the prosecution case are that on October 27, 1994 at 11.00 A.M. PW3 Kishore S/o Buddharam, by caste-Meena, R/o-Cheemapura submitted a written report Ex.P10 at Police Station Reni (District Alwar) with the averments that today at 8:00 A.M. he was keeping watch in his field. In nearby fields Moharpal, Gordhan and Babulal were working. At that time Mahendra Singh, Yogendra Singh S/o mahendra Singh, Bhupendra S/o Mahendra Singh, Amarji S/o Bhanwar Singh, Dholya S/o Amarji, Prabhu Meena, Sardar Meena and Battu Meena (all appellants) came in a jeep. On reaching at his field Mahendra Singh, who was armed with a double-barrel gun fired a shot at him but instead of he Moharpal sustained injuries and he died at the spot. Rameshwar Meena R/o village Buchpuri, gordhan and Babulal also sustained gun shot injuries. Bhupendra Singh was holding a Katta (country made pistol) and the remaining accused were armed with lathies and. ‘Barchi’. The incident was also witnessed by Jagan Singh and Gangal Singh. Dead body of his brother Moharpal is lying on the spot. On the basis of the written report Ex.P10, SHO, P.S. Reni registered a case under Sections 302, 307, 147, 148, 149 IPC and Section 3 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and investigation commenced. Formal FIR is Ex.P11. It would be pertinent to mention here that at the time of submission of written report Ex.P10. It was also stated by Kishori that during occurrence Ramdayal and Rajpal also sustained injuries. Heeralal S/o Madan and Ramesh S/o Prasadi, by caste-Meena, R/o-Khadagpur also were present in their fields when the incident took place. PW 15 Pabudan Singh, the Investigating Officer reached on the spot and prepared Inquest Report Ex. P16. Site Plan Ex.P12 was drawn. He seized and sealed blood smeared soil and control soil vide Seizure Memo Ex.P13. One empty cartridge, one live 12 bore cartridge and some wads/wad pieces were seized and sealed from the spot vide Seizure Memo Ex.P15. Tractor belonging to Mahendra Singh was also seized which was found on the spot vide Seizure Memo Ex.P17. Rameshwar (PW11), Goverdhan @ Gordhan (PW5), Ramdayal (PW12), Rajpal (PW4) and Moolchand @ Babulal (PW10) were medically examined by PW1 Dr. Harimohan Tiwari, medical Officer-in-Charge, C.H.C., Reni and he prepared Injury Report Ex.P3, Ex.P4, Ex.5, Ex.P6 and Ex.P7 respectively. Autopsy on the dead body of Moharpal was conducted by PW 1 Dr. Harimohan Tiwari on the spot at 3:35 P.M. on the same day and he prepared Post-mortem Report Ex.P1. ‘Dhoti’ and ‘Baniyan’ which the deceased was wearing at the time of the incident was also seized and sealed vide Seizure Memo Ex.P29. The statements of the witnesses were recorded under Section 161 Cr.P.C. On X-ray it was also found that there was a fracture of right fronto parietal bone of Rameshwar. His X-ray Report is Ex.P2. The appellants were arrested. On the disclosure statement Ex.P36 of appellant Bhupendra Singh, one 12 bore country made pistol (Katta) was recovered from his house at his instance. The I.O. sealed it and prepared Recovery Memo Ex.P21. On the disclosure statements of appellants Yogendra Singh, Narveer Singh @ Dholya and Battu, lathies were recovered. On the disclosure statement of appellant Sardar, one ‘Dhariya’ was recovered. One 12 bore K.F. Special Cartridge case, seven wads/wad pieces, one 12 bore country made pistol and six lead pellets were sent to State Forensic Science Laboratory, Jaipur for examination. As per report Ex.P47 of S.F.S.L., country made pistol was found serviceable but it was also opined that the possibility of tampering of firing pin of it could not be ruled out. It had been fired but definite time of its last fire could not be ascertained. 12 bore cartridge had been fired form that pistol and six lead pellets are normally used in 12 bore ammunition. These pellets could have been fired from 12 bore country made pistol. Prosecution sanction Ex.P48 against appellants Bhupendra Singh was obtained from the District Magistrate, Alwar. On completion of investigation, charge-sheet was laid against the appellants in the Court of Judicial Magistrate, Rajgarh who committed the case to the Court of learned Special Judge cum Additional Sessions Judge, Alwar.
4. Learned Special Judge framed charges under Sections 323, 323/149, 325/149, 302, 307, 307/149 IPC, 3/25 of Arms Act and 3(1)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act against appellant Mahendra Singh, under Sections 148, 323, 323/149, 325/149, 302/149, 307, 307/149 IPC, 3/25 of Arms Act and 3(1)(v) of SC/ST (Prevention of Atrocities) Act against appellant Bhupendra Singh, under Sections 148, 323, 323/149, 325, 325/149, 302/149, 307/149 against appellants Sardar, Prabhu, Amarsingh and Battu and under Section 147, 323, 323/149, 325/149, 302/149, 307/149 IPC, 3(1)(v) of SC/ST (Prevention of Atrocities) Act against appellants Yogendra Singh and Narveer Singh. The appellant pleaded not guilty and claimed to be tried.
