Madhya Pradesh High Court

Mukundi vs State Of M.P. Thru P.S. on 25 August, 2021

Author: Gurpal Singh Ahluwalia

                                    1
             Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003)
                         Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003)
                                 Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003)
                                      Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003)
                                Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

            HIGH COURT OF MADHYA PRADSH
                   GWALIOR BENCH

                           DIVISION BENCH

        G.S. Ahluwalia & Rajeev Kumar Shrivastava J.J.

                  Cr.A. No.474 of 2003
     Chhuna @ Chhatra Pal Singh & Anr. Vs. State of M.P.

                    Cr.A. No.512 of 2003
             Harnam Singh & Anr. Vs. State of M.P.

                       Cr.A. No.609 of 2003
                  Indrapal Singh Vs. State of M.P.

                       Cr.A. No.662 of 2003
                      Mukundi Vs. State of M.P.

                      Cr.A. No. 616 of 2003
                  Chandramohan Vs. State of M.P

Shri D.R. Sharma, Counsel for Appellants in Cr.A. Nos.474/2003,
512 of 2003, 662 of 2003 through video conferencing.
Shri R.K. Sharma, Senior Advocate with Shri V.K. Agrawal for
Appellant in Cr.A. No.616 of 2003 through video conferencing.
Shri S.S. Sikarwar, Counsel for Appellant in Cr.A. No.609 of 2003
through video conferencing.
Shri C.P. Singh, Counsel for State through video conferencing.

Date of Hearing                     : 16-8-2021
Date of Judgment                    : 25-8-2021
Approved for Reporting              : Yes

                                 Judgment
                                 25-8-2021
Per G.S. Ahluwalia J.

1.

By this common Judgment, Cr.A. No.s 474/2003, 512/2003,

662/2003, 609/2003 and 616/2003 shall be decided.

2. All the Criminal Appeals arise out of judgment and sentence

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

dated 3-9-2003 passed by Additional Sessions Judge, Seonda, Distt.

Datia in Sessions Trial No.36/2000, by which the appellants have

been convicted and sentenced for the following offences :

Appellants      Conviction under Section Sentence
All Appellants 148 IPC                              2 years R.I. and fine of
                                                    Rs.2000/- in default 6
                                                    months R.I.
All Appellants 302/149 IPC                          Life Imprisonment and
                                                    fine of Rs.10,000/- in
                                                    default 1 year R.I.
All Appellants 324/149 IPC                          1 year R.I.
                                                    (All sentences          to    run
                                                    concurrently)

3. According to prosecution case, the deceased Daghich Singh,

lodged a F.I.R. on 28-10-1999 at 20:00, informing that he was going

on his tractor and was sowing Masoor crop in Chaubisa field (Name

of agricultural land of deceased). Jagdish was sitting on mudguard

whereas Jandel Singh was sitting on seeder. At about 5 P.M.,

Chandrabhan Gadariya with .12 bore single barrel gun, Babloo

Jadon, Chhuna Jadon, Indrapal Singh Jadon, Shibbu Jatav, Harnam

Jadon, Madho Jadon, Mukundi Jatav and Devlal Jatav came there in

furtherance of common object. Chandrabhan Gadariya fired a gun

shot causing injury on his hip. Another gun shot was fired by Shibbu

Jatav causing injury on multiple parts of his back. Jagdish Brar also

sustained pallet injuries. On hearing his shouts, Udai Singh Thakur,

Suresh Barar, Manni Jatav also came there. Thereafter, all the

accused persons ran away and accordingly F.I.R. was lodged.

4. The deceased Daghich Singh and injured Jagdish were sent for

medical examination. After medical examination, the deceased

Daghich Singh was referred to JAH, Gwalior, where he was found

dead. Lash Panchnama was prepared, the dead body was sent for

medical examination, the appellants were arrested, weapons were

seized and incriminating articles were sent for medical examination.

The police after completing investigation, filed charge sheet for

offence under Sections 302, 307, 147, 148, 149 of I.P.C. and under

Sections 25/27 of Arms Act. Charge sheet under Section 299 of

Cr.P.C. was filed against Shibbu Jatav.

5. The Trial Court by order dated 27-3-2000, framed charges

under Sections 148, 302, 307 of I.P.C. and under Section 25 (1-A) of

Arms Act against appellant Chandramohan. By the same order,

charges under Sections 148, 149, and 302/149, 307/149 of IPC were

framed against all the remaining accused persons.

6. The appellants and Devlal abjured their guilt and pleaded not

guilty.

7. The prosecution examined Jandel Singh (P.W.1), Jagdish

(P.W.2), Udai Singh (P.W.3), Dr. P.L. Gupta (P.W.4), Suresh (P.W.5),

Jai Hind Singh (P.W.6), Manni (P.W.7), Gayaprasad (P.W.8), Dr. N.R.

Jatav (P.W.9), Hotam Singh (P.W.10), Babuji (P.W.11), Suresh

Chandra Dixit (P.W.12), Kok Singh (P.W.13), Mohar Singh (P.W.14),

Raghuraj (P.W.15), R.N. Sharma (P.W.16), Man Singh Kaurav

(P.W.17), Rakesh Sinha (P.W.18), and Satyanarayan Pandya (P.W.

19).

8. The appellants examined Krapal Singh (D.W.1) in their

defence.

9. It appears that accused Devlal did not appear before the Trial

Court on 1-10-2002 and accordingly, his bail bonds were forfeited

and perpetual warrant of arrest was issued.

10. The Trial Court by the impugned judgment and sentence,

convicted the appellants for the offences mentioned above.

11. It appears that absconding accused Devlal was arrested in other

case, and accordingly, production warrant was issued on 23-10-2003

i.e., subsequent to conviction of the appellants. Devlal was convicted

and sentenced by judgment and sentence dated 15-6-2004. Devlal

filed Criminal Appeal No 421 of 2004. From the ordersheets of Cr.A.

No. 421 of 2004, it is clear that Devlal died during the pendency of

the appeal and accordingly, by order dated 25-4-2012, the appeal was

dismissed as abated.

12. Challenging the impugned judgment, it is submitted by Shri

R.K. Sharma, Senior Advocate, that Daghich Singh was in an

unconscious condition, therefore, he could not have lodged the F.I.R.

He was a literate person, but he affixed his thumb impression, which

clearly shows that in fact the F.I.R. was not lodged by him. Only one

injury was found, whereas it is alleged that two gun shots were fired,

i.e., one by the appellant Chandramohan and another by Shibbu Jatav.

According to prosecution story, the deceased sustained first gun shot

injury while he was sitting on the driving seat and in view of the high

back of driving seat, the deceased could not have sustained the injury

on his hip. The tractor of the deceased was not seized. There is a

serious discrepancy with regard to the direction from which gun shots

were fired. The gun seized from the possession of the appellant

Chandramohan was not properly sealed. There is a considerable

delay in sending the articles to F.S.L., Sagar. There is nothing on

record that the empty cartridges seized from the spot were sealed.

It is submitted by Shri D.R. Sharma, and Shri S.S. Sikarwar,

Advocates for the remaining appellants, that there is no overtact on

the part of the remaining appellants. There is no consistency in the

evidence of the witnesses with regard to role played by the remaining

appellants. The remaining appellants were neither the member of

Unlawful Assembly nor they were sharing any common object.

13. Per contra, it is submitted by Shri C.P. Singh, that it is incorrect

to say that F.I.R. was not lodged by the deceased Daghich. There are

specific allegations against the appellant Chandramohan. All the

remaining appellants were the members of Unlawful Assembly and

were sharing common object.

14. Heard the learned Counsel for the parties.

15. Before appreciating the evidence on merits, this Court thinks it

apposite to find out as to whether the death of Daghich Singh was

homicidal in nature or not?

16. Dr. P.L. Gupta (P.W. 4) has conducted the post-mortem of the

dead body of the deceased Daghich Singh and found the following

injuries :

(i) Firearm entrance wound is present over left hip extending upto eliac crest. It is oval in shape placed 99 cm high up from Left heal. Its size is 2.5x1.5 cm. Inverted margins. Margins are ecchymosed.

