Full Judgment
1 CRIMINAL APPEAL (D.B.) NO. 93 OF1992R) -------- [arising out of Judgment of conviction and Order of sentence dated 29th May, 1992 passed by the learned First Additional Session Judge, Gumla in Sessions Trial No.23 of 1988] ------ 1. Chatur Singh 2. Patur Singh (now dead) 3. Balkeshwar Singh 4. Nageshwar @ Nago Singh 5. Jageshwar Singh (now dead) 6. Mangal Singh 7. Shankar Singh (now dead) 8. Arjun Singh (now dead) …. Appellants versus State of Bihar (Now Jharkhand) …. Respondent ------- For the Appellant : Mr. Ajay Kumar Pathak, Advocate Mr. Dilip Kumar Prasad, Advocate For the Respondent : Mr. Pankaj Kumar, A.P.P. ----- PRESENT HON'BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE ANANDA SEN ----
JUDGMENTC.A.V. on 12.10.2017 Pronounced on 08/11/2017 Ananda Sen, J.
This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th May, 1992 by which the learned First Additional Session Judge, Gumla has found the appellant Chatur Singh guilty for committing offence punishable under Sections 302, 148 of the Indian Penal Code and the other appellants for committing an offence punishable under Section 307 of the Indian Penal Code. Further all the accused were found guilty for committing the offences punishable under Sections 302, 149 of the Indian Penal Code. After finding them guilty of the aforesaid offences, the appellant Chatur Singh was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code; 2 years’ rigorous imprisonment for offence punishable under Section 148 of the Indian Penal Code and 5 years’ rigorous imprisonment for offence punishable under Section 307 of the Indian Penal Code. The other accused persons were also sentenced to undergo rigorous 2 imprisonment for life for committing offence punishable under Sections 302/149 of the Indian Penal Code; 5 years’ rigorous imprisonment for committing offence punishable under Section 307 of the Indian Penal Code and 2 years’ rigorous imprisonment for committing offence punishable under Section 147 of the Indian Penal Code. All the sentences were directed to run concurrently.
2. From the record it appears, that during the pendency of this appeal, Arjun Singh, Jageshwar Singh, Patur Singh and Shankar Singh died. This is the latest information submitted by the State through an affidavit sworn by Assistant Sub Inspector of Police of Sisai Police Station on 29.06.2017. In the earlier ordersheet of this case, it was mentioned that Chatur Singh has died, but, in view of the latest affidavit dated 29.06.2017, wherein it has been mentioned that Chatur Singh is alive and only the aforesaid four appellants are dead, this appeal, thus, stand abated against Arjun Singh, Jageshwar Singh, Patur Singh and Shankar Singh and subsists against the rest four appellants, namely, Chatur Singh, Balkeshwar Singh, Nageshwar @ Nago Singh and Mangal Singh irrespective of the orders passed earlier.
3. The prosecution case is based upon the fardbeyan of the informant Dilawati Devi, recorded on 03.11.1985 at about 09.00 a.m., stating therein that on the previous day at about 02.00 p.m., she along with her deceased husband Ram Gulab Singh, harvested their crops from their field and was keeping them in their barn. Arjun Singh son of Narayan Singh, Chatur Singh, Patur Singh, Balkeshwar Singh son of Chandan Singh came and started abusing the informant and her husband in filthy language. In the meantime, the brother-in-law of the informant Bandhan Singh and Laxman Singh also reached. The husband of the informant, Ram Gulab Singh forbade the accused persons not to abuse them. Then from the northern side, Jageshwar Singh, Nago Singh son of Alam Singh, Gandur Singh son of Budhnath Singh, Budhnath Singh son of Bhim Singh, Shankar Singh son of 3 Chatru Singh, Chatru Singh son of Narayan Singh, Mangal Singh son of Chatru Singh, armed with stones, rods and sticks surrounded the informant, her husband and her brother-in-laws. Chatur Singh, with the help of an axe stuck on the head of the husband of the informant and the rest accused started assaulting the informant and her brother-in-laws with sticks and stones. It is further stated that the informant and others screamed for help, but, no one from the village came to their rescue, as a result of which, her husband died at the spot, because of the assault made by axe, stick and stones. It is stated that because of the fight, the accused persons also got injured from there own weapons, which they were carrying. The accused left the place after threatening the informant that they will also commit murder of their children and all her brother-in-laws. She stated that the genesis of the occurrence is a subsisting land dispute, as her husband had already lodged a case against the accused persons and because of the said case, when the police had gone to arrest Arjun Singh, Chatur Singh, Patur Singh, Balkeshwar Singh, all of them turned hostile towards this informant and they had threatened of murderous attack.
