Allahabad High Court
Bangali vs State Of U.P. on 24 May, 2019
Bench: Pankaj Naqvi, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 53: Reserved on: 24.04.2019
Delivered on: 24.05.2019
CRIMINAL APPEAL No. - 2337 of 2003
Appellant :- Bangali
Respondent :- State Of U.P.
Counsel for Appellant :- D.R. Choudhary,B.P. Tiwari,D. Kumar,G.P.Dikshit,J.S.Sengar,Lav Srivastava,R.S.P. Rao,R.S.Prasad,Satish Trivedi,V.P. Srivastava
Counsel for Respondent :- A.G.A.
And
CRIMINAL APPEAL No. - 2181 of 2003
Appellant :- Kalicharan And Others
Respondent :- State Of U.P.
Counsel for Appellant :- D.R. Choudhary,D. Kumar,G.P. Dixit,Lav Srivastava
Counsel for Respondent :- Govt.Advocate,B.D. Tewari
-----------------------------------------
Hon'ble Pankaj Naqvi,J.
Hon'ble Umesh Kumar,J.
(Delivered by Umesh Kumar, J)
1- These two appeals have been filed against the judgment and order dated 9.5.2003 passed by learned Addl.Sessions Judge, Bulandshahar in S.T. No. 279 of 2001 ( State Vs. Kalicharan & others) and connected S.T. No. 271 of 2001 ( State Vs. Yad Prakash), convicting the appellants as under:
Accused
Conviction
Sentence
Bangali
Section 302 IPC
Section 148 IPC
Sections 307/149 IPC
Life Imprisonment + Rs. 2000/- Fine
Two years R.I.
Five years R.I. + 500/- Fine.
Kalicharan
Yad Prakash
Diwan Singh
Smt. Shakuntala
Yad Prakash
Sections 148 IPC
Section 302/149 IPC
Section 25 Arms Act
Two years R.I.
Life imprisonment + Rs. 500/- Fine.
Two years R.I. + Rs. 200/- Fine
2- The prosecution case, in brief, is that on 6.12.2000 at about 1.30 PM, informant-Atar Singh (P.W.1) was carrying soil for levelling the gali by his bullock cart; when he reached near the house of Shankar, accused- Kalicharan and his sons resisted to carry soil and got the bullock cart returned; due to this, altercations took place and thereafter, the accused went to their house, came back with common object, the accused Kalicharan armed with lathi, Yad Prakash with country made pistol of 315 bore, Bangali with (razor) Chura, Diwan Singh with knife and Smt. Shakuntala Devi having an axe in their hands ; on the noise, Harpal, Sri Ram, Rani Devi wife of Mahipal, Malkhan Singh, Ram Autar, Smt. Saroj, Smt. Rajni, Smt. Rani Devi wife of Atar Singh, Sri Ram, Ved Prakash, Satpal and Amar Singh arrived there; accused Kalicharan exhorted, upon which, accused Yad Prakash fired 4-5 shots from his country made pistol with intention to kill which hit his cousin brother Harpal who died on the spot; a rout started; in the meantime, accused Bangali armed with razor attacked on the sister of informant Rani with intention to kill her on chest; Rani after receiving injury fell down and died; when the informant's side tried to rescue Rani, accused Diwan Singh, Kalicharan, Shakuntala Devi attacked on them with intention to kill , due to which, Malkhan Singh, Ram Autar, Smt. Saroj, Smt. Rajni, Stm Rani Devi received grievous injuries. In the incident, accused Yad Prakash and Smt. Shakuntala Devi also received injuries caused by the accused themselves; the dead bodies of Harpal Singh and Rani Devi were lying on the spot. A written information was given by the informant-Atar Singh scribed by Mangal Singh at the police station. FIR (Ex.Ka.15) was lodged at 14.30 hours and disclosure of this written report was made in GD No. 30 dated 6.12.2000 at 14.30 hours.
