Full Judgment
Onkareswar Bhatt, J.
1. Appellants, Inder Singh, Himmat Singh, Ram Swarup, Arjun Singh, Indrapal Singh, Murli Singh, Basudeo, Sukhdeo Singh, Hanumant Singh, Samrath Singh, Harnam Singh, Mahendra Singh, Badan Singh, Babu Singh, Amar Singh and Ram Sewak, have preferred this appeal against the order of their conviction and sentence passed by the Addl. Sessions Judge, Jalaun at Orai on 14-11-1980 in Sessions Trial No. A 73 of 1976. Appellants Inder Singh, Himmat Singh, Ram Swarup, Arjun Singh and Indrapal Singh have been sentenced to three years rigorous imprisonment under Sections 395/397, I.P.C. while the remaining appellants have been sentenced to two years rigorous imprisonment under Section 395, I.P.C. The Government appeal has been filed for enhancement of the sentence.
2. Sri G.S. Chaturvedi, learned Senior Advocate, assisted by Sri Samit Gopal, learned counsel for the appellants, and the learned A.G.A. for the State have been heard.
3. According to the prosecution case informant, Shanker Singh P.W. 3, along with his brothers, Chhinga Singh P.W. 4 and Tulsi Ram P.W. 6, was harvesting Ghana Bejhar crop in his Padwa field in village Bairaee bearing Khasra No. 586 on 8-3-1974 at 10 a.m. At that time appellant Inder Singh armed with gun, Himmat Singh and Ram Swarup armed with spear, Arjun Singh and Indrapal Singh armed with country made pistol and the remaining appellants armed with lathis came to the said field. They were also accompanied by one Bishambhar Singh, who died during the trial. On the exhortation of appellant Ram Swarup appellants Inder Singh and Arjun Singh fired from their respective weapons, which hit Chhinga Singh, Onkar Singh and Tulsi Ram. The appellants carried away the cut crops in four bullock carts which they had brought to the thrashing floor of the appellant Hanumant Singh. The occurrence was seen by Vakil Singh P.W. 5 and others. The informant, Shanker Singh lodged F.I.R. of the occurrence at Police Station Kalpi at 3.40 p.m. on 8-3-1974. The distance of the police station from the village is six miles.
4. The appellant, Hanumant Singh, who is the son of Nek Singh, has stated that on plot No. 586 his father was in possession. In the year of occurrence he had sown the crop in said field which was kept at his thrashing floor. On the date of occurrence Atar Singh and others came to the thrashing floor along with bullock carts and started placing the crop on the bullock cart. He further stated that when he protested Atar Singh fired at him. At that time Onkar Singh and Beta Singh also fired from their gun due, to which their companions sustained injuries. Appellant, Hanumant Singh also lodged F.I.R. on 8-3-1974 at 10.30 p.m. against Atar Singh and twenty four others in respect of his cross version.
5. Padwa field bearing No. 586 is claimed by the informant to be in his possession while appellant, Hanumant Singh claims, that his father Nek Singh was in possession over the same. The appellants have filed several papers. Copy of judgment of Sessions Trial No. 110 of 1969 decided on 3-8-1970 shows that informant Shanker Singh's father Mardan Singh had filed a complaint against Nek Singh i.e. father of appellant, Hanumant Singh, Bishambhar Singh and two others that they had got forged entries in their favour regarding plot No. 586. The case, however, ended in acquittal. Copy of order of Sub-Divisional Officer Kalpudhara dated 31-7-1974 under Section 229-B of the Z.A. and L.R. Act shows that the names of Mardan Singh and others were ordered to be mutated as Sirdars over plot No. 586 and the name of Nek Singh was ordered to be expunged. This order of Sub-Divisional Officer was maintained in appeal by the Addl. Commissioner, Jhansi Division. Nek Singh has filed second appeal before the Board of Revenue which is pending. Apart from the above litigation plot No. 586 was also subject matter of proceedings under Section 145, Cr.P.C. By order dated 22-1-1972 the above plot was released in favour of Mardan Singh, i.e. the father of the informant. Report of the Station Officer of Police Station Kalpi shows that on 18-2-1972 the plot in dispute was released in favour of Mardan Singh. The occurrence had taken place in the year 1974 which corresponds to 1381 Fasli. The suit under Section 229-B of the Z.A. and L. R. Act was decreed in favour of the Mardan Singh and his name was ordered to be recorded as Sirdar over plot No. 586. In view of the said order Khasra entries of 1380, 1381 and 1382 Fasli in favour of Nek Singh, father of appellant Hanumant Singh, cannot be relied upon. The trial Court has also rightly not relied upon Khatauni of 1375 to 1377 Fasli by which the name of Nek Singh was ordered to be recorded over plot No. 586 by virtue of the order passed in suit No. 236 decided on 16-3-1963, because the defence has not filed certified copy of the order passed in suit No. 23. The defence has not been able to show that after the release of the plot No. 586 in favour of the appellant's father on 18-2-1972 how Nek Singh, i.e. father of accused Hanumant Singh acquired possession on the said plot. The trial Court rightly concluded that on the date of occurrence it was informant who was in possession over the Padwa field bearing No. 586. The statement of D.W 2 Ganga Deen that in the register of irrigation entry of irrigation in the year 1381 Fasli which stands in the name of Nek Singh by itself does not prove possession of Nek Singh. Ganga Deen has himself not made entries in the register and he cannot say whether the entries are genuine or not.
