Jodh Singh & Others vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved Judgment
 
Court No. - 5
 
Case :- CRIMINAL APPEAL No. - 2923 of 1982
 
Appellant :- Jodh Singh & Others
 
Respondent :- State
 
Counsel for Appellant :- A.N.Misra,A.N.Mulla,Lav Srivastava,Rajeev Sharma,S.K.Yadav
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar, J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. This appeal has been preferred against the Judgment and order dated 12th of November 1982 passed by VI Additional Sessions Judge, Agra whereby all the appellants were convicted under Section 307 read with Section 149 I.P.C. and sentenced to undergo ten years rigorous imprisonment; all the appellants were further convicted under Section 147 I.P.C. and sentenced to undergo one years' rigorous imprisonment; appellants Jodh Singh, Raghu Raj Singh and Ram Prakash were convicted under Section 148 I.P.C. and sentenced to undergo two years' rigorous imprisonment and these three appellants were further convicted under Section 302 I.P.C. and each of them were sentenced to undergo imprisonment for life; and Rajendra Singh, Gopal Singh, Dev Prakash, Vijay Pal Singh, Rachh Pal, Mahesh Pal and Veerey were convicted and sentenced to undergo imprisonment for life, however, these seven appellants were acquitted of the charge under Section 148 I.P.C.

2. Appeal preferred by appellants Jodh Singh, Raghuraj Singh, Rajendra Singh, Gopal Singh, Vijay Pal Singh, Rachh Pal, stood abated, vide order dated 3.4.2017 of the Court, as they have died. Therefore, the appeal, now survives only as against appellants Ram Prakash, Dev Prakash , Mahesh Pal and Veerey.

3. The broad essential fact of the prosecution are that the first informant, namely, Om Prakash, resident of Hasanpur, P.S. Khandauli, District Agra submitted a written report to Station House Officer, P.S. Kandauli, District Agra mentioning therein that on 20.5.1979 a quarrel had broken out between his cousin Ram Gopal and Raghuraj Singh-appellant no.3 (since deceased) and his son Mahesh Pal Singh- appellant no.9 for transportation of bricks by mule. Being enraged by this incident of previous day regarding which already a report was given, on 21.5.1979 at 10 a.m. appellants, namely, Jodh Singh armed with gun, Ram Prakash and Raghuraj armed with country made pistols, Rajendra Singh, Gopal Singh, Dev Prakash, Rachh Pal, Mahesh Pal and Vijay Pal and Veerey armed with lathis, sharing common object, came near the gher of his uncle Bhoori Singh and exhorted Bhoori Singh, Khushi Ram son of Bhoori Singh and his uncles Bhampola and Ram Nath, who were already present, uttering loudly you washermen have crossed all the limits by refusing to carry bricks, thus, now they would be taught a lesson and began to beat them with lathis upon which Ram Katori wife of Bhampola Ram, Ram Sewak son of Khushi Ram, Premwati wife of Khushi Ram rushed to the spot in their rescue who were also assaulted with lathis.

4. Khushi Ram and Ram Nath in their defence also began to wield their lathis. On this, Raghu Raj shouted his associates to stop wielding lathis and thereafter Raghu Raj, Ram Prakash and Jodh Singh opened fire with respective weapons in their hands.

5. On being hit by gun shot, Khushi Ram died on spot and Ram Nath, Bhampola Ram, Bhuri Singh, Ram Sewak, Ram Katori and Premwati were injured by the lathi and firing of shots. In the report it was mentioned that the incident was said to have been witnessed by Lala Ram, Nahne Ram, Sopali, Sodan Singh and Ram Khiladi. The assailants left the spot under impression that all the injured persons, who fell down, had died. The injured persons were taken to the Agra Hospital by Lala Ram, Radheshyam, Bal Kishan, Ramesh Chandra. The body of deceased Khushi Ram was lying on the spot.

6. On the said written report (tehrir), chik F.I.R. was prepared by P.W.11- HC 56 Mahipal Singh at 11.30 p.m. on 21.5.1979. The investigation was entrusted to SI Mahendra Pal Singh. Investigating Officer visited the spot. Inquest of the dead body of the deceased was conducted and inquest report was prepared. A letter to the Chief Medical Officer, Agra was sent for post mortem of the dead body. Dead body of the deceased was sent for the post mortem to the mortuary. He also prepared site plan of the place of occurrence (Ext. Ka-12) and collected the blood soaked and ordinary earth from the place of occurrence. He also found five empty cartridges which were lying at the place of occurrence and a recovery memo was prepared by him. The police received an information that some of the accused persons were likely to cross Jharna Gate of village Baman which was situated within the circle of Khandauli Police Station. On the said information, the Investigating Officer arrested Raghu Raj Singh, Vijay Pal Singh, Veerey and Gopal Singh. The police recovered the country made pistol from the possession of the Raghu Raj Singh with a cartridge in its barrel. As recovery memo of the said recovered gun was prepared. A separate F.I.R. under Section 25 of the Arms Act was registered against the accused Raghu Raj Singh.

7. On 22.5.1979, Station Officer Dharm Vir-P.W. 12 himself took the investigation in his hands. The police initiated the attachment proceedings under Section 82/83 Cr.P.C. against the absconding accused persons. Later on, as SO Dharm Vir was transferred, investigation was given in the hands of his successor P.W.12-Basant Lal Tyagi. Some of the accused surrendered in the court. Police collected the SBBL gun (Material Ext. 1) belonging to accused Ram Prakash from shop of Arms Dealer at Agra. It was alleged in F.I.R. that the said gun was used by Jodh Singh at the time of occurrence of incident. The said gun, country made pistol recovered from Raghu Raj Singh and other materials such as cartridges blood soaked and ordinary earth and blood stained clothes, which was recovered from the place of were sent to the Forensic Department for the opinion of the ballistic expert and chemical examiner. After completion of the Investigation a charge sheet was submitted against the appellants.

