HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Reserved AFR 1) Case :- CRIMINAL APPEAL No. - 1851 of 2010 Appellant :- Pramod Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Navita Sharma,Sonia Singh,Suhail Kashif Counsel for Respondent :- Govt. Advocate 2) Case :- CRIMINAL APPEAL No. - 2196 of 2010 Appellant :- Lodhey & Phussu @ Prem Chand Respondent :- State Of U.P. Counsel for Appellant :- Jai Pal Singh,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 3) Case :- CRIMINAL APPEAL No. - 1894 of 2010 Appellant :- Pati Ram Respondent :- State Of U.P. Counsel for Appellant :- Askari Husian,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 4) Case :- CRIMINAL APPEAL No. - 2192 of 2010 Appellant :- Tridev Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 5) Case :- CRIMINAL APPEAL No. - 2006 of 2010 Appellant :- Bechan Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 6) Case :- CRIMINAL APPEAL No. - 1862 of 2010 Appellant :- Laalu Brahman Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 7) Case :- CRIMINAL APPEAL No. - 2161 of 2010 Appellant :- Dulam Respondent :- State Of U.P. Counsel for Appellant :- Sudhir Kumar Singh,Manish Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 8) Case :- CRIMINAL APPEAL No. - 2184 of 2010 Appellant :- Newal Respondent :- State Of U.P. Counsel for Appellant :- Ruby,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 9) Case :- CRIMINAL APPEAL No. - 1965 of 2010 Appellant :- Baleshwar Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 10) Case :- CRIMINAL APPEAL No. - 2015 of 2010 Appellant :- Ram Teerath Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 11) Case :- CRIMINAL APPEAL No. - 2094 of 2010 Appellant :- Jagdeesh Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 12) Case :- CRIMINAL APPEAL No. - 2065 of 2010 Appellant :- Vijay Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 13) Case :- CRIMINAL APPEAL No. - 2151 of 2010 Appellant :- Shankar Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 14) Case :- CRIMINAL APPEAL No. - 2050 of 2010 Appellant :- Ram Pal Respondent :- State Of U.P. Counsel for Appellant :- Avinash Srivastava,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 15) Case :- CRIMINAL APPEAL No. - 2023 of 2010 Appellant :- Naumi Lal Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh Counsel for Respondent :- Govt. Advocate,Farooq Ayyob 16) Case :- CRIMINAL APPEAL No. - 2082 of 2010 Appellant :- Dukh Haran Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 17) Case :- CRIMINAL APPEAL No. - 2106 of 2010 Appellant :- Bhullan Respondent :- State Of U.P. Counsel for Appellant :- Askari Husain,Manish Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate 18) Case :- CRIMINAL APPEAL No. - 2160 of 2010 Appellant :- Asharfi Lal Respondent :- State Of U.P. Counsel for Appellant :- M.S. Khan,Maneesh Kumar Singh,Sonia Singh Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Anant Kumar,J.
(Delivered by Hon'ble Anant Kumar, J) (1) Since these criminal appeals under Section 374(2) Cr.P.C. has been filed against a common judgment, as such, they are being decided by a common judgment.
(2) All these appeals have been filed by accused persons, namely, Pramod, Lodhey, Phussu, Patiram Tridev, Bechan, Lalu Brahman, Dulam, Newal, Baleshwar, Ram Teerath, Jagdeesh, Vijay, Shankar, Ram Pal, Naumilal, Dukhharan, Bhullan and Asharfilal against the judgment and order dated 15.6.2010 passed by the Additional Sessions Judge, (Fast Track Court) Court No. 28, District - Barabanki in respect of Sessions Trial No. 79 of 2006, Crime No. 236/2005, under Section 147, 148, 149, 323, 324, 307, 302, 504, 506, 34 I.P.C. and Section 3(II)V of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "SC/ST Act"), Police Station - Asandra, District - Barabanki.
(3) The brief facts as unfolded by the prosecution are that on 15.11.2005 complainant Shrawan Kumar S/o Ram Sagar resident of Village- Saraiya, Police Station - Asandra, District - Barabanki submitted a written complaint before the S.O., Police Station - Asandra. The complaint is scribed by one Pradeep Kumar S/o Ram Saran, Village - Saraiya, Police Station - Asandra, District - Barabanki. It was disclosed in the complaint that the complainant is having an ancestral field in the village, which is situated by the side of the 'Kharanja' road, which is situated in the eastern side of the village. By the side of the said field, some land of 'Charagah' is there on which the family of the complainant was in possession and was using for agricultural purpose. In the said field the crop of 'Urd' was there. In the rest of the field about 20 - 22 days before the crop of Masur was sown. Yesterday, i.e. 14.11.2005 at about 4.00 pm husband of the Pradhan of village Naumilal came at the door alongwith Baleshwar, Patiram, Tridev, Newal and some other persons and gave filthy abuses of mother and sister to the father of complainant Ram Sagar and uncle Ramdev and asked them to vacate the field. Thereupon, the father and uncle of the complainant said that you get the field measured and if some additional land is found they will vacate the same. But the said Naumilal threatened if the land is not vacated, then it will not be good for them and in the night Naumilal and others filled the filed with water in which crop was sown. On 15.11.2005 at about 9.00 am Naumilal S/o Sri Ram having Kulhari, Patiram S/o Ketar, Phussu @ Premchandra S/o Bechoo Lal having Kulhari, Lalu S/o Deonarayan having Farsa, Dukh Haran S/o Ketar, Newal S/o Nandoo, Shanker S/o Sahajram, Jagdeesh S/o Lallan, Asharfilal S/o Nandoo, Vijay S/o Santram, Rampal S/o Jaggoo having Lathies, Ramtirath S/o Mata Prasad having Kulhari, Pramod S/o Nankoo having Tamancha, Lodhe S/o Bahadur, Bechan S/o Pyare, Bhullan S/o Awharwa having Banka. Baleshwar S/o Santram, Dulam S/o Bayar having Ballam and Tridev S/o Chotan having Trisul. All resident of Saraiya, Police Station- Asandra, District - Barabanki came to the said field where crop was sown for the purpose of taking possession. On getting information complainant, his father Ram Sagar, uncle Ramdeo, Ramshanker and brother Dharanath and sister Sarita, Padma and Rinki reached on the said field and restrained them from taking illegal possession over the land. Thereupon, Naumilal hurled filthy abuses and said that there is a good chance to eliminate the entire family and possess the land. Thereupon, all the accused persons in prosecution of their common object to kill started beating his father including, uncle, brother and sister, due to which father and uncle Ram Sagar and Ramdeo, sister Sarita Padma and Rinki and brother Dharanath sustained serious injuries. On hearing commotion Rajesh who was working in the nearby field came to their rescue but he was also beaten, due to which he also received injuries. Co-villagers working in nearby fields namely Pradeep, Ram Saran, Chande S/o Ramfal and Sadanath of village Pure Chitai and Vijay Pratap Singh of village Amahiya came running and challenged the accused persons. Thereupon all the accused persons after doing Mar-Pit fled away from the scene of occurrence. The complainant took the injured in a tractor with the help of Ram Prasad to the District Hospital where during treatment his father Ram Sagar and uncle Ramdeo succumbed to injuries and treatment of other injured persons continued. A request was made that his report be lodged and legal action be taken.