(ii) Adjoining to this, laterally one more hole size 1.5x1.5 cm inverted ecchymosed margins present. This round is surrounded by 40 small abrasions, size varying between ¼ to ½ cm diameter, rounded in shape, blackish colour, spread of these abrasions are 10 cm in diameter.

On internal organs, small and large intestines were found lacerated and twenty small size metallic pieces were recovered from various organs in abdominal cavity which were packed and sealed in a wooden box and were handed over to the constable.

The cause of death was due to shock and hemorrhage due to firearm injury. Duration of death was within 12 to 24 hours. The post-mortem report is Ex. P.4.

17. This witness was cross-examined and stated that all the injuries

were caused by single gun shot injury. It will depend upon the will

power of a person that upto what distance, he can walk. Since, none

of injuries were having exit wound, therefore, it is difficult to say that

from which direction, the gun shot was fired. It can be from front

side or from back. He could not specify that when the deceased had

taken food. The gun shot was fired from a distant place i.e., from 3

ft. to 20 ft. He further denied, that the deceased would have lost his

capacity to speak due to excessive bleeding. He also stated that it is

not possible to specify that after how much time, the injured would

fell unconscious.

18. Dr. R.N. Jatav (P.W. 9) had medically examined the

injured/deceased Daghich Singh and found the following injuries on

his body :

(i) Wound of entry diameter 2 cm x 2 cm irregular in shape on the left lumber region and multiple pallet injuries size about ¼ cm in diameter present around the wound, bleeding present and no wound of exit seen.

(ii) Fire arm wound - wound of entry seize 2 cm x 2 cm in diameter. Irregular in shape on the left lumber region below injury no.1 and just above his pelvic bone. Bleeding preset, wound of exit not seen

(iii) Fire arm wound - wound of entry size 2 cm x 2 cm irregular in shape on left lumber region in the medial side of injury no.2 bleeding present, wound of exit not seen. The M.L.C. report is Ex. P.13.

19. This witness was cross-examined and he stated that the injuries

were caused by different gun shots. He denied that the injuries were

not on vital part of the body. He further stated that even after

sustaining gun shot injuries, the injured could have used his legs and

hands. He also stated that the injured could have signed also. He

further stated that the condition was serious. No question was asked

to this witness as to whether at the time of medical examination the

injured Daghich was conscious or not? Since, it is not mentioned in

the M.L.C., Ex.P.13, that the deceased Daghich Singh was

unconscious, therefore, it is held that at the time of Medical

Examination, the deceased Daghich Singh was conscious and was

well oriented.

20. Thus, it is clear that Daghich Singh died due to gun shot

injuries, and since, the gun shots were fired from distant place,

therefore, it cannot be said that the injuries sustained by Daghich

Singh could be self-inflicted. Accordingly, it is held that the death of

Daghich Singh is homicidal in nature.

21. Jagdish (P.W.2) was also medically examined and Dr. N.R.

Jatav (P.W.9) found the following injuries on the body of Jagdish :

Lacerated wound 2 in number size ¼ cm x ¼ cm oval in shape edges are inverted present on left lumber region bleeding present.

The M.L.C. report is Ex. P.14.

22. Dr. N.R. Jatav (P.W.9) was cross-examined on the question of

injuries sustained by Jagdish (P.W.2). It is stated by him, that since,

the pallets were not visible from outside, therefore, x-ray was

advised. He denied that Jagdish (P.W.2) had no gun shot injury.

However, could not specify as to which hospital Jagdish (P.W.2) was

referred.

23. Thus, it is clear that Jagdish (P.W.2) had also sustained gun

shot injury.

24. The next question for consideration is that who had caused gun

shot injuries to the deceased and the injured Jagdish?

25. The F.I.R., Ex. P.28 is lodged by the deceased Daghich Singh,

and since, Daghich Singh died due to injuries sustained by him,

therefore, the F.I.R. would be a relevant fact under Section 32 of

Evidence as it would amount to dying declaration. The Supreme

Court in the case of Munnu Raja Vs. State of M.P. reported in

(1976) 3 SCC 104 has held as under :

5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ext. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.

The Supreme Court in the case of Dharam Pal Vs. State of

U.P. reported in (2008) 17SCC 337 has held as under :

16. The learned counsel for the appellants further argued before us that the alleged dying declaration which was given the shape of an FIR could not be made the basis of conviction when the original document signed by the deceased was not brought on record. The learned counsel for the appellants tried to prove before us that the deceased was not in a position to speak and which becomes apparent from the testimony of his father. However, it would not be correct to say so. The evidence of PW 7, Dr. R.P. Goel shows that the condition of the deceased was good and that he was in a position to speak. It would not be appropriate for us to read between the lines by giving unnecessary meanings to the testimony of Raghu. It cannot be left out of

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

sight that Raghu also said that the deceased dictated the FIR to the police. In any view of the matter, the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under Section 32 of the Evidence Act as a dying declaration. It is true that the original document signed by the deceased was not brought on record, but in our view, the FIR has rightly been admitted as a dying declaration. There appears no reason for the police to falsely implicate any one of the accused inasmuch as, initially, the report dictated by the deceased was taken down as a non-cognizable report under Section 323 IPC. If the police were to implicate the accused, they would not have taken down the report as a non-cognizable report in the very first place itself.

17. That apart, the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some of the general propositions relating to a dying declaration. Section 32(1) of the Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question.

18. The principle on which a dying declaration is admissible in evidence is indicated in the maxim "nemo moriturus praesumitur mentire", which means that a man will not meet his maker with a lie in his mouth. Thus, it is clear that a dying declaration may be relating to:

(a) as to the cause of death of the deceased;

(b) as to "any of the circumstances of the transaction" which resulted in the death of the deceased.

19. It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement.

20. If we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the names of the accused and the important features of the case

have been clearly mentioned in the report. It contains a narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eyewitnesses and the medical evidence on record. There is nothing on record to show that the deceased was not in a position to speak at the time when he dictated the report of occurrence. On the other hand, the materials and the other evidence on record would conclusively show, as rightly held by the High Court, that the deceased was in a position to speak when he dictated the report of occurrence. Therefore, in our view, the High Court was fully justified in holding that the deceased was in a fit state of mind at the time of making the statement.

26. In the present case also, the deceased Daghich Singh was in an

injured condition and he lodged the F.I.R., Ex. P.28. As the deceased

died on account of injuries sustained by him, accordingly, it is held

that the F.I.R., Ex. P.28 lodged by deceased will be a dying

declaration, provided the prosecution succeeds in establishing that

the deceased was in a fit state of mind and was conscious.

Whether F.I.R., Ex. P.28 lodged by deceased Daghich Singh was

lodged by him?

27. Man Singh Kaurav (P.W.17), who wrote the F.I.R.,Ex. P.28, has

stated that Daghich Singh, had come to the police station along with

his brother and Jagdish Barar. He lodged the report against

Chandrabhan, Bablu Jadon, Chhuna Jadon, Indrapal Singh Jadon,

Harnam Singh Jadon, Madho Jadon, Mukundi Jadon, Devlal Jatav

and Shibbu Jatav. The F.I.R.,Ex. P.28 was read over to the informant

who had accepted the same as true. The complainant/injured had put

his thumb impression. Thereafter, the injured Daghich Singh and

Jagdish were sent to Primary Health Centre, Indergarh for medical

treatment. The requisition letters are Ex. P.29 and P.30. This witness

has admitted that the injured Daghich Singh was brought to the

police station and two persons were catching hold of him. The hands

of Daghich Singh were working but was not in a position to say as to

whether the legs of Daghich Singh were working or not? He was

caught hold by his brother Jandel Singh and Jagdish Vanshkar.

Daghich Singh was given chair to sit. The F.I.R. was dictated by

Daghich Singh. When this witness asked Daghich Singh to sign the

F.I.R, then he affixed his thumb impression. He denied that Daghich

Singh was not in a position to speak. He further stated that since, the

complainant/informant was in an injured condition, therefore, he did

not record his statement and sent him to hospital. He further clarified

that he did not ask the informant about the weapons carried by other

accused persons. He further clarified that the F.I.R.,Ex. P.28 was

written as it was dictated by the injured. This witness denied that the

injured persons were sent directly to the hospital and report was not

lodged by him.