3- Thereafter, the police started investigation, visited the spot, prepared inquest report of deceased-Rani ( Ex.Ka-23) and other relevant police papers (Ex.Ka-24 to Ex.Ka-30). Subsequently, inquest report of deceased-Harpal Singh (Ex.Ka.31) and other relevant police papers ( Ex. Ka.32 to Ex. Ka.36) were prepared. Recovery memo of blood stained and plain earth (Ex. Ka.5 and Ex.Ka.6), recovery memo of empty cartridges (Ex. Ka.7) were prepared. During investigation, the I.O. recovered country made pistol, empty cartridges and axe ( Ex.Ka.8) on the pointing out of accused. Site plan of the incident ( Ex. Ka. 4), and other papers are Ex.Ka.9 to Ex.Ka.18. After inquest, body was sent to hospital for the post mortem which was conducted by (P.W.3) Dr. R.K. He found following injuries on the bodies of deceased persons;
Deceased-Rani:
A stab wound 4 cm x 1 cm x cavity deep over left side of breast; at 11 O' clock position, 4 cm away from nipple. Probbing is done which communicates in the left chest cavity (pleural cavity).
In the opinion of doctor, death has been caused by hemorrhage & shock as a result of anti mortem injury.
Deceased-Harpal Singh:
(1) A stab wound 3 cm x 1 cm x cavity deep. Present over supra clavicular fossa.
(2) A stab wound 4.5 cms. X 1.5 cm x cavity deep. Present over left side in between and obliquely placed, towards left side.
(3) A stab wound 1.5 cm x 1.0 cm x cavity deep over back of left side of chest, just below the inferior angle of left scapula and 5 cm away from mid line, towards left side, obliquely placed.
(4) An incised wound 1.5 cm x 1 cm x muscle deep over left side of back of abdomen, 3 cm away from mid line and obliquely placed at level of 3rd lumber vertebrae.
4- The other injured namely Malkhan Singh, Ram Autar, Smt. Saroj, Rani were examined by P.W.5 Dr. M.P. Singh, who found following injuries on the bodies of injured;
ey[kku flag%
1& Hkksd dj ekjus dk ?kko 5-5 lseh- x 1-8 lseh- x xbjkbZ ugha ik;h x;h] ck;h rjQ ihB ij ckgjh Hkkx ds ok;h jhuy ,afxy ls 3 lseh- uhps o ckgj dh vksj rFkk ihB dh e/; js[kk ls 5-5 lseh- ckgj dh vksj Horizontally FkkA fdukjs lkQ dVs FksA ?kko dk ckgjh dksuk dks.kkdkj Fkk rFkk Hkhrjh dksuk FkksM+k QVk gqvk Fkk lkQ djus ls ?kko ls [kwu fudy jgk Fkk bl ?kko ds fy;s isV ds ,Dl js o vYVªk lkmUM dh lykg nh x;hA
jkekSrkj%
1& ,d QVk gqvk ?kko 7 lseh- x 0-4 lseh- scalp deep flj ij ckbZ rjQ ck;s dku ls 13 lseh- ÅijA
2& ,d uhyxw fu'kku 8 lseh- x 1-5 lseh- nkbZ Åijh Hkqtk ds lkeus o ckgj dh vksj e/; Hkkx esaA
3& ,d uhyxw fu'kku 6 lseh- x 2 lseh- nkbZ vxz ckgw ds ihNs o Hkhrj dh vksj e/; Hkkx esa bl uhyxw uh'kku ds pkjks vksj 10 lseh- x 7 lseh- pksV dh lwtu FkhA
4& ,d uhyxw fu'kku 4-5 lseh- x 2 lseh- ok;h vxz ckgw ds Hkhrj o ihNs dh vksj e/; Hkkx esaA bl uhyxw uh'kku ds pkjks vksj 7 lseh- x 5 lseh- dh pksV dh lwtu FkhA
Jherh ljkst%
1& ,d Hkksd dj ekjk gqvk ?kko 2-8 lseh- x 1-2 lseh- x xgjkbZ ugha ukih x;h ihB dh e/; js[kk ds vkj ikj Horizontally, Slight, Obliquely ls 2 lseh- Åij Fkk ?kko ds fdukjs lkQ dVs FksA ?kko dk ck;k fljk dks.kkdkj Fkk rFkk nk;ka fljk yslhysfVM FkkA ?kko dks lkQ djus ls [kwu fudy jgk FkkA
Jherh jkuh%
1& ,d [kjklnkj uhyxw fu'kku e; pksV dh lwtu 3-5 lseh- x 2 lseh- flj ij ck;h vksj ck;s dku ls 11 lseh- Åij o FkksM+k ihNs dh vksjA
5- During investigation, the I.O. recorded statements of witnesses, collected evidence, obtained sanction from the District Magistrate (Ex.Ka.20) for initiating prosecution under Section 25 Arms Act. FIR under Section 25 of Arms Act and its G.D. entry are (Ex.Ka.21 and Ex.Ka.22). After completion of investigation, charge sheet (Ex.Ka.17) under Section 302 IPC and another charge sheet under Section 25 Arms Act (Ex.Ka.19) have been submitted;