4. On the basis of aforesaid fardbayan, Sisai P.S. Case No.67/85 was registered under Sections 147, 148, 149, 324/302 of the Indian Penal Code corresponding to G.R. No.442 of 1985. The police investigated the case and submitted chargesheet against all the appellants. Since the case was exclusively triable by the Court of Session, after taking cognizance, the case was committed to the Court of Session. Charge was framed against the appellants Chatur Singh under Section 302 and 148 of the Indian Penal Code. Further Balkeshwar Singh, Patur Singh, Chattu Singh, Arjun Singh, Jageshwar Singh, Nageshwar Singh, Gandur Singh, Budhu Singh, Shankar Singh and Mangal Singh were charged for committing an offence punishable under Section 147 and Section 149 read with Section 302 of the Indian Penal Code. Chatur Singh, Balkeshwar Singh, Patur 4 Singh, Chattu Singh, Arjun Singh, Jageshwar Singh, Nageshwar Singh @ Nago Singh, Gandur Singh, Budhu Singh, Shankar Singh and Mangal Singh were further charged for committing offence punishable under Section 307 of the Indian Penal Code. The appellants pleaded innocence and claimed to be tried, thus they were put on trial. The prosecution, in order to prove the charges, has examined altogether 12 witnesses. After closure of the evidence, the statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. The defence also examined one witness, Tikha Oraon in their support. The Trial Court, thereafter, evaluated the evidence adduced on behalf of the prosecution as well as the defence and ultimately came to the conclusion that the appellant Chatur Singh is guilty for committing offence punishable under Sections 302, 148 of the Indian Penal Code and other appellants are guilty for committing offence punishable under Section 307 of the Indian Penal Code; further found all the accused guilty for committing an offence punishable under Sections 302, 149 of the Indian Penal Code, and thus, passed the impugned Judgment of conviction and Order of sentence, which is under challenge in this appeal.
5. We have heard the learned counsel appearing on behalf of the Appellants and the learned Additional Public Prosecutor for the State.
6. Learned counsel for the appellants submits that the appellants have been falsely implicated in this case and the reason for false implication is the subsisting land dispute between the parties, which is admitted by the prosecution. He submits that on the facts and circumstances of the case, this case could not come within the purview of Section 302 of the Indian Penal Code. He submits that from the evidence adduced in this case, it is clear that only one blow was given to the deceased and there being no repetition of any blow, it can be safely presumed that there was no intention to commit murder of the deceased. He submits that from the prosecution case itself, it is clear that there was injury on the person of the 5 appellant, which clearly suggests that there was a free fight among the parties. It is submitted that when there is a free fight amongst two groups, death resulting out of the same cannot come within the purview of Section 302 of the Indian Penal Code. It is also submitted that if the evidence of P.W.2 is scrutinised in a proper manner, it can be concluded that there are no other eye witnesses present at the place of occurrence, thus, the other witnesses, claiming to be an eye witness, have improved their story and projected themselves as eye witnesses, though they were not, thus giving a fatal blow to the prosecution case. He submits that by the aid of Section 149, the appellants could not have been convicted under Section 302 of the Indian Penal Code on the facts of this case. It is submitted by the learned counsel that in absence of recovery of murder weapon, accusation is absolutely bad. It is lastly submitted that in view of the aforesaid position, appellants are entitled to be acquitted.