8. The accused pleaded not guilty and claimed trial. The Chief Judicial Magistrate, Agra, by commitment order dated 1.8.1979, committed the matter for trial.

9. By order dated 12.11.1982, the VI Sessions Judge, Agra held guilty all the ten appellants under Sections 302/149, 307/149, 147, 148 and further held guilty to Raghu Raj Singh under Section 25 of the Arms Act and sentenced all of them as has been mentioned in the opening paragraph of this Judgement. Thus, the present appeal.

10. Prosecution has examined three witnesses of fact, namely, P.W. 1 Bhampola Ram, P.W. 2 Lala Ram and P.W.3 Om Prakash. It further examined P.W.4 Mahendra Pal Singh, who was posted as SI under police Station and the F.I.R. was registered in his presence; P.W. 5 Dr. S.P. Mishra, who examined the injured having injuries of either gunshot or lathi or both; P.W. 6 Dr. L.N. Sharma conducted the post mortem report; P.W. 7 Ram Asharey Pandey, who was posted as Junior Scientific in the Forensic Laboratory, Lucknow; P.W.8 Dr. G.K. Gupta had examined the injury of the accused appellants Raghu Raj and Veerey; P.W. 9 Om Prakash who was constable at the police station; P.W. 10 Dharamveer Singh, who was posted as S.I. at Police Station Kotwali Agra; P.W. 11 Head Constable Mahipal Singh, who was posted in the concerned police station at the time of incident; P.W. 12 SI Basant Lal Tyagi, who was entrusted investigation after earlier Investigating Officer was transferred; P.W. 13 Amarnath Tandon, Arms Dealer from whose shop the gun used in the incident was recovered; P.W. 14 Head Constable Har Prasad, who proved the F.I.R.; and P.W. 15 Kale Singh Verma who was the Investigating Officer in Case No. 94 under Section 25 of the Arms Act.

11. P.W. 1 Bhampola Ram, who was present at the time of incident, deposed that he knows the accused persons and they are residents of the same village. The appellant Jodh Singh, Ram Prakash, Rajendra and Gopal Singh are the real brothers. Rachh Pal and Mahesh Pal are sons of Raghu Raj Singh. Vijay Pal is real brother of Raghu Raj Singh. Veerey is the relative of Raghu Raj. Injured Ram Katori is his wife Bhoori Singh and Ram Nath are sons of his father's elder brother.

12. Recollecting the incident, he stated that on 20.5.1979, a day before the incident, at about 9 a.m. some altercation took place between Ram Gopal and Jodh Singh regarding carriage of the bricks. Ram Gopal is his nephew and real brother of the deceased Khushi Ram. On that day, Ram Gopal was beaten by Raghu Raj and Mahesh Pal. In this regard, Ram Gopal had submitted written complaint to the police on the very same day.

13. He further deposed that on 21.5.1979 at about 10 a.m. he along with Bhoori Singh, Ram Pal and Khushi Ram was sitting in the gher (outer house) of Bhoori Singh. Jodh Singh armed with gun, Raghu Raj Singh and Ram Prakash armed with country made pistol accompanying with other accused Mahesh Pal, Rachh Pal, Vijay Pal, Gopal, Rajendra Singh, Devendra Pal and Veerey, who were armed with lathi, came to the gher of Bhoori Singh. As soon as they reached at gher they kicked all of them and Raghu Raj Singh uttered loudly that washermen community have exceeded their limit, do not work, today we will teach you a lesson. After uttering aforesaid words, the accused persons, who were carrying lathi, started assaulting them. Seeing it, his wife Ram Katori, Khushi Ram's wife Premwati and son Ram Sewak rushed to them for rescue who were also assaulted by the said accused persons. Khushi Ram and Ram Pal, in their defence, snatched lathis from Rajendra Singh and Dev Prakash and lathi blow was inflicted on Raghu Raj and Veerey, who were injured.

14. Upon this, Raghu Raj Singh shouted not to wield lathis but to open fire as dhobis were not relenting. Thereafter, Jodh Singh with his gun and Raghu Raj and Ram Prakash with their country made pistols fired shots at them. Being hit by shots, Khushi Ram succumbed to his injuries on the spot. Bhoori Singh (P.W.1), Ram Pal, Ram Katori, Premwati Ram Sewak and Ram Pal all were injured with gun shot as well as by blow of lathis. He further deposed that at the time of incident, Saudan Singh, Lala Ram, Ram Khilari, Nanhe Ram and Sofhali were present on the spot, who witnessed the said incident. Om Prakash was also present at the time of incident.

15. He further deposed that he along with Bhoori Singh, Ram Sewak, Ram Pal, Ram Katori and Premwati was taken to hospital by Lal Ram, Radheshyam, Bal Kishan and Ramesh Chandra whereat the doctors had examined their injuries. He further deposed that accused Jodh Singh, Ram Prakash and Raghu Raj had opened fire from close range of about 2-3 paces. Jodh Singh had licensed gun of the Ram Prakash. On his cross-examination, this witness Bhampola Ram stated that Ram Gopal had carried bricks to Rajendra Singh, brother of Jodh Singh a few days before the incident.