(4) On the basis of this report, a chick F.I.R. was prepared of Case Crime No. 236/2005, under Sections 147, 148, 149, 323, 324, 307, 302, 504, 506, 34 I.P.C. and Section 3(II)(V) SC/ST Act on 15.11.2005 at 12.30 pm and entry to this effect was made in G.D. Report No. 15 at 12.30 pm on 15.11.2005. Investigation was handed over to the Investigating Officer, who visited the place of occurrence and prepared site plan, got the inquest report of two deceased persons and made recoveries of instruments which were used for crime by different accused persons. On 16.11.2005, upon pointing of Naumilal, one Kulhari was recovered from his house which was smeared with blood. On the same day,i.e. 16.11.2005, upon pointing of accused Phussu @ Premchand another Kulhari was recovered from his house and on the same day, i.e. 16.11.2005, upon pointing of one accused Patiram one Kulhari smeared with blood was recovered. On the pointing of accused Lalu S/o Deo Narayan one Farsa having bloodstain was recovered and on the pointing of accused Ram Teerath one Kulhari was recovered on 17.11.2005. Investigating Officer has also prepared recovery memo and site plan of the place where the recovery was made. Dead body of the deceased Ram Sagar and Ramdeo were sent for postmortem. Injured were also sent for medical treatment.
(5) The accused persons were summoned and against the accused Rampal charges under Sections 147, 302/149, 323/149, 307/149, 504 and 506 I.P.C. were framed, against accused Bhullan Dulam and Lodhey charges under Sections 148, 302/149, 324/149, 323/149, 504, 506 I.P.C. were framed, against accused Dhukhharan, Newal, Shanker, Jagdeesh, Asharfilal and Vijay charges under Sections 147, 302/149, 307/149, 323/149, 504, 506 I.P.C. and Section 3(I)V and 3(II)(V) SC/ST Act were framed and against rest of the accused Naumilal, Patiram, Phussu @ Premchandra, Ramtirath, Baleshwar, Pramod, Bechan, Tridev and Lalu charges under Sections 148, 302/149, 307/149, 324/149 504, 506 I.P.C. and Section 3(I)X and 3(II)V SC/ST Act were framed.
(6) During the course of evidence on behalf of the prosecution as many as 38 documents were exhibited and 18 witnesses were examined, wherein PW.1 Shrawan Kumar, PW.2 Dharanath, PW. 3 Sarita, PW.4 Rajesh, PW. 5 Padmawati, PW.6 Ramsharan, PW. 7 S.I. Pramod Kumar Singh, PW.8 Dr. Devendra Singh Negi, PW.9 Dr. Ashok Kumar Gangwar, PW.10 Constable 658 Ram Vilash Singh, PW.11 Dr. Suresh Mehta, PW. 12 Jai Ram Verma, PW. 13 Rajesh Kumar Singh, PW. 14 S.I. Jaiprakash Pandey, PW. 15 Pradeep Kumar, who scribed the complaint, PW. 16 SSI R.K. Saxena, PW. 17 Rinki, who was an injured witness and PW. 18 Ram Shanker, who was also an injured witness.
(7) After completing the prosecution evidence, the statement of the accused persons were recorded under Section 313 Cr.P.C., wherein they were referred to the evidence recorded against them during the trial to which the accused persons denied and stated that they have been falsely implicated in this case due to the enmity of election of village Pradhan, they have falsely been implicated in the case on the pointing out of previous village Pradhan Ram Prasad Yadav. Accused Ram Shanker further stated that he was taking food at his residence and all of a sudden police came and he was taken into custody by the police. They were given a chance to lead evidence in their defence and in defence one Lekhpal Jagroop Lal was produced as DW.1 and vide list dated 12.5.2010 and 10.05.2012 certain revenue papers were filed, which were Khatauni of Village Amahiya, Pragana - Mawai, Tehsil - Ramsanehi Ghat, District - Barabanki.
(8) After completion of the evidence of both sides and hearing the parties, learned trial court came to the conclusion that prosecution has succeeded to prove the guilt of the accused persons beyond shadow of all reasonable doubts. Accordingly, the accused persons Bhullan, Dulam, Lodhe, Rampal, Naumilal, Patiram, Phussu @ Premchand, Lalu Brahman, Dukhharan, Newal, Shankar, Jagdeesh, Asarfilal, Vijay, Ramtirath, Pramod, Bechan, Baleshwar and Tridev have been found guilty under Section 302/149 I.P.C. They have been sentenced to undergo life imprisonment and Rs. 5000/- each as fine and in default of payment of fine one year additional imprisonment. They were further found guilty under Section 307/149 I.P.C. and were sentenced to undergo life imprisonment and Rs. 5000/- each as fine and in default of payment of fine a further imprisonment of one year. They were further found guilty under Section 506 I.P.C. and they were convicted with the sentence of 7 years imprisonment. The accused persons Dukhharan, Newal, Shankar, Jagdeesh, Asarfilal, Vijay and Rampal were further held guilty under Section 147 I.P.C. and they were convicted to undergo imprisonment for the period of two years. All the accused person were further found guilty under Section 323/149 I.P.C. and they were convicted to undergo sentence of one year. Accused Naumilal, Patiram, Phussu @ Premchandra, Ramtirath, Baleshwar, Pramod, Ballam, Bechan, Tridev, Lalu Brahman, Bhulan, Lodhey were further found guilty under Section 148 I.P.C. They were sentenced to undergo 3 years imprisonment. All the accused persons were further found guilty under Section 324/149 I.P.C. and were sentenced to undergo imprisonment of 3 years. It was stipulated that all the sentences shall run concurrently. Aggrieved by the said judgment and order, aforementioned appeals have been filed.
