Mohammad Rafiq - (1.) THIS appeal has been filed by fourteen accused assailing judgment of the learned Additional Sessions Judge (Fast Track) Alwar dated 24/2/2003 passed in Sessions Case No.40/2001 (15/1996) whereby, accused-appellant No.1-Subhash Chandra was convicted for offences u/Ss.148, 302 and 324/149 IPC whereas, rest accused-appellants were convicted for offences u/Ss.148, 302/149 and 324/149 IPC. Accused-appellant No.1-Subhash Chandra was sentenced to imprisonment for life for offence u/S.302 IPC simplicitor and additionally with a fine of Rs.5,000/-, in default of payment whereof, he was awarded sentence to further undergo rigorous imprisonment of one year. Remaining accused appellants were sentenced to imprisonment for life with a fine of Rs.2,000/- and in default whereof, they were awarded sentence to further undergo rigorous imprisonment for one year for offence u/S.302/149 IPC. Each of the accused appellants was sentenced to rigorous imprisonment of three years with fine of Rs.500/- for offence u/Ss.148 and 324/149 IPC and in default of payment thereof, additional sentence of three months rigorous imprisonment was awarded to each of them. All the sentences were ordered to run concurrently.
(2.) THE investigation in the present case was initiated on the basis of the written report (Exb.P.9) submitted by complainant Chunnilal to S.H.O. Police Station Ramgarh dated 12/11/1995. It was alleged therein that when Lal Singh S/o Panna Lal started constructing a shop, certain persons objected to raising of the construction. Accused after pre-planning came there armed with guns and country made pistols and attacked him and the entire Mali community of village Malpura from different directions. Fourteen of them were on the roof of the old school building namely; Subhash Chandra, Kundan Lal, Jitendra Kumar, Madan Lal, Kewal Kumar, Komal Kumar, Rajendra Kumar @ Billu, Pawan Kumar, Purshottam, Girraj Prasad, Mukesh, Radhey, Mulakhraj and Baldev Prasad @ Kalu. Remaining fourteen climbed the roofs of Mulakhraj, Krishna Lal and Somnath. THEy were Subhash Chandra, Kundan Lal, Jitendra Kumar, Kewal Kumar, Madanlal, Komal Kumar, Rajendra Prasad @ Billu, Pawan Kumar, Purshottam, Girraj Prasad, Mukesh Kumar, Radhey, Mulakhraj and Baldev Prasad @ Kalu. Accused Subhash Chandra exhorted all the accused that a lesson be taught to these malis. Subhash Chandra opened fire, which hit Tulsi Saini near his eyes. Tulsi died on the spot. THEreafter, remaining accused started firing indiscriminately at the members of the complainant party. Firing went on for about 2 to 2" hours. THEy also pelted stones. Thirteen persons namely; Hajari, Chotu, Lal Singh, Phool Singh, Jamna, Radha, Moti, Sadhu Ram, Bhukiya, Ratan Lal, Omichand, Madanlal and Gurudutt Singh received injuries. THEy were all taken to hospital. Mohan Lal Saini (PW10), Ramdayal (PW7), Laxminarayan (PW6) and Khemchand (PW12) witnessed the incident. On receipt of the aforesaid written report, a regular first information report for offence u/Ss.147, 148, 149, 302, 307 and 336 IPC was lodged. Postmortem of the dead body of Tulsi Ram was conducted, site was inspected and site plan was prepared, blood stain earth, two bullets and thirty pellets were seized, from the site of the incident. Certain empty cartridges were also recovered from various places. Injured were subjected to medical examination. Investigation officer after completion of investigation, filed challan against only twenty six accused. One of them, Munshi Ram died during trial. Prosecution examined as many as thirty five witnesses and exhibited fourteen documents. Defence in support of its case exhibited six witnesses and exhibited twenty three documents. Accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the charges and stated that the disputed place where Lal Singh was constructing shop was in fact earmarked for the Bus Stand by the Gram Panchayat but he was illegally raising construction. As such stay order was passed by the Gram Panchayat restraining him from raising construction but Lal Singh did not obey the same. The accused have been falsely implicated in the matter. Learned trial court after conclusion of the trial, convicted fourteen accused whereas acquitted eleven accused. Hence, this appeal. We have heard Shri S.R. Bajwa, learned Senior Counsel assisted by Shri V.R. Bajwa, V.P. Bishnoi and Shri Akhil Simlote for the accused-appellants and Shri Rajendra Yadav and Shri J.R. Bijarniya, learned Public Prosecutors for the State and perused the material available on record. Shri S.R. Bajwa, learned Senior Counsel for the accused-appellants has argued that the genesis of the incident has been completely suppressed by the prosecution from the court. Version given in the written report (Exb.P.9) by PW3 Chunnilal does not receive corroboration from evidence of those twenty witnesses, who are claimed to be eye-witnesses. Statements of these witnesses are full of discrepancies and are contradictory to each other. All the witnesses are from same Mali community and most of them are of the same village. Their testimony has to be therefore subjected to greatest amount of scrutiny and circumspection because it cannot be expected of them to give an unbiased version particularly when allegation is of collective animus against group of accused. All the witnesses have exaggerated their version and false/over implication is writ large. The court has to therefore guard against conviction of innocent persons. The prosecution witnesses have made number of improvements upon their original version in statements recorded under Section 161 Cr.P.C. Accused appellants therefore