16. He further stated that Investigating Officer had come to his village and made enquiries regarding the incident. He deposed that the fact that Khushi Ram and Ram Pal had snatched the lathi from Dev Prakash and Rajendra Singh, was not mentioned by him to anyone. He further stated that he had not stated this fact to Investigating Officer or any other person except for the first time in the court. He has reiterated that Raghu Raj Singh had shouted that washermen are not stopping whereafter the accused persons, who were assaulting them with their lathis stopped and the accused persons, who were armed with gun and country made pistols opened fire. He has stated that accused persons had fired five shots. Khushi Ram and Ram Pal, who had snatched the lathis from the accused persons, had assaulted with those lathis only 1-2 times. He denied suggestion that the offence was committed by docaits, namely, Mahaveer and Leela.

17. P.W.2-Lala Ram also claims that he was present at the time of the occurrence of the incident. He has stated that on 21.5.1979, the incident occurred at about 10 a.m. when Jodh Singh armed with gun, Ram Prakash and Raghu Raj armed with country made pistol along with other accused persons, namely, Gopal, Rajendra, Dev Prakash, Mahesh Pal, Rachh Pal, Vijay Pal and Veerey, who were armed with lathis, came to their village. This witness stated that his house is adjacent to the place of occurrence and at the the time of incident, he was standing at the door of his house. He further stated that the accused persons exhorted, "/kksfc;ksa rqe cgqr c< x;s gks] bZVs ugh 18. It is stated that on being injured Khushi Ram and Ram Pal snatched lathis from Rajendra and Dev Prakash and assaulted therewith Raghu Raj and Veerey. On this, Raghu Raj shouted that all washermen have united, therefore, they must stop wielding lathis and they would set them right. Thereafter, with an intention to kill, Jodh Singh with his gun, Ram Prakash and Raghu Raj with their country made pistol opened fire on account of which Khishiram died on the spot and Ram Nath, Bhampolaram, Ram Katori, Premwati and Ram Sewak being injured fell on the ground. Accused went away with impression that all of them were dead. This incident was witnessed by Nahne Ram, Sopali, Ram Khiladi, Saudan Singh and Om Prakash. This witness stated that he along with Radheshyam, Bal Kishan and Ramesh Chandra rushed to District Hospital, Agra along with all the injured person except Khushi Ram, whose corpse was lying on the place of occurrence. This witness identified the weapons in the court which were used by the accused persons. He had also identified the cloths of Khushi Ram which he was wearing at the time of incident. In his cross-examination, he stated that he is a teacher and on the date of incident, he was in village as his school was closed due to vacations.

19. He has further stated that prior to the date of incident, one more criminal case registered by washermen was pending against Raghu Raj, Mahesh and Rachh Pal and he was also a witness in the said criminal case against the accused persons. He has further stated that Mahesh Pal and Rakshpal had assaulted Bhoori Singh with lathi and accused Gopal had assaulted Bhampola Ram with lathi. The entire incident took place between 2-3 minutes. Their neighbours had witnessed the incident from their houses. He has stated that about four days before the incident, there was some dispute between Khushi Ram (deceased) and Jodh Singh regarding carriage of the bricks. Jodh Singh was not giving actual payment, hence, Khushi Ram had said that he would not carry his bricks.

20. P.W.3-Om Prakash is also an eye witness. He is the first informant and deceased Khushi Ram was son of his uncle. He reiterated the same statement regarding the incident which took place on 20th August 1979. However, he stated some new facts in his statement that when quarrel erupted on 20.8.1979, Raghu Raj Singh and Mahesh Pal had assaulted Ram Gopal on account of which Ram Gopal received injuries on head. In his village, work of transportation of bricks was done by Khushi Ram and Ram Gopal only. He has stated that an F.I.R. was lodged for the said mar-peet on the very same day by Ram Gopal and he has brought the carbon copy of the F.I.R. which was exhibited as Ka-2 . This witness Om Prakash further stated that he witnessed the incident which had taken place on the next day, i.e., 21.5.1979. He stated that when he was sitting in front of his house at about 10 a.m. Jodh Singh armed with gun, Ram Prakash and Raghu Raj Singh armed with country made pistols and Mahesh Pal, Rachh Pal, Vijay Pal, Veera, Rajendra, Dev Prakash and Gopal armed with lathis came to the gher of Bhuri Singh and exhorted that "/kksfc;ksa rqe cgqr c< x;s gks] bZVs ugh 21. P.W. 4 is Mahendra Pal Singh, who was posted as S.I. at the Police Station Khandauli. Initially, he had investigated the matter as the Station Officer of the said Police Station was not available. He has deposed that he visited the place of incident. He found five empty cartridges, which were used by accused persons. He identified those cartridges in the court recovery of which were made by him. He also stated that when the incident occurred, no injured person was brought to the police station, however, stated that some of the injured persons were sent to the hospital by the villagers and some of them were sent thereat by him. He had prepared the rough sketch map.

22. On 21.5.1979, P.W.5 Dr. S.P. Mishra examined the injures on the persons of injured Ram Nath. He found seven injuries on the person of this injured. Out of seven injuries, injury nos. 2, 3 & 4 were found to have been caused by firearms. This witness deposed that that injury nos. 1 to 4 were kept under observations, however, about rest injuries found on the person of injured Ram Nath, he opined to be simple in nature.