5. In order to prove the charges the prosecution examined as many as 15 witnesses. In their statements recorded under Section 313 Cr.P.C., the appellant claimed innocence and stated that they were falsely implicated in the case. In defence the appellants examined DW 1 Govind Prasad Patwari and DW 2 Surendra Singh and produced some documents.
6. Learned trial Judge after hearing learned counsel for the accused-appellants and learned Public Prosecutor, convicted and sentenced the appellants as indicated here-in-above. The appellants have been acquitted of the remaining charges.
7. We have heard learned counsel for the appellants, learned Public Prosecutor and have also perused the material on record.
8. The prosecution case rests upon the medical evidence of PW1 Dr.. Harimohan Tiwari and ocular testimony of PW 3 Kishori, PW Rajpal, PW 5 Gordhan (@ Goverdhan), PW 6 Heeralal, PW 10 Babulal @ Moolchand, PW 11 Rameshwar, PW 12 Ramdayal and PW 14 Ramesh. PW 1 Dr. Harimohan Tiwari stated that on 27.10.94 he was posted as Medical Officer-in-Charge, C.H.C., Reni. On that day he reached on the spot at 3:35 P.M. at police request and conducted post- mortem examination on the dead body of Moharpal S/o Buddharam, aged 45 years, by caste-Meena, R/o- Cheemapura and found following injuries on his person:-
EXTERNAL INJURIES
(1) Gun shot sound entrance 1cm. x 1cm. on dorsal aspect of right hand in between base of ring and middle finger. Margins are blackened, exit would 1.5 cm. x 1.3 cm. on parietal aspect of right hand in between base of ring and middle finger. Distance between entrance and exit would are 3.0 cm.
(2) Gun shot would 0.8 cm x 0.8 cm. at upper part of right thigh just below mid of groin region. Depth 7.3 cm. directed upward and backward. Back staining present all around this entrance wound. Clotted blood present.
(3) Gun shot would 0.8 cm x 0.8 cm. on right thigh below 4.0 cm. to above injury No. 2. Depth 6.4 cm. directed backward and medially. Black staining present all around this entrance wound, clotted blood present.
(4) Gun shot wound 0.8 cm x 0.8 cm. on upper part of left thing below groin region. Depth 8.7 cm. directed backward and medically. All around the entrance would, black staining present. Clotted blood present.
(5) Gun shot would 1.1 cm x 0.9 cm, at right iliac region, margin are blackened. On insertion of probe directed downward and medially in abdominal wall to abdominal cavity.
(6) Gun shot wound 1 cm x 0.9 cm. size present, 5 cm. above to wound No. 5. Margins are blackened. On probe insertion directed backward and upward passing from abdominal wall to abdominal cavity.
(7) Gun shot wound 1 cm x 0.9. near right side of umbilicus. Margins are black stained. On probe insertion directed backward and medially passing abdominal wall to abdominal cavity.
(8) Black multiple shooting marks of different size (0.2 cm x 0.2 cm to 0.4 cm x 04. cm.) all over abdomen and both thigh.
INTERNAL INJURIES
(1) Paritoneum-Lacerated would at the site of entrance of gun shot. abdominal cavity was full of clotted blood.
(2) Small intestines-lacerated wound 2.3 cm. x 1.5 cm. piercing through and through/
(3) large intestines-There were two lacerated wounds.
(4) Abdominal Aorta-Abdominal Aorta
9. Dr. Tiwari further stated that he found three pellets in abdomen, one pellet in left thigh and two pellets in right thigh which were taken out and handed over to police. He also stated that in his opinion that cause of death was shock and haemorrhage as a result of gun shot injuries on vital part of abdomen. All the injuries were ante-mortem in nature. Duration of injuries was within 6 to 12 hours. He prepared Post-mortem Report Ex.P1.
10. Dr. Tiwari is an independent and impartial witness and thee are no reasons to disbelieve his testimony. Learned counsel for the appellants also did not challenge the veracity of his statement. On close and careful scrutiny we find the statement of Dr. Tiwari to be reliable and trustworthy and it proves that deceased Moharpal met with the homicidal death due to injuries caused by fire arm.
11. Dr. Tiwari also stated that on the same day at 1.10 P.M. he examined Rameshwar S/o Jansi, aged 45 years, by caste-Meena, R/o Buchpari and found following injuries on his person:-
(1) Lacerated would 2.5cm. x 0.8 cm. x bone deep on left frontal region, oblique.
(2) Lacerated wound 3.5 cm x 1.0 cm x bone deep (oblique) on right frontal parietal bone.
(3) Contusion 5 cm. x 2 cm. on lateral aspect of right side of chest.
(4) Contusion 5 cm. x 3 cm. on posterior aspect lower 1.3rd left arm near elbow joint.
(5) Lacerated would 1 cm x 1/2 cm. x 1/2 cm. on right parietal region (oblique).
12. Dr. Tiwari further stated that injury No. 2 was grievous and the remaining were simple in nature. He prepared Injury Report Ex.P3. All the injuries were cased by blunt weapon and their duration was within 24 hours. On receiving X-ray report Ex.P2 it was also found by him that injury No. 2 was grievous in nature.
13. Dr. Tiwari further stated that on the same day at 1:45 P.M. he examined Goverdhan S/o Kishori, aged 30 years, by caste-Meena and found following injuries on his person:-
(1) Lacerated wound 1 cm x 0.5 cm x 3.3 cm on medial aspect of upper 1.3rd region of right palm.