28. It is submitted by Shri R.K. Sharma, Senior Counsel, that

since, the deceased was unconscious, therefore, his thumb impression

was taken on the F.I.R., Ex.P.28. To buttress his contentions, the

Counsel for the appellant Chandramohan has submitted that Jandel

Singh (P.W.1) in para 6 of his cross-examination, has stated that the

deceased had studied upto 6-7 th class and was able to sign. Similarly,

Jagdish (P.W.2) has admitted that the deceased Daghich had studied

upto 4-5 classes. It is further submitted that according to the

prosecution story, the incident took place on 28-10-1999 at 17:00

whereas FIR, Ex. P.28 was lodged at 20:00 i.e., after 3 hours. It is

submitted that although Jandel Singh (P.W.1) has given an

explanation that from village Nayagaon, they came to Akola on

tractor and from there, they went to Police Outpost Dheerpura, where

they were instructed to go to Police Station Indergarh. Similarly,

Jagdish (P.W.2) has stated that after the incident, they stayed back in

village for 1 ½ hours and thereafter they came to Akola and spent half

an hour. Thereafter they met with Sarpanch and once again half an

hour was spent. Then they went to Police Outpost Dheerpura, where

they were instructed that they should go to Police Station Indergarh

and accordingly they came to Indergarh. It is submitted that when the

deceased Daghich had sustained gun shot injuries, then instead of

wasting time, the witnesses should have rushed either to the police

station or to the Hospital, but according to the witnesses, they wasted

three precious hours. Thus, it is clear that they had ample

opportunity to concoct the theory and it appears that Daghich Singh

was already dead, therefore, the witnesses were not in a hurry and as

Daghich Singh was already dead, therefore, his thumb impression

was affixed. It is further submitted that the evidence of the witnesses

to the effect as to whether Daghich Singh remained conscious after

the incident or not is also shaky. According to Jandel Singh (P.W.1),

Daghich fell unconscious immediately after sustaining gun shot

injuries, but in para 5 of his cross-examination, this witness

immediately changed his version and denied that Daghich Singh had

fallen unconscious. It is submitted that Suresh (P.W.5) has also stated

in para 5 of his cross-examination, that after sustaining gun shot

injury, the deceased fell unconscious. However, this witness also

changed his version by saying that the deceased was talking. Thus, it

is clear that Daghich Singh had fallen either unconscious or was

already dead, therefore, the FIR, Ex. P.28 doesnot bear his signatures

and it bears his thumb impression. It is further submitted that Udai

Singh (P.W.3) has stated that after sustaining gun shot injuries, the

hands and legs of Daghich Singh were not working, whereas Man

Singh Kaurav (P.W.17) has stated that when Deceased Daghich Singh

was brought to the police station, his hands were working. Thus, it is

clear that there is a serious discrepancy with regard to the physical

condition of Daghich Singh.

29. Considered the submissions made by the Counsel for appellant

Chandramohan.

30. It is the case of Jandel Singh (P.W.1), Jagdish (P.W.2) and Udai

Singh (P.W.3) that Daghich Singh was in conscious condition and

was talking. It is true that it is clear from the evidence of Man Singh

Kaurav (P.W.17) that when Daghich Singh was brought to the Police

Station, he was supported by two persons who were catching hold of

him. The deceased Daghich Singh had sustained gun shot injuries on

his hip and thigh, therefore, he must not be in a position to walk on

his own, and he was being assisted by two persons, then it cannot be

said that the deceased Daghich Singh was not in a fit state of Mind.

Further, the deceased Daghich Singh was sent for medical

examination and he was examined by Dr. N.R. Jatav (P.W. 9). In his

entire cross-examination, not a single question was put to Dr. N. R.

Jatav (P.W.9) as to whether the deceased Daghich Singh was in

conscious condition or not. Further, Dr. N.R. Jatav (P.W.9) in his

M.L.C. report, Ex. P.13, has not mentioned that the injured/deceased

Daghich Singh was either unconscious or was not responding to his

instructions. FIR, Ex. P.28 was lodged at 20:00 and Daghich Singh

was medically examined by Dr. N.R. Jatav (P.W.9) at 20:35, which is

clear from M.L.C. report of Daghich Singh, Ex. P.13. Thus, if

Daghich Singh was conscious at 20:35 and was well oriented, then it

cannot be said that Daghich Singh could not have lodged the F.I.R.,

Ex. P.28 or he was unconscious or he was already dead.

31. Thus, considering the totality of the facts and circumstances of

the case, specifically, the M.L.C. report of Daghich Singh, Ex. P.13

coupled with the fact that neither Man Singh Kaurav (P.W.17) nor Dr.

N.R. Jatav (P.W.9) had any motive or reason for preparing false

documents i.e., F.I.R., Ex. P.28 and M.L.C. report, Ex. P.13, this

Court is of the considered opinion, that F.I.R., Ex. P.28 was lodged by

Daghich Singh and since, he died because of injuries sustained by

him on his way to JAH, Gwalior, therefore, F.I.R., Ex. P.28 would be

admissible as a Dying Declaration.

32. It is next contended by the Counsel for the appellant

Chandramohan that according to prosecution story, the gun shot was

fired from back and as the deceased Daghich Singh was sitting on the

driving seat which had long back, therefore, the deceased Daghich

Singh could not have sustained the gun shot injury on his hip. It is

further submitted that the explanation given by the prosecution

witnesses i.e., Jandel Singh (P.W.1), Jagdish (P.W.2) and Udai Singh

(P.W.3) that the deceased Daghich Singh sustained first gun shot

injury while he was standing on the tractor is an after thought.

Further, the deceased Daghich Singh has not mentioned in the F.I.R.,

Ex. P.28 that he had ever stood up from the Driving Seat. It is

submitted that the original prosecution story is that the deceased

Daghich Singh had suffered first gun shot injury on his hip while he

was sitting on the driving seat. The tractor of the deceased has not

been seized to find out as to whether any gun shot mark was found on

the seat of the tractor or not? Thus, it is submitted that the ocular

evidence is not corroborated by Medical Evidence.

33. Therefore, it is submitted that the improvement on the part of

Jandel Singh (P.W.1), Jagdish (P.W.2) with regard to manner of

incident is false and is liable to be rejected.

34. Considered the submissions made by the Counsel for the

appellant Chandramohan.

35. It is well established principle of law that F.I.R.,Ex. P.28 is not

an encyclopaedia. Even otherwise, when the informant was in an

injured condition having sustained gun shot injuries, then it is not

expected that he would give each and every minute details of the

offence. On the contrary, the precise and concise information appears

to be natural. Even otherwise, the incident cannot be appreciated in a

mechanical manner. The deceased might have noticed the appellant

Chandramohan and therefore, if the prosecution witnesses have

stated that the deceased sustained gun shot fired by Chandramohan as

he stood up on the tractor, then it cannot be said to be an

improvement. The Supreme Court in the case of Gurcharan Singh

Vs. State of Punjab reported in 1994 Supp (1) SCC 515 has held as

under :

11. It can thus be seen that the evidence adduced by DWs 1 to 8 does not in any manner render the evidence of the eyewitnesses unacceptable. Now, we shall consider some of the general submissions. Learned counsel placed considerable reliance on the evidence of the doctors who conducted the post-mortem. PW 1 Dr Ved Bhushan conducted the post-mortem on the dead body of Mander Singh, D-1 and he found five gunshot injuries. In the cross- examination he stated that the injury Nos. 4 and 5 could have been caused if the assailant was standing at a higher level compared to the victim and that if the victim had been

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

sitting on the tractor and the assailant was standing on the ground, the injuries could not have been caused by the shots fired by the assailants. This is only an opinion evidence and it cannot be imagined that the victims could have been just sitting and could not have stood up or moved this way or the other..........

(Underline supplied)

36. It is next contended by the Counsel for the appellant

Chandramohan, that since, Man Singh Kaurva (P.W.17) has not

repeated the F.I.R.,Ex. P.28 in the Court, therefore, the same is not

admissible as a dying declaration. It is submitted that the Division

Bench of this Court in the case of Sitaram Vs.State of M.P.,

reported in (2010) 3 MPWN SN 9 has held that unless and until the

dying declaration is repeated in the Court by the witness who has

recorded the same, the same cannot be relied upon.