23. On the very same day, injuries of injured Ram Katori was also examined by P.W.5 at 3.40 p.m., who found two injuries on her person. In respect of injury no.1 P.W. 5 opined that the same was caused by some blunt object and injury no.2 was kept under observation and was opined to have been caused some firearm. P.W. 5 also examined injured Bhuri Singh at 3.50 p.m. and found four injuries on the person of this injured. Doctor deposed that injury no. 1 and 4 were kept under observation and rest injuries were found simple in nature. Injury no.1 was found to have been cause by firearm. P.W. 5 also examined injuries of injured Premwati at 4.05 pm on the very same day. He found two injuries on the person of this injured and both injuries were opined to be fresh and simple nature. P.W.5 also examined injuries of injured Bhampola Ram at 4.05 p.m. on the very same day. He found four injuries on person of this injured. Except injury nos. 1 and 2, rest injuries were found to be simple in nature. Injury nos 1 and 2, which were kept under observation, were opined to have been caused by fire arms. All the injuries were fresh. P.W. 5 also examined injuries of injured Ram Sewak at 4.25 p.m. He found single injury on the person of this injured., which was opined to be simple in nature. P.W. 5 deposed that all the injuries found on the persons of all the injured person were caused possibly at about 10 a.m. at 21.5.1979 and the injuries which were caused by firearms were possibly fired from gun or country made pistols.

24. On 22.5.1979 at 4.00 pm., P.W. 6-Dr. L.N. Sharma had conducted the post mortem on the dead body of the deceased. Under injury no.1 he found several firearms' shot entry wounds of 6" x4" dimension marks of which on the left side of chest was found of 3/10" x3/10" x cavity deep dimension. All these wounds were found circular and inside oriented. Under injury no.2, he found several gun-shot entry wounds of 6.1/2" x 1" dimension on the back side of lower left arm and each wound was found to be 1/10" x 1/10" x bonedeep. Blackening and scorching were found to be present. Under injury no.3, erosion mark of 1/2" x 3/10" were found on backside of forearms. Under injury no. 4, muscle deep contusion wound of 1/2" x 3/10" dimension was found on left side of forehead. Under injury no. 5, gun-shot circular entry wound of 3/4" x 3/4" dimension were found 2" above right knee on the lower thigh. Blackening and scorching were present. Under injury no. 6 gun shot exit wound of 1" x1.1/2 on right thigh and the bone of right leg was found to be fractured in multiple pieces.

25. On the internal examination of the dead body, head was found pulpy, sternum, spleen was found fractured and the lung was filled with 10 ounce blood. Pleura, both lungs, heart were found fractured. Blood and fecal matter was found in stomach. Doctor opined that deceased on account of shock and haemorrhage.

26. P.W. 7 Ram Ashrey Pandey, Junior Scientific Officer in the Forensic Department, Lucknow deposed that he had examined five empty cartridges of 12 bore gun which were marked as EC-1 to EC-5. He marked one 12 bore country made pistol (Ext.2) as 1/79. In the said country made pistol one miss-fired cartridge (Ext. Ka-14) was found, which was marked as EC-6. One SBBL gun (Ext. 1) bearing no. 1893 was also examined by him which was marked as 2/79. According to the ballistic expert, he found that cartridges EC-1 and EC-3 were fired by SBBL gun and two cartridges EC-4 and EC-5 were fired by country made pistol. With regard to cartridge EC-2, he opined that neither this was fired from country made pistol (Ext. 2) nor this was fired by SBBL gun (Ext.1). From the statement of the P.W. 7, this fact is apparent that the empty cartridges, which were found on the spot after the incident had taken place, were fired by the SBBL gun and two country made pistols which were armed by appellants Jodh Singh Ram Prakash and Raghu Raj.

27. P.W. 7 Ram Asare Pandey, Junior Scientific Officer in the Forensic Department, Lucknow deposed that he had examined five empty cartridges of 12 bore gun which were marked as EC-1 to EC-5. He marked one 12 bore country made pistol (Ext.2) as 1/79. In the said country made pistol one miss-fired cartridge (Ext. Ka-14) was found, which was marked as EC-6. One SBBL gun (Ext. 1) bearing no. 1893 was also examined by him which was marked as 2/79. According to the ballistic expert, he found that cartridges EC-1 and EC-3 were fired by SBBL gun and two cartridges EC-4 and EC-5 were fired by country made pistol. With regard to cartridge EC-2, he opined that neither this was fired from country made pistol (Ext. 2) nor this was fired by SBBL gun (Ext.1). From the statement of the P.W. 7, this fact is apparent that the empty cartridges, which were found on the spot after the incident had taken place, were fired by the SBBL gun and two country made pistols which were armed by appellants Jodh Singh Ram Prakash and Raghu Raj.

28. It is significant to mention that P.W. 8 Dr. G.K. Gupta, who had examined the injuries of accused Raghu Raj on 22.5. 1979 at 6.10 p.m. found following injuries on his person:-

1. Lacerated wound ¾"x ¼"x ¼" 4" above left ear on head upward. Clotted blood was present over wound.

2. Lacerated wound 1" x 1/2" x ¼" on the mid front of left leg.

3. Blueness mark 2" x 2" on right shoulder upward.

4. Blueness mark 1" x 1" on back of left hand.

The doctor opined about injuries of this injured to be simple in nature and were probably caused by blunt object. All the injuries appeared to be caused within 24 hours old.