7. Learned A.P.P. submits that the evidence of all the eye witnesses are consistent and there is no deviation in their statement. He submits that evidence of P.W.2 is corroborated by other witnesses. The place of occurrence is the barn of the informant where the appellants entered and committed the crime. According to the A.P.P., this suggests that the appellants entered the property of the informant and committed the crime and thus, it is established that the appellants were the aggressors. He submits that the accused persons were all armed with weapon including axe, which clearly suggests that there was intention to commit murder. It is submitted that even giving a single blow on the vital part of the body, which causes death, is sufficient for convicting the accused under Section 302 of the Indian Penal Code. He submits that the informant party were unarmed and an attack on the unarmed persons with sharp cutting weapon clearly suggests the intention. He lastly submits that in view of the aforesaid position, the judgment of conviction and order of sentence needs no interference. 6 8. We have heard learned counsel for the appellant and the learned A.P.P. for the State. We have also scrutinised the evidence in this case and have gone through the Lower Court Records including the documents and exhibits. As mentioned earlier, altogether 12 witnesses have been examined on behalf of the prosecution. (A) P.W.1 Birdhan Soren, P.W. 3 Pradeep Kumar Bhagat, P.W.8 Prahlad Sah and P.W.10 Madhusudan Prasad are formal witnesses, i.e., witnesses not on the point of occurrence. P.W.1 Birdhan Soren proved the fardbeyan, which was written by Hargovind Das, based on the statement of the informant. He exhibited the formal FIR. P.W.3 Pradeep Kumar Bhagat exhibited the signature of Hargovind Das, which was marked as Exhibit 2. P.W.8 Prahlad Singh has exhibited the postmortem report as Exhibit 5. P.W.10 Madhusudan Prasad has exhibited the two injury reports which were marked as Exhibits 6 and 6/1. (B) P.W.7 is a tendered witness. (C) P.W.9 is Dr. S.M. Thakur, who conducted the postmortem examination of the dead body of Ram Gulab Singh. He found the following ante-mortem injuries on the dead body: - (I) Incised wound on the right parietal region of the head - 5 ½” x 3” x 2” On Dissection The scalp, right parietal bone, meninges, brain matters were found cut, blood clots were found present in the skull. Some brain matter was protruding out of the wound. (II) Bruise 3” x 2 ½” on the right forearm, with fracture of radius and ulna bone. (III) Abrasion on the right knee 2” x ¼” As per the doctor, the injury No.1 and 2 were grivous in nature and rest were simple. He also opined that injury No.1 was sufficient to cause death in the ordinary course of the nature. As per the doctor, injury No.1 was caused by sharp cutting weapon like Tangi and remaining injury was caused by hard and blunt 7 weapon like Lathi. He opined that the death was caused due to shock and haemorrhage because of the above injuries. The postmortem report was in his pen and signature, which he identified. (D) P.W.11 is Dr. M.M. Sidique, who examined the injured Shri Bandhan Singh son of Balkeshwar Singh. He found the following injuries on his person: - (I) Incised wound 2” x ¼” x ½ “ with the cut of skull bone in the middle of the head. (II) Abrasion ½” x ¼” - ¼” below the left eye (III) Abrasion 1” x ½” - medial surface of the left knee joint. (IV) Abrasion 2” x ½” on the upper portion of the left scapular surface. (V) Abrasion 1 ½” x ½” on the back of the chest - in the mid- line, 2½” below the scapulae. (VI) Abrasion 2” x 1” on the medial surface of the right deltoid surface. (VII) Contusion 3” x 1” on the right shoulder joint. (VIII) Abrasion 1” x ½” on the posterior surface of the left forearm, 4” below the left elbow joint. (IX) Abrasion ½” x ½” on the lateral surface of the left forearm. (X) Abrasion ½” x ½” on the dorsal surface of the left forearm The distance between injury No. IX and X is 2 ¼” only. As per the doctor, injury No.1 was grivous and the rest injuries were simple. As per him injury No.1 was caused by sharp weapon like Tangi and rest were caused by hard and blunt substance. He also examined Smt. Dilawat Devi, the informant and found the following injuries: - (I) Incised wound 2” x ¼” x ¼” on the front of the right leg. (II) Abrasion 1” x ½” on the lateral surface of the left forearm, 2” above the left wrist joint. (III) Abrasion 1” x 1” on the dorsal surface of the right hand, 1” below the wrist joint 8 As per his evidence, all the injuries were simple in nature and injury No.1 was caused by sharp weapon like tangi and the rest were by hard and blunt substance. Both the doctors, i.e., P.W.9 and P.W.11 have exhibited the postmortem report and the injury reports respectively. (E) P.W.2 is the informant and an eye witness of this case. She stated that Chattu, Arjun and Bhim had taken money from her and she had purchased a land from the accused persons. She stated that the land, which the informant had purchased from Mahinder Singh was the subject matter of dispute between them and Nago Singh and Jageshwar Singh. She stated that three years ago, when