(9) We have heard learned counsel for the appellant and learned A.G.A. for the State.
(10) Learned counsel for the appellants, at the very outset, has argued that in this case the medical evidence does not corroborate with the ocular evidence and the injuries sustained by the injured persons as well as the deceased show that they have not sustained any injuries from Kulhari, Banka, Farsa, Ballam or fire arm. It is further stated that though as per prosecution version all the accused persons except Pramod, who was having Tamancha have used their respective weapons and regarding the recovery of Kulhari, no chemical report was obtained to ascertain that the same contain the stains of human blood. Bloodstained clothes were not exhibited. It has further argued that though as per prosecution version the occurrence had taken place in the field in which water was filled, but no mud was found on the body of the injured or dead persons. It is also stated that it is not on record as to who had given the fatal blow to the deceased persons and even doctor had not stated that which of the injuries sustained by the deceased were found fatal for them.
(11) Encountering the argument of learned counsel for the appellants, learned A.G.A. has argued that in this case two persons had died and 7 persons had received injuries. Injured witnesses have fully supported the prosecution version, so, there is no scope of doubting the testimony of the injured persons. It is further stated that in this case F.I.R. was lodged promptly and the witness PW. 5 Padmawati had stated in her statement that the accused persons, who were having sharp edged weapons like Kulhari, Farsa and Banka were using the same from the back side, so, the story set up by the prosecution is totally probable. The learned trial court has considered every aspect of the case in detail and after considering the entire material on record rightly convicted accused persons with their respective sentences and punishments, so, there is no scope to interfere with the judgment of the trial court.
(12) In this case, the very first point raised on behalf of defence is the difference in medical and ocular evidence. In this case as per prosecution version all the accused persons had used their respective weapons, which had caused injuries to the deceased and injured persons, so, at first injuries received by the injured persons and the deceased is to be seen.
(13) In this case PW.8 Dr. Devendra Singh Negi has been examined, who had conducted postmortem on the dead body of the deceased Ramdeo and had found following injuries on his body: -
1) Lacerated wound 5 cm X 1 cm X bone deep present on top of Rt. Side of head 12 cm from right ear.
2) Lacerated would 4 cm X 1 cm X bone deep present on head in middle 9 cm from root of nose.
3) Lacerated wound 3 cm X 1 cm X muscle deep present on left side of face 2 cm from left angle of mouth.
4) Lacerated wound 3 cm X 0.5 cm X muscle deep present on right side of leg 6 cm above right ankle joint.
5) Contusion 10 cm X 3 cm present on front of chest 2 cm above left nipple.
6) Abraded contusion 6 cm X 4 cm present on anterior aspect of left forearm 4 cm above left wrist joint on opening ecchymosis present under neeth of the injuries mentioned above. . Left side maxilla and both the pareital bones are fractured. Subdural and extra dural hematoma present.
During internal examination the brain, lungs, heart wall of lungs and liver were found conjusted. Left side heart was empty whereas right side heart was field with blood.
(14) PW.9 Dr. Ashok Kumar Gangwar had been examined, who had conducted the postmortem of the deceased Ram Sagar and had found following injuries on his body :
1) Contusion 9 cm X 5 cm on the seft side of head just above the eyebrow.
2) Lacerated wound 5 cm X 2 cm X bone deep present on left side of the back of head of occipital region 5 cm behind left ear.
3) Abraded contusion 3 cm X 2 cm on left side of back 9 cm from top of left shoulder.
4) Abraded contusion 6 cm X 2 cm on posterion medial aspect of left elbow joint.
On opening ecchymosis present in all the injuries. Fracture of parietal occipital bone found membrane of brain was conjusted, both lungs were conjusted.
(15) Dr. Ashok Kumar Gangwar had also examined injured Rajesh, Sarita, Dhara Nath, Ramshanker, Anoop and Rinki and on their bodies following injuries were found :
Rajesh Kumar
1) Lacerated wound 5 cm X 1 m X bone deep on the occipital region blood oozing out X-ray advised.
2) Contusion 5 cm X 3 cm on the Lt. Parietal region 7 cm on the left ear advised X-ray.
3) Lacerated wound 2 cm X 1 cm X bone deep on the Lt. Side of chin 3 cm below lower lip Lt. Side.
4) Contusion reddish 7 cm X 2 cm on the outer lateral angle of Rt arm 4 cm below (illegible ) of Rt. Shoulder.
5) Contusion reddish 5 cm X 3 cm on the Lt. Forearm present above Lt. Wrist joint advise X-ray.
6) Contusion reddish 5 cm X 4 cm on the back of Lt. Hand severe tenderness advise X-ray.
7) Contusion reddish 7 cm X 3 cm on the top of Rt. Shoulder advise X-ray
8) Abrasion 3 cm X 2 cm on the back of Rt. Middle finger.
9) Contusion reddish 4 ½ X 4 cm on the Lt. Foot 2 cm away to left ankle lateral aspect.
10) Contusion reddish 8cm X 25 cm on the anter lateral aspect of Rt. Forearm above Rt. Wrist joint advised X-ray.
All injuries are fresh caused by hard object simple in nature except injury nos. 1,2,5 & 8 kept under observation advised X-ray.
Sarita Kumari,
1) Contusion reddish 3 cm X 2 cm on the back of Rt. Hand 3 cm below Rt. Wrist joint.
2) Contusion reddish 3 cm X 3 cm on the base of index middle & little finger.
3) Contusion reddish 11 cm X 3 cm on the outer aspect left buttock 3 cm below, left iliac crust.
All injuries are simple fresh caused by hard object.
Dhara Nath
1) Lacerated wound 3 cm X 1 cm X bone deep in the Rt. Parietal region 7 cm above the right ear advised X-ray.
