Bhawani Singh, Actg. C.J.
1. These appeals (Criminal Appeal No. 238 of 1992, Kuldip Kumar and Anr. v. State of Himachal Pradesh) are directed against the judgment of Sessions Judge in S. Tr. No. 54U/7 of 1992/89, dated October 19,1992 whereby accused Kuldip Kumar has been convicted for offence under Sections 32/307/324 of the Indian Penal Code read with Section 27 of the Indian Arms Act, 1959 and accused Kamal Dev for offence under Section 324 of the Indian Penal Code. Accused Prithi Chand died during the trial of the case. Accused Kuldip Kumar has sentenced to imprisonment for life and to pay compensation of Rs. 4,000/- to Smt. Nirmala, mother of deceased Ajay Sharma, for offence under Section 302, Indian Penal Code; rigorous imprisonment for five years and to pay compensation of Rs. 4,000/- payable to Smt. Nirmala, wife of deceased Sat Pal, for offence under Section 307, Indian Penal Code; rigorous imprisonment for one year and to pay compensation of Rs. 2,000/-payable to Smt. Nirmala Devi, for offence under Section 324, Indian Penal Code; and rigorous imprisonment for one year for offence under Section 27, Indian Arms Act. All the sentences of imprisonment have been ordered to run concurrently allowing benefit of set off under Section 428, Criminal Procedure Code, 1973. Criminal Appeal No. 238 of 1992 has been preferred by the accused for their acquittal, while Criminal Appeal No. 9 of 1993 has been preferred by the State of Himachal Pradesh for conviction and setnence for the offences they were charged. Now, we discuss the facts of the case briefly.
2. Sat Pal (deceased was the head of the family. Wife is Smt. Nirmal (injured), daughters are Alka (injured) and Arti (deceased), son is Ajay Kumar (deceased) - five in all. The house of this family is located nearby the village common path, on the other side of which is located the land of accused Prithi Chand (died during the trial) and his sons accused Kuldip Kumar and Kamal Dev.
3. On November 14, 1988, deceased Ajay Sharma was pruning the branches of hedge on this path in order to remove the obstruction that had been created by them in this path. Accused Kamal Dev appeared on the scene and asked deceased Ajay Sharma not to do so since the same belonged to his family. Deceased Ajay Sharma replied that he would continue to prune the hedges since he had been doing so in the past also. Accused Kamal Dev exchanged hot words with deceased Ajay Sharma and thereafter left towards his house proclaiming that he would teach deceased Ajay Sharma a lesson. Soon thereafter, accused Kamal Dev, Kuldip Kumar came out of their house and reached at the place where deceased Ajay Sharma was pruning the hedges. Accused Kuldip Kumar was carrying a gun while accused kamal Dev had an iron road in his hand. Armed with an axe, accused Prithi Chand also followed them.
4. On reaching the spot, accused Kuldip Kumar asked deceased Ajay Sharma to stop cutting the hedges or to face the gun shots. The deceased took the threat lightly and did not pay attention to it. In the meantime, Satpal, Nirmala Devi, Alka and Arti also reached there. Accused Kuldip Kumar fired a shot which hit Sat Pal on thighs. Deceased Ajay Sharma proceeded to rescue his father. He was fired at by accused Kuldip Kumar. The fire hit him on the chest and he died instantaneously. The third shot of accused Kuldip Kumar hit Sat Pal on his legs, the fourth shot hit Arti on her legs. The fifth shot hit Sat Pal on the abdomen. Accused Prithi chand gave axe blow on the head of Nirmal Devi causing bleeding injury. He aimed another blow on the chest of Sat Pal but Arti pushed her head forward in her attempt to save Sat Pal from the impact of the blow which landed on her head causing a gapping wound resulting in her death in the evening: Accused Kamal Dev hit Alka with the iron rod just above the left eyebrow causing bleeding injury to her. Thereafter, the accused left the place.
5. The incident was witnessed by Nirmala Kumari, Saroj, Veena Kumari, Sunita Devi and some other persons of village Dhusara. Accused Kuldip Kumar came to the place again with changed clothes asking Sat Pal if he (Sat Pal) was satisfied with the treatment meted out to him and his family members and dis-appeared.