6- Learned Trial Judge framed following charges against the accused persons, which reads as under;
न्यायालय अपर सत्र न्यायाधीश (त्वरित न्यायालय)
न्याया कक्ष संख्या-16 बुलन्दशहर।
सत्र वाद 270 सन् 2001
सरकार ------- बनाम ------ कालीचरन आदि
धारा 147/148/149/307/302 भारतीय दण्ड संहिता
थाना डिबाई।
आरोप
मैं, एस०सी० गर्ग अपर सत्र न्यायाधीश (त्वरित न्यायालय) न्याय कक्ष संख्या-16 बुलन्दशहर आप अभियुक्तगण कालीचरन, याद प्रकाश, बंगाली, दीवान सिंह व श्रीमती शकुन्तला को निम्न आरोपो से आरोपित करता हूँ-
प्रथमः- यह कि दिनांक 6.12.2000 को समय 1.30 बजे स्थान ग्राम सुमेरपुर अन्तर्गत थानाक्षेत्र डिबाई जिला बुलन्दशहर में आप मुल्जिमान ने परिवादी अतर सिंह एवं उसके परिवारजन की जान से मारने एवं हत्या कारित करने के उद्देश्य से नाजाईज विधि विरुद्ध मजमा बनाया। इस प्रकार आपने भारतीय दण्ड संहिता की धारा 147 के अन्तर्गत दण्डनीय अपराध कारित किया जो इस न्यायालय के प्रसंज्ञान है।
द्वितीयः- यह कि उपरोक्त दिनांक समय व स्थान पर आपसे मुल्जिमान याद प्रकाश के हाथ में तमन्चा, मुल्जिम बंगाली के हाथ में छुरा, दीवान सिंह के हाथ में चाकू कालीचरन की पत्नी शकुन्तला देवी पर कुल्हाड़ी लेकर जो घातक हथियार है विधिक विरूद्ध जमाव किया इस प्रकार आपने अपराध कारित किया जो भारतीय दण्ड संहिता की धारा 148 के अन्तर्गत दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
तृतीयः- यह कि उपरोक्त दिनांक समय व स्थान पर आप मुल्जिम याद प्रकाश ने अपने हाथ में लिये हुए तमन्चे से परिवादी अतर सिंह व उसके परिवार जन को जान से मारने की उद्देश्य से 4-5 फायर किये जो परिवादी के चचरे भाई हरपाल सिंह की लगे इस प्रकार आप मुल्जिम यादराम ने हरपाल सिंह की मृत्यु कारित की इस प्रकार आपने भारतीय दण्ड संहिता की धारा 302 के अन्तर्गत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
चतुर्थः- यह कि उपरोक्त दिनांक समय व स्थान पर आप मुल्जिमान में मुल्जिम याद प्रकाश ने अपने सामान्य उद्देश्य की पूर्ति हेतु हरपाल सिंह पर तमन्चे से फायर किया और हरपाल सिंह की मौके पर हत्या कारित की जो धारा-302/149 के अन्तर्गत दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
पंचमः- यह कि उपरोक्त दिनांक समय व स्थान पर आप मुल्जिम दीपक सिंह, कालीचरन व शकुन्तला देवी ने परिवादी अतर सिंह को जान से मारने की नीयत से वार किया तथा मलखान सिंह, रामौतार व श्रीमती सरोज, श्रीमती रजनी व श्रीमती रानी देवी को अपने सामान्य उद्देश्य की पूर्ति हेतु गम्भीर रूप से घायल किया इस प्रकार आपने भारतीय दण्ड संहिता की धारा 307/149 के अन्तर्गत दण्डनीय अपराध कारित किया जो इस न्यायालय के प्रसंज्ञान में है। एतद् द्वारा आपको निर्देश दिया जाता है कि उपरोक्त आरोपो का विचारण इस न्यायालय द्वारा किया जायेगा।
ह० याद प्रकाश 18.1.02
नि० अ० शकुन्तला देवी ह० अपठनीय (एस०सी० गर्ग)
दिनांक 18.1.2002
नि०अ० दीवान सिंह अपर सत्र न्यायाधीश (त्वरित न्यायालय)
नि०अ० बंगाली न्याय कक्ष संख्या-16
बुलन्दशहर।
उपरोक्त आरोप अभियुक्तगण को पढ़कर सुनाये गये।
जिनसे उन्होने इन्कार किये तथा परीक्षण की मांग की।
ह० याद प्रकाश
नि० अ० दीवान सिंह 18/1/02
नि० अ० शकुन्तला देवी ह० अपठनीय (एस०सी० गर्ग)
ह० काली चरन अपर सत्र न्यायाधीश (त्वरित न्यायालय)
न्याय कक्ष संख्या- 16
बुलन्दशहर।
English Translation:
In The Court of Additional Sessions Judge (Fast Track Court), Court Room 16, Bulandshahr
Sessions Trial No. 270 of 2001
State Vs Kalicharan and others
u/s 147/148/149/307/302 IPC, PS-Dibai
----------------------------------------------------------------------------------------
Charges
I, SC Garg, Additional Sessions Judge (Fast Track Court) Court No. 16, Bulandshahr, charge you, the accused persons, Kalicharan, Yaad Prakash, Bangali, Deewan Singh and Smt. Shakuntala Devi with the following: -