2) Contusion reddish 11cm X 3 cm on the back of Rt. Index middle finger Advised X-ray.
3) Contusion reddish 3 ½ cm X 3 cm on the base of right index 7 middle finger advised X-ray.
4) Contusion reddish 10 cm X 3 cm on the Lt. Side back 11 cm below top of left shoulder.
5) Contusion 10 cm X 3 cm on the left side of back 2 cm below injury no. 4.
6) Multiple contusion in an area of 7 ½ cm X 5 cm on the outer lateral aspect of Rt. Forearm 4 cm above right wrist advised X-ray.
All injuries are simple, fresh caused by hard object except injury nos. 3,6 kept under observation advised X-ray.
Ram Shanker
1) Contusion reddish 10 cm X 2 ½ cm on the left side of head 11 cm above right ear.
2) Contusion reddish 8 cm X 3 cm on the lower part of right arm 2 cm above right elbow advised X-ray.
3) Contusion reddish 7 cm X 3 cm on the outer lateral aspect of right fore arm 7 cm above right wrist advised X-ray.
4) Contusion reddish 9 cm X 3 cm on the left thigh post aspect.
5) Contusion reddish 11 cm X 3 cm on the front and lateral aspect of left leg 2 cm below left knee joint.
6) Contusion reddish 9 cm 2 ½ cm on the anterio lateral aspect of Rt. Leg 11 cm above ankle right outer aspect.
All injuries are simple fresh caused by hard object except injury nos. 2, 3 kept under observation advised X-ray.
Anoop Kumar
1) Lacerated wound 3 cm X 1 cm X scalp deep on the right side of head 11 cm above right ear.
2) Lacerated wound 2 cm X ½ cm X muscle deep on the left middle finger posture aspect.
3) Contusion 11 cm X 2 ½ cm on the right side of back 7 cm above right iliac chest.
All injuries are simple, fresh caused by hard object.
Km. Rinki
1) Contusion 5 cm X 4 cm on the left side of head 9 cm above left ear.
2) Contusion 11 cm X 2 ½ cm on the right buttock 3 cm below right iliac crust.
3) Contusion 9 cm X 2 ½ cm on the outer lateral aspect of right forearm 9 cm above right wrist joint.
All injuries are simple, fresh caused by hard object.
(16) Another doctor PW.11 Dr. Suresh Mehta had been examined, who had medically examined injured Sravan Kumar and had found following injuries on his body :
1) Contusion 8 cm X 1.5 cm on right scapula, red in colour.
2) Contusion 7 cm X 1.5 cm on left scapula, red in colour.
3) Lacerated wound 2 cm X 5 cm in right parietal region of scalp 10 cm above right ear, fresh clot present.
All injuries are simple in nature caused by blunt object. Duration fresh.
(17) Referring to these injuries, learned counsel for the defence has vehemently argued that all the witnesses of fact have stated in their statement that all the accused persons were using their respective weapons at the time of occurrence, like PW.1 has stated that at the time of occurrence Naumilal had stated to the accused persons that entire family of the complainant should be eliminated and thereupon accused persons had started beating to Ram Sagar, Ramdev, Ramshanker, Dharanath, Rinki and Sarita. At that time accused Naumilal having Kulhari, Patiram and Phussu were having Kulhari, Lalu was having Farsa, Vijay, Rampal, Jagdeesh, Newal, Asharfilal, Dukhharan and Shankar were having Lathi, Ramtirath was having Kulhari, Baleshwar and Dulam were having Ballam, Bhullan, Lodhey, Bechan were having Banka, Tridev was having Trisul and Pramod was having Tamancha. It had come in evidence that all the accused persons were using their respective weapons for inflicting injuries except Pramod who was roaming around alongwith his tamancha. All the witnesses of fact have given their respective statements in the same line and has stated that accused persons were using their respective arms while inflicting injuries but the deceased persons Ramdeo and Ram Sagar and other injured persons have sustained injuries, which were caused by hard and blunt objects. In this regard a reference was made to the statement of PW.8 Dr. Devendra Singh Negi, who had conducted postmortem of the dead body of the deceased Ram Sagar, who has stated in his statement that on the body of the deceased no mud was found either inside the body or outside. It is further stated that injuries sustained by him were lacerated wounds and contusions, which may only caused by blunt object. Likewise PW. 9 Dr. Ashok Kumar Gangwar, who had conducted postmortem of the dead body of the Ram Sagar and had examined the injured persons had stated that injuries sustained by Anoop, Km. Sarita, Dharanath, Ramshanker, Rinki were caused by hard and blunt object. Regarding the injuries sustained by Ram Sagar also this witness had stated that injuries found on the body of the deceased were all caused by blunt objects.
(18) PW. 11 Dr. Suresh Mehta, who had examined the complainant Sravan, had stated that all injuries were of simple nature and were caused by some blunt object.
(19) It is argued that as per version of the F.I.R. and statement of witnesses the accused persons were having different type of weapons in their respective hands like Kulhari, Farsa, Banka, Ballam, Lathi and Trishul and it has also come in evidence that all the accused persons have used their respective weapons on the deceased or injured, but not any single sharp edged injuries or punctured wound had been received either by deceased or by injured persons, so it is doubtful that these accused persons were present on the spot or not. Though, it has come in evidence that accused Pramod had Tamancha (country made pistol) but he was simply moving around the place where the occurrence had taken place and was only threatening the victims. On this account it is argued that since medical and ocular evidence is contrary to each other, so the story of the prosecution is highly doubtful and the prosecution has miserably failed to bring home the guilt of the accused persons.
(20) In this regard learned counsel for the appellant cited a case law reported in (2013) 2 Supreme Court Cases (Cri) 427 Sunil Kundu & Another Vs. State of Jharkhand. Facts of the said case are as under:
As per the fact of the said case the deceased Suresh Yadav reached near the shop of Bijan Kaur by a motorcycle driven by him. PW. 3 Basudeo Millick was sitting in the middle of the seat and PW.6, Narendra Yadav was sitting behind him. When they reached near the shop of Bijan Kaur, they sow A-1 Sunil, A-2 Bablu, A-3 Nageshwar and A-4 Hiralal standing there. The accused started pelting stones on them, resulting in imbalance of the motorcycle. The motorcycle fell down. All the accused attacked the deceased with kinfe and bhujali. They resorted to blank firing to scare the people. The deceased started running towards the southern side of the railway line but he collapsed in the field. PW. 3 Basudeo Mallick was assaulted with an iron rod. PW. 6 Narendra Yadav, who is an advocate by profession, somehow managed to escape.