29. Appellant Veeerey was also examined by P.W.8 on the very same day at 6.20 p.m. and following injuries were found on his person:-

1. Lacerated wound ½"x ¼" x 2/10" on back side 5" above the left ear

2. Blueness mark 2" x 1" over the right knee.

3. Blueness mark 1" x 1" over right ankle. Accused stated pain in left leg but there was no mark of injury.

The doctor opined all the injuries of this injured was also simple and were probably caused by some blunt object at about 10.00 a.m. on 21.5.1979. In his cross-examination P.W.8 Dr. G.K. Gupta stated that both the injured Raghu Raj and Veerey had received injuries on their heads. Blood was found clotted on the head injury of Raghu Raj.

30. Sri V.P. Srivastava, learned Senior Advocate submitted that as per version of the F.I.R., it appears that incident has been mentioned in two parts, i.e., firstly some of the accused persons, who were armed with lathis started wielding their lathis to assault the deceased and other injured persons and when deceased Khushi Ram and Ram Pal snatched lathis of the Rajendra and Dev Prakash and assaulted Raghu Raj and Veerey therewith as a result of which Raghu Raj and Veerey were injured and then Raghu Raj Singh shouted his accomplices to stop wielding their lathis as washerme were not ready to surrender and they have to be set at right. Upon this exhortation, Jodh Singh, Ram Prakash and Raghu Raj opened fire with their respective firearms. He submitted that the other accused persons, namely, Rajendra Singh, Rachh Pal, Mahesh , Vijay Pal, Veerey, Gopal Singh and Dev Prakash had no common object to kill the victim as the firearms were used by only three accused persons at the command by Raghu Raj. He further submitted that common object of all the accused persons was only to teach a lesson to Ram Gopal and Bhoori Singh and it was not to kill them. He further submitted that this fact is evident from the fact that three persons, who were armed with firearms, opened fire only when the deceased and Ram Pal started assaulting Raghu Raj and Ram Prakash. He further submitted that this fact is also corroborated by all the eye witnesses, hence, three appellants Jodh Singh, Ram Prakash and Raghu Raj had no common intention to kill the deceased Khushi Ram.

31. Learned Senior Advocate further submitted that as soon as Raghu Raj Singh commanded all other appellants, namely, Rajendra Singh, Gopal Singh, Dev Prakash, Vijai Pal Singh, Rachh Pal, Mahesh Pal and Veerey, immediately stopped assaulting the victims with their lathis. He has drawn our attention to the post mortem report of the deceased Khushi Ram and injury report of the victims. Based upon this, he submitted that the deceased had not received any lathi injury on the vital part of the body which shows these appellants had no intention to murder the deceased person. It is further submitted that if it were the intention of the appellants to kill the deceased person or his family members, they would have opened their firearms at the first instance and they would not have wielded lathis in the beginning.

32. Lastly, he submitted that the incident had taken place more than 39 years ago. The appeal is pending in the court for the last 36 year for no fault of the surviving appellants. Out of ten appellants, six have died their natural death. All the four surviving appellants are more than 56 years old. They do not have any criminal antecedent.

33. Learned Senior Advocate further submitted that it was free fight and both the sides assaulted each other and most of the injuries were on the legs. From the evidence, it is also not clear that who caused injury no.1 to the deceased which was caused by the firearms and proved to be fatal. Except injury no.1, which was caused from the very closed shot, other injuries including injury nos. 3 & 4 were on non vital parts.

34. Learned A.G.A. submitted that the incident had taken place in the broad day light and there are several injured witnesses of the incident. There was motive to kill the deceased and Bhoori as one day prior to the incident,i.e., on 20.5.1979, an altercation took place between Jodha Singh and Ram Gopal, real younger brother of Khushi Ram regarding which a report was lodged by Ram Gopal at the police Station, hence, the accused persons wanted to take revenge against the victims and injured persons. Therefore, all the accused persons are equally guilty of under Section 148 of the I.P.C.

35. We have heard learned counsel for the parties and perused material on record.

36. P.W.3 is the first informant. He was present on the spot and had witnessed the incident. Immediately after the incident, he went to his house, which was nearby the place of incident, wrote written complaint and left his house for police station at 10.30 a.m. He denied the fact that it was written on the dictate of Inspector of Police Station. In his long cross-examination, the prosecution failed to elicit any fact which may show any inconsistency in his statement vis-a-vis the statements of other witnesses, namely, P.W.1 Bhampola Ram and P.W. 2 Lala Ram, who were also present on the spot at the time of the occurrence. The presence of this witness at the place of occurrence was doubted by the defence on the ground that as per statement of P.W.3, he used to leave his village at about 3.00 a.m. for Agra with an intent to distribute milk on his Ajanta Dairy from the early morning, i.e., 4.00 a.m.. He used to distribute milk there till 7.30 a.m. and thereafter he used to return his village. As such, as per defence, it was not possible that after distribution of the milk in the city, he would be able to return before 10.00 a.m. in the village. The statement of the first informant P.W. 3 gets corroboration from the statement of the P.W.1 Bhampola Ram and Lala Ram. The P.Ws.2 & 3 has also corroborated the evidence of the first informant that when accused persons came to the gher of Bhoori Singh and exhorted that washermen were exceeding their limits by denying carrying the bricks and they would be taught lesson, he exhorted that conduct of Dhobies shows that they are full of pride and for the said reason they are refusing to do their traditional work. From this corroborative statement of P.Ws. 1 to 3, it is proved that all the accused persons had come to village to teach lessons to washermen being aggrieved with the fact that the washermen were denying their command to carry bricks. It is also mentioned by the prosecution that an altercation already took place previous days between Jodh Singh and Ram Gopal and a report was also lodged by Ram Gopal with the Police Station but as the accused persons belonged to higher community the police did not take any against them. The evidence on record shows that denial of transporting of bricks and lodging of the report with report by Ram Gopal hurt ego of Raghu Raj and his party. Thus, with a motive to teach a lesson and overawe the washermen, the accused perpertrated the offence on 21.5.1979.