6. The statements of the informant Shankar Singh P.W. 3, injured Chhinga Singh P.W. 4, injured Tulsi Ram P.W. 6 in respect of the occurrence which is alleged to have taken place in Padwa field is supported by independent witness Vakil Singh P.W. 5. The field of Vakil Singh is near the Padwa field. The witness has corroborated the prosecution story in all material details. He has stated that all the appellants came to Padwa field and appellants Inder Singh and Arjun Singh fired due to which Chhinga Singh, Onkar Singh and Tulsi Ram sustained injuries when the appellants were jointly concerned in committing the robbery of the harvested crop of the informant. The statements of the prosecution witness find corroboration from the medical evidence also. P.W. 1 Dr. Subhash Chandra Saxena has found five gun shot injuries on the person of Chhinga, two gun shot injuries on the person of Onkar Singh and two injuries on the person of Tulsi Ram which could be caused by firm arm.
7. It has been contended that the prosecution has not explained the injuries on the person of appellant Hanumant Singh. D.W. 1 Dr. Subhash Chandra Saxena had examined the injuries of Hanumant Singh on 9-3-1974 at 7 a.m. and had found following injuries.
1. Lacerated wound 1/2 cm diameter frontand middle of left thigh.)
2. Lacerated wound 1/2 cm diameter with abrasion (scabed) and contusion 3/4 cm x 1/3 cm on outer aspect of left thigh.
3. Lacerated wound 1/2 cm diameter front of left leg.
4. Lacerated wound 1/2 cm diameter on right thigh lower part.
8. The injuries were simple in nature and according to the doctor they could have been caused by pellets on 8-3-1974 at 10 a.m.
9. The Doctor has stated that he has not noted depth of the injuries because there was no depth in them. He has further stated that injuries could have been caused on 8-3-1974 at 2 p.m. He has further stated that these injuries could be caused by hard pencil or nail. According to the cross version and the statement of appellant Hanumant Singh three persons were carrying guns which they fired. In all there were 25 persons who came to the thrashing floor of Hanumant Singh. The above cross version which has come does not fit in with the nature of the injuries sustained by the appellant, Hanumant Singh. If the appellant Hanumant Singh was all alone as claimed by him at his thrashing floor and 25 persons had come there out of which three were armed with guns, then their firing would have caused much more damage to Hanumant Singh rather than causing of the injuries noted above which could also be self suffered or manufactured. In the case of `Takhaji Hiraji v. Thakore Kubersing Chamansing, reported in AIR 2001 SC 2328 : (2001 Cri LJ 2602) Supreme Court it has been held that non-explanation of the injuries on the person of accused may affect the prosecution case but the Court has to be satisfied of the existence of two conditions :
(i) that the injuries on the person of the accused were of a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in question.
10. In the case in hand it has not been established that injuries of the appellant. Hanumant Singh was received in the occurrence in question and also that they were of serious nature. Dr. Subash Chandra, D.W. 1, has stated that the injuries of Hanumant Singh could have been caused at 2 p.m. on 8-3-1974. Considering the nature of the injuries and the fact that they could have been caused on the date of occurrence at later point of time, the prosecution was not obliged to explain the injuries of Hanumant Singh which were simple and could have been manufactured.
11. In view of the aforesaid discussion, the appeal lacks merit and is liable to be dismissed and is dismissed accordingly.
12. Section 397, I.P.C. provides that if an offender uses deadly weapon at the time of committing dacoity, the imprisonment with which such offender shall be punished shall not be less than seven years. Appellants, Inder Singh, Himmat Singh, Ram Swarup, Arjun Singh and Indrapal Singh were armed with deadly weapons. Therefore, the sentence of three years which has been awarded to them is not legal. Government appeal for enhancement of the sentence of the above five appellants is partly allowed and they are sentenced to seven years rigorous imprisonment. The sentence of two years which has been awarded to other appellants calls for no interference.
13. The appellants are on bail. They shall surrender before the Chief Judicial Magistrate, Jalaun at Oral to serve out the sentences awarded to them. After their surrender their bail bonds shall stand cancelled and sureties shall stand discharged.
14. A copy of this judgment be sent to the Chief Judicial Magistrate, Jalaun at Oral for the follow up action.