In these set of fact PW-1 Dr. Chakravorty stated in his evidence that there was no firearm injury on the deceased. Counsel submitted that the State's submission that the firearm was used only to frighten people is not borne out by the evidence of witnesses. Besides, no bullets or empty cartridges were seized from the scene of offence. So far as A2-Bablu is concerned, counsel pointed out that while PW-6 Narendra Yadav stated in the FIR that A2-Bablu hit the deceased with iron rod, in the court he stated that he was holding knife. This was done to bring his evidence in conformity with postmortem notes. PW-1 Dr. Chakravorty stated that he did not find any iron rod injury on the deceased. The prosecution story is, therefore, untrue.
Relying on Mani Ram & Ors. v. State of U.P. 1994 Supp (2) SCC 289: 1994 SCC (Cri) 1242, counsel submitted that if the oral evidence is inconsistent with the medical evidence, it is a fundamental defect which discredits the prosecution case. Drawing our attention to Kapildeo Mandal & Ors. v. State of Bihar (2008) 16 SCC 99 : (2010 4 SCC (Cri) 203, counsel submitted that the accused are entitled to benefit of doubt where oral evidence is inconsistent with medical evidence. He further submitted that when medical evidence does not support the presence of the accused, his presence is ruled out. (See Anjani Chaudhary v. State of Bihar (2011) 2 SCC 747 : 2011 1 SCC (Cri) 887. Counsel also relied on Sahebrao Mohan Berad v. State of Maharashtra (2011) 4 SCC 249 : (2011) 2 SCC (Cri) 201.
Mr. Nagendra Rai, learned senior advocate submitted that the evidence of the prosecution witnesses is inconsistent with and belied by the medical evidence. He pointed out that PW-5 Jaldhari Yadav deposed that he and PW-6 Narendra Yadav, the first informant took the dead body to the hospital and gave statement leading to registration of the FIR. This shows that it was recorded at the Chittaranjan Railway Hospital. Earlier statement made before the police has been suppressed. In the FIR and also in the court, PW-6 Narendra Yadav alleged that two persons had fired at the deceased, but no firearm injury was found on the deceased.
The case of PW.6 that A1-Sunil and A4- Hiralal had pistols in their hands and they fired at the deceased which resulted in the firearm injury being caused to him is belied by the post-mortem notes. Admittedly, the postmortem notes do not indicate that the deceased had suffered any firearm injury. It is pertinent to note that no bullets or empty cartridges were recovered from the scene of offence. Therefore, this witness has obviously not come out with the truth. It must also be borne in mind that he ran to the police station after the deceased fell down and the alleged cutting of throat of the deceased by the accused is not witnessed by him. He has also not witnessed the alleged blank firing resorted to by the accused while running away. It would not be out of place to mention here that he admitted in his cross-examination that the deceased was living in the house of his maternal uncle and he is his relation. He stated that he was also staying with the deceased. He stated that after the police came to the scene of offence, they seized the articles lying on the scene of offence whereas PW-5 Jaldhari Yadav stated that the seizure panchanama was prepared in the evening at 8.00 p.m. after the police came back to the scene of offence from the hospital. We find it difficult to place reliance on this witness.
(21) In these set of circumstances, relying upon Mani Ram Vs. State of U.P., 1994 Supp (2) SCC 289 : 1994 SCC (Cri) 1242, relevant portion of the said case is as under :
It was held that PW-2 the only sole eye-witness therein stated that the two appellants therein chased deceased-Basdeo and both of them fired at him from the kattas while he was running. However, according to the postmortem report, injury No.7, which was caused by a firearm, was situated on the right shoulder and front of upper arm and outer part. There was no injury either on the back or anywhere behind the shoulder. Since the prosecution case was that the deceased was fired at while he was running, firearm injuries should have been there on his back. In view of this discrepancy, this Court observed that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. We feel that the accused can draw support from this case also. Tainted eye-witness account which is glaringly inconsistent with the medical evidence as regards firearm injury has shaken the credibility of the prosecution case.
It was further held that in this connection, we may usefully refer to the judgment in Sahebrao where this Court observed that when the doctor's experience has not been questioned, he is the only competent person to opine on the nature of injuries and cause of death. We may also refer to the judgment of this Court in Anjani Chaudhary Vs. State of Bihar, (2011) 2 SCC 747 : (2011) 1 SCC (Cri) 887, where the medical evidence did not support the appellant's presence as there was no injury on the deceased which could be caused by a lathi and the appellant was stated to be carrying a lathi. Since the eye-witnesses therein were not found to be reliable, this Court acquitted the appellant therein.
(22) Another case law cited on behalf of defence is 2014 (2) JIC 279 (Supreme Court) Vijay Singh and Another Vs. State of M.P., facts of the case are as under:
As per the facts of the said case it was stated in the first information report by the informed Pohab Singh that while he was at his house, his father Bhagirath (deceased) was returning home after answering the nature's call and at that time, 11 accused persons including the appellant no. 2 Hari Singh armed with farsa and appellant no. 1 Vijay Singh armed with Ballam and other accused armed with axes surrounding him. Seeing this, according to the informant, his mother Prema Bai (PW-2), his wife Sheela ( PW.3) and grand father Jagannath (PW.6) went to resque him, whereupon informant Pohap Singh was assaulted by Lathi by one of the accused. Meanwhile, appellant no. 2 Hari Singh inflicting and injury on neck of the deceased with farsa, thereupon he failed, upon which he fell down. Thereafter, all the accused assaulted the deceased with the weapon with which they were armed. Appellant No. 1 Vijay Singh caused an injury with Ballam near the eye of the deceased and he died on the spot. The trial court charged all the accused persons and they were committed to Court of Sessions to face the trial. The Sessions Judge acquitted 9 of the 11 accused and convicted the appellants herein for commission of offence under Section 302 I.P.C. and sentenced them to imprisonment for life and High Court affirm their conviction.