First: That on 6.12.2000 at 1.30 p.m. within the limits of village - Sumerpur, PS-Dibai, District - Bulandshahr, you accused persons formed an unlawful assembly with the intention to kill and to murder the complainant Atar Singh and his family members, thereby committing an offence punishable u/s 147 of the IPC, which is in the cognisance of this court.
Second: That on the aforesaid date, time and place you, the accused Yaad Prakash bearing a country made pistol, the accused Bengali carrying a dagger in his hand, the accused Diwan Singh holding a knife in his hand and the accused Shakuntala Devi wife of Kalicharan carrying an axe, all of which are lethal arms, formed an unlawful assembly, thereby committing an offence punishable u/s 148 of the IPC, and which is in the cognizance of this court.
Third: That on the aforesaid date, time and place, you, the accused Yaad Prakash, fired 4-5 shots with the country made pistol in your hand at the complainant Atar Singh and his family members with the intent to kill, which hit complainant's cousin Harpal Singh; in this way, you, the accused Yaadram, caused the death of Harpal Singh, thereby committing an offence punishable u/s 302 of the IPC, which is in the cognizance of this court.
Fourth: That on the aforesaid date, time and place, you, one of the accused persons, Yaad Prakash fired a shot at Harpal Singh with the country made pistol in furtherance of his common intention, and murdered Harpal Singh on the spot, which is an offence punishable under section 302/149 of the IPC, which is in the cognizance of this court.
Fifth: That on the aforesaid date, time and place, you, the accused persons Deepak Singh, Kalicharan and Shakuntala Devi with the intention to kill committed assault on the complainant Atar Singh and seriously injured Malkhan Singh, Ram Autar and Smt. Saroj, Smt. Rajani and Smt. Rani Devi in furtherance of your common intention, thereby committing an offence punishable u/s 307/149 of the IPC, which is in the cognizance of this court. You are hereby directed that the trial of the aforesaid charges against you be conducted by this court.
Sd/-(Yaad Prakash)
18.01.02
Sd/-(Shakuntala Devi)
Thumb Impression (Diwan Singh)
Thumb Impression (Bangali)
Sd/-(illegible)
SC Garg
Date: 18.01.2002
Additional Sessions Judge (Fast Track Court), Court No. 16
Bulandshahr
The aforesaid charges were read over and explained to the accused persons, who pleaded not guilty and sought trial.
Sd/-(illegible)
SC Garg
Date: 18.01.2002
Additional Sessions Judge (Fast Track Court), Court No. 16
Bulandshahr
Sd/-(Yaad Prakash)
18.01.02
Sd/-(Kalicharan)
Thumb Impression (Diwan Singh)
Thumb Impression (Shakuntala Devi)
7- Heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Ajay Kumar Pandey for the appellants and Sri A.N. Mulla, learned A.G.A.for the State and perused the record.
8- Submission of learned Counsel for the appellants is that;
(1) Use of fire arm by accused Yad Prakash has been described in the FIR, but none of the deceased or injured have received any fire arm injury;
(2) The prosecution has not examined all injured persons;
(3) The injuries of the injured accused have not been explained, hence genesis has been suppressed;
(4) The witnesses examined are interested and related, hence not reliable and trustworthy;
(5) The Trial Court has not appreciated the evidence in its true perspective.