6. On this day, Station House Officer Pritam Chand Patyal of Police Station, Amb, was present at some distance in this village in connection with the execution of some warrant of possession issued from the Court. People were trying to contact the Police Station about this incident. Vijay Kumar came to know about the presence of Station House Officer Pritam Chand Patyal in the area. He went in search of him on his motor cycle and brought the Station House Officer to the bus stop where from the scene of occurrence could be reached on foot. He found that the injured were being carried towards the bus stop for being taken to the hospital. He also returned to the bus stop in order to ensure the immediate shifting of these persons to the hospital at Una through the Ambulanace that had already reached there. He came to the hospital with these injured persons. There, Alka narrated the incdident to him. He recorded it under Section 154, Criminal Procedure Code and forwarded the same to the Police Station, Amb for registering the case. Statement of Nirmal Devi and Sat Pal were also recorded and thereafter he sent to the spot. Shri Himanshu Misra was Deputy Superintendent of Police, Una. He was informed about this firing. He reached the spot and found a dead body lying there surrounded by several persons. He was informed by those people that the crime had been committed by accused Kuldip Kumar, Kamal Dev and Prithi Chand, who had absconded. The site was photograped. The polie party went around to search and apprehend the accused. The house of the accused was also searched, blood-stained clothes of accused Kuldip Kumar and Kamal Dev, the gun used by Kuldip Kumar, a leather belt containing two live and two empty cartridges, an axe, iron rod and a 'Darat' were recovered. Station House Officer Pritam Chand Patyal inspected the spot and took into possession various articles which were lying scattered on the spot. The included a silver ring, three 'Chappals', two empty cartridges and trimmed branches of the hedge. On November 15, 1988, he conducted the inquest proceedings in respect of the dead body of Ajay Shrma, despatched it to the District Hostpital at Una for post mortem examination, the post mortem examination was conducted by Dr. R.K. Jaswal (PW-9) who found the following ante-mortem injuries:
' 1. A wound on the external surface of left side of the chest measuring 2.9' x 1.6' about 7' from mid line at the level of third, fourth and fifth ribs. There was charring of skin all around the wound in an area about 1' on all the sides of the wound. The edges were inverted and were irregular. No pellets were seen in the surrounding area of the wound. There was no exit wound. Whole of the wound was in a straight line outwardly as well as in the muscles below the skin.
2. An oval wound in the chest wall which had crossed such wall was present. It was 3' lateral to the midline on the left side. The size was 3.9' x 2' at the level of third, fourth and fifth ribs. Extensive charring of the subcutaneous tissues and skin and the chest wall was present. The wound in the chest was about 3' medial to the wound in the skin. The middle and the lower lobes of the left lung markedly lacerated and collapsed. Lot of blood was there in the left hemi thorax. Four pellets were removed from the dia-phragmatic suface of the said hemi thorax. The antero lateral aspect of the heat was completely lacerated with few pellet injuries on the base of the heart and great vessels. Rubber was and seven pellets were removed from the diaphragmatic surface of the pericardium.'
According to the Doctor, the death had taken place from the gun shot injury which produced extensive damage to heart and left lung causing haemorrhage and shock. From inside the body, a wad and eleven pellets were recovered which were sealed in packets and handed over to the police.
7. The other four injured persons were also brought to the District Hospital, Una for medical examination. The following injuries were found on their persons by the Doctors :
Injuries found on the person of Sat Pal
' 1. Lacerated wound in the right inguinal region and upper part of right thigh 10 cm x 10 cm x 5.5 cm. Fresh blood was oozing. The margins were irregular. Injury was partially charred and tatooing of surrounding skin was present and the adjoining hair was signed. The muscles in the wound were brownish, black and lacerated.
2. A lacerated wound in the upper part of the thigh below the external left illiac crest 6 cm x 2 cm x 4 cm. The margins were lacerated and irregular. Surrounding skin was tatooing and signing was present. Fresh blood was oozing from the wound. The separate punctured wound in the surrounding area of the wound on the lateral and interior aspect in an area measuring 7.5 cm x 8 cm were also there. A pellet had been removed from the bottom of the wound. There was corresponding hole in the trousers worn by the examine.'
3. Multiple punctured wound were present in the left lateral aspect of the abdomen in an area measuring 17 cm x 6 cm. The area was partly tatooed. A hole measuring 24 cm x 8 cm was present in the sweater. The edges of the hole in the sweater were blackned and were irregular. A hole measuring 14 cm x 8 cm was present in the shirt corresponding to injury No. 3.
4. A sharp edged wound in the right palm 9 cm x 0.5 cm extending from in between the thumb and the index finger towards the ulnar aspect of the wrist. Fresh blood was oozing from the wound.'
Injuries found on the person of Nirmala Devi
'1. A sharp-edged wound was present on the left side of the middle of the occipital region of skull. It measured 7 cm x 1.5 cm x skull deep. The injury was bleeding. All the clothes of the examinee were stained with blood.
2. A sharp edged wound was present in the second digital space which measured 3 cm x 0.5 cm x 1 cm (depth). Fresh bleeding from the wound was present. The examinee was admitted in the hospital for observing head injury.'
Injuries found on the person of Alka Devi.
'1. Lacerated wound 2 cm x .05 cm on the left lateral aspect of the fore-head. Fresh blood was oozing.
2. An abrasion 2 cm x 2.5 cm just left of the middle of the fore-head. Reddish in colour.'
Injuries found on the person of Arti Devi.