In special appeal before Hon'ble Supreme Court it was observed that the doctor has altogether found five injuries on the person of the deceased and the death had occurred due to excessive beading and shock on account thereof. Thus, the Hon'ble Supreme Court held that it cannot be said that only injury no. 1 was the cause of the death. In these circumstances, the Hon'ble Supreme Court opined that the High Court committed serious error by holding that the injury no. 1 was sufficient to cause the death of the deceased, hence, appeal is allowed.
(23) Basing on these case laws, learned counsel for the appellant has argued that in this case doctor, who had conducted postmortem on the dead body of the deceased has opined with conformity as to which injury was fatal in nature, so in this set of circumstances, on the basis of the opinion of doctors, it does not confirm as to who had caused the fatal injuries, hence, it is not safe to convict all the accused persons. On the similar principal of law, a case law reported in 1997 SCC (Crl.) 562 Chilmakur Nagireddy and others Vs. State of Andhra Pradesh has also been cited.
(24) In another case cited (2013) 1 SCC (Cri) 63, Selvam Vs. State of Tamil Nadu, facts of this case are as under:
It was argued before the Hon'ble Supreme Court that in this FIR, it was stated thus: Meyyappan lived at the Thethampatti, Thiruvarangulam, alongwith his family and that there was a dispute pending between his family and the family of Arangan over land. On 15.11.2006 at 11.00 a.m. Mariappan, who belongs to the family of Arangan, died and the family of Arangan wanted to take the burial procession through house street of Meyyappan and his family members but Meyyappan's younger brother Chinnadurai and his father Rengaiah appealed to the important persons of the village saying that there was a separate public pathway for taking the dead body to the cremation ground and the village head and other villagers accordingly requested the members of the family of Arangan to carry the dead body of Mariappan through that public pathway. On 16.11.2006 at about 15:00 hrs. Arangan and his brothers, Meyyappan, Murugan, Subbaiah, Chidambaram, Senthil, Selvam and others, armed with aruvals and sticks came to the family house of Meyyappan and asked his family members to come out and thereafter Arangan and Senthil delivered a cut on Chinnadurai and Selvam and others assaulted them with sticks and Chinnadurai was first taken to the government hospital and thereafter to the Thanjavur Medical College Hospital for treatment.
Mr. S.B. Sanyal, learned senior counsel appearing for the Accused 7, submitted that in the FIR it is alleged by the informant that Accused 7 had assaulted persons other than Chinnadurai with stick. He submitted that the informant was examined before the trial court as PW-1 and he has given an entirely different version in his evidence and has said that the Accused 7 assaulted on the left side of the head of Chinnadurai. He further submitted that the father of Chinnadurai, namely, Rengaiah, has also been examined before the trial court as PW-2 and he has deposed that the Accused 7 assaulted on the left side of the head of Chinnadurai with stick. He submitted that PW-1 and PW-2 have improved upon the role of the Accused 7 in the assault on the deceased after coming to know of the opinion of the doctor in the post mortem report about the injuries on the deceased. He argued that where there is such variance between the version in the FIR and the version of PW-1 and PW-2 before the court with regard to the exact role of the Accused 7 in the assault on the deceased, the Accused 7 cannot be convicted under Section 302 read with Section 34 IPC. He cited Anil Prakash Shukla v. Arvind Shukla [(2007) 9 SCC 513] in which this Court has taken a view that where the witnesses have improved their version given in the FIR after coming to know of the medical report, benefit of doubt must be given to the accused. He also relied on Kalyan v. State of U.P. [(2001) 9 SCC 632] where benefit of doubt has been given to the accused on account of variance between the FIR and the deposition made in the court.
The medical evidence of PW-11 is clear that all the injuries of the deceased were most probably as a result of an assault by a blunt weapon and in the opinion of PW-11, the deceased appears to have died due to head injuries. PW-11 has also admitted in her cross-examination that she did not see an incised injuries during the post mortem examination and had a sickle been used it would have caused incised wounds. Thus, it appears that Accused 1 and Accused 6 had used not the sharp side but the blunt side of the aruval and Accused 7 had used the stick in the assault on the deceased. The fact that the blunt side of the aruval and a stick was used in the assault on the deceased would go to show that Accused 1, 6 and 7 did not have any intention to cause the death of the deceased. Nonetheless, the injuries caused by Accused 1, 6 and 7 were all on the head of the deceased, including the parietal and temporal regions. Accused 1, 6 and 7, thus, had the intention of causing bodily injury as is likely to cause death and were liable for punishment for culpable homicide not amounting to murder under Section 304 Part I IPC.
After considering the evidence of PW-1 and PW-2, the medical evidence of PW-11 and the fact that the deceased died after nine days of the assault, we are of the considered opinion that the trial court and the High Court were not right in convicting the appellants under Section 302 IPC, and the appellants should have been convicted instead under Section 304 Part-I read with Section 34 IPC. We accordingly allow these appeals in part, modify only the conviction and sentence on the appellants under Section 302 IPC, and instead order that the appellants (namely, accused nos.1, 6 and 7) are convicted under Section 304 Part-I read with Section 34 IPC, and sentenced to rigorous imprisonment for seven years. The fine amount imposed by the Trial Court and affirmed by the High Court is affirmed.
(25) Basing all these case laws, learned counsel for the appellant has argued that since there is mark difference in ocular and medical evidence, this appeal deserves to be allowed and all the accused persons are liable to be acquitted.
(26) Opposing the arguments of learned counsel for the appellant, Ruhi Siddiqui, learned A.G.A. stated that witnesses of fact, as stated above, have given vivid description of this incident and if there is a difference in ocular and medical evidence, the ocular evidence is to be believed and merely on the basis of slight difference in evidence, all the accused persons could not be acquitted. In this regard it is stated that it is the duty of Court to take the entire stock of the situation in account and segregate the chaff from the grain and pass appropriate order.