they were in their barn, Gandur, Arjun, Chatur, Budhu Singh, Chattu Singh came in the barn where her husband and her brother-in-laws were present, they started quarreling with the informant. When the husband of the informant forbade them from quarreling, Chatur, Gandur and Budhu ordered the others to kill the informant, then the accused persons cornered the informant and started pelting stones. Gandur and Budhu hit the husband of the informant with stones, when her husband fell down, Nago and Jageshwar started assaulting him with sticks. Chatur Singh struck him, on his head, by an axe, as a result of which the brain matter came out. Only one blow was given by Chatur Singh on the head of the deceased resulting in death of the deceased. Laxman and Bandhan were also assaulted by Budhu Singh. Nago assaulted the informant by the wooden handle of the axe resulting in injury in her hand. Nago, then assaulted at the leg of the informant by the sharp side of the axe. The informant's brother-in-laws came there after harvesting the crops. She further stated that she had given a statement to the police and finding the recordings to be correct, she had put her thumb impression. She was referred to the medical centre for treatment. She saw her brother-in-laws. The dead body of her husband was sent for postmortem. She identified Chatur 9 Singh, Nago Singh, Bale Singh in Court. She stated that the entire incident had taken place in their barn. (F) At this point, it is important to note a very important development, which had taken place in this case. The evidence of this informant was deferred on 23.12.1988 and she was not fully cross-examined. She was again cross-examined on 11.01.1989. When she came before the Court for further cross examination surprisingly, she deposed that she had compromised with the accused persons. She further stated that she did not see as to who assaulted her husband nor could she see as to who had given the axe blow. She further stated that Arjun Singh was injured in the said scuffle and he was in hospital as his leg was fractured and he could not walk properly. She further stated that there was fight from both the sides. This part of her statement is surprisingly in a different tenor than what she had stated earlier. The impact of this part of the cross examination of this witness will be discussed at an appropriate stage. (G) P.W.4 is Bandhan Singh, who is the brother of the deceased. He supported the prosecution version. He stated that his brother and the informant were in the barn when they also reached after harvesting crops. The accused persons also reached there armed with axe, stones and sticks. He stated as to which weapon each of the accused were carrying. He further stated that the accused started assaulting the deceased. Chatur Singh struck the deceased on his head by the sharp side of the axe, as a result of which brain matter came out and the deceased started bleeding. He stated that Chatur Singh continued assaulting him inspite of the fact that the deceased fell down. When the informant came to save her husband, Chatur also struck her on her leg by the sharp side of the axe. This witness also stated that he was also assaulted by the sharp side of the axe, as a result of which, there was fracture in his head. He further stated that he was also assaulted on his leg. He deposed that his brother Laxman was also assaulted by 10 Chatur Singh with the help of axe and Budhu Singh assaulted him by stones. He stated that he became unconscious as a result of the assault and could not say as to who assaulted him thereafter. He stated that police came and recorded the statement of the informant and sent this witness for treatment. He stated that his brother purchased land from the accused persons. He stated that he left the village after the incidence because he was threatened by the accused persons. He identified Chatur and Nago, who were in the Court and claimed that he can identify the other accused persons. He also stated that right leg of Arjun Singh got fractured in the said occurrence, but, could not say as to who assaulted him. He stated that he has given his statement before the police. (H) P.W.5 Pancham Singh is the witness to the inquest. He identified his signature, which was marked as Exhibit 5. He identified the signature of Gandura Oraon also. He is also a signatory to the seizure list and he confirmed that the police seized blood stained earth. He identified his own signature as also the signature of Gandura on the seizure list. (I) P.W.6 is Laxman Singh. He stated that they were storing grains in the barn when the accused persons came and started abusing in filthy language his brother (the deceased) and his sister-in-law (the informant). His brother forbade Arjun, Chatur, Patur, Balkeshwar, when Nageshwar, Gandur Singh, Chattu Singh, Mangal Singh, Budhu Singh and Shankar Singh came and started assaulting with sticks, stones. Chatur Singh first assaulted Ram Gulab Singh with the back side of the tangi as a result of which right hand of Ram Gulab Singh got fractured. Then Chatur Singh gave 4 - 5 axe blows (from the sharp end) on the head of Ram Gulab, as a result of which