(2) Contusion with swelling 2.5 cm. x 1.5 cm. on lateral aspect of lower l/3rd region of left forearm.
(3) Abrasion 1 cm. x 0.5cm. on medial aspect of left knee joint.
(4) Abrasion 0.5 cm, x 0.4 cm. on medial aspect of upper 1/3rd region of left leg.
14. Dr. Tiwari also stated that all the injuries were simple in nature and caused by blunt weapon. Duration of injuries was within 24 hours. He prepared injury Report Ex.P4.
15. It was also stated by Dr. Tiwari that on the same day at 2:25 P.M. he examined Ramdayal S/o Kishori Meena and found following two injuries on his person:-
(1) Abrasion 1.5 cm. x 0.4 cm. on posterior aspect of lower end of left thumb.
(2) Contusion 2 cm. x 1.5 cm. on right buttock.
16. Both the injuries were simple in nature and caused by blunt weapon. Duration of injuries was within 24 hours. He prepared Injury Report Ex.P5.
17. On the same day at 2:00 P.M. he examined Rajpal S/o Buddharam Meena and found following injury on his person:-
(1) Abrasion 0.2 cm. x 0.2 cm. (rounded in shape) on back, right lumbar region.
18. This injury was simple in nature and caused by blunt weapon. Its duration was within 24 hours. He prepared Injury Report Ex.P6.
19. On the same day at 2:15 P.M. he examined Moolchand S/o Maduwa, by caste Meena and found following injury on his person:
(1) Abrasion 0.2cm x 0.2cm. (rounded in shape) on posterior aspect of lower 1.3rd of right arm.
20. This injury was simple in nature and caused by blunt weapon. Duration of injury was within 24 hours. He prepared Injury Report Ex.P7.
21. From the above statement of PW 1 Dr. Harimohan Tiwari, it is established that the above injuries were found on the person of the aforesaid person at the time of their medical examination.
22. As regards ocular testimony, PW 3 Kishori stated in his deposition that on 27.10.94 he was keeping watch in his field of mustard crop situated in the dam of village Reni. His son Gordhan @ Goverdhan also came there. PW 3 Kishori further stated that the 8:00 A.M. appellant mahendra Singh, Yogendra Singh. Sardar, Prabhu, Battu, Dholya, Bhupendra and Amarjeet (Amarsingh) came in a jeep alongwith a tractor on his filed. On coming to his field Yogendra Singh drove the tractor and started causing damage to his mustard crop. He asked him not to damage his crop but he did not stop. Thereafter he called Moharpal, Rajpal, Moolya, Gordhan, Heeralal and Ramesh through his son Goverdhan. In presence of these persons he again requested the appellants not to plough his field but they did not accede to his request. Thereafter appellant Mahendra Singh fired a shot which hit on the private parts of Moharpal. Appellant Bhupendra fired another shot and caused injuries on the knees of Moharpal. Moharpal fell down. It was also stated by Kishori that appellant Prabhu and Sardar caused injuries with ‘Farsi’ and Battu, Amarsingh and Dholya inflicted injuries with lathies on the person of Rameshwar. He also stated that Goverdhan, Ramdayal, Rajpal and Babulal @ Moolchand also sustained injuries by pellets. The incident took place on the mudwall which was adjacent to his field. The land was allotted to him in the year 1978. After the incident he went to police station and lodged his report. In cross-examination he deposed that the land was allotted to him in the year 1969.
23. PW 4 Rajpal deposed that he was working in his field and at the request of Ramdayal he came to the field of Kishori. He further stated that Moharpal also came there and asked the appellants not to plough the field. At this, Mahendra Singh fired a gun shot and caused injury on the abdomen of Moharpal. The appellant Bhupendra also fired a shot from his ‘Katta’ which hit on the thigh of Moharpal. Moharpal fell down. PW4 Rajpal also stated that Rameshwar was caused injuries by appellant Sardar with ‘Dhariya’, appellant Prabhu with ‘Barchhi’ and the remaining accused with lathies. goverdhan, Ramdayal, he and Babulal also sustained injuries by pellets. In cross-examination it was stated by him that appellant Prabhu caused injury with blunt side of ‘Barchhi’ to Rameshwar. PW 5 Goverdhan, PW6 Heeralal, PW10 Babulal @ Moolchand, PW11 Rameshwar, PW12 Ramdayal and PW 14 Ramesh also deposed that they were present on/near the spot and in their presence appellant Mahendra Singh fired a shot and caused injuries on the person of Moharpal. It was also stated by PW 6 Heeralal that appellant Bhupendra Singh also fired a shot at Moharpal and caused injuries. PW 5 Goverdhan stated that appellant Sardar Singh inflicted injury with ‘Dhariya’ and Prabhu with ‘Barchhi’ on the person of Rameshwar. He further stated that when Mahendra Singh fired a shot, Goverdhan, Ramdayal, Rajpal and Babulal @ Moolchand also sustained injuries, PW6 Heeralal further stated that appellant Sardar, Prabhu, Dholya, Battu and Amarsingh cause injuries on the person of rameshwar. As per the version of PW 10 Babulal, PW11 Rameshwar and PW12 Ramdayal, appellant Sardar and Prabhu had caused injuries with ‘Dhariya’ and ‘Barchhi’ on the person of Rameshwar. PW10 Babulal also stated that Rameshwar was caused injury with lathi by appellant Battu. As per the version of PW12 Ramdayal, the remaining appellants had caused injuries with lathies to Rameshwar. As per the version of PW 6 Heeralal, Goverdhan, Ramdayal, Rajpal and Babulal also sustained injuries when appellant Mahendra Singh fired a shot at Moharpal. As per the version of PW 10 Babulal @ Moolchand when appellant Bhupendra Singh fired a shot, Goverdhan, Ramdayal, Rajpal and he sustained injuries. As per the statement of PW11 Rameshwar, Goverdhan, Ramdayal and Babulal also sustained injuries when appellant Bhupendra fired a shot. It was also stated by PW 12 Ramdayal that when appellant Bhupendra fired a short, he alongwith Rampal and Moolchand also sustained injuries. It was also slated by Ramdayal that appellant Dholya caused injury with lathi on his buttock. As per the version of PW 14 Ramesh when appellant Bhupendra Singh fired a shot, 1-2 persons sustained injuries. Thus as per the version of all these witnesses, appellant Mahendra Singh had fired a shot at deceased Moharpal causing injuries on his person. As per the version of PW 3 Kishori, PW 4 Rajpal and PW 6 Heeralal, appellant Bhupendra Singh had also fired a shot and caused injury on the person of Moharpal.