37. Considered the submissions made by the Counsel for the

appellant Chandramohan.

38. In the present case, F.I.R., Ex. P.28 was lodged by the

deceased. The scribe of the F.I.R., Ex. P.28 has not recorded the

same as a dying declaration. As the deceased had disclosed the

incident and subsequently died on account of injuries sustained by

him, therefore, by force of law, the F.I.R., Ex. P.28 became admissible

being dying declaration. Therefore, Man Singh Kaurav (P.W. 17)

was required to prove the F.I.R., Ex. P.28 and not as a dying

declaration. Further more, in order to prove a dying declaration, the

prosecution is required to prove that the said statement was in

relation to cause of death, and the informant was in fit state of mind

and was capable of giving statement. The principle of Dying

Declaration is based on the maxim "nemo marituru presumuntur

mentri" i.e., a man will not meet his maker with lie in his mouth.

Thus, if the dying declaration is found to be voluntary without any

tutoring or animosity, and the maker of the dying declaration was in a

fit state of mind, then it can be a sole basis for conviction. So far as

the contention of the Counsel for the appellant Chandramohan that

the recorder of dying declaration should have repeated the same in

the Court is concerned, the same cannot be accepted.

39. The Full Bench of Bombay High Court in the case of Ramesh

@ Gyanoba Kamble Vs. State of Maharashtra reported in 2011

Cr.L.J. 4964 while answering the reference "Whether for proving a

dying declaration recorded by a person, Magistrate, Executive

Magistrate, is it essential requirement of law that the person who

recorded the dying declaration shall repeat while deposing before

Court the statement made by the maker or the dying person or narrate

in exact words the statement of the maker ?" has held as under :

18.2. Before we proceed further, it would be relevant to see what the Supreme Court has observed while dealing with Section 32 in P. V. Radhakrishna (AIR 2003 SC 2859) which reads thus:

"10. At this juncture, it is relevant to take note ofSection 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act')

which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60.The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute.It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice."

18.3. In Sukanti Moharna v. State of Orissa (2009 AIR SCW 6161), while dealing with Section 32 of the Evidence Act, the Supreme Court observed thus:

"22. Section 32 of the Indian Evidence Act, 1872 deals with the statement of persons who cannot be called as witnesses as because they are dead or they cannot be found or they have become incapable of giving evidence or their evidence cannot be procured without an amount of delay or expense. Such statements themselves are relevant facts in certain cases.The aforesaid Section 32 was enacted as an exception to the general rule as reflected in Section 60 of the said Act which mandates that oral evidence in all cases must be direct i.e. if it refers to a fact which could be seen, it should be the evidence of a witness who says he saw it, whereas if

it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it or if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner." 18.4. Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question. Therefore, before the "statement" under Section 32(1), which is generally described as "dying declaration", is admitted, it must be proved that the person who made it is dead. Its admissibility depends upon one of the two conditions embodied in the Section. Firstly, either such statement should relate to the cause of his death or, secondly, it should relate to any of the circumstances of the transaction which resulted in his death. Thus, a statement of relevant facts by person who is dead is relevant under Section 32(1) of the Evidence Act.

* * *

20. Over the years, by judicial pronouncements, it is now settled as to what procedure needs to be followed while recording a dying declaration. Though no statutory form is prescribed for recording a statement by a Magistrate under Section 32(1) of the Evidence Act, how it should be recorded, what precautions, before, during and after recording of the statement, one should take, is almost settled by judicial pronouncements to which we have already made reference in the earlier part of the judgment. We would further like to browse the law settled in that regard.

20.1. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A dying declaration which has been recorded by a competent Magistrate in the proper manner, i.e. to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends on oral testimony which may suffer from all infirmities of human memory and human character. (Khushal Rao v. State of Bombay (AIR 1958 SC 22). 20.2. It is true that a dying declaration is generally to be recorded by a competent Magistrate. But the Court cannot

be too technical and in substance, if feels convinced about the trustworthiness of the statement which may inspire confidence, such a dying declaration can be acted upon, even if it is not recorded by Magistrate. The Supreme Court, in Laxmi v. Omprakash and others, (AIR 2001 SC 2383) (supra), however, deprecated the practice of Police Officers recording dying declaration except where condition of the deceased was so precarious that no other alternative was left. In other words, merely because the statement of a deceased, as contemplated by Section 32(1) of the Evidence Act, is recorded by a Police Officer, cannot be a ground for rejecting the same outright. If the Court is satisfied that the investigating agency was left with no alternative, and if the statement recorded by Police Officer, otherwise satisfies all the tests governing dying declarations, it can form the basis for conviction with or without corroboration, as the case may be.

20.3. Generally, the dying declaration ought to be recorded in the form of questions-answers but, if the dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question and answer form cannot be a ground against its acceptability or reliability. But, to lend assurance to those factors, having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon. In the absence of availability of a Doctor to certify the above-mentioned factors, if there is other evidence to show that the recorder of the statement satisfied himself about those requirements before recording the dying declaration, there is no reason as to why it should not be accepted. (Ram Bihari Yadav (supra)). If it is proved by the testimony of the Magistrate that the declarant was fit to make the statement, even without examination by the Doctor, the declaration can be accepted provided the Court ultimately holds the same to be voluntary and truthful. Thus, a certification by the Doctor is essentially a Rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. (Laxman v. State of Maharashtra(AIR 2002 SC 2973) (supra)).

20.4. There is no format as such of the dying declaration; neither the declaration need to be of longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the

Court since dying declaration need not be drawn with mathematical precision - that the declarant should be able to recollect the circumstances resulting in the available state of affairs. (Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 : (AIR 2002 SC 526) and Arvind Sing v. State of Bihar (2001) 6 SCC 407 : (AIR 2001 SC 2124)).

20.5. If the dying declaration is recorded by a person/Magistrate/Executive Magistrate it is the duty of the prosecution to specifically bring on record that the deceased had heard the statement so recorded and he/she admitted to be correct and true and puts his/her thumb impression in approval thereof. This is not mere formality but an essential part while recording a dying declaration, because the person who cannot be examined afterwards must, at least that time, should confirm correctness of the statement. (Manohar Dadarao Landage v. State of Maharashtra 2000 (2) Mh LJ

3).

20.6. Thus, in our opinion, if a competent Magistrate and, in his absence, Police Officer, if by and large follows the procedure recognized by judicial pronouncements and/or observes the principles laid down by the Supreme Court in various judgments, including the judgments referred to in this judgment, the statement in writing, as contemplated by Section 32(1) of the Evidence Act, can be said to be recorded properly.

20.7. Thus, in our opinion, if a dying declaration is recorded properly, that is to say, by following due procedure as reflected in the judgments referred to in the foregoing paragraphs, if its contents are held to be proved, and if it stands to all tests to hold it trustworthy / truthful and voluntary, and if the Court is satisfied that the deceased was in fit state of mind when he made the declaration, it can form the basis for conviction without corroboration, irrespective of the fact whether the recorder repeats the contents thereof in his deposition before the Court . The essential requirement of law, as observed earlier, is that the statement, verbal or written, of the deceased should contain the cause of his death or the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question and not its repetition by the recorder before the Court.

(Emphasis/underline supplied) * * *

23. In the result, we are of the opinion that for proving a

dying declaration recorded by a person/Magistrate/Executive Magistrate it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative.

40. It is next contended by the Counsel for the appellant

Chandramohan that the prosecution has failed to prove the seizure of

empty cartridges from the spot as well as seizure of gun from the

possession of Chandramohan. By referring to the evidence of R.N.

Sharma (P.W.16), it is submitted that although this witness has stated

that he had seized 2 empty cartridges of .12 bore gun, but he has not

stated that the cartridges were sealed on the spot and even in the

seizure memo Ex. P.2, the specimen of seal has not been affixed.

However, it is conceded by Shri Sharma, that the seizure of 2 empty

cartridges of .12 bore gun from the spot, has not been challenged by

the appellant Chandramohan and not a single question was put R.N.

Sharma (P.W.16) in this regard.