9- Per contra, learned AGA opposed the arguments of learned Counsel for the appellants and submitted that it is a double murder case and considering the evidence adduced by the prosecution, the nature of injuries inflicted on the deceased, the learned Trial Judge was justified in recording conviction of accused as stated above.
10- Before proceeding further, while perusing the charges framed by learned Trial Judge, we come across the fact that charge in respect to murder of deceased-Rani had not been framed, although in the statement of the accused under Section 313 Cr.P.C., a specific question has been put in this connection, which reads as under;
प्रश्न6:- यह की अभियोजन पक्ष के साक्ष्य में यह भी आया है कि इसके बाद मौके पर भागदड़ मच गयी। जब परिवादी व उसके परिवार के लोग जान बचा कर भागे तो आप मुल्जिम बंगाली ने अपने हाथ में लिये हुए छूरे से परिवादी की बहिन श्रीमती रानी के ऊपर जान से मारने की नियत से सीने पर वार कर दिया और उक्त चोटे के फलस्वरूप रानी भी मौके पर घायल होकर गिर पड़ी और मौके पर ही उसकी मृत्यु हो गयी इस सम्बन्ध में आपको क्या कहना है?
उत्तर- गलत है।
English Translation:
Question 6: That it has also come in the evidence of the prosecution that a disturbance occurred at the spot thereafter. When the complainant and his family members fled to save their lives, you, the accused Bangali gave a blow with the knife in your hand on the breast of Smt. Rani, sister of the complainant, with the intention to kill her, and being injured as the result of the aforesaid injuries, Rani also fell and died on the spot. What have you to say in this respect?
Answer - It is incorrect.
11- Although, neither any plea from defence side was raised in this respect before the Trial Court, nor even before this Court, nor there is argument from either side, but we feel it our duty to deal with the issue, in the interest of justice.
12- No doubt, specific charge under Section 302 IPC for committing murder of deceased-Rani has not been framed, but in our opinion that said omission has to be taken notice in the light that whether any prejudice has been caused to the accused or not. Section 464 Cr. P.C. provides that a conviction would be valid even if there is any omission to frame charge, subject to the condition that no 'failure of justice' has occasioned. Admittedly, in the present case, charge under Section 302 IPC for the murder of deceased-Rani has not been framed, but in the statements of accused under Section 313 Cr.P.C., specific question at Question No.6 was asked in respect to the murder of deceased-Rani and therefore, it can easily be said that no prejudice or any failure of justice has occasioned to the accused-appellants. The Apex Court in Willie(William) Slaney Vs. State of Madhya Pradesh AIR 1956 SC 116, has held that absence of charge would vitiate the conviction only if it has caused prejudice to the accused.
13- Recently, the Apex Court in Kamil Vs. State of U.P. (Criminal Appeal No. 1568 of 2015), this proposition of law has been elaborately discussed and it has been held that it is for the accused to prove that omission to frame charge has occasioned in a failure of justice.
14- Observations made in para-11 of Kamil (supra) is quoted herein below;
"5. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is ''substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. (Underlining added)
15- In the first information report, it has been alleged by the informant that deceased-Harpal Singh received fire arm injuries and expired on the spot. This assertion has subsequently been explained by P.W.1 who stated that on firing by Yad Prakash, rout took place, Harpal Singh fell down, then accused-appellants gave blows with the weapons with which they were armed,mn after receiving injuries, Harpal Singh-deceased died. Relevant portion of statement-in chief of P.W.1 is quoted herein below;
dkyhpj.k ds gkFk es ykBh] ;kn izdk'k ij reapk] caxkyh ij Nqjk] nhoku flag ij pkdw] 'kdqUryk nsoh ij dqYgkMh FkhA bu yksxks vkrs gh dkyhpj.k us dgk fd ns[krs D;k gks] bUgs tku ls ekj nksA bl ij eqfYte ;kn izdk'k us 4 & 5 Qk;j fd;s] Qk;j dh vkokt ij esjs ?kj okys] ey[kku flag] jke vkSrkj] ljkst] jtuh] jkuh nsoh esjh cfgu o jkuh esjh iRuh] gjiky flag vkfn vk x;sA Qk;j dh HkxnM eph rks gjiky flag fxj x;s rFkk eqfYteku mijksDr us vius & 2 gfFk;kjksa ls gjiky dks ekjkA ftlls gjiky ekSds ij ej x;sA esjh cfgu jkuh dks eqfYte caxkyh us Nqjk ls ekjk tks ekSds ij ej x;hA ge jkuh dks cpkus tSls nkSMs rks eqfYteku us vius & 2 gfFk;kjksa ls ey[kku] jtuh] jke vkSrkj] jkuh nsoh esjh iRuh dks pksVs igqpak;hA essjs 'kksj ij ekSds ij vkSj vkneh nso izdk'k] Jh jke] vej flag] lriky vkfn Hkh vk x;sA