24. Learned counsel for the appellants contended that PW 3 Kishori and PW 4 Rajpal are the brothers of the deceased. PW 5 Goverdhan and PW 12 Ramdayal are the sons of PW 3 Kishori, PW 10 Babulal @ Moolchand is a cousin of PW 12 Ramdayal. Therefore, the are interested and partisan witnesses and their testimony should not be relied upon. Chances of false implication of the appellants by them can not be ruled out. In our opinion, thus contention has no force. In Ashok Kumar Pandey v. State of Delhi (1), the Apex Court held that “it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or both, if otherwise the same is found to be credible. Reference in this connection may be made to the decision of this Court in the cases of Rameshwar v. State of Rajasthan (2), Dalip Singh v. State of Punjab (3), Vadivelu Thevar v. State of Madras (4), Masalti v. State of U.P. (5). State of Punjab v. Jagir Singh (6) and Guli Chand v. State of Rajasthan (7).”
25. In “Lehna v. State of Haryana (8)” it was held that relation by itself cannot be a ground to doubt testimony of such witness.
26. In “Gangadhar Behere v. State of Orissa (9)”, it was propounded that merely because of witnessed being related to the deceased, that by itself, would not affect credibility of testimony of such witnesses.
27. In Bhagwan Singh v. State of M.P. (10), the Hon’ble Supreme Court observed that where the testimony of prosecution witnesses was cogent, reliable and confident-inspiring, it cannot be discarded merely on the ground that the said witnesses happened to be relatives of the deceased.
28. In view of the aforementioned decisions of the Apex Court, the testimony of the aforesaid witnesses can not be rejected only on this ground that they are related to the deceased. The only legal requirement is that their evidence should be scanned with utmost care keeping in view the fact that they are related to the deceased.
29. Learned counsel for the appellants further contended that gun was not recovered form the possession of appellant Mahendra Singh and, therefore, the prosecution evidence qua appellant Mahendra Singh cannot be relied upon. This contention deserves to be rejected. The testimony of the aforesaid witnesses cannot be discarded merely on the ground that gun was not recovered from the possession of appellant Mahendra Singh.
30. It was also canvassed by learned counsel for the appellant that true genesis of the alleged incident has been withheld by the prosecution. It was not mentioned in the FIR (written report Ex.P10) that on reaching at the field of Kishori, appellant Yogendra Singh started to cause damage to his mustard crop by driving the tractor whereas all the alleged eye-witnesses stated that the appellants came at the field of Kishori and appellant Yogendra Singh drove the tractor and started to cause damage to mustard crop. When Kishori made a request to the appellant not to damage his crop they did not oblige him and first of all appellant Mahendra Singh fired a gun shot which hit on the person of deceased Moharpal and he died on the spot. It was also submitted by learned counsel that Jagan Singh and Gangal Singh, who were named as eye-witnesses in Ex.P10, have not been produced by the prosecution. Withholding of these independent witnesses creates doubt in the prosecution story. Medical evidence does not lend corroboration to the ocular evidence. PW 1 Dr. Harimohan Tiwari stated that in his opinion the deceased was caused injuries form a distance of 6 to 8 feet whereas PW 3 Kishori stated that shots were fired from a distance of 15 to 20 ‘pawandas’. PW 11 Rameshwar stated that shot was fired by Mahendra Sigh from a distance of 10 to 15 ‘pawandas’. It was submitted by learned counsel that at the time of autopsy, blackening of skin was also found around the wounds which proves that the shot was fired from close range. It was also urged by learned counsel for the appellants that there are material contradictions and discrepancies in the evidence of alleged eye-witnesses. The prosecution has failed to prove that PW 3 Kishori was in possession of the land on which the incident allegedly took place. The Trial Court has also come to the conclusion that the prosecution has not succeeded improving the possession of Kishori over the land. On the other hand, from the defence evidence it is established that appellant Mahendra Singh, his sons and brothers were in possession of that land. Therefore, the appellants had the right of private defence of property and in exercise of this right, if they had caused injuries to the deceased and other persons, they committed no offence. In alternate it was urged by learned counsel that there was no unlawful assembly of the appellants having common object to kill Moharpal, an intervened and, therefore, except appellant Mahendra Singh, the remaining appellants could not be convicted under Section 302 with the aid of Section 149 IPC. Learned Public Prosecutor supported the impugned judgment.