'1. A sharp edged wound in almost the middle of the head 22 cm x 2 cm. The edges were everted, sharp and fresh. Bleeding from the wound was present. The wound was 5 cm and 4.5 cm from the mustoid tuberosity. The brain matter was projecting out from the wound. The shirt was soiled with blood.
2. Multiple punctured wound on the posterio medial aspect of the right thigh 6 cm x 5.5 cm. Fresh blood was oozing from the wound. Multiple punctures were present on the garments corresponding to injury in question in area measuring 7 cm x 8 cm on the left side of the Salwar. Multiple punctured wound on the posterio medial aspect of the thigh. No mark of injury was thereon the left thigh.'
8. Alka and Nirmala were admitted in the hospital at Una for treatment while Satpal and Arti Devi were referred to Post Graduate Institute of Medical Sciences, Chandigarh. Arti died on the way to the Institute. Her post mortem examination was conducted by Dr. Arun Kumar at District Hospital, Una noticing the following injuries:
' 1. There was a multiple punctured wound on the posterio medial aspect of right-thigh 3' away from the right knee cap. The size was 3' x 2' skin deep. Multiple punctures were present on the garments corresponding to the aforesaid injuries. The area of the garments in which such punctures were there was 4' x 2'. Pellets were not found on the dissection of the wound but the skin and the subcutenous tissues were charred. Contusions were present on both the shoulder joints. In the left shoulder the size of the contusion was 2' x 1'. It was skin deep. The contusion on the right shoulder was 3' x 1' and it was also skin deep.
2. A sharp edged wound in the centre of the head. The size was 7' x 2' x brain deep. The edges were everted and clean cut. The wound was 2' above the mustoid tuberosity. The brain matter was protruding out of the wound. The membrances and the brain matter in the said wound were crushed and multiple small pieces of the skull bone were also there in the brain matter.'
The opinion of the Doctor was that the death had occurred due to head injury which had affected the brain and had led to shock. Satpal remained in the Institute for a couple of months. Even after discharge from there, he had been visiting the Institute afterwards as per directions of the Doctors. However, he died in March, 1989.
9. It was on November 15, 1988, that the 'Banyan' which was being used by accused Prithi Chand, was taken by the police into possession and sealed in parcel. All the articles taken into possession by the police during the course of investigation of this case, were sent to the Chemical Examiner and Serologist. The opinion of the experts is that the two sets of 'Kurta' and 'Pyzama' recovered from the house of the accused, three 'Chappals' recovered from the spot, blood-stained soil collected from the spot, v-shaped Chappal of deceased Ajay Kumar and most of the clothes of the injured and the deceased were stained with human blood. According to the Ballastic expert, two empty cartridges had been fired through the gun recovered from the house of the accused and the wad and pellets were also fired through the same gun. This gun is a licenced gun in the name of accused Kuldip Kumar and was taken into possession from his house and the licence thereof was also handed over to the police by him.
10. The accused were charged for offences under Ss. 302/307/34, Indian Penal Code read with Section 27 of the Indian Amis Act, 1959. They pleaded not guilty to the charge. Their case is of simple denial stating that they did not commit the crime. According to them, the victims had business partnership with many others which failed resulting in inimical relations between the partners involved in litigation with each other, therefore, they or any other person could be responsible for the incident. Witnesses of the prosecution are inimical towards the accused, however, they have been involved in this case on account of pending litigation and inimical relations with the family of the vicitims, locked in other litigation.
11. Evidence was produced before the trial Court and after hearing the parties, it was found that accused Kuldip Kumar had committed offence under Ss. 302/307/324, Indian Penal Code read with Section 27 of the Indian Arms Act, 1959, while accused Prithi Chand and Kamal Dev under Section 324, Indian Penal Code, ruling out the application of Section 34, Indian Penal Code and punished accordingly.
12. Two appeals (Criminal Appeal No. 6/90, Kuldip Kumar v. State of Himachal Pradesh; and Criminal Appeal No. 175/90, State of Himachal Pradesh v. Kuldip Kumar) were filed against this decision accused challenging conviction and sentence and the State appealing for the enhancement of the sentence. The Division Bench of this Court (Kamlesh Sharma and D.P. Sood, JJ.) allowed the appeals and remanded the case to the Sessions Judge for recording the statements of Sharif Mohammed (PW11), Roshan Lal (PW18), Vijay Kumar (PW19) and Mool Raj (PW20) and proceed with the trial in accordance with law. The trial Court proceeded accordingly and ultimately recorded the impugned judgment.
13. The sole question for consideration and determination is whether the prosecution has proved beyond reasonable doubt that the accused committed the offence charged with? Learned counsel appearing for both sides vehemently contended in support of their respective contentions - Shri T. R. Chandel for the acquittal of the accused and Mrs. Shyama Dogra, learned Deputy Advocate General, for the conviction of the accused - both placing reliance on the evidence available on the case file which was extensively read during the course of their submissions. We proceed to examine the case on the basis of available evidence.