his head got punctured and brain matter came out and blood started to ooze out from the wound. Ram Gulab died. Then all the other accused persons indiscriminately started assaulting the deceased. Bandhan was also assaulted by Chatur by the sharp side of the axe, as a result of which she 11 also got severely injured. Chatu Singh, Budhu Singh, Jageshwar Singh, Nago Singh, Shankar Singh, Mangal Singh also assaulted by stones. Chatur assaulted the informant on her leg by the axe. This witness also stated that he was also assaulted by Chatur Singh on his head. He stated that he was also assaulted by Nageshwar and Budhu. This witness has stated that he was assaulted by Nageshwar by a wooden log of Mango tree. He stated that Arjun Singh, Chatur Singh, Gandur Singh, Patur Singh were carrying axe. Chattu Singh was armed with axe and stick. Shankar Singh, Mangal Singh were armed with sticks. Jageshwar and Nageshwar were armed with Balua and sticks. He stated that the accused were related to Ram Gulab Singh and there was long standing land dispute between Chatur, Patur and Baleshwar with the deceased. He stated that his deceased brother had lodged a case for theft of paddy 8 days prior to the occurrence against Patur and others. He stated that Arjun, Chatur, Baleshwar came but they did not start the assault when rest of the accused reached the place of occurrence, the assault started. He stated that they were surrounded by the accused persons and then the assault started. (J) P.W.12 is Harigovind Das, who was the Officer-in-Charge of Sisai Police Station. He stated that he received information on 02.11.1985 at about 22.00 hrs. from Balkeshwar Singh that some fight had broken out between Ram Gulab Singh and Patur Singh and both the parties had received injuries. He made a station diary entry and went to the place of occurrence. On the next date, he recorded the fardbayan of Dilawati Devi. He identified the fardbayan, which was already marked as an exhibit. She recorded the statement of the witness and thereafter prepared the inquest report, which was marked as Exhibit 1. He described place of occurrence and the location of the barn where the occurrence had taken place. He stated that the soil was drenched with blood. He also found harvested paddy in the barn. He stated that there was land dispute between the parties. He admitted that 12 he had seized blood stained soil and prepared a seizure list. The seizure list was marked as Exhibit 2. He stated that as he had gone for training, he handed over the investigation to Ram Swarth Singh, who, thereafter, filed the chargesheet. He stated that he saw mark of assault on the person of the informant and Bandhan Singh and he prepared a memo and the same was marked as Exhibit 9 9/1. He stated that when he reached the place of occurrence at night, he found the informant and Bandhan Singh. He stated that he recorded the fardbayan of Dilawati at the place of occurrence. He also admitted that he had recorded the statement of Bandhan Singh. He also recorded the fardbayan of counter case. He stated that he had also prepared the seizure list and had seen the papers of the land, which was the subject matter of the dispute. (K) As mentioned earlier, there is one witness examined by defence. Bhikha Oraon, who was examined as D.W.1, he stated that about 6 years ago a fight had taken place between Chatur Singh and Gulab Singh. It was a Saturday in the month of Kartik when at around 2.30 p.m. he was plucking Urad from the field at Rugri Tand. He had seen Arjun Singh going to market. When he reached near the fields of Gulab Singh, Gulab Singh, Bandhan Singh, Lacchu Singh started assaulting Arjun Singh with tangi. Arjun Singh suffered injuries at his legs and head and he fell down. Thereafter, Chatur Singh, Patur Singh came there and asked Gulab Singh and others as to why did they assault Arjun Singh, upon which Gulab Singh told “ISKO MARO”. Thereafter Gulab Singh assaulted Chatur Singh with tangi. Bandhan Singh and Lachchu Singh also assaulted him. Chatur also assaulted Gulab on his legs and hands and Gulab Singh fell down on a stone. Thereafter this witness left the place. In cross examination, this witness stated that he does not know the reason of the fight. He had seen the fight from a distance and had not seen the fight from the beginning. He stated that Chatur Singh had come for deposing in the Court. He denied to have given false evidence. 13 9. After analysing the evidence adduced on behalf of the parties, we find that the place of occurrence has been proved by the prosecution. The same is the barn of the informants, where the occurrence had taken place. Though the defence witness, D.W.1, had tried to shift the place of occurrence, but, in vain. In view of the statement of the investigating officer and other prosecution witnesses, we find that the evidence of defence witness, D.W.1, is not believable. His statement finds no corroboration either from any independent witness or from the evidence of the investigating officer, so far as it relates to the place of occurrence. As per the investigating officer also, the place of occurrence is the barn. He found paddy stacked in the barn.