31. It is true that Jagan Singh and Gangal Singh who were named as eye-witnesses in written report Ex.P10, have not been examined by the prosecution but only on this ground the testimony of the aforesaid eye-witnesses cannot be disbelieved in toto.
32. The Apex Court in Munshi Prasad and Ors. v. State of Bihar (11), held that “A complaint focused that except the interested witnesses none else from the nearby residential areas has been examined this is so: it is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence available on record if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in the number of witnesses cannot be termed to be a requirement for the case.”
33. In another case, Sheelam Ramesh and Anr. v. State of Andhra Pradesh (12), the Apex Court observed that ‘Having examined all the eye-witnesses even if other persons present nearby not examined, the evidence of the eye-witnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witnesses if it inspires confidence.”
34. Again in Paramjit v. State of Haryana (13), it was observed by the Apex Court that “Also there is no substance in the submission that independent witnesses were not examined. The prosecution only needs the lead evidence sufficient to prove its case,”
35. So for as so called variance between medical evidence and ocular evidence is concerned, Hon’ble the Supreme Court in Mohan Singh and Anr. v. State of M.P. (14), held that:-
“The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust all these things clog the very truth. So long as chaff, could and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the trough. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concertised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. Under this sphere, we proceed now to test the submission of the learned counsel for the accused with reference to the blackening found by the doctor under the injuries in the post-mortem report.”
“Returning to the eyewitnesses, we find both these two eyewitnesses, PW1 and PW3 have fully corroborated the prosecution story. Their credibility has been upheld by the trial court and we also, after going through their testimony, fully approve this finding and uphold their testimony. Apart from these two eyewitnesses, there is also part-corroboration by Jagannath Singh, PW6, who is a neighbour. His house is adjacent to the house of Ram Singh. He stated, he woke up on hearing the noise of firing of a gun. Actually he heard the noise of firing of three shots. He then went to the door of the house and heard “Jee Saheb”, the witness clearly stated he always called Ajay Singh as “Jee Saheb”, He heard him saying tat if any person of the village came out he would be killed. On account of this, he did not come out and he remained inside his house till 8 a.m. Scrutinising and examining the evidence, we have no hesitation to conclude that the prosecution has proved to the hilt the story of firing by Mohan Singh from his rooftop at the deceased Bhagat Singh. This unimpeachable evidence of these two eyewitnesses fully corroborates the other part of the medical evidence, viz., injuries oval in shape, direction downwards, pellets travelling right to left, i.e. that the shot was fired from the rooftop of the third floor. In this light, mere reference in the said report of bleaching under the surface of the injuries by the doctor could not be given credence for inferring that firing was from a close range. This by itself in no way dismantles the prosecution story. Learned Senior Counsel, Mr. M.N. Krishnamani, appearing for the impleaded party submitted that the blackening found could also be because of clotted blood found as recorded in the same report: “Skin blackened, clotted blood was present around the wound.” We find in this regard as aforesaid, Modi records:
“The would of entrance in distant shot….. The edges of the would are inverted and the striking bullet covered with grease and smoke causes also a collar abrasion contusion, which looks like a dark ring.”
In the case of Sheo Shanker v. State (AIR 1953 All 652) with reference to the Medical Jurisprudence by Taylor, it was held that sometimes blackness present in the area of the injury of ingress creates doubt. Because of the path created by ingress of gunshot, the internal skin comes out and therefore the core keeps on changing the colour. The skin of nearby area can be colour. The skin of nearby area can be burnt or injury might not be burnt in accordance with the distance of opening the gunshot and there might to be blackness or redness of the particles. In this decision also, the doctor found a black margin below the gunshot wound. Relevant portions o the said decision incorporating Taylor’s opinion is quoted hereunder:-
“The nature of the wound said to have been inflicted on account of the gun being placed on the chest and fired does not fit in with the allegation. It is true that the doctor was not questioned about it. In fact the doctor made the statement that these wounds were due to the gun being fired by being placed on the chest or from within a range of one yard. We are of the opinion that in this the doctor was wrong and probably got misguided on account of the black margins of the wounds. The black margins of a wound are never due to the firing of the gun from very close range but are due to something different. Taylor says at P. 430 of his Principles and Practice of Medical Jurisprudence, Vol. I, 10th Edn.-
‘The edges of he wound commonly show a narrow ring of discoloration due to the removal of a layer of epithelium by the passage of the bullet. The surrounding skin may be scorched or not, and there may be a zone of blackening or peppering with grains of powder according to the distance from which the weapon was fired.”
And again at p.431-
“All entrance wounds., if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of the bullet and the invagination of the skin by the bullet and tends to dry and become discolored shortly after death. It should not be confused with the marks due to power for it gives no indication of range.”