16- The sister of P.W.1 Rani was stabbed by accused-Bangali. She also succumbed to her injuries. He further stated that when they ran to save their lives, all the accused assaulted Malkhan Singh, Ram Autar, Smt. Saroj, Rajni and Rani Devi with their respective weapons. This witness proved his written report (Ex.Ka-1). In cross examination, he explained that one Rani Devi is his sister and another Rani is his wife. He supported the motive of the occurrence as asserted in the first information report. Contrary to the first information report, he stated that Yad Prakash fired 4-5 shots due to which routing took place at the place of occurrence, deceased-Harpal Singh fell down and he cannot say that whether Harpal Singh received any fire arm injury or not. He admitted that in the FIR, it is written that Yad Prakash fired 4-5 shots which hit his cousin Harpal Singh and he succumbed on the spot. He also disclosed this fact to the I.O. This admission of P.W.1 speaks about truthfulness of the witness who very fairly admitted that he cannot say whether Harpal Singh received any fire arm injury or not. He has properly explained mode and manner of the occurrence including specific role of the accused. From careful scrutiny of the testimony of this witness, nothing adverse has come out from his lengthy cross examination. Thus he is natural, truthful and trustworthy witness of the occurrence.
17- Another injured witness (P.W.2) Malkhan Singh also supported the prosecution story . He stated that Kalicharan armed with lathi, Bangali with razor, Diwan Singh with knife, Smt. Shakuntala with an axe and Yad Prakash with country made pistol came and the accused-Yad Prakash fired 4-5 shots due to which routing took place. Harpal Singh fell down near chabutara of Shankar and thereafter, all the accused assaulted him by their weapons due to which Harpal Singh died on the spot. Accused Bangali stabbed his sister Rani on her chest near the house of Kanhai Singh. He tried to escape with Ram Autar, Smt. Saroj, Rajni and Smt. Rani, but all the accused armed with deadly weapons attacked them and they all received injuries, on the back near waist, accused Diwan stabbed Rani with knife who died on the spot, on the noise having been raised, Jagdish, Satyapal Babu and others arrived at the place of occurrence. In cross examination, this witness stated that during altercation, accused Yad Prakash fired and other accused murdered deceased-Harpal Singh. He cannot say that Harpal Singh fell down after receiving fire arm injuries. It is true that after altercations, accused went to their house and thereafter, accused Kalicharan armed with lathi, Yad Prakash armed with country made pistol, Beagali armed with razor, Diwan Singh armed with knife and Shakuntala armed with an axe came back. This witness also properly explained receiving of injuries by other injured witnesses in the occurrence and also stated that none of the injured received fire arm injuries. He also explained mode, manner and the nature of injuries caused by the accused-appellants. From a careful scrutiny of the testimony of this witness, we are of the opinion that he is trustworthy and reliable witness.
18- P.W.3 is the doctor who conducted post mortem on the body of deceased-Rani and Harpal Singh.He proved post mortem report (Ex.Ka.2 and Ex.Ka.3).
19- P.W.4, the I.O. visited the place of occurrence, prepared site plan, (Ex.Ka.4), collected blood stained and plain earth (Ex.Ka.5 and Ex.Ka.6). He also recovered one empty cartridge of 315 bore and recovery memo (Ex.Ka.7). He proved inquest prepared by S.I. K.P.Singh. This witness also recovered one country made pistol and an axe on the pointing of accused . He proved relevant police papers and supported the prosecution case.
20- P.W.5, the doctor examined the injured persons and prepared injury reports (Ex.Ka. 10, 11,12,13, and 14). He proved the injury reports as referred herein above.
21- P.W.6 Murari Lal, Head Constable proved the written report (Ex.Ka.1), check FIR (Ex.Ka.15) and G.D. entry no.30 at about 14.30 PM on 6.12.2000. He proved these police papers.