41. According to F.S.L. report, Ex. P.33, Article "D" and Article

"I" are the fired cartridges, seized from the spot. As per the F.S.L.

report, Ex. P.33, both the articles apart from other Articles A, B, C,

and H were received in a sealed condition and were having Mono of

P.S. Indergarh. Further, in the seizure memo Ex. P.2, it is specifically

mentioned by R.N. Sharma (P.W.16) that all the articles including 2

fired cartridges were sealed on the spot. As no question has been

put to Shri R.N. Sharma (P.W.16) with regard to the seizure of 2 fired

cartridges of .12 bore gun from the spot, therefore, it is held that 2

fired cartridges of .12 bore gun were seized and sealed on the spot

and merely because the seizure memo Ex. P.2, doesnot contain the

impression of specimen seal, would not make the seizure invalid,

specifically when the seizure witnesses namely Jandel Singh (P.W.1)

and Manni Ahirwar (P.W. 7) have supported the prosecution case.

Even no question was put to Jandel Singh (P.W.1) and Manni

Ahirwar (P.W.9) in respect of seizure of 2 fired cartridges from the

spot. Thus, as the seizure of 2 fired cartridges of .12 bore gun from

the spot, has not been challenged by the appellant Chandramohan,

therefore, it is held that 2 fired cartridges of .12 bore gun were seized

from the spot on 29-10-1999.

42. It is next contended by the Counsel for the appellant

Chandramohan, that the seizure of .12 bore gun from the possession

of the appellant Chandramohan is also doubtful, as no specimen seal

was affixed on seizure memo, Ex. P. 11.

43. Hotam Singh (P.W.10) is an armorer who had checked the .12

bore gun. This witness has stated that on 21-12-1999, he had

received .12 bore gun, one cartridge and one fired cartridge in a

sealed condition, for examination and after examining the same, he

had returned the weapons in sealed condition. This witness had

found that .12 bore gun was in a working condition.

44. As already pointed out, in F.S.L. report, Ex. P.33, it is

specifically mentioned that .12 bore gun was received in a sealed

condition. Thus, in absence of any cogent material to discard the

direct and documentary evidence, this Court is of the considered

opinion, that if the investigating officer had not affixed impression of

specimen of seal on the seizure memo, Ex. P. 11, it cannot be said

that the seizure of .12 bore gun was not proved.

45. It is next contended by the Counsel for the appellant

Chandramohan that since, .12 bore gun was seized from a shed which

was not having any door, therefore, any body had an access to the

said place, therefore, it cannot be said that .12 bore gun was seized

on the disclosure statement made by the appellant Chandramohan.

46. Considered the submissions made by the Counsel for the

appellant Chandramohan. The Supreme Court in the case of Yakub

Abdul Razak Memon Vs. State of Maharashtra, reported in (2013)

13 SCC 1 has held as under :

1708. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.

* * * * 1793. The submission made by Mr Mushtaq Ahmad, learned counsel appearing on behalf of the appellant that the recovery was made from a public place and, therefore, could not be relied upon and cannot be accepted, as it is the accused alone on whose disclosure statement the recovery was made and it is he alone, who is aware of the place he has hidden the same. It cannot be presumed that the other persons having access to the place would be aware that some accused after the commission of an offence has concealed the contraband material beneath the earth or in the garbage.

* * * * 1842. Ratansingh Kalu Rathod (PW 600), a Police Inspector corroborated the evidence of Chandrakant Vaidya (PW 40), and has narrated how the disclosure statement had been recorded, how the memorandum panchnama had been prepared and also how, the said recoveries had been made.

He has pointed out that at the place of recovery, the accused had removed items from the heaps, and that after digging, had taken a bag containing four hand grenades. He has also given full details as regards how the two recoveries had been made in a close proximity of time, and from nearby places.

1843. In his statement made under Section 313 of the Code of Criminal Procedure, 1973, the appellant (A-107) has pleaded false implication in the said case, and has stated that the said recoveries had not been made at his instance, as he had never been in possession of any hand grenades. 1844. On the issue of recovery, this Court in State of H.P. v. Jeet Singh, held: (SCC p. 378, para 26) "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is 'open or accessible to others'. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or

accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

(emphasis supplied) 1845. In State of Maharashtra v. Bharat Fakira Dhiwar, this Court also dealt with this issue.

1846. Thus, in view of the above, the submission made by Mr Mushtaq Ahmed, stating that as the recovery had been made from an open place to which all persons had access, cannot be relied upon and is not worth acceptance.

47. Only the appellant Chandramohan had a knowledge about the

place where the .12 gun was kept in a hidden condition. Merely

because the shed had no door would not mean that every on would

have knowledge of the fact that a gun is lying there. If somebody

else had kept the gun, then the appellant Chandramohan should not

have any knowledge of the same. Thus, it is held that the recovery of

.12 bore gun from the possession of the appellant Chandramohan has

been duly established by the prosecution.

48. It is next contended by the Counsel for appellant

Chandramohan that as per F.S.L. Report, Ex. P33, both the fired

cartridges recovered from the place of incident were fired from .12

bore gun recovered from the possession of the appellant

Chandramohan, but the deceased in his F.I.R., Ex. P.28 and the

eyewitnesses have stated that the appellant Chandramohan had fired

only one gun shot, whereas the second gun shot was fired by Shibbu

Jatav, and since, the ocular evidence is not corroborated by scientific

and Forensic Evidence, therefore, it is clear that the deceased had not

lodged the F.I.R., Ex. P.28 disclosing correct facts and the F.I.R, Ex.

P.28 is a tutored one.

49. Considered the submissions made by the Counsel for the

appellant Chandramohan.

50. The Latin maxim Falsus in Uno Falsus in Omnibus has no

application in India. The Supreme Court in the case of Shakila

Abdul Gafar Khan Vs. Vasant Raghunath Dhoble reported in

(2003) 7 SCC 749 has held as under :

25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P.)

51. Therefore, the Court must try to remove the grain from the

chaff. It is the case of the prosecution that the deceased as well as

Jagdish (P.W.2) had sustained gun shot injuries on their back. Thus,

it is clear that the gun shots were fired from the back side of the

deceased as well as Jagdish (P.W.2). Jandel Singh (P.W.1) has stated

that immediately after the firing started they all ran away. Similarly

Jagdish (P.W.2) has also stated that immediately after the 1 st gun shot,

he too tried to run away. Udai Singh (P.W.3) has witnessed the

incident from a distance of 100 ft.s. It is a matter of common

knowledge that after 1st gun shot is fired, the people would start

running helter-skelter. Further, the possibility of over implication of

Shibbu Jatav is also not ruled out. So far F.I.R., Ex. P.28 is

concerned, it is the prosecution case itself, that the F.I.R., Ex. P.28

was lodged after 3 hours and the deceased was all the time in

conscious condition and was talking. Therefore, the possibility of

false implication of Shibbu Jatav is not ruled out. Further, the

deceased Daghich Singh had sustained injuries on his hip and thigh.

The aforesaid part of body are not vital parts, and the injuries on the

said part of the body may not give an apprehension in the mind of the

informant, that he may not survive. Further, expectancy of death

doesnot affect relevancy and is not a pre-condition for making the

statement. Section 32(1) of Evidence Act, reads as under :

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(Underline supplied)

52. The Supreme Court in the case of Najjam Faraghi Vs. State

of West Bengal reported in (1998) 2 SCC 45 has held as under:

9. There is no merit in the contention that the appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention overlooks the express provision in Section 32 of the Evidence Act. The second paragraph of sub-section (1) reads as follows:

"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in falsehood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of the statements, the court can certainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

Exs. 5 and 6 are acceptable.

53. Although, it was not alleged in the F.I.R., Ex. P.28 or by the

eye witnesses, that both the gun shots were fired by appellant

Chandramohan, but after removing grain from chaff, it is held that it

was Chandramohan, who had fired both the gun shots,which is duly

corroborated by F.S.L. report, Ex. P.33 and the allegation that one

gun shot was fired by Shibbu Jatav was an attempt to falsely

implicate him.