deserve to be given benefit of doubt and consequential acquittal. Learned senior counsel referred to the site plan i.e. Exb.P.4 and argued that if what has been stated by the so-called eye-witnesses is analyzed in the light of this site plan, story of the prosecution becomes highly doubtful. According to the site plan, firing took place from points C, F & T whereas, many of the prosecution witnesses have stated that firing took place from four places. It is alleged that accused Subhash Chandra, who was at place 'c', roof of the government building which is mentioned by prosecution witnesses as "chhata", opened fire, which hit deceased Tulsi, who was standing at place 'x'. This cannot be believed because according to site plan, distance between these two places is about 100-125 feet. Learned Senior Counsel submitted that postmortem report of the deceased indicates that Injury No.2 in the size of 2.5"x1" having collar of abrasion was on left temporal side and as per Note given by the medical officer, a pellet was recovered from the middle cranial fossa embendient in brain matter at base of the skull. But Dr.Amar Singh Rathore PW4, who conducted postmortem stated in cross-examination that margins of this injury No.2 were not inverted and there was no blackening of skin around this injury nor marks of black powder were found near that. This Injury No.2 was neither circular nor its edges were contused. But he has opined that this injury was received from fire arm because there was collar of abrasion. It was argued that collar of abrasion around injury was possible only if the gun was fired from the distance at the maximum of 2-3 feet. It was argued that Tulsi received a single shot injury. The wound was 2.5x1" on the left temporal region. It was a single aperture. Had it been fired from the shot gun, numerous pellets, after dispersion, would normally have hit the deceased. Injury by single shot is strongly suggestive of a fire from rifle whereas, no rifle otherwise was recovered from any of the accused persons. 12 bore gun has been recovered, which is capable of discharging only pellets. Reliance has been placed on the judgment of Supreme Court in State of Punjab Vs. Rajendra Singh : (2009) 15 SCC 612. It is argued that as per prosecution case, a piece of bullet had been recovered from inside skull of the deceased. It was bounden duty of the prosecution to connect the gun recovered from Subhash with the piece of bullet recovered from base of skull of the deceased. Opinion of the ballistic expert would have clinched the issue. Accused appellants are liable to be acquitted on this ground alone. Reliance was placed on the judgment of Supreme Court in State of Madhya Pradesh Vs. Surpa, (2002) 9 SCC 447. In this regard, reliance is also placed on the judgment of Supreme Court in State of U.P. Vs. Ram Bahadur Singh : 2004(9) SCC 310 & State of Rajasthan Vs. Bhanwar Singh : (2004) 10 SCC 709. Learned senior counsel argued that if two views are possible on the basis of evidence on record, one which favours the accused should be preferred. Reliance in this connection is placed on the judgment of Supreme Court in Suchand Pal Vs. Phani Pal : (2003) 11 SCC 527.
(3.) SHRI S.R. Bajwa, learned senior counsel argued that three empty cartridges were recovered from place 'F' as per the site plan. It is also alleged that firing took place from place 'T' to place 'S'. Regarding two recovery memos i.e. Exb.P5 and Exb.P6, it is submitted that PW4 Dr.Amar Singh Rathore has opined in the postmortem report that metallic piece of bullet was recovered from the body of the deceased, which was handed over to the police personnel which fact he has also reiterated in the statement given before the court but that piece of metal has not been sent to the forensic science laboratory, which was essential to connect the bullet with the fire arm. Even otherwise, a bullet can be fired only from a rifle whereas, recovery of the fire arm that has been made in the present case from accused No.1 Subhash Chandra is that of country made 12 bore gun, which possibly cannot fire a bullet. Similarly, another 12 bore katta has been shown to have been recovered at the instance of accused-appellant Girraj Prasad vide Exb.P117. In the same manner, recovery of one country made gun and one empty cartridge of 12 bore has been shown to have been made at the instance of accused Kewal Ram vide Exb.P.119. One country made katta has been shown to have been recovered at the instance of accused Mulakh Raj vide Exb.P79. One country made katta of 12 bore has been shown to have been recovered at the instance of accused Madanlal. It is thus clear that metallic piece, which has been found in the body of deceased Tulsi cannot be connected with any of the fire arms recovered at the instance of five of the fourteen accused appellants before this court. It therefore creates a serious doubt about the prosecution story. PW6 Laxminarayan has stated that while there were ten persons standing on chhata firing at place 'X', five persons were on the ground in lane adjacent to the said building. It is therefore possible that any one of them might have also fired therefore it is not clear as to who would be responsible for this injury, which led to death of Tulsi. Learned Senior counsel stated that at any rate, accused-Subhash Chandra cannot be convicted for offence u/S.302 IPC simplicitor because he has not been connected with the injury said to have been responsible for the death of Tulsi. Shri S.R. Bajwa, learned Senior Advocate argued that statement of all the eye witnesses do not tally with each other on all material aspects. In order to bring