(27) In this regard on behalf of State a case law reported in (1999) 9 SCC 106 State of Rajasthan Vs. Major Singh and others has been cited. Facts of the case are as under:
As per facts of the said case a large number of accused persons having Garasi, Sword and gun attacked the victim side and in the incident one person had died and other persons were received injuries. On behalf of prosecution injured witnesses were examined. As per postmortem report of deceased Bakshish Singh, 8 injuries of sharp-edged weapon and 7 injuries of blunt weapon were found. Injured persons had also sustained injuries of sharp-edged weapons. The role of the accused persons were assigned by the witnesses. The trial court convicted the seven accused persons, however, two accused persons were acquitted. The Division Bench of the High Court had acquitted all the accused persons, hence, State had preferred appeal. The High Court allowing the appeal had taken into consideration that the prosecution witnesses have not stated exactly whether accused inflicted injuries by the sharp or blunt side of the weapon and, therefore, they have not explained how the deceased as well as the injured witnesses got incised injuries as well as contusion.
In these set of circumstances, the Hon'ble Apex Court held that the prosecution witnesses have not exactly stated whether the accused inflicted injury by the sharp or blunt side of the weapon, the High Court has ignored the reality of such occurrence. It would be practically impossible for any injured witness to exactly notice and memorise which accused was assaulting by the blunt side of the weapon and which accused was causing injuries by a sharp-edged weapon. Even if such statement is made, it may amount to an exaggeration because when a number of assailants are there, injuries are not inflicted in a manner which could be exactly noted by the witness. If one or two injuries are caused and if it is broad daylight. It is quite possible that some witnesses may be in a position to note it. But at about 8.30 p.m. When the witness herself was receiving injuries, it would not be possible to note and narrate whether the accused were causing injuries to her parents by the blunt or sharp side of the weapon.
(28) In another case law cited on behalf of learned A.G.A. is (1999) 4 SCC 682 State of Haryana Vs. Tek Singh and Others. Facts of the case are as under:
In the said case also there was enmity between parties regarding Gram Panchayat Election and due to which, accused persons, which were plural in number attack the victim party. As per the version of the witnesses accused caused injuries to deceased Tek Singh by giving Garasa blow. It is stated that Baldev Singh gave a gandasa blow on the neck, Mela Singh gave a gandasa blow on the right shoulder, Jaspal Singh gave a gandasa-blow on the right arm, Megha Singh gave a gandasa-blow on the right knee, Gurmel Singh gave a gandasa blow on the left hip oint, Sajan Singh gave four to five gandasa-blows in quick succession on the waist. It is further stated that Gurbachan Singh (A-2) fired from his rifle hitting deceased Gurdev Singh on his right thigh and the other accused persons gave gandasa blows.
During the course of investigation, different weapons were recovered from accused Gurmel Singh and Mela Singh, which were sent to Forensic Science Laboratory and as per report human blood was found on one of the gandasas. With regard to firm arm rifle and gun, they were found intact and in working order and also after examining the hole in the tehmad (loin cloth) put on by deceased Gurdev Singh, it was reported that it was a result of a bullet projectile.
Learned Additional Sessions Judge relying on the witnesses, eye witnesses coupled with medical evidence and circumstantial evidence convicted and sentenced the accused persons, however, High Court stated that Considering the measurement of the room where the dead body of Gurdev Singh lay, it was not possible to believe that it could accommodate the accused persons to enter with their weapons and kill Gurdev Singh inside the house. The court further took note of the fact that the ocular evidence of the witnesses required to be appreciated with due caution qua the participation of each of them in the occurrence especially when the investigating officer reported, under Section 173 of the Criminal Procedure Code, that Baldev Singh, Megha Singh, Sajan Singh and Jaspal Singh were found innocent. Thereafter, the High Court considered the medical evidence and appreciated the evidence of each witness to find out whether the medical evidence corroborated the version of the prosecution witnesses. The Court held that qua the respondents, that is, A-1, A-2, A-3, A-7 and A-8, the medical evidence does not corroborate the evidence of the eye witnesses. Qua the remaining accused A-2 Gurbachan Singh, A-5 Baldev Singh and A-6 Megha Singh, the medical evidence corroborated the prosecution evidence. Hence, they were convicted and the rest of them were acquitted.
In these set of circumstances held that the evidence of the witnesses should be appreciated by keeping the ground reality and the fact situation in mind. It is also established law that even with regard to the interested witness, it is the duty of the court to separate the truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. In the case of State of U.P. V. M.K. Anthony (1985) 1 SCC 505 : 1985 SCC (Cri) 105: AIR 1985 SC 48, this court pointed out that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach in perusal of the evidence should be avoided. The Court pertinently observed:
"Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a restic and refined lawyer."
The appeal was allowed by the Hon'ble Apex Court.
(29) Another case law cited on behalf of learned A.G.A. is (2006) 10 SCC 432 Rabindra Mahto and others Vs. State of Jharkhand. Facts of the case are as under:
As per the facts of the said case the accused persons, which were many in numbers, armed with Tangi, Lathi and assaulted the victim side in which one person had died and other had sustained injuries. According to the doctor injury was caused by hard and blunt substance, which may be lathi and stones. Incise wounds were caused by very sharp cut edged weapons, such as farsa, tangi or sword. In these set of circumstances, the trial court as well as the High Court had convicted the accused persons and hence, the appeal was filed before Hon'ble Apex Court.
Before the Hon'ble Apex Court the main thrust of the argument of the learned counsel for the appellants is that evidence on record shows that only three accused-appellants, namely, Rabindra Mahato, Lemboo and Balram Mahato have assaulted the deceased persons with sharp edged weapons and in the absence of proof of common object of the assembly to cause death of two deceased persons the other accused persons could not have been convicted by taking aid of Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code postulates an assembly of 5 or more persons having a common object i.e. one of those named in Section 141 of Indian Penal Code and then doing of the act as by the members of it in prosecution of that object.