And again at P.441-
‘The bruised and dark appearance which a gunshot would sometimes presents, even when the weapon is discharged at a distance from the body had led to the supposition that this fact was due to a burn and that the bullet burnt was parts which it touched, but this idea is not correct. The projectile never becomes sufficiently heated to acquire the power of burning.’
Again Taylor says at p. 430-
‘We must distinguish between near wounds and far wounds. Usually when a weapon is discharged in contact with or within an inch or so of the body the gases which pass out with the bullet enter the tissues and thereafter expand causing tearing of the skin or clothes very often in the form of a cross or a split. Most of the power is found inside the tissues, but there may be traces of blackening, burning and tattooing around the entrance hole……. if the weapon is discharged at a short distance from the skin the effect of the gases is lost and the entrances would looks like a hole which might be caused by pressing a lead pencil into the tissues; it is rounded with inverted edges and surrounded by a zone of singeing, blackening from the smoke and tattooing from the impaction of small particles of power in the skin.”
For all these reasons, we have no hesitation to hold that recording of blackening of skin below the injury by the doctor prima facie may lead to the conclusion that firing of gunshot maybe from a close range but in a given case, depending on other factors, as in the present case and in the light of what Taylor says, as aforesaid: “The black margins of a would are never due to the firing of the gun from a very close range but are due to something different….” the observation by the doctor could even be in cases where shots are not from a close range.
In Karnail Singh v. State of Punjab (AIR 1971 SC 2119), this Court held that that where it is proved beyond doubt that the evidence of the eyewitnesses is trustworthy in a case where the accused person committed murder by gunshots, the inconsistency between the opinion of the expert and the eyewitnesses relating to the distance from which gunshots were fired carries no weight. If the eyewitnesses stand the test of their credibility, they have to be believed. Looking to the present case, we see even the doctor’s opinion is not clear as the admitted that he cannot give a clear opinion about the distance from which the shot was fired. But he records that it was fired from a higher pedestal which corroborates with the prosecution story. This, coupled with the fact that the eyewitnesses also corroborate to the same effect, the submission on behalf of the accused for all the aforesaid reasons with respect to the first point cannot be sustained.”
36. The aforesaid decision is fully applicable to the facts of the instant case and we are of the opinion that the aforesaid variance between the opinion of PW1 Dr. Harimohan Tiwari and the eye-witnesses with regard to the distance from which gun shots were fired, is not fatal to the prosecution so far as appellant Mahendra Singh is concerned.
37. In Leelaram v. State of Haryana (15), the Apex Court observed that trial discrepancies ought not to obliterate an otherwise acceptable evidence. The evidence is to be considered from the point of view of trustworthiness.
38. In Genesh K. Gulve v. State of Maharashtra (16), their Lordships of the Supreme Court indicated the principles of appreciation of evidence. It was held that:-
“In order to appreciate the evidence, the court is required to bear in mind the set-up and the environment in which the crime is committed, the level of understanding of the witnesses, the overzealousness of some of the near relations to ensure that everyone even remotely connected with the crime be also convicted, and everyone’s different way of narration of the same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff.”
39. On examining the testimony of PW3 Kishori, PW4 Rajpal, PW 5 Gordhan, PW Heeralal, PW 10 Babulal @ Moolchand, PW 11 Rameshwar, PW12 Ramdayal and PW14 Ramesh from the point of view of trustworthiness, we see no reason to disbelieve their testimony in so far it relates to the implication of appellant Mahendra Singh with the crime. All these witnesses categorically stated in their deposition that deceased Moharpal was caused injuries by appellant Mahendra Singh by firing gun shot. Their testimony gets corroboration from medical evidence as well as the FIR (written report Ex.P10) which was lodged promptly by PW 3 Kishori at police station Reni. It is true that as per the version of PW 3 Kishori, PW 4 Rajpal and PW 14 Ramesh, appellant Mahendra Singh had fired only one shot whereas the remaining eye- witnesses stated that two shots were fired by Mahendra Singh but, in our opinion, merely on this ground their testimony qua appellant mahendra Singh cannot be rejected. It would be pertinent to mention here that as per the version of PW3 Kishori, PW 4 Rajpal, PW5 Gordhan and PW6 Heeralal, appellant Bhupendra Singh had also caused injuries to the deceased by firing a shot whereas the remaining eye-witnesses did not depose that appellant Bhupendra Singh had also fired a shot at Moharpal and caused injuries on his person. As it was not mentioned in the written report Ex.P10 that appellant Bhupendra Singh fired a shot from his ‘katta’ causing injuries to the deceased and other persons, therefore, on the ground of the above discrepancy, the ocular evidence qua appellant Mahendra Singh cannot be discarded. Therefore, no close and careful scrutiny, we have come to the conclusion that appellant Mahendra Singh had caused injuries on the person of Moharpal by firing gut shot which resulted in his death instantaneously.