37. Evidence on record also shows that out of ten accused appellants, Jodh Singh was armed with gun, Raghuraj Singh and Ram Prakash were armed with country made pistols and rest other accused appellants were armed with lathis. This fact shows that it was not common object of all the accused persons to kill Ram Gopal or Khushi Ram and had it been their common object to kill Khushi Ram, they would have used firearms at the first instance when they reached at the gher where Khushi Ram and others were sitting. From the statement of witnesses, it is also clear that in the village only Khushi Ram and Ram Gopal used to transport bricks on mule and not all the washermen.

38. It has also come on evidence that as soon as the appellants reached the spot, they started beating the persons, who were present on the place of occurrence, and firearms were used by only by three appellants, namely, Jodh Singh, Ram Prakash and Raghu Raj when Khushi Ram and Ram Pal after snatching lathis from Rajendra and Dev Prakash, inflicted injuries on Raghu Raj and Veerey. Only after receiving injuries, Raghu Raj exhorted to stop wielding lathis and open fire. From these facts, it is evident that initially that Raghu Raj Singh and two other persons had no intention to kill any one.

39. Learned counsel for the appellants made feeble attempt to submit that the three accused persons, who were carrying firearms, namely, Jodh Singh, Raghu Raj and Ram Prakash had used firearms due to sudden provocation and as such they are entitled to get benefit of exception 300 I.P.C. We do not find any force in the submission of the learned counsel for the appellant that benefit under Section 300 I.P.C. can be extended to these appellants. Section 300 reads as under:-

"300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person.

Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense.

Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense."

Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

40. Thus, it is clear that Exception 1 under Section 300 is attracted when a person, who loses power of his/her self control by sudden provocation, causes death of the person, who gave the provocation. In the present case all the assailants came armed with firearms and lathis, therefore, it was premeditation to teach a lesson to dhobi community, hence, it cannot be said that the action of the accused persons was on any provocation.

41. Exception 4 under Section 300 provides that culpable homicide is not murder if it has been committed without premeditation. In the present case, it was not a sudden quarrel. The incident had taken place after altercation which took place on the previous day. Since an F.I.R. was lodged against Raghu Raj, it cannot be said that he went to the place of occurrence without any premeditation. As soon as the accused persons reached the place of occurrence they started beating the victim. This fact has been reiterated by all the eye witnesses, i.e., P.Ws. 1, 2 & 3 and there is no inconsistency or material contradiction in their statements. Hence, it cannot be said that shouting of Raghu Raj to teach a lesson to washermen, was subject matter of sudden fight in the heat of passion. The evidence on record clearly demonstrates that first assault was made by the accused appellants who started showring lathi blows on the persons, who were present near the gher of the Bhoori Singh.

42. This is insignificant that Khushi Ram (deceased) and Ram Pal had assaulted Raghu Raj and Veerey by snatching the lathis of accused appellants, who also suffered injuries. In fact the deceased and all the other injured witnesses, who were on the spot, were unarmed and they were taken by surprise when the appellants started assaulting them by their lathis, Khushi Ram and Ram Pal, in their defence, snatched lathis from the hands of Rajendra Singh and Dev Prakash and then assaulted Raghu Raj and Veerey, who suffered injuries.

43. From the statements of P.Ws. 1, 2 and 3, it is clear that the incident had occurred in their presence. We do not find any inconsistency or embellishment in their statements. Thus, prosecution has established presence of all the accused persons on the spot.

44. The ocular evidence is fully corroborated by the medical evidence. The injuries suffered by deceased and victims leave no room for doubt that the deceased was shot dead by the three accused appellants, namely, Jodh Singh, Raghu Raj and Ram Prakash. The first shot was fired by Jodh Singh by gun, whereafter Raghu Raj Singh and Ram Prakash also fired shots from their country made pistols. All the injured witnesses and the deceased Khushi Ram were unarmed. The injuries inflicted on the person of the deceased Khushi Ram have been noticed by us in the earlier part of this Judgment, which were sufficient in the ordinary course of nature to cause death of the deceased.

45. As far as the evidence tendered by P.W.1 Bhampola Ram and P.W.2 Lala Ram, who are injured prosecution witnesses is concerned, it is trite law that evidence of injured witnesses is of great weight because they have received injuries at the hands of the appellants at the scene of occurrence. It can be safely assumed that they will not spare the real culprit and falsely rope in innocent persons. Of course, while considering the evidence of a injured person, the Court should not accept the evidence mechanically. The Supreme Court in a recent Judgment rendered in the case of Mohd. Ishaque Vs. State of West Bengal, (2013) 14 SCC 581, has held that the testimony of injured witnesses is entitled to great weight. Relevant part of the Judgment reads as under:-

"PW1, PW 2, PW4 in the present case sustained serious injuries and their evidence was believed by the court. It is trite law that the testimony of injured witnesses is entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person. Of course, there is no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities."