In these set of circumstances, the Hon'ble Apex court held that from the facts found in the present case it appears that the appellants claimed ownership of the land in question, when they came to know that the deceased and their men plowed the land which they claimed to be their, they armed with weapons came to the place of incident to vindicate their right to the land by show of force or use of force. The intention to assert the right by force is apparent from the fact that the appellants were armed with deadly weapons such as sword, tangi and farsa and some of them were carrying lathis. All the persons came together at the spot armed with weapons and immediately after reaching the spot, after short exchange of words, they started assault and caused grievous injuries to two persons who died on the spot. It is alleged that the two eye witnesses namely PW-5 and PW-9 have also been assaulted. The nature of the injuries found on the deceased gives clear indication of a common intent of the assembly to go to the extent of causing death of the persons who have plowed their land. All the members reaching to the spot together armed with weapons and immediate attack on the persons present there ,clearly exhibits the intention of the unlawful assembly. In the facts and circumstances of the case we can safely infer the common object of the unlawful assembly to do away with the deceased persons. We have been taken through the evidence and cross-examination of the witnesses by learned counsel for the appellants. We do not find any reason to disbelieve the version of these witnesses which found approval of two courts and appeal was dismissed by the Hon'ble Apex Court (30) Basing on these proposition of law, learned A.G.A., though, has admitted that as per prosecution version the accused persons were armed with different type of deadly weapons including farsa, ballam, tamancha, Kulhari, Banka etc, but deceased as well as injured persons have sustained injuries only by the blunt objects. It has also come in evidence that Naumilal is the husband of the present Village Pradhan Meera Devi and at the time of occurrence also she was Pradhan. PW.1 has stated in his evidence that before the present Village Pradhan, Ram Prasad Yadav was the Pradhan, who had lost election of Village Pradhan and Meera Devi was declared victorious. PW.1 has further stated that the disputed land was given in Patta to the family of PW.1 and this land was in his possession and the then Pradhan Ram Prasad Yadav had not objected to the said possession of the family of PW.1. He has further stated that injured persons were brought to the hospital with the help of Ram Prasad Yadav, the then village pradhan.
(31) The facts and surrounding circumstances of this case gave an indication that the victim side were in patronage of previous Pradhan Ram Prasad Yadav. Thereafter, when he lost election and new Pradhan Meera Devi took over charge, her husband Naumi Lal objected to the possession of the victim side. Due to this the entire incident had taken place. In these set of circumstances and keeping in view the fact that almost all the witnesses produced on behalf of prosecution are either son or the family members of the victim side, so, their evidence will have to be considered with great caution.
(32) In this case witnesses of fact in vivid description have assigned specific role to all the accused persons, but the fact remains that injured persons as well as deceased persons were all having injuries, which were caused by some hard and blunt object, which gave an indication that Kulhari, Farsa, Tamancha, Banka, Ballam and Trishul were not at all used in the occurrence. Though, PW. 5 Padmawati had stated at one place of her statement that the persons, who were having Kulhari inflicted injuries from the back side and the persons having Ballam were inflicting injuries from the pointed side of the Ballam but this improvement made by this witness appears to have been made after seeing the medical/postmortem reports. All other witnesses have stated that accused persons were using their respective arms in usual manner but the single statement of PW. 5 that Kulhari was used from the back side does not inspire confidence in view of the statement of the other witnesses. So, linking to the entire material on record, it appears that there is a force in the contention of the learned counsel for the appellants that there is a mark difference in ocular and medical evidence and in these set of circumstances, we are of the view that the benefit should go to those accused persons who were armed with sharp edged weapons and fire arm. Hon'ble Apex Court in case of State of Haryana Vs. Tek Singh (Supra) has stated that court will have to segregate the truth from falsehood and chaff from the grain.
(33) After appreciating the evidence on record, we are of the view that there was parti-bandi in the villagers and victims were in the side of the previous village Pradhan Ram Prasad Yadav, naturally the present pradhan will be inimical to the victim side. The victim side was having same patronage of the previous Pradhan, so in these set of circumstances, the possibility of false implication of some of the accused persons, in this case can not be ruled out.
(34) Since we have already held that there is a mark difference between ocular and medical evidence which gives an indication that all the persons had not used their respective weapons except the persons having lathies, hence their presence on the spot becomes doubtful. So, we are of the view that in this case the presence of the accused persons, namely, Naumilal, Patiram, Phussu @ Premchand, Lalu Brahman, Ramtirath, Lodhey, Bechan, Bhullan, Baleshwar, Dulam, Tridev and Pramod is not proved beyond the shadow of all reasonable doubts, because of fact that if they would have been present on the spot at the time of occurrence, they would have contributed in the occurrence with their respective arms, which they have not done, so, in our view, benefit of doubt should go to them. But the case of Dhukhharan, Newal, Shankar, Jagdeesh, Asharfilal, Vijay, Rampal, who were having Lathi in their hand as per version of the prosecution witnesses, we do not doubt their presence and participation in the occurrence because of the fact that injured as well as deceased persons sustained injuries by the blunt object, which is Lathi in the instant case. In the present case, facts and circumstances in which occurrence had taken place and as per prosecution version 19 persons were involved in the incident, it was not possible for the witnesses to give the correct picture of the occurrence as to who had given fatal blow, but since all the persons having Lathies have been found involved in the incident, they have rightly been punished with their respective sentence as held by the trial court and to our view the appeals deserve to be allowed only in respect of accused Pramod, Lodhe, Phussu @ Premchandra Patiram, Tridev, Bechan, Lalu, Dulam, Baleshwar, Ram Teerath, Naumilal and Bhullan, who were having Kulhari, Tangi, Ballam, Katta and appeals in respect of accused persons namely, Newal, Jagdeesh, Vijay, Shankar, Ram Pal, Dukhharan, Asharfilal, who were having lathies deserves to be dismissed.
(35) Therefore, Criminal Appeal Nos. 1851, 2196, 1894, 2192, 2006, 1862, 2161, 1965, 2015, 2023, 2106 of 2010, in respect of accused persons namely Pramod, Lodhe, Phussu @ Premchand, Patiram, Tridev, Bechan, Lalu, Dulam, Baleshwar, Ram Teerath, Naumilal and Bhullan, are hereby allowed. Conviction and sentence in respect of aforementioned appellants is hereby set aside. They are in Jail. They shall be set at liberty forthwith, if they are not wanted in any other case.
(36) However, Criminal Appeal Nos. 2184, 2094, 2065, 2151, 2050, 2082 and 2160 of 2010 of accused persons namely, Newal, Jagdeesh, Vijay, Shankar, Ram Pal, Dukhharan, Asharfilal, who were having lathies are hereby dismissed and their conviction and sentence as passed by the trial court is hereby confirmed.
(37) Let a copy of this order be sent to the trial court forthwith for compliance.
Order Date :- 26th May, 2015 S. Kumar (Anant Kumar,J) ( S. V. S. Rathore,J)