40. So far as other appellants are concerned, there are material contradictions and discrepancies in the testimony of the aforesaid eye-witnesses. It was not alleged in the FIR (written report Ex.P10) that during occurrence appellant Mahendra Singh also had fired a shot causing injuries to the deceased and other eye-witnesses. It was also not alleged in Ex.P10 that any of the appellants except Mahendra Singh had caused injury with lathi, Dhariya, Barchhi and Farsi to Rameshwar, Goverdhan (@ Gordhan), Ramdayal, Rajpal and Babulal @ Moolchand. Apart from this, all the injuries found on the person of Rameshwar, Goverdhan, Ramdayal. Rajpal and Babulal at the time of medical examination were caused by blunt weapon in the opinion of PW 1 Dr. Harimohan Tiwari whereas as per the version of PW 3 Kishori, PW4 Rajpal, PW5 Gordhan, PW10 Babulal. PW 11 Rameshwar and PW 12 Ramdayal, appellant Sardar and Prabhu and caused injuries with sharp edged weapon ‘Dhariya’ and ‘Farsi’ (Barchhi) to Rameshwar. PW5 Gordhan stated in his examination-in-chief that when Mahendra Singh fired a shot he sustained injuries and, therefore, no other appellant had inflicted injury on the person of Goverdhan @ Gordhan. On medical examination two simple injuries were found on the person of Ramdayal. PW12 Ramdayal stated in his deposition that during the incident Bhupendra fired a shot causing injury on his person. He further stated that appellant Dholya inflicted injury with lathi on his buttock. As per the injury report Ex.P5, both the injuries found on the person of Ramdayal were caused by blunt weapon. Apart from this, some of the aforesaid eye-witness did not corroborate him. On medical examination only one injury caused by blunt weapon was found on the person of Rajpal and Babulal each. There are contradict statements of the eye- witnesses with regard to the injury found on the person of Rajpal and Babulal. PW 3 Kishori stated that on reaching at his field, appellant Yogendra Singh drove the tractor and damaged his crop whereas PW 6 Heeralal stated that the tractor was being driven by a person other than the appellants. All the aforesaid eye-witnesses stated that the mustard crop of PW 3 Kishori was damaged by appellants by a tractor and when Kishori objected, the incident took place. But in written report Ex.P10 such allegations were not made by PW 3 Kishori. As per the Site Plan Ex.P12, when the Investigating Officer PW 15 Pabudan Singh visited the place of occurrence he did not find any damage to mustard crop. Looking to these facts, we are of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of these remaining appellants in the alleged crime cannot be ruled out. The presence of the appellants except Mahendra Singh on the spot in doubtful and in our opinion, the prosecution has failed to bring home the charges framed against these remaining appellants.
41. The appellants except Mahendra Singh have been convicted by the trial Court under Section 302/149 IPC. In Anil Rai v. State of Bihar (17), Hon’ble the Supreme Court has observed as under:-
“The scope of Section 149 IPC has been explained by this Court in various judgments holding that application of Section 149 IPC would be highly unsafe unless it is positively proved that each one of the accused shared the common object and accordingly participated in the occurrence. In Masalti v. State of U.P. (AIR 1965 SC 202) it was observed: (AIR pp. 210-11, para 17)
“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, intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five of 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 v. State of U.P. (AIR 1956 SC 181) assume significance; otherwise, in law, it would not be correct to say that before a person is held to be member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission 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, 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 vicarius 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. (1989 (1) SCC 437) this Court held: (SCC pp. 441-42, para 9)
“9. 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 vicarius liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offence 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 results 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 acts 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 person perpetrating the crime, the mere presence in the unlawful assembly may fasten victoriously 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.”
In Shamshul Kanwar v. State of U.P. (1995 (4) SCC 430) it was held that to infer common object it is not necessary that each one of the accused should have participated in the attack when the evidence of the eyewitnesses clearly established that each one of those convicted accused was a member of the unlawful assembly whose common object was to commit murder. Where the prosecution fails to prove the existence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict ail the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased.
42. Keeping in view the above principles laid down by the Apex court we have scrutinized the ocular testimony of the aforesaid eye-witnesses and come to the conclusion that the prosecution has failed to prove that after having formed an unlawful assembly with the common object to kill Moharpal and to cause injuries to the aforesaid injures persons, the appellants had come at the place of occurrence. In our opinion, the incident took place when appellant mahendra Singh wanted to plough the Siwai Chak land which was shown in between the dam and field belonging to Kishori in Site Plan Ex.P12. Both the parties were claiming this land as their own. PW 3 Kishori and persons of his party including his brother Moharpal did not allow appellant Moharpal to plough this land and, therefore, Mahendra Singh fired a gun shot and caused death of Moharpal. If some of the appellants were present on the spot alongwith Mahendra Singh, they cannot be held guilty under Section 320/149 IPC as their common object was not to kill Moharpal. As per the prosecution case, the dispute with regard to land was between Kishori and appellant Mahendra Singh. Moharpal was called by PW3 Kishori and he also asked appellant Mahendra Singh not to damage the crop of Kishori and thereafter he was shot dead by appellant Mahendra Singh. Thus, it is clear that deceased Moharpal was an intervener.
43. In Raghubir Singh and Ors. v. State of Punjab (18), it was observed by Hon’ble the Supreme Court that:-
“Our critical analysis of the evidence on the record shows that the common object of the unlawful assembly was limited to the attack on Santokh Singh and did not extend to cover the murder of Balwant Singh. Balwant Singh apparently received the injuries when he intervened during the course of the occurrence and those injuries proved fatal. The trial court rightly found that in the established facts and circumstances of the case, the accused who had actually caused the injuries to Balwant Singh alone were responsible for the murder of Balwant Singh and that other could not be held liable either with the aid of Section 149 of Section 34 IPC.”