14. Alka (PW1) is the daughter of Satpal (deceased). She stales that on November 14, 1988, at about 12.30 p.m. deceased Ajay Khanna was clearing the fence along a path to make it unobstructed and wide enough. Accused Kamal Dev came there and asked him to stop the clearing operation. On hearing accused Kamal Dev shouting at deceased Ajay Sharma, she and other members of the family including her father, went to the site. Her brother told accused Kamal Dev that earlier also he had been clearing the path, therefore, he was doing the same job. Accused Kamal Dev left the scene saying that he would see her brother. Immediately thereafter, when accused Kamal Dev had not even reached his house after threatening deceased Ajay Sharma, accused Kuldip Kumar came out from his house with a gun in his hand. Perhaps on hearing accused Kamal Dev shouting at deceased Ajay Sharma, reaching the spot, accused Kuldip Kumar proclaimed that he would see how the members of her family clear the path. Soon, accused Kamal Dev and Prithi Chand reached there with rod and axe respectively. Noticing the armed accused, prepared to attack her brother and the other members of the family, her father advised deceased Ajay Sharma to refrain from clearing the path. While her father was advising deceased Ajay Sharma, accused Kuldip Kumar fired at her father hitting him on his thigh. When Ajay Sharma went to rescue the father, accused Kuldip Kumar fired another shot which hit Ajay Sharma on the chest and he died on the spot. The third shot of accused Kuldip Kumar hit her father on the other leg. When her mother went to rescue her father, accused Prithi Chand hit her on the head with axe. When she went near the dead body of Ajay Sharma and sat beside it, accused Kamal Dev hit her on the forehead just above the left eye with the rod resulting in bleeding injury. The fourth shot of accused Kuldip Kumar hit her younger sister on her legs who was standing near her injured father. When accused Prithi Chand aimed on the chest of her father, her younger sister pushed her head forward for saving her father as a result of which Prithi Chand's axe blow held on the head of her youner sister resulting in a gapping wound. The fifth shot of Kuldip Kumar hit the abdomen of her father. All the accused left the scene and while doing so, they carried the 'Darat' which was being used by deceased Ajay Sharma for clearing the path. The incident was seen by Sanjay Kumar, Nirmala Devi, Saroj, Veena Devi, Sunita Devi and several other persons who had collected there on hearing the gun shots. The accused used to quarrel with them even prior to the occurrence on account of land dispute; civil litigation that was going on between the parties. Accused Kuldip Kumar appeared at the scene after changing his clothes and asked her father whether he was satisfied with the treatment meted out to him. They were shifted to the hospital by the villagers. The police officials came to the hospital and recorded her statement (Ext. PA) in Hindi bearing her signatures. She remained in the hospital at Una along with her mother while her sister and father were shifted to PG1, Chandigarh. Her sister died on the way while her father remained admitted in the Institute for two months and he died after discharge from there. She identifies gun (Ext. PI) used by accused Kuldip Kumar for firing at her father, brother and sister. She also identifies axe (Ext. P2) and rod (Ext. P3) used by accused Prithi Chand and Kamal Dev in this occurrence. 'Darat' (Ext. P4) has also been identified to be the same which was being used by deceased Ajay Sharma for clearing the bushes. Clothes worn by her, her mother, her deceased father, her deceased younger sister and her deceased brother were also identified by her like ear ring owned by her and ornaments of Arti.
15. The cross-examination of this witness by the accused does not derive any significant result. It is primarily directed towards existing enmity between the two families, pending litigation and association of relation witnesses in this case. There is reference to partnership business of Satpal with others in Madhya Pradesh and Rajasthan and ensuing litigation. It is also directed towards certain contradictions in her statement to the police (Ext. PA) her deposition before the Court. The fact remains that this witness has given a comprehensive account of the incident, pin pointing the part played by the accused in this occurrence. The submission that the statment of this witness conflicts with the version of the Doctor us to the distance from where the gun was fired, does not appeal to us. Look at the situation existing at the relevant time; three accused, armed with deadly weapons, started assaulting the victims' family; accused Kuldip Kumar firing shots from his gun. accused Prithi Chand using the axe and accused Kamal Dev an iron rod, obviously, terrified and grief stricken, Alka is not expected to see things with precision and measure the distance between accused Kuldip Kumar and the victims whom he made his targets. Similar is our view about the depositions of other witnesses on this point and in these cirumstances, depending upon the evidence of Doctor would not amount to conflict between ocular evidence and medical evidence and the site plan prepared upon nor do they effect the basic case of the prosecution. The verison of this witness is also supported by the medical opinion and other witnesses in this case.