10. The informant, who is the wife of the deceased, has categorically stated that the deceased was attacked and was hit on the head by the sharp side of the axe by Chatur Singh. This informant has also stated that she was also assaulted on her leg by Nago. As per this witness, Nago assaulted her by the wooden handle of the axe in her hand and thereafter by the sharp side of the axe on her feet. As per this witness, her brother-in-laws were also assaulted by the accused persons. P.W.4 Bandhan Singh, who is the brother of the deceased, supported the prosecution case and has stated that Chatur Singh had struck the deceased on the head by the sharp side of the axe as a result of which the brain matter came out. P.W.6 Laxman Singh, another brother of the deceased and an eye witness, also stated in the same manner. According to these two witnesses, Chatur Singh gave 4-5 axe blows from the sharp side on the head of the deceased, though the informant stated that Chatur Singh only gave one blow on the head from the sharp side. Though the number of blows are different as per the version of these witnesses, yet on one point they are consistent, that because of the blow, brain matter came out. This fact is supported by the medical evidence. The doctor, who conducted the postmortem, has stated that because of the assault, the brain 14 matter came out of the head. P.W.2 also stated that Nago and Jageshwar assaulted the deceased with sticks. The assault made by Chatur on P.W.4, i.e., Bandhan and P.W.6 Laxman Singh, is also supported by those witnesses and also by the doctor, who examined them. The injury report of Dilawati Devi also supports the fact that she was assaulted on her leg as there was incised wound on her right leg and there was abrasion on the forearm and right hand. Thus, from the evidence and the medical reports, the fact of assault on the deceased, the informant and P.W.4 and P.W.6 is proved. All these witnesses have specifically stated that it is Chatur Singh, who had given the fatal blow on the head of the deceased.
11. The counsel appearing for the appellants submitted that it was only one blow given on the head and thus, it cannot be said that there was intention to commit murder of the deceased by Chatur Singh. We are not agreeing with the said argument. P.W.4 and P.W.6 stated that the deceased was struck on the head 4-5 times, but, the informant, P.W.2, states that the deceased was struck once. These witnesses, though differ on the number of blows given on the head of the deceased, yet, they are consistent on the point that the deceased was hit on the head by Chatur Singh by the sharp side of the axe and because of the said assault, the brain matter came out. The doctor also found one injury on the head, which was caused by sharp cutting weapon and the brain matter came out. The doctor, categorically, stated that the said injury is sufficient to cause death in ordinary course of nature. The intention of the accused can be gathered from the nature of the weapon used and the part of the body which was attacked. Here the fatal blow was given by the sharp side of the axe on the head, which is the vital part of the body. The blow was such that the brain matter came out and the said blow was sufficient to cause death in normal course. This suggests that the intention of Chatur Singh was to cause death of the deceased. Had the intention 15 been something else, he could have easily used the back portion of the axe or its handle to assault the deceased. In this context, it may be pointed out that the informant was also assaulted by the co-accused Nago on her hand by the wooden handle of the axe and on her leg by the sharp side of the axe. This action of Nago suggests that his intention was not to commit murder, otherwise, he could have easily assaulted the informant by the sharp side of the axe on the vital part of the body. We are mentioning this fact only to suggest that the intention of Chatur, by using the sharp side of the axe as the weapon of assault, on the head, would only suggest that there was intention to commit murder.
12. So far as argument of the defence that there was a free fight and in the free fight assault was made by Chatur and thus, the same will not come within the purview of Section 302 of the Indian Penal Code, is not accepted. His argument that Chatur was also injured in the free fight is also not accepted by this Court, as there is no proof of the same. It is only P.W.2, the informant, who, in her “further cross examination” had deviated from her original version and had stated that Chatur was also injured and his leg was fractured and he did not see as to who had given axe blow on her husband. She also stated that she has compromised with the accused persons, this part of the evidence of P.W.2, we are not taking into consideration, because this Court feels that after her cross-examination was deferred on 23.12.1988, she was further cross-examined on 11.01.1989 when she had given the aforesaid statement. This suggests that there must have been some act on the part of the accused persons to gain over this witness. This sort of actions must be depricated. There is nothing on record, not even a single document, to suggest that Chatur Singh was injured. The defence could have brought injury reports, if they wanted to rely on the same. Mere statement of P.W.2, that too after her first cross-examination was deferred, do not inspire any 16 confidence. Thus, the argument of the counsel for the appellant, so far as Chatur Singh is concerned, is not accepted.
13. Thus, from the aforesaid facts, on the discussions made above, we find that Chatur Singh has been rightly convicted for committing an offence under Section 302 of the Indian Penal Code and has been correctly sentenced to undergo rigorous imprisonment for life.