54. The Supreme Court in the case of Jaishre Anant Khandekar

Vs. State of Maharashtra reported in (2009) 11 SCC 647 has held

as under :

44. The principles stated in Paniben have been again repeated by this Court in Shakuntala v. State of Haryana.

The said principles are so salutary and cardinal in nature that they deserve to be reiterated and this Court does so hereinbelow: (Shakuntala case, SCC pp. 173-74, para 7) "7. '... 12. ... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)

(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)

(iv) Where a dying declaration is suspicious, it should

not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.)

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)

13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there

shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)

14. There is no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility.'**"

45. Just one more may be added to the aforesaid principles. This Court in Paramjit Singh v. State of Punjab, held that if all the details are given in the dying declaration, the same may not inspire confidence of the court inasmuch as a neatly structured dying declaration may bring an adverse effect in the mind of the court. The court has to appreciate the dying declaration as a whole to see whether a ring of truth emerges from the same.

55. This Court has already held that the deceased Daghich Singh

was conscious and was in fit state of mind at the time of lodging

F.I.R., Ex. P.28, and he also died on account of injuries sustained by

him, therefore, it is held that the F.I.R.,Ex. P.28 is admissible as dying

declaration and is reliable and trustworthy qua the appellant

Chandramohan. Accordingly, the prosecution has succeeded in

establishing beyond reasonable doubt that Chandramohan caused gun

shot injuries to the deceased Daghich Singh. Accordingly, the

appellant Chandramohan is held guilty for committing murder of

Daghich Singh and causing gun shot injuries which were simple in

nature to Jagdish (P.W.2).

Whether the appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi were members of Unlawful

Assembly and were sharing common object or not?

56. In F.I.R., Ex. P.28, the deceased Daghich Singh had merely

mentioned the presence of the above mentioned appellants. There is

nothing in the F.I.R., Ex. P.28 that the above mentioned appellants

were carrying any weapon or had participated in the incident in any

manner.

57. Jandel Singh (P.W.1) has stated in his examination-in-chief that

accused Devlal was having Lathi, whereas appellant Mukundi was

having Farsa, Chhuna was having Farsa, Madho was having Axe,

Pappu was having axe, Bablu and Harnam were having lathi and they

were hiding in the bushes. As soon as the tractor reached there, they

all started abusing and Chandramohan fired gun shot and thereafter

Shibbu fired another gun shot. Except by saying that the appellants

were armed with weapons and were hiding in the bushes and they

hurled abuses before the gun shots were fired, no other allegation has

been made against the above mentioned appellants. In cross-

examination, the attention of this witness was drawn towards

omission in his police statement that "the above mentioned appellants

had hurled abuses", but this witness could not point out any reason

for such omission in his police statement, Ex.D.1. This omission is a

major omission and contradiction so far as role assigned to the above

mentioned appellants, therefore, the allegation made by this witness,

that all the above mentioned appellants had also hurled abuses,

cannot be accepted. This witness has also stated that the above

mentioned appellants had not come on the spot before him, but

clarified that all the above mentioned appellants were already hiding

in bushes. However, in para 15 of his cross-examination, this witness

has admitted that he had already reached in the field about 1 hour

prior to the incident. Thus, it is clear that on one hand, this witness

has claimed that he had already reached his field about 1 hour prior

to the time of incident and at the same time, he has also claimed that

the above mentioned appellants had not come on the spot before him

and they were already hiding in bushes. Thus, it would mean, that

the above mentioned appellants were already hiding for more than 1

hour and this witness was also in the field for more than 1 hour, but it

is an unnatural act that if some person(s) are hiding in the bushes,

then they will not be noticed by this witness. He also admitted in

para 16 that at the time of preparing seeds, he neither saw any person

nor any sound. Thus, this Court is of the considered opinion, that the

evidence of Jandel Singh (P.W.1) that the above mentioned appellants

were already hiding in the bushes cannot be accepted. Further, it is

the case of the prosecution, that the face of the tractor and deceased

was towards the village Nayagaon i.e., towards south whereas the

gun shots were fired from the northern direction, and all the injuries

have been sustained by deceased Daghich Singh and injured Jagdish

(P.W.2) on their back. In the spot map, Ex. P. 11, no bushes have

been shown on the northern side of the place of incident, although

some bushes have been shown on the southern side of the spot, i.e.,

in between the place of incident and the village and on the western

side of the spot i.e., about 100 ft.s away from the spot.

58. Jagdish (P.W.2) has also stated that the appellant Mukundi and

Chhuna were having Farsa, Bablu, Harnam were having lathi and

Indrapal and Madho were having axe. However, this witness has not

stated that anything was done by these appellants, including that of

hurling of abuses,. However, in the cross-examination, this witness

has stated that after coming out of the bushes, these appellants

surrounded the tractor. He further clarified that the accused persons

did not come nearer to the tractor before firing but they came nearer

to the tractor after the firing. He further admitted that no weapon was

used by the above mentioned appellants. He also claimed that the

above named appellants had come out of the bushes. However, he

disowned the part of his police station, Ex. D.2 in which he had

stated that "the appellants had come from the side of village". He

further stated that he cannot say that at what time, the above named

appellants had come. He also could not specify that whether the

appellants had come together or not? He also could not specify that

at which place, the appellants were hiding. He also admitted that

prior to incident, he could not notice any body. He further stated that

the appellants had not surrounded the tractor from all side, but all of

them were standing on the back side of the tractor.

59. This witness has disowned his part of statement, Ex. D.2 which

is marked as "A" to "A" in which he had claimed that "all the

appellants came from the side of the village" but took a somersault in

his Court evidence and claimed that the appellants were already

hiding behind the bushes. On the fact of it, this change in evidence,

doesnot appear to be very material or major, but on deeper scrutiny, it

is clear that this embellishment, omission and contradiction is a major

one. As already pointed out from the spot map, Ex. P.11, the face of

the tractor and deceased was towards village Nayagon, whereas the

gun shots were fired from their back. If the appellants had come

from the village Nayagon, then it is clear that the appellants and the

deceased as well as Jadon Singh (P.W.1) and Jagdish (P.W.2) would

be in front of each other and in that situation, the firing must take

place from the front side of the deceased and Jagdish (P.W.2),

whereas according to the prosecution story, the gun shots were fired

from behind, i.e., from the side of field of Lalaram which is shown in

the spot map, Ex. P.11. Thus, in order to change the position of the

appellants, this witness took a somersault in his Court evidence and

claimed that the appellants were already hiding behind the bushes.

Therefore, this Court is of the considered opinion, that the evidence

of Jagdish (P.W.2), so far as it relates to above mentioned appellants

is not trustworthy and hence liable to be rejected qua the appellants

Chhuna, Bablu, Harnam Singh, Madho Singh, Indrapal Singh and

Mukundi.

60. Udai Singh (P.W.3) has not stated any thing in his examination-

in-chief about the appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi. However, the Counsel for the

appellants tried to get explanation from this witness by putting

questions to him qua the appellants Chhuna, Bablu, Harnam Singh,

Madho Singh, Indrapal Singh and Mukundi. This witness also

claimed that these appellants came out of the bushes and surrounded

the tractor. He further stated that the accused persons had not chased

the witnesses and ran towards Unchia forest. He further claimed that

the appellants were hurling abuses. He further claimed that when he

was coming from the village, he had not seen anybody hiding behind

the bushes. He further admitted that if somebody is hiding behind the

bushes, then he will be noticed by a person coming from the side of

the village. He also admitted that any body hiding behind the bushes

could have been seen from the place where he was standing.

Thereafter, again he stated that he saw the appellants when they were

standing in the fields. As already pointed out, in spot map Ex. P.1, no

bushes have been shown on the back side of the tractor, i.e., towards

the field of Lalaram. It is really surprising that although this witness

had not stated any thing against the appellants Chhuna, Bablu,

Harnam Singh, Madho Singh, Indrapal Singh and Mukundi in his

examination-in-chief, but still the Counsel for the appellants, tried to

obtain evidence against these appellants. Be that as it may. As

already pointed out, none of the above mentioned appellant had come

on the spot before this witness and the claim that the appellants were

already hiding behind the bushes has been found to be false,

therefore, the evidence of this witness qua the appellants Chhuna,

Bablu, Harnam Singh, Madho Singh, Indrapal Singh and Mukundi is

held to unreliable and untrustworthy.