46. Similar view was taken by the Supreme Court in Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470. Relevant part of the Judgment is extracted hereinbelow:-

"Out of these three witnesses, the evidence of P.W.20 Nankobai is of great significance inasmuch as she had herself sustained an injury by gunshot on her head. The fact that Smt Nankobai sustained gunshot injury in the course of this transaction is satisfactorily established by the medical evidence. Now PW 20 was an inmate of the household of Kehar Singh. Her presence at the house was therefore natural. The medical evidence therefore fully corroborates and lends support to her version that she was one of the inmates of the household, and was present at the scene of offence . Her presence at the time of the offence cannot therefore be disputed. She being an injured witness her evidence is entitled to great weight."

47. The evidence tendered by eye witnesses P.W. 1 Bhampola Ram, P.W. 2 Lala Ram and P.W. 3 Om Prakash wholly corroborates the prosecution case and statement made by these three eye-witnesses are consistent and we do not find any material contradiction in their statements. Their statements appears to be natural as they were subjected to long cross-examination but prosecution failed to elicit any fact which can create doubt about their presence on the spot. Their ocular evidence is supported by medical evidence. Hence, we find that all the three appellants accused, namely, Jodh singh, Ram Prakash and Raghu Raj are guilty of commission under Section 302. They were fully aware that injuries caused by them with their respective firearms in all probability would cause death. Hence, they are guilty under Section 302.

48. Thus, we find that the finding of the trial court convicting the aforesaid three appellants Jodh Singh, Raghu Raj and Ram Prakash do not suffer from any illegality or perversity. We find no reason to discard the statements of the injured witnesses in this behalf. Their statements are consistent and corroborated by medical and other evidence on record. The three appellants who were armed with weapons are found guilty under Section 300 IPC as they were fully aware of the fact that injuries caused by their firearms were likely to cause death of the victims.

49. Sequentially, the next question which arose for consideration is whether the rest of the appellants, who were armed with lathis, did not share common object with the three appellants whom we hold guilty under Section 302 to cause death to the deceased Khushi Ram. Learned counsel for the appellants have submitted that if their common object was to kill Ram Gopal and Khushi Ram, accused Jodh Singh, who was carrying the gun, would have shot at him when he was standing in front of his house. Their common object was only to teach lesson to washermen.

50. From the evidence on record, we find that the motive for assault on the deceased and other persons was to take revenge of the previous incident which took place a day before the incident. The prosecution witnesses have deposed that Raghu Raj had assaulted Ram Gopal during an altercation on his denial of transportation of bricks regarding which Ram Gopal registered written report with the police, which hurt ego of the appellants who belonged to upper class community, as such, on the next day, it appears that common object of the accused persons was only to teach a lesson to washermen community and to murder Ram Gopal who had filed a written complaint to police.

51. Thus, in the first phase of assault only the accused persons, who were carrying lathis, inflicted lathi injuries to the victims and the other accused persons armed with firearms were watching them as they were simply onlookers of the incident. On being injured by lathi blow, Khushi Ram and Ram Pal snatched lathis from the hands of Rajendra Singh and Dev Prakash and inflicted injuries to Raghu Raj and Veerey. When Raghu Raj suffered lathi injuries, only then they opened fire.

52. None of the eye witnesses have said that either all the accused persons or accused Raghu Raj had exhorted to kill any particular person. From the statements of eye witnesses, it appears to us that since Raghu Raj was assaulted by Khushi Ram with lathi, the accused person armed with firearms retaliated by firing upon him. The post mortem report of the deceased clearly indicates that fire was opened from a close range.

53. It is significant to mention that a day before the date of occurrence, Ram Gopal had quarreled with Mahesh Pal and Raghu Raj who had beaten Ram Gopal. Thus, the accused persons appears to have no intention to murder Ram Gopal, who had already filed complaint with the Police in respect of the incident which had taken place on 20.5.1979. They came to gher of Bhoori Singh but they did not search Ram Gopal amongst the people, who were sitting at the gher of Bhoori Singh. As per their exhortation, it appears that their common object was not to kill Ram Gopal, Khushi Ram or any particular person but to terrorize the entire community of washermen and for said reason, the persons, who had firearms, did not initially open fire to cause injury to the persons who were present on the spot.

54. Post mortem report of deceased Khushi Ram also indicates that persons who were wielding lathi did not cause any injury on the his vital part. According to the Dr. L.N. Sharma, who had conducted autopsy opined that the lacerated wound and abrasion were probably caused by blunt weapon.

55. The issue that whether all the persons present at the scene had shared common object need to be determined as per the facts and circumstances of each case. In the present case, we find that earlier common object of the accused appellants was not to murder but it was only to teach a lesson to the washer men community. Thus, persons who used lathi cannot be said to have shared common object of the three appellants, i.e., Jodh Singh, Raghu Raj & Ram Prakash, who used gun on the exhortation of Raghu Raj. In similar facts, before the Supreme Court in the case of Badal Murmu and others Vs. State of West Bengal,(2014) 3 SCC 366, submission was that the common object of the accused person, who used lathis, was to inflict injuries only but death of the deceased was caused due to the fact that the incident took an ugly turn. Thus, the Supreme Court in that case held that conviction of all accused persons was sustainable neither under Section 302/149 nor under Section 302 I.P.C. and, accordingly, the conviction of all accused was altered to one under Section 304 Part II I.P.C. Paragraph nos. 7, 11 & 13 of the Judgment rendered by Supreme Court in the case of Badal Murmu (supra) is extracted hereinbelow:-

"7. Mr Anip Sachthey, learned counsel for the State, on the other hand, submitted that the ocular evidence establishes the prosecution case. The counsel submitted that it is true that the appellants used lathis but even if the common object was to inflict injuries, the appellants who were members of the unlawful assembly knew that the murder was likely to be committed in prosecution of common object and since death was caused, every member of the unlawful assembly must be held guilty of murder. In support of his submissions, the counsel relied on Munivel v. State of T.N. And Alister Anthony Pareira v. State of Maharashtra. The counsel submitted that the appellants persistently assaulted deceased Jhore Soren and caused grievous injuries to him which resulted in his death. The intention to commit murder is clear and, hence, they are guilty of murder. In this connection, he relied on Kashmiri Lal v. State of Punjab. The counsel submitted that the appeal be dismissed.