14. So far as the other alive appellants are concerned, i.e., Balkeshwar Singh, Nageshwar @ Nago Singh and Mangal Singh are concerned, they have been convicted for offence under Section 307 of the Indian Penal Code and also convicted for offence punishable under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code. From the evidence, we find that so far as Balkeshwar and Mangal Singh are concerned, it is the case of the prosecution that the allegation is general and omnibus in nature. It is stated that they were armed with sticks and stones. No specific overt act is attributed to Balkeshwar or Mangal Singh in this case. Witnesses also did not say anything specific. To convict an accused, who is a member of an unlawful assembly with the aid of Section 149 of the Indian Penal Code, it has to be proved by the prosecution that they also shared a common object. In the instant case, from the evidence, we find that the prosecution has failed to bring on record that Balkeshwar Singh and Mangal Singh had shared the common object with Chatur Singh to commit murder of the deceased. As per P.W.6, Mangal Singh was armed with a stick. The allegation is that these two appellants, i.e., Balkeshwar Singh and Mangal Singh used sticks and stones. This suggests that they did not share the intention of committing murder of the deceased with Chatur Singh. Further, we find that there is nothing on record, nor there is any evidence against Balkeshwar and Mangal Singh to attract the offence punishable under Section 307 of the Indian Penal Code as there is nothing to suggest that they had intention or knowledge that by 17 their act of assault, they can cause death to any of the informant party. Thus, their conviction under Section 307, 302 read with Section 149 of the Indian Penal Code is absolutely bad.
15. So far as Nageshwar @ Nago Singh is concerned, from the evidence we get that he assaulted P.W.2, the informant, on her hand from the wooden handle of the axe and thereafter by the sharp side of the axe on her feet. Further, there is general allegation that he also took part in the assault on the other witnesses. This also suggests that he also had no intention to commit murder nor shared common intention with Chatur. Further, P.W.6 has stated that he was assaulted by Nageshwar by a wooden log of Mango tree. The evidence of doctor suggests that injury on the informant is simple in nature. All the injuries on P.W.4, except injury No.1, are simple in nature. Injury No.1 was caused by Chatur Singh and not by other appellants. The injury report of Laxman Singh is not on record. Thus, his conviction under Section 307 of the Indian Penal Code and Section 302 read with Section 149 of the Indian Penal Code is bad.
16. Thus, we find that Nageshwar Singh had given blow on other persons, the same is not on the vital part of the body and thus, cannot attract Section 307 of the Indian Penal Code. Thus, conviction of Nageshwar Singh under Section 307 of the Indian Penal Code is also bad. The act of Nageshwar @ Nago Singh will fall within the provision of Section 324 of the Indian Penal Code as prosecution has proved that Nageshwar has assaulted the informant on leg and hand by a dangerous weapon. Thus, we convert his conviction to that of one under Section 324 of the Indian Penal Code. He was in custody for about 194 days, so the sentence awarded to him is modified to the period which he has already undergone.
17. From the aforesaid discussions, we conclude that the conviction and sentence of Balkeshwar Singh, Nageshwar Singh @ Nago Singh and Mangal Singh under Section 307 of the Indian Penal Code and Section 302 read with 18 Section 149 of the Indian Penal Code are bad and are liable to be set aside. Appellant Nageshwar @ Nago Singh is convicted for committing an offence punishable under Section 324 of the Indian Penal Code. So far as conviction and sentence of Chatur Singh is concerned, the same is affirmed. We find no illegality in the judgment of conviction and order of sentence passed against him. This appeal stands partly allowed.
18. From the records it appears that all these four appellants, i.e., Chatur Singh, Balkeshwar Singh, Nageshwar @ Nago Singh and Mangal Singh are on bail. In view of what has been ordered earlier, appellants Balkeshwar Singh, Nageshwar @ Nago Singh and Mangal Singh are discharged from the liabilities of their bail bonds. As we have upheld the conviction and sentence of appellant Chatur Singh, he is directed to surrender before the Court below within a month to serve the rest of the sentence, failing which the Trial Court is directed to take all coercive steps for taking him into custody for serving the sentence.
19. Let the Lower Court Records be transmitted forthwith to the Court concerned with a copy of this judgment. (Ananda Sen, J.
) H.C. Mishra, J.
I agree. (H.C. Mishra, J.) Dated, the 08 November, 2017 High Court of Jharkhand, Ranchi NAFR/Kumar