16. Smt. Nirmala Devi (PW2) is the wife of deceased Sat Pal and mother of Alka (PW1) and deceased Ajay Sharma. She has also staled that deceased Ajay Sharma, her son, was clearing the village common path in front of her hosue. He had been doing so uninterruptedly for the last four years to keep the path clear. Accused Kamal Dev prevented her son from doing so and was challenged by the accused who went to his house and within five minutes of throwing the challenge, he came armed with iron rod (Ext. P3) followed by accused Kuldip Kumar with gun (Ext. PI) and Prithi Chand with axe (Ext. P2). Apprehending that the accused, armed with deadly weapons, would kill them, her husband deceased Sat Pal said that the accused would not kill them as they were trying to over-awe them. Her deceased husband asked her son deceased Ajay Sharma to stop clearing the hedge and in the meantime accused Kuldip Kumar fired a shot at her husband on his thigh, second shot of accused Kuldip Kumar hit deceased Ajay Sharma on the chest resulting in his death. She and her two daughters went close to the husband lying injured, accused Prtihi Chand hit her on the head with axe resulting in a gapping wound, blood rushing out and clothes be coming blood stained. The third shot of Kuldip Kumar hit her husband on his leg, the fourth shot hit her younger daughter Arti on her leg. Accused Kamal Dev pulled her daughter Alka by her arm and gave a blow with iron rod on the left side of her forehead above the eye-brow resulting in a bleeding injury. Some one from among the accused persons gave a blow of 'Kulhara' on the head of Arti, since it could not be seen in that situation as they were perplexed and confused. The fifth shot of accused Kuldip Kumar hit her husband in the abodmen. The accused went away taking the 'Darat' also. Accused Kuldip Kumar re visited the scene with changed clothes proclaiming that he would kill all the members of her family and destroy the whole clan. The accused party had boundary dispute with them and the civil litigation was going on prior to the incident.
17. Sanjay Kumar(PW3)is another eye-witness to the occurrence. He has also stated that he noticed deceased Ajay Sharma pruning the hedges from the village path in front of his house. Accused Kamal Dev reached there and asked deceased Ajay Sharma not to touch the hedge which abutted on the boundary of his field. The deceased replied that he had been cutting and pruning the hedges in the past extending towards the path. Accused Kamal Dev left saying that he would see how the deceased interfered with the hedge. Soon Kuldip Kumar came armed with a gun towards the site followed by his brother Kamal Dev with iron rod and their father Prtihi Chand with an axe. Accused Kuldip Kumar asked deceased Ajay Sharma to withdraw or else he would fire through his gun. The other members of the house of the accused also reached there and tried to persuade the accused not to indulge in any violence and return to the house. Accused Kuldip Kumar fired a shot which hit Sat Pal on his thigh. He fell on the ground. Ladies living in the vicinity, hearing the gun shot, started crying. This witness states that he was pushed into the room forcibly by his mother and father's elder brother's daugther and bolted from outside. From inside he heard four-five gun shots fired in quick succession. He could manage to come out when a small child unbolted the door, but the accused had left the place by that time. He found deceased Ajay Sharma lying there, Arti with cut wound on her neck and back side of head, breathing with difficulty. She was also having gun shot on her leg, Nirmala a bleeding injury on her back and Alka on fore-head above the eye-brow. Both thighs of deceased Sat Pal were badly injured, bones were visible. When this witness was there, accused Kuldip Kumar came again after changing his clothes. At the time of the incident he was wearing 'Kurta' 'Pyjama' and when he re-appeared, he was wearing a pant and shirt. He abused Nirmala Devi and left the scene. Except pointing out certain contradictions in his statement under Section 161 of the Criminal Procedure Code and in the Court, no dent has been created to the statement of this witness.
18. Smt. Nirmala Devi (PW6) is also an eyewitness to the occurrence. She also saw the occurrence and narrates the incident in the same way as has been done by other witnesses discussed above, thus corroborating the statement of other witnesses.
19. Dr. S.K. Nanda (PW8) has stated about the injuries on the persons of Alka, Nirmala, Arti and Sat Pal. Dr. R.K. Jaiswal (PW9) has deposed about the post mortem examination of the body of deceased Ajay Sharma and recovery of wad and eleven pellets from inside the wound. He has given the cause of death of the deceased as quoted above. Similarly, Dr. Arun Kumar (PW10) has stated about the post mortem examination of Arti. In nutshell, the medical experts have appeared to prove their medical opinions given during the investigation of the case. Ballastic expert, chemical examiner and se-rologist have also opined about the use of gun (Ext. PI) and human blood available on most of the articles sent for examination. The recoveries of various articles have been duly proved by the prosecution witnesses and the stages of investigation by Himanshu Misra, Deputy Superintendent of Police and Pritam Chand Patyal, Station House Officer.