11. Now the question is which offence was committed by the appellants. The cause of this entire episode is very trivial. Appellant Bhagbat's he was stolen by deceased Jhore Soren. This dispute was settled. Penalty was paid. Yet, the appellants called deceased Jhore Soren to Saheb Hasda's courtyard. Deceased Jhore Soren went there with P.W. 7 Kanka. They were tied to the trees and beaten up. It is argued that these facts show that the appellants shared common object to kill deceased Jhore Soren and in prosecution of the common object, they killed deceased Jhore Soren. In our opinion, the attendant circumstances do not indicate that the appellants shared any common object to kill deceased Jhore Soren. It appears that they were not happy with the penalty imposed by the Salishman. Therefore, they called him to Saheb Hasda's courtyard and beat him with lathis. If they wanted to kill him, they would have used some sharp-cutting weapons. In fact, the evidence on record shows that some of the appellants had tangies in their hand. PW1 Nilmoni stated that some of them had tangies but they did not use them. Really, if the appellants wanted to kill deceased Jhore Soren, the easiest way to achieve their object would have been to use the tangies and assault him.

13. In this connection, we may usefully refer to the judgment of this Court in Sukhdev Singh v. State of Punjab. In that case, the appellant therein was convicted under Section 302 I.P.C. and sentenced to life imprisonment. The question arose as to what was the nature of the offence committed by him. He had given one blow to the deceased. Thereafter, the deceased had fallen down. That blow, according to the prosecution, was sufficient to cause death in the ordinary course of nature. This Court accepted the testimony of PW3, PW 4 and PW 5 as to the participation of the appellant therein in the crime. But, it rejected their evidence giving specific overt act to each of the accused because according to the prosecution, the victim was surrounded by all the four accused, each one was armed with weapons and they attacked the deceased simultaneously. This Court observed that it was therefore difficult to say that fatal injury was caused by the appellant therein. This Court observed that the evidence of the witnesses on that aspect has to be considered with a pinch of salt. Under the circumstances, the sentence of the appellant under Section 302 IPC was set aside and he was sentenced under Section 304 Part II IPC. In the instant case also all the accused are stated to have assaulted the deceased simultaneously. No individual role is ascribed to anyone. The doctor has not stated which injury was fatal. It is difficult therefore to say that all the appellants are guilty of murder."

56. In Anup Lal Yadav v. State of Bihar, (2014) 10 SCC 275, the Supreme Court quoted its earlier Judgment Lalji v. State of U.P. 1989 (1) SCC 437, which reads as under:-

"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 or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand 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 lathis, 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 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.

57. Keeping in view the aforesaid position of law, we find that accused appellants Dev Prakash, Mahesh Pal and Veerey did not share the common object of accused appellants Jodh Singh, Raghu Raj and Ram Prakash to commit offence of murder. They were accompanying the other accused appellants and assaulted the washermen with intention to teach them a lesson but no particular person was in their mind to murder. It was due to the sudden situation, which arose during the quarrel, that the three appellants Jodh Singh, Raghu Raj and Ram Prakash suddenly took the decision on the spot to cause grievous injuries to victims.

58. We find that the findings of the trial court with regard to conviction and sentence of accused-applicant Ram Prakash are correct and do not warrant any interference. Accordingly, the appeal in respect of accused-appellant Ram Prakash is dismissed and his conviction and sentence under Sections 148, 307/149 and 302 I.P.C. is upheld. He is on bail and is directed to surrender forthwith to undergo remaining period of sentence.

59. The appeal in respect of surviving accused-appellants Dev Prakash, Mahesh Pal and Veerey is partly allowed, their conviction under Section 302/149 I.P.C. is set aside and they are acquitted from the charges under Section 302/149 I.P.C. Their conviction and sentence under Section 147 I.P.C. is upheld and their conviction under Section 307/149 I.P.C. is also upheld. However, considering the fact that they are alleged to have caused only simple injuries with Lathis on non-vital parts of the body of injured persons as well as the fact that the incident did take place about 38 years ago and they are on bail in appeal which is pending for the last 36 years and have not abused the liberty of bail in last 3 decades, taking a lenient view, we find that ends of justice would be met by sentencing them with five years rigorous imprisonment and Rs.5000/- fine under Section 307/149 I.P.C. Accordingly, upholding their conviction under Section 307/149 I.P.C., the sentence of 10 years rigorous imprisonment is modified and reduced to 5 years rigorous imprisonment and Rs.5000/-fine and in case of default in payment of fine each of them will undergo simple imprisonment for an additional period of three months. They are on bail and are directed to surrender forthwith for undergoing the remaining period of sentence.

60. The sentences of accused-appellants shall run concurrently.

61. The appeal is accordingly partly allowed.

62. Let the lower court record be sent back to the court below along with the copy of the order for ascertaining necessary compliance.

Order Date :- 24.4.2018

Ram Murti