61. Suresh (P.W.5) has also stated that the appellants Chhuna,

Bablu, Harnam Singh, Madho Singh, Indrapal Singh and Mukundi

were hiding behind the bushes. However, he has not claimed that any

of these appellants were armed with any weapon. He has not stated

that any of these appellants had even hurled abuses. Further, this

witness has stated that the accused persons had not surrounded the

tractor and gun shots were fired from a distance of 10-12 ft.s. Again,

it appears that the Counsel for the appellants were out and out to

obtain evidence against the appellants Chhuna, Bablu, Harnam Singh,

Madho Singh, Indrapal Singh and Mukundi. In cross-examination, a

specific question was once again asked about the role played by the

appellants Chhuna, Bablu, Harnam Singh, Madho Singh, Indrapal

Singh and Mukundi, and this witness clarified that they were having

lathi, Ballam etc and after the firing they all ran away. If the evidence

of this witness is considered minutely, then in absence of any

corroboration, his evidence cannot be relied upon and accordingly, it

is held that this witness is unreliable and untrustworthy qua the

appellants Chhuna, Bablu, Harnam Singh, Madho Singh, Indrapal

Singh and Mukundi.

62. Manni (P.W.7) has stated that he was removing bushes. He

saw that deceased Daghich Singh was sowing Masoor whereas

Jagdish (P.W.2) was sitting on mudguard of the tractor, whereas

Jandel (P.W.1) was sitting on the seeder. The appellants Chhuna,

Bablu, Harnam Singh, Madho Singh, Indrapal Singh and Mukundi

along with Chandramohan and Shibbu were there. Chandramohan

fired a gun and another gun shot was fired by Shibbu. The appellant

Mukundi and Chhuna were having Farsa whereas Indrapal and

Madho were having axe. Harnam was having lathi and Bablu was

having Luhangi. When he heard the noise, he turned towards the

place of incident, and at that time, Chandramohan fired first gun shot

and Shibbu fired second gun shot. In cross-examination, this witness

has stated that appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi were hurling abuses, however,

could not clarify that from which direction, the appellants had come.

The appellants had not surrounded the Tractor. This witness has

stated that he was cleaning the mud boundary of the field of

Laxminarayan. From the spot map, Ex. P.1, it is clear that the

distance between the field of Laxminarayan and the spot is 100 Mt.s

Thus, it is clear that this witness has claimed that he had seen the

incident from a distance of 100 Mt.s. No overtact has been assigned

to the appellants Chhuna, Bablu, Harnam Singh, Madho Singh,

Indrapal Singh and Mukundi. If the evidence of this witness is

considered minutely, then in absence of any corroboration, his

evidence cannot be relied upon and accordingly, it is held that this

witness is unreliable and untrustworthy qua the appellants Chhuna,

Bablu, Harnam Singh, Madho Singh, Indrapal Singh and Mukundi.

63. Thus, it is clear that neither Jandel Singh (P.W.1), Jagdish

(P.W.2), Udai Singh (P.W.3), Suresh (P.W.5) and Manni (P.W.7) have

seen the appellants Chhuna, Bablu, Harnam Singh, Madho Singh,

Indrapal Singh and Mukundi on spot. Therefore, their evidence so far

it implicates the appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi is hereby disbelieved being not

untrustworthy.

64. Now the only evidence which remains against the appellants

Chhuna, Bablu, Harnam Singh, Madho Singh, Indrapal Singh and

Mukundi is F.I.R.,Ex. P.28. The appellants Chhuna, Bablu, Harnam

Singh, Madho Singh, Indrapal Singh and Mukundi are the residents

of village Nayagaon. Therefore, their presence on the spot can be an

innocent presence. The deceased Daghich Singh, in his F.I.R.,Ex.

P.28 has neither said that the appellants Chhuna, Bablu, Harnam

Singh, Madho Singh, Indrapal Singh and Mukundi were armed with

any weapon, nor has assigned any overtact to them.

65. Jai Hind Singh (P.W.6) has stated that one Lathi was seized

from the possession of Mukundi vide seizure memo Ex. P.8 and his

memorandum is Ex. P.6. The memorandum of Chandramohan is Ex.

P.10 and .12 bore gun was seized vide seizure memo Ex. P.11. As the

prosecution case was that Farsa was seized from the possession of

Mukundi, therefore, this witness was declared hostile and in cross-

examination by the public prosecutor, this witness stated that in fact

Farsa was seized from Mukundi and thereafter on his own addressed

to Public Prosecutor that since, he had instructed him that he should

say Lathi therefore, he had stated that Lathi was seized from

Mukundi. The gun seized from Chandramohan was marked as

Article "A" and Farsa seized from Mukundi was marked as Article

"C". This witness was cross-examined in details with regard to

seizure of gun from the possession of Chandramohan, but nothing

could be elicited which may make the seizure of gun unreliable.

Thus, it is clear that this witness has proved the seizure of .12 bore

gun from the possession of Chandramohan, but the seizure of Farsa

from the possession of Mukundi is not reliable in view of the fact that

he on his own had addressed to the Public Prosecutor that he had

stated Lathi on his instructions.

66. Babu ji (P.W.11) who was also the witness of seizure has not

supported the prosecution case. Kok Singh (P.W. 13) has also not

supported the prosecution case on the question of arrest and seizure

of weapons from the accused persons.

67. Mohar Singh (P.W.14), Raghuraj (P.W.15) have also not

supported the prosecution case on the question of arrest and seizure

of weapons from the accused persons.

68. Thus, it is held that in the F.I.R., Ex. P.28, not only there is no

allegation that the appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi were carrying any weapon, but

the prosecution has also failed to prove the seizure of any weapon

from their possession. Further, as no weapon is alleged to have been

used by the appellants Chhuna, Bablu, Harnam Singh, Madho Singh,

Indrapal Singh and Mukundi, therefore, there is no question of

presence of blood on the same, and therefore, the seized lathi, Farsa

and axe were not sent to F.S.L. Sagar for forensic examination.

69. The Supreme Court in the case of Bhudeo Mandal v. State of

Bihar, reported in (1981) 2 SCC 755 has held as under :

1.......We would like to point out that whenever the High Court convicts any person or persons of an offence with the aid of Section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 of the Indian Penal Code, the essential ingredient of Section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object.......

70. The Supreme Court in the case of Kuldip Yadav Vs. State of

Bihar reported in (2011) 5 SCC 324 has held as under :

37. In Ranbir Yadav v. State of Bihar this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.

38. In Allauddin Mian v. State of Bihar this Court held: (SCC pp. 16-17, para 8) "8. ... Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC."

39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC.

* * *

41. In the earlier part of our order, we have analysed the evidence led in by the prosecution and also pointed out several infirmities therein. In our view, no overt act had been attributed to any other accused persons except Brahamdeo Yadav (A-1) towards the murder of Suresh Yadav. Had the other accused persons intended or shared the common object to kill Suresh Yadav, they must have used the weapons allegedly carried by them to facilitate the alleged common object of committing murder.

71. The Supreme Court in the case of Shaji Vs. State of Kerala

reported in (2011) 5 SCC 423 has held as under :

16. Though as per the decision of the Constitution Bench in Mohan Singh case, the prosecution is well within its jurisdiction to establish the charge under Section 149 IPC even after the acquittal of two members of the unlawful

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

assembly, however, in order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.

72. The Supreme Court in the case of Krishnappa v. State of

Karnataka, reported in (2012) 11 SCC 237 has held as under :

20. It is now well-settled law that the provisions of Section 149 IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates 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. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. (Lalji v. State of U.P., Allauddin Mian v. State of Bihar, Ranbir Yadav v. State of Bihar.)

21. The factum of causing injury or not causing injury would not be relevant, where the accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. (State of U.P. v. Kishan Chand and Deo Narain v. State of U.P.)

73. The Supreme Court in the case of Debashis Daw Vs. State of

W.B. Reported in (2010) 9 SCC 111 has held as under :

25. The learned Senior Counsel for the appellants relying on the decision of this Court in Akbar Sheikh v. State of W.B. submitted that where large number of persons are

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

implicated collectively, the courts must insist for something more than their being cited as an accused in order to convict them for the charge of the offence. It is well settled and needs no restatement at our hands that mere presence of the persons at the scene of offence itself would not be enough to convict them and punish under Section 149 IPC unless it is established that each one of them was part of the unlawful assembly and committed the offence in prosecution of the common object of that assembly. In all such cases, the question who had committed the overt act is of no consequence.