20. From the evidence, it is absolutely clear that the prosecution has been able to prove beyond reasonable doubt that the gun (Ext. P1) is owned by accused Kuldip Kumar. It was he who fired five shots through it at deceased Ajay Sharma, deceased Arti and injured Sat Pal, who later on died. Similarly, it has also been proved that accused Prithi Chand (dead) gave fatal blow of axe on the head of deceased Arti and axe blow on the head of Nirmala causing hurt to her. Accused Kamal Dev gave blow with iron rod to Alka above her left eye-brow causing head injury to her.
21. The question arises about the application of Section 34 of the Indian Penal Code. The trial Court has negatived the plea of the prosecution that the accused committed the murder of deceased Ajay Sharma and Arti and caused injuries to others with common intention. For arriving at this finding, reference was made to the statement of Nirmala (PW2) stating that when accused Kamal Dev was going in the direction of his house after having an altercation with deceased Ajay Kumar over the pruning of the hedge, accused Kuldip Kumar was seen coming out of his house with a gun in his hand, therefore, accused Kuldip Kumar started with a gun from his house before Kamal Dev returned to his house after having altercation with deceased Ajay Sharma. Thus, the question of accused Kamal Dev, Kuldip Kumar and Prithi Chand pre-planning to assault the deceased and injured, did not arise. According to the trial Court, when accused Kuldip Kumar heard deceased Ajay Sharma and accused Kamal Dev altercating with each other, he got enraged and without premeditating with the other accused, proceeded to the site where deceased Ajay Sharma was pruning the hedge. There was no occasion of pre-consultation with accused Kamal Dev nor with accused Prithi Chand. Further, according to Alka and Nirmala, accused Kuldip Kumar was the first to reach the site of occurrence followed by Kamal Dev armed with iron rod and Prithi Chand with an axe. Injuries caused by accused Prithi Chand to Nirmala Devi arc simple in nature though the weapon used was axe suggesting that he did not intend to cause the death of anybody or even cause any grievous injury. Accused Kamal Dev gave only one blow with iron rod on the fore-head of Alka Devi resulting in simple hurt showing that he had no intention to committ the offence of murder or even a grievous hurt.
22. We have examined this question carefully. We disagree with the reasoning and findings of the trial Court on this question being palpably wrong. Look at the situation. The place where deceased Ajay Sharma was pruning the hedge, is at a short accused. It is visible from there. The altercations and the threatening extended by accused Kamal Dev to deceased Ajay Sharma were heard by both the families from their houses that is why the family of deceased Ajay Sharma reached the spot. From the other side, accused Kuldip Kumar went to the spot with his gun and accused Prithi Chand with an axe. Obviously, they had done so understanding the challenge of accused Kamal Dev to deceased Ajay Sharma. Accused Kamal Dev also reached the spot with an iron rod (Ext P3) to execute the challenge. All of them, therefore, had gone to the spot with intention to finish deceased Ajay Sharma, otherswise. there was no reason to reach the spot armed with gun axe and iron rod. They did not prevent each other from resorting to violence, rather, they participated in it to the fullest extent and left the place together. There is no much time place between the coming of the accused to the scene of crime. The complainants were brutally assaulted by the accused and it cannot be said that the accused did not intend to kill the complainants party. Whatever was within their power, they did not leg behind in utilising the same to eliminate the complainants by use of deadly weapons and gravity of the offence is not minimised simply because in one case the blow fell on the forehead of Alka and head of Nirmala. The blows in their cases are also on the vital parts of the bodies with axe and iron rod. They escaped death by providence, otherwise, the accused had not left anything to chance. There cannot be any better case than this for the application of Section 34 of the Indian Penal Code, if the evidence and the circumstances of the case are understood correctly. (See : 1979CriLJ1093 ), Kashmira Singh v. Slate of Punjab.
23. By this time, numerous decisions have been delivered by the Apex Court dealing with the application of Section 34, Indian Penal Code. It is not necessary to make mention of them. However, we refer to : 1976CriLJ1563 , (Ramaswami Ayyangar v. State of Tamil Nadu), wherein it has been said that (para 12, p. 2031 of AIR): (at pp. 1567-68 of Cri LJ).
'12. The contention is fallacious and cannot be accepted. Section 34 is to be read along with the preceding Section 33 which makes it clear that the 'act' spoken of in Section 34 includes a series of acts as a single act. It follows that the words 'when a criminal act is done by several persons' in Section 34, may be construed to mean 'when criminal acts are done by several persons.' The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an 'act' as much as his co-partieipants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Sec. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the 'criminal act'. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A2 obviously, was acting in concert with A3 and A4 in causing the murder of the deceased, when he prevented PW1 from going to the relief of the deceased. Section 34 was therefore duly attracted and under the circumstances A2 was equally responsible for the murder of the deceased. Under these circumstances we think the High Court was justified in convicting A2 for the offence of murder of Kaliyaperumal with the aid of Sec. 34 of the Penal Code. There was absolutely no difficulty in main taining the convictions of A3 and A4 for the murder of Kaliyaperumal with the aid of Section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body. In the case of A2 also it is quite legitimate to hold that he had shared the common intention of A3 and A4 in the commission of the murder of Kaliyaperumal.'