home his point, learned senior has referred to the statement of PW3 Chunnilal informant in the present case and argued that this witness has named in all twenty persons on 'chhata' at place 'C' in the site plan and he has stated that nineteen of them were having fire arms and were firing. Six of these nineteen have been acquitted by the learned trial court. Regarding four accused, he has stated that they were pelting stones. There is no distinction between the case of six persons, who have been acquitted and fourteen accused persons, who have been convicted, even when matter is examined in the light of the statement of other witnesses. Learned counsel referred to the statement of PW6 Laxminarayan and stated that this witness has stated that ten persons were on 'chhata' and five were in the lane below the 'chhata'. PW7 Ramdayal stated that there were eleven accused on the 'chhata' including accused Subhash Chandra. Similarly, accused-Jitendra, who was named by PW3 Chunnilal and PW7 Ramdayal to be present on another roof, has also been acquitted by the learned trial court. PW8 Hajarilal has made allegation of use of fire arm only against Kewal and has not made such allegation against accused Subhash Chandra for the fire arm injury on the person of deceased Tulsi. PW9 Ratan names only accused-Girraj for his own fire-arm injury and does not say anything against any other accused including accused Subhash Chandra. PW10 Mohan S/o Sukharam names seventeen accused to be present on 'chhata' on the allegation that all accused including Subhash Chandra, were firing but statement of this witness cannot be believed because his statement u/S.161 Cr.P.C. (Exb.D/6) was recorded four months after the incident, and then this witness had named only eight accused to be on 'chhata' whereas, in the court statement, this witness by making substantial improvements on the original version named seventeen accused. PW11 Pooran in his court statement named thirteen accused to be present at the roof of 'chhata' but he has subsequently improved his original version given under Section 161 Cr.P.C. to the police (Exb.D/7), where he named only seven accused. PW12 Khemchand in his court statement named only accused Mulkraj and Kalu as the once, who opened fire from 'chhata' and for rest of the accused, he has stated that they were pelting stones. This witness has not named accused Subhash Chandra. PW14 Yadram, who is child aged 14 years and is himself an injured does not name anybody and has merely stated that firing was taking place from 'chhata' by the accused persons. PW20 Asaram has named ten persons as those, who were firing from 'chhata' including accused Subhash Chandra but did not specifically name any accused as to whose fire hit deceased Tulsi. PW21 Mohan S/o Inder, who is an injured himself has named only six accused on 'chhata' including Subhash Chandra but did not specifically name any accused as to whose fire hit deceased Tulsi. PW22 Sukharam has also named five persons including Subhash Chandra but he does not name 6th accused. PW23 Phool Singh has named five persons specifically and has stated for few other accused including Subhash Chandra. PW24 Girraj Prasad has named only three accused but does not name accused Subhash Chandra as one, who was firing from 'chhata'. PW28 Bhoti, aged 15 years, who is injured has named only accused Mulkraj, who fired from 'chhata' and stated that she ran away to her mother. PW29 Jamnabai, aged 14 years, who too is an injured, has named only two persons and not Subhash Chandra but subsequently this witness has in the last line of her statement stated that Pooran was also firing from the ground. It should be noted that Pooran was member of the complainant party, which indicates that there was cross firing also. PW30 Lal Singh has named ten accused as those persons, who were firing from 'chhata' including subhash Chandra whereas, in his statement recorded before the police u/s.161 Cr.P.C. (Exb.D-14), he had named only six accused persons. PW31 Kalu, who too was an eye-witness has merely stated that firing took place from both sides but he did not see as to who fired at whom. He simply ran away from the seen of occurrence. This witness has been declared hostile. PW19 Deewan Singh, who is an injured too, has been declared hostile. He stated that he could not see as to who was firing from 'chhata' because he was standing at such a distance wherefrom, 'chhata' was not visible, though he received one pellet injury on the right side of the nose below the eye. This witness too, has stated that cross firing had taken place. Shri S.R. Bajwa, learned senior counsel has argued that PW2 Moolchand even though has been declared hostile but when he was cross-examined by the defence, he stated that Pooran and Lal Singh were also firing at the accused party. Learned senior counsel argued that the accused appellants resisted act of criminal trespass made by Lal Singh because he was raising unauthorized construction and in doing so at the maximum, they were exercising their right of private defence and property in community interest, which was available to them but nevertheless if they caused such bodily injuries to the complainant and its members, which incidentally resulted into the death of deceased Tulsi, they can at the best be held responsible for exceeding such right. Thus, the case would fall within Exception 2 of Section 300 IPC and at the maximum they can be held responsible for offence of culpable homicide not amounting to murder falling under Section 304 Part II IPC because there was no intention of the accused appellants to commit murder of deceased Tulsi. ;