26. This Court in Akbar Sheikh observed that the prosecution in a case of this nature is required to establish:

(i) whether the appellants were present; and (ii) whether they shared a common object. The trial court as well as the High Court, in the present case, found that all the stated ingredients were present for each of the appellants was found to be part of the unlawful assembly armed with deadly weapons and shared common object and with that intention participated in the commission of offence. The evidence available on record clearly suggests that each of the appellants was part of the unlawful assembly and armed with deadly weapons, together indulged in indiscriminate beating and freely used weapons in their hands causing severe injuries on the body of the deceased.

27. It is true as held by this Court in Sherey v. State of U.P. that the courts have to be very careful in case where general allegations are made against a large number of persons and the courts should categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. There must be reasonable circumstances which lend assurance to the story of the prosecution.

74. The Supreme Court in the case of Sudhir Samanta Vs. State

of W.B. reported in (1998) 1 SCC 581 has held as under :

14. While it is true that before a person could be held to be a member of an unlawful assembly, it is not necessary that he should have done some overt act or been guilty of some omission in pursuance of the common object of the unlawful assembly, it is well settled that first, it must be established that he was a member of the unlawful assembly.

Chhuna @ Chhatra Pal Singh & Anr Vs. State of M.P. (Cr.A. No.474 of 2003) Harnam Singh & Anr. Vs. State of M.P. (Cr.A. No.512 of 2003) Indrapal Singh Vs. State of M.P. (Cr.A. No.609 of 2003) Mukundi Vs. State of M.P. (Cr.A. No.662 of 2003) Chandramohan Vs. State of M.P. (Cr.A. No.616 of 2003)

When, as in this case, a large number of villagers were present at the scene of the offence and common object and specific acts were attributed only to a few among the nine accused and there was nothing so far as A-4, A-9 and A-5 were concerned as regards the common object or overt acts or motive, the question arises whether they were only members of the general crowd or whether there was proof that A-4, A-9 and A-5 went there with the same common object as those accused to whom overt acts were attributed. It has been held that in such a context, and with a view to guard against convicting persons who were not part of the unlawful assembly, it is permissible to consider the nature of the gathering, how they assembled and what weapons they were armed with, how they proceeded and further the part played by them.

75. The Supreme Court in the case of State of M.P. Vs. Killu

reported in (2020) 16 SCC 735 has held as under :

9. After considering the cases on the point including Masalti, the order of acquittal passed by the High Court was set aside by this Court in State of Maharashtra v. Ramlal Devappa Rathod. Relevant paragraphs of the decision are: (Ramlal Devappa Rathod case, SCC pp. 93- 94, paras 22-24) "22. We may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are:

(a) if an offence is committed by any member of an unlawful assembly;

(b) in prosecution of common object of that assembly;

(c) which the members of that assembly knew to be likely to be committed in prosecution of that object;

(d) every person who is a member of the same assembly is guilty of the offence.

This section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence.

The law is clear that membership of unlawful assembly is

sufficient to hold such members vicariously liable.

23. It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishanpal it was observed: (SCC p. 93, para 47) '47. ... It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.' Further, in Amerika Rai v. State of Bihar it was observed as under: (SCC p. 682, para 13) '13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.'

24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed,

while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons."

76. Thus, it is clear that if an accused is a member of Unlawful

Assembly and is sharing common object, then whether there is any

overtact on his part or not, would become immaterial. However,

common object is in the minds of the accused persons, therefore, all

the surrounding circumstances should be taken into consideration, to

find out as to whether the accused persons charged under Section 149

of IPC were the members of Unlawful Assembly with common object

or not?

77. If the allegations made in F.I.R., Ex. P.28 is considered, then

except by saying that the appellants Chhuna, Bablu, Harnam Singh,

Madho Singh, Indrapal Singh and Mukundi came along with

Chandramohan and Shibbu with common object, there is nothing in

the F.I.R., Ex. P.28 to indicate that the appellants Chhuna, Bablu,

Harnam Singh, Madho Singh, Indrapal Singh and Mukundi were

sharing common object. As already pointed out, the appellants

Chhuna, Bablu, Harnam Singh, Madho Singh, Indrapal Singh and

Mukundi are also the residents of village Nayagaon, therefore, even

if they were present on the spot, then the possibility of their innocent

presence without any passive act on their part is not ruled out.

Further, all the eye-witnesses have been found to be untrustworthy

qua the appellants Chhuna, Bablu, Harnam Singh, Madho Singh,

Indrapal Singh and Mukundi. It is true that FIR is not an

encyclopaedia, and each and every minute detail is not expected.,

however, as per FIR Ex. P.28, the appellants Chhuna, Bablu, Harnam

Singh, Madho Singh, Indrapal Singh and Mukundi were unarmed and

no overtact has been assigned to them. It is true that after the gun

shots are fired, it is not always expected that every member of

Unlawful Assembly would further participate in the assault, but since,

all the appellants namely Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi are the resident of same village

and the agricultural field of the deceased is also situated at a nearby

place, then it would not be safe to hold that the appellants Chhuna,

Bablu, Harnam Singh, Madho Singh, Indrapal Singh and Mukundi

were members of Unlawful Assembly with common object.

Accordingly, the appellants Chhuna, Bablu, Harnam Singh, Madho

Singh, Indrapal Singh and Mukundi are acquitted of the charge under

Section 302/149, 148 and under Section 324/149 of I.P.C.

78. The charge under Section 302, 307 and 148 of I.P.C. were

framed against the appellant Chandramohan. As this Court has

acquitted all the remaining appellants, therefore, the appellant

Chandramohan cannot be held guilt of charge under Section 148,149

of I.P.C., accordingly he is acquitted of the charges under Section

148, 302/149 and 324/149 of I.P.C. and is held guilty of offence

under Section 302 and 324 of I.P.C.

79. So far as the question of sentence is concerned, the minimum

sentence for offence under Section 302 of I.P.C. is life imprisonment.

Therefore he is awarded sentence of Life Imprisonment with fine of

Rs. 10,000/- with default sentence of 1 year R.I. Similarly, for

offence under Section 324 of I.P.C., he is awarded 1 year R.I.

80. Both the sentences shall run concurrently.

81. The appellants Chhunna, Bablu, Harnam Singh and Madho

Singh are on bail. Mukundi was also granted bail, but subsequently

jumped bail and was taken into custody. Thereafter, by order dated 4-

5-2017, he was once again released on bail. Accordingly, the bail

bonds of Chhunna, Bablu, Mukundi, Harnam Singh and Madho

Singh are hereby cancelled. They are no more required in the present

case.

82. The appellant Indrapal Singh, was granted bail by order dated

5-4-2004, but later on, he jumped bail and accordingly, by order

dated 3-1-2019, his bail order was recalled and he was sent back to

Jail. His bail bonds are discharged and he be released immediately, if

not required in any other case.

83. The appellant Chandramohan is on bail. His bail bonds are

cancelled. He is directed to immediately surrender before the Trial

Court, for undergoing the remaining jail sentence.

84. With aforesaid modifications, the judgment and sentence dated

3/9/2003 passed by Add. Sessions Judge, Sewada, Distt. Datia in S.T.

No. 36/2000 is hereby affirmed.

85. The Criminal Appeals filed by Indrapal Singh, Chhunna,

Bablu, Mukundi, Harnam Singh and Madho Singh i.e., Cr.A.s No.

474 of 2003, 512 of 2003, 609 of 2003, and 662 of 2003 are hereby

allowed and the Criminal Appeal filed by Chandramohan (Cr.A.

No. 616 of 2003) is hereby Dismissed.

86. A copy of this judgment be provided to the appellants, free of

cost.

87. The office is directed to immediately send a copy of this

judgment along with the record to the Trial Court for necessary

information.



(G.S. Ahluwalia)                                         (Rajeev Kumar Shrivastava)
(Judge)                                                                    (Judge)

                                     ARUN KUMAR MISHRA
                                     2021.08.26 11:19:55 +05'30'