24. Accordingly, we hold that Section 34 applies in the present case and all the accused are responsible for the offences they are charged with. .
25. In the face of cogent and convicing narration of the incident by the prosecution witnesses, it is hardly possible to accept the contention of Shri T. R. Chandel that there are material contradictions in the statements of the prosecution witnesses. It is well settled that some contradictions are bound to arise in the statements of prosecution witnesses for variety of reasons, for example, their power of perception, age education, situation where from the incident was witnessed and the fact whether they are themselves involved in the incident etc. etc. There can be variation in the statement which forms the basis for recording First Information Report and the subsequent statements made by the witness. At one stage the witness is in a stage of commotion and at another stage considerably released of it. These minor variations cannot always be termed to be the result of embellishment, conoction and podding.
26. It was next contended that most of the witnesses in this case are either injured or relations with past enmity with the accused, therefore, their evidence must be discarded. Mrs. Shyama Dogra, learned Deputy Advocate General, vehemently opposed this contention and submitted that the injured witnesses are not disqualified from becoming witnesses in a criminal case. As as matter of fact, they are material witnesses having seen the occurrence, their statements are truthful. Moreover, they being relations, are expected to be present on the spot. Reliance was placed on : 1981CriLJ733 , (Angad v. State of Maharashtra); : 1988CriLJ848 , (Appabhai v. State of Gujarat); : 1992CriLJ1952 , (Surjit Singh alias Gurmit Singh v. State of Punjab); : 1992CriLJ3845 , (Bir Singh v. State of Haryana); : 1993CriLJ2530 , (Mani Ram v. State of Rajasthan); : 1993CriLJ3136 , (Prasad Mahato v. Slate of Bihar); : 1994CriLJ1422 , (Haramant Laxmappa Kukkadi v. State of Karnataka); and : 1994CriLJ928 , (Suraj Pal v. State of U. P.).
27. Turning to the facts of the case, issue relating to the pruning of hedges developed between deceased Ajay Sharma, heard by Alka (PW1), Smt. Nirmala (PW2),Sanjay Kumar(PW3),Smt.Nirmala Devi (PW6) and Sat Pal. Naturally, they saw the occurrence. The family members of deceased Sat Pal were assaulted in the manner and to the extent discussed above, therefore, they are real and natural witnesses to the occurrence. Their statements are not coloured by any kind of bias against the accused. As a matter of fact, they have given cogent and convincing account of the incident and there is no reason to disbelieve them simply because they happen to be the relations of the injured in the incident. (See: : 1976CriLJ1563 ), (Ramaswami Ayyangar v. Slate of Tamil Nadu); : 1988CriLJ925 , (Hare Krishna Singh v. State of Bihar); 1993 Supp (4) SCC 218 : 1993 AIR SCW 2661, (Ram Asrey v. State of U. P.); 1993 Cri LJ 1756, (Patnu), (Qaiyum Mian v. State of Bihar); and 1994 Cri LJ 494 (Madh Pra), (Rokad Singh v. State of Madhya Pradesh).
28. Mrs. Shyama. Dogra, learned Deputy Advocate General, also contended that in face of dear,, direct evidence supported by medical evidence, it is not necessary to prove motive in this case. Reliance was placed on : 1956CriLJ827 . (Gureharan Singh v. State of Punjab); AIR 1971 SC J656. (Narayan Nathu Naik v. The State of Maharashtra); : AIR1975SC1252 , (Podda Narayana v. State of Andhra Pradesh); : 1976CriLJ677 , (Faquira v. State of U. P.) ; : 1976CriLJ1895 , (Molu v. State of Haryana); and 1993 Cri LJ 1656 : (1993 AIR SCW 766), (Jarnail Singh v. Stale of Haryana). However, the accused had motive to attack the complainants. Reference to inimical relations between the families and pending litigation was made to substantiate the submission.
29. We are in agreement with these submissions of the learned counsel for the State. Prosecution need to prove motive in each and every case. It is not necessary in a case where direct evidence to connect the accused with the crime is available. However, proof of motive would give further strength to the prosecution case. The evidence indicates that the relations between the two families were not good. Complainants' family had come to settle in the village in 1985. Land litigation was pending between the parties.
39. Shri T. R. Chandel contended that inquest report does not describe the two empty cartridges at the spot, therefore, they have been planted subsequently out of the four which were, as a matter of fact, recovered from the house of the accused. Certain contradictions in the statements of SHO Pritam Chand Patyal and Alka (PW1) were pointed out.