44. Reference in this connection may be made to the decision of the Allahabad High Court in Chandra Bhan and Anr. v. State of U.P. (19).
45. In view of the above decisions appellant Mahendra Singh who had actually caused death of Moharpal alone is responsible for the murder and the remaining appellants cannot be held liable with the aid of Section 149 IPC. The prosecution has also failed to prove that the remaining appellants had caused injuries to nay of the aforesaid injured persons. So far as recovery of ‘Katta’ is concerned, no independent witness was associated by the Investigating Officer at the time of the recovery. Both the ‘Motbirs’ Ghanshyam Das and Babulal, in whose presence ‘Katta’ was allegedly recovered, are police officials. It has not been proved that despite efforts made by the Investigating Officer, no independent and impartial witness could, be procured. In these circumstances. It is not established the ‘Katta’ was recovered from the house of appellant Bhupendra Singh. In such a situation they are entitled to be acquitted of all the charges.
46. As held by the trial Court, the prosecution has failed to prove the possession of PW3 Kishori over the land which appellant Mahendra Singh intended to plough. We have also perused the documents produced by the appellants as well as the statements on DW1 Govind Prasad Sharma and DW2 Surendra Singh. In our opinion, the appellants have also not succeeded to prove that they were in possession of the disputed land. Old Khasra No. of the disputed land which is Siwai Chak was 70. Total area of this Khasra was 18 Bighas’ 4 Biswas.’ On settlement it was divided into two parts and renumbered as Khasra No. 1 and Khasra No. 2. Before settlement piece of land in Khasra No. 70 was allotted to Sumer Singh, Mahendra Singh and others sons of Sumer Singh for cultivation for a short period of one year of six months but the revenue record produced by the appellants as well as oral testimony adduced by them do not prove that the land which appellant Mahendra Singh was going to plough, was allotted to him or any of his family members in the year 1994 when the incident took place and he was in possession of that land. In these circumstances, it cannot be held that appellant Mahendra Singh and caused injuries to deceased Moharpal in exercise of the right of private defence of property.
47. Now the question arises as to what offence was committed by appellant Mahendra Singh. In our opinion, he had to intention to cause death of Moharpal and to cause such bodily injury to him which was sufficient in the ordinary course of nature to cause death and with this intention he had fired gunshot at Moharpal causing injuries on his person which resulted in his death instantaneously. We are unable to accept the contention of learned counsel for the appellants that as the incident took place all of a sudden and appellant did not intend to cause death of Moharpal, he cannot be held guilty under Section 302 IPC and at the most he is liable under Section 304 Part II IPC. Thus, appellant Mahendra Singh committed an offence under Section 302 IPC. If it is held that the appellant had the intention to cause death of PW 3 Kishori and not to Kill Moharpal and he had fires a shot at Kishori as alleged in Ex.P10 but the shot hit Moharpal and caused his death. In such a situation also, the appellants is liable to be convicted under Section 302 by aid of Section 301 IPC which reads as under:-
“Section 301. If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause.”
48. Reference in this connection may be made to the decision of Allahabad High Court in Ganga Singh v. State of U.P. (20). The Allahabad High Court held that:-
“Applying the above principles to the present case we have no doubt that so far as Soney Lal is concerned he committed and offence under Section 302 read with Section 301, I.P.C. Apart from the longstanding enmity between him and Badan Singh he had an altercation with the latter a day before in which he told him that he would not survive the night. As such he had an intention to cause the death of Badan Singh and in fact he fired a shot on Badan Singh. Badan Singh wards it off by slipping behind Karan Singh and Karan Singh was consequently injuries. Soney Lal, therefore, was guilty of committing an offence under Section 302 read with Section 301, I.P.C.”
49. For the aforesaid reasons, we have come to the conclusion that appellant Mahendra Singh has rightly been convicted and sentenced under Section 302 IPC by the trial Court. He is entitled to be acquitted of the remaining charges. Appellants Bhupendra Singh, Amar Singh, Battu @ Battulal, Narveer Singh @ Dholya, Sardar, Prabhu and Yogendra Singh are entitled to be acquitted from all the charges for which they have been convicted and sentenced by the trial Court.
50. As a result of the above discussions, we dispose” of the instant appeal as under:-
(i) Appeal of appellant Mahendra Singh is partly allowed. While setting aside his conviction and sentence under Sections 148, 307/149, 325/149 and 323/149, he is acquitted of these charges. His conviction and sentence under Section 302 IPC is confirmed.
(ii) Appeal of the remaining appellants is allowed, Appellant Bhupendra Singh is acquitted of the charges under Sections 148, 302/149, 307, 325/149, 323/149 IPC and 3/25 Arms Act, appellants Amar Singh, Battu @ Battulal and Narveer Singh @ Dholya are acquitted of the charges under Section 147, 302/149, 307/149, 325/149, 323 IPC and appellants Sardar, Prabhu and Yogendra Singh are acquitted of the charges under Sections 147, 302/149, 307/149, 325/149 and 323/149 IPC. They are on bail. They need not to surrender. Their bail bonds stand cancelled.
(iii) The judgment passed by the trial Court stands modified accordingly.