22- P.W.7 is another I.O of the occurrence. He recorded the statements of Malkhan Singh, Ram Autar, Smt. Saroj, Smt. Rajni, Smt. Rani, Ved Prakash, Shriram, Amar Singh, Satyapal and Rajaram and after completion of the investigation, submitted charge sheet (Ex.Ka.17).
23- P.W.8, is the I.O. who conducted the investigation in the case registered under 25 Arms Act. He exhibited site plan (Ex.Ka.18), charge sheet (Ex.Ka.19), check FIR (Ex.Ka.21) and G.D. entry (Ex.Ka.22).
24- The argument of learned counsel for the appellant that use of fire arm by Yad Prakash-accused has been asserted in the FIR, but none of the deceased or injured persons have received any fire arm injury, so the prosecution case is not reliable, is also not acceptable. In this regard, suffice to say that P.W.1 and P.W.2 injured witnesses stated that Yad Prakash fired 4-5 shots, though in the first information report, it is asserted that Harpal Singh received fire arm injuries, but in the post mortem, no fire arm injury has been found, both the witnesses (P.W.1 and P.W.2) are reliable to the extent that Yad Prakash fired 4-5 shots. When there is sudden attack by a group of persons, discrepancy between the medical evidence and that of the eye witness, is of no consequence.(See Balbir Singh Vs. State of Punjab (2005) 9 SCC 299.
25- It is well settled that FIR is not an encyclopedia of the entire case. Where broad features of the case had been mentioned as to the manner in which the incident took place and who shot dead the two deceased, even if there is some omission in a manner of detail, that, by itself may not be sufficient to rebut the prosecution case. Much significance could not have been attached by the court to the fact that one of the deceased having walked a few yards from the cot had not been mentioned in the FIR. It has been held by the Apex Court that even if there is some embellishments in FIR written by an eye witness, that is not sufficient to reject entire prosecution case, when there is an injured eye witnesses to the manner of assault, place of assault, weapons used and the persons who assaulted the two deceased persons. (see Dukhmochan Pandey Vs. State of Bihar (1997)8 SCC 405.
26- The argument of learned Counsel for the appellants that other injured witnesses were not examined by the prosecution has also no substance for the reason that in a Sessions Trial, public prosecutor is not bound to examine all witnesses mentioned in the FIR or the charge sheet. He is at liberty to choose only some of the several witnesses on the same point and when there are several eye witnesses or injured witnesses the public prosecutor may examine only two or some of them and he is not obliged to examine all the injured witnesses as has been clarified by the Apex Court in the case of Bhagwan Jagannath Markand Vs. State of Maharashtra (2016) 10 SCC 537, Hukum Singh Vs. State of Rajasthan 2000(41) ACC 662(SC) and Kripal Singh Vs. State of Haryana, AIR 2013 SC 286. Likewise, the presence of injured witnesses at the time and place of occurrence cannot be doubted as they had received injuries during the course of the incident and they should normally be not disbelieved. (see Maqsoodan Vs. State of U.P. (1998)1 SCC 218.
27- Learned Counsel for the appellants argued that injuries of the injured persons from the side of defence are not explained by the prosecution. In this reference, the FIR itself clearly speaks that Yad Prakash and Shakuntala Devi received injuries during occurrence by aggressor party.(i.e.accused). The injury reports of the injured accused are already on record, but those injuries were never proved by the defence. Moreover, the defence has not explained or produced any evidence, even no whisper in their statements under Section 313 Cr.P.C. It is self explanatory as to why these injuries were not explained by the defence, hence at this stage, this plea cannot be accepted that the manner of incident as explained by the prosecution is incorrect, for the reason that injuries received by so called injured Yad Prakash and Shakuntala Devi are superficial and simple in nature and it has never been explained by the defence , hence, it cannot be said that prosecution has not come with clean hands.
28- Considering all the aspects of the case and taking the cumulative effect of the evidence, as discussed above, we are of the view that the learned Trial Judge was justified in convicting/sentencing the appellants as above.
29- The appeals have no substance and same are dismissed.
30- Appellant Bangali is already in jail. Appellants Kalicharan, Yad Prakash, Diwan Singh and Shakuntala are on bail. Their bail bonds are cancelled. They be taken into custody forthwith to serve out remaining sentence.
31- The Registry is directed to transmit the Trial Court's record to the concerned Court for compliance. Compliance report be submitted to this Court within a month.
(Umesh Kumar, J) (Pankaj Naqvi, J)
Order Date :- 24 .5.2019
Shahid