31, It may be true (hat the inquest report (Ext. PS/ 2) does not make mention of these empties either against item 22 or 23 but omission to do so does not effect the prosecution case. Item 22 refers to articles found on the dead body and item 23 to articles nearby the body. Finding, them away from the body, the Investigating Officer may not have described them in the inquest report. Inquest report need not be a detailed document. Moreover, no suggestion has been put to the Investigating Officer on this point. Recovery has been made in the presence of two witnesses, namely, Sharif Mohammad (PW4) and Tara Chand (PW5). Empties have been fired through gun (Ext. PI), according to the Ballistic expert also. The investigation carried on by Pritam Chand Patyal, Station House Officer, cannot be assailed as asserted. As a matter of fact, prompt steps were taken by the Investigating Officer to deal with the victims, crime and criminals. The submission that the identity of the accused was not known and some unknown person was referred to in the information to the police, has no strength. The incident had neither taken place in a blind alley nor during night. it took place at 12.30 p.m. in an open village common path, witnessed by the witnesses discussed above. The accused were not unknown to the complainants and there was ,no difficulty of identification. It may be that some one may have either tried to hoodwink the police by transmitting wrong information intentionally or may have simply heard about the incident but not about the names of the accused.
32. The conduct of the accused further aggravates the situation and lends credence and corrobo-ration to the prosecution case. Accused Kuldip Kumar threatened to finish the whole clan, executed the threat to the greatest extent, left the place, re-appeared and asked Sat Pal whether he was satisified with the treatment meted out to him and abused his wife. The accused absconded after committing the crime. Accused Kuldip Kumar and Kamal Dev surrendered in the Court on November 18, 1988, and accused Prithi Chand was arrested on the same day when the offecne was committed on November 14, 1988. (See: : (1994)1SCC563 , (Amrik Singh Satnam Singh v. State of Rajasthan).'
33. No other submission was made by the learned counsel appearing for the parties. The result of our aforesaid discussion is that accused Kuldip Kumar, Kamal Dev and Prithi Chand committed the offence alleged against them by the prosecution. They (except Prithi Chand since he has died) are convicted for offence under Ss. 302/307/34, Indian Penal Code, read with Section 27 of the Indian Arms Act, 1959. Now, the question arises what punishment should be awarded to the accused?
34. Learned counsel for the parties made submissions in this connection. Mrs. Shyama Dogra, learned Deputy Advocate General, contended that the accused behaved in the most brutal fashion resulting in the death of Ajay Sharma and Arti immediately after the occurrence and that of Sat Pal after three months despite medical treatment and injuries to Alka and Nirmala. Lethal weapons were Used in the commission of crime. As many as five shots were fired by accused Kuldip Kumar hitting deceased Ajay Sharma, deceased Arti and deceased Sat Pal. The other two accused did not leg behind in executing the common intention and landed blows with lethal weapons. The complainants' party was totally unarmed and they were trying to avoid the situation. It is, therefore, a 'rarest of rare cases' where death sentence should be awarded. Certain decisions of the Supreme Court were brought to our notice in support of the plea.
35. From the side of the accused, Shri T. R. Chandel submitted that the dispute arose all of a sudden and the accused had some justification to protest over the cutting of hedges and the deceased Ajay Sharma had hot stopped doing so. Moreover, the accused may have apprehended retaliation from the side of the complainants who had also come to the spot. Further, the accused are of yound age and no past conviction is to their credit!
36. We think, interest of justice would be met in case the accused are sentenced to jail sentence instead of death sentence claimed by the learned counsel for the State. Accordingly, Criminal Appeal. No. 238/92, (Kuldip Kumar v. State of Himachal Pradesh) is dimissed; Criminal Appeal No.9/93 (State of Himachal Pradesh v. Kuldip Kumar) is allowed. As already said in the preceding part of the judgment, the accused are convicted for offence under Ss. 302/307 read with Section 34 of the Indian Penal Code and Section 27 of the Indian Arms Act, 1959. They are sentenced to undergo rigorous imprisonment for life for offence under Section 302, Indian Penal Code and to pay fine of Rs. 10,000/-. They are also sentenced to rigorous imprisonment for five years for offence under Section 307, Indian Penal' Code and ordered to pay a fine of Rs. 8,000/-. For offence under Section 27 of the Arms Act, 1959, rigorous imprisonment for one year is awarded. For default of payment of fine, the accused will undergo rigorous imprisonment for three years and one year respectively for offences under Ss. 302 and 307, Indian Penal Code. Fine, on recovery, be paid to Smt. Nirmala, widow of deceased Sat Pal. The accused would be entitled to the benefit of Section 428 of the Criminal Procedure Code. The accused will surrender to the authorities and serve the punishment awarded to them.