T.P. Sharma, J.
1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 27-12-1982 passed by the Sessions Judge, Sessions Division, Mandla in Sessions Trial Nos. 61/80 & 62/80, whereby & where under learned Sessions Judge after holding the appellant guilty for commission of offence under Sections 302 read with Section 34, 307 read with Section 34 of the I.P.C. & 28 of the Arms Act, sentenced him to undergo imprisonment for life, R.I. for five years & R.I. for two years, respectively. However, the Sessions Judge has acquitted the appellant herein of the charge under Section 302 of the I.P.C. and the remaining fifteen accused persons of the charge under Sections 120B, 307 read with Section 34, 302 read with Section 111 & 302 read with Section 34 of the I.P.C.
2. Judgment is impugned on the ground that without any iota of evidence to connect the appellant with the crime in question viz., presence of the appellant armed with rifle at the time of incident, recovery of rifle and by making a new case for prosecution, the Sessions Judge has committed illegality by convicting & sentencing the appellant in the aforesaid manner.
3. The offence has been committed within the territorial jurisdiction of Sessions Division, Durg, but both the Sessions Trials have been transferred to Mandla by the order of the High Court of Madhya Pradesh at Jabalpur and subsequently, after reorganization of the new State of Chhattisgarh, the present appeal has been received on transfer from the High Court of Madhya Pradesh at Jabalpur.
4. Case of the prosecution, in brief, is that the appellant is son-in-law of co-accused Surta Singh who is father of Suchcha Singh. Another co-accused Harbinder Singh alias Harendra Singh alias Kukki is brother-in-law of Suchcha Singh. Houses of Surta Singh (father of Suchcha Singh) and Nirankari brothers Bhajan Singh & Pritam Singh are situated in Malviya Nagar, Durg, in front of each others' houses. Accused Suchcha Singh was residing with his father Surta Singh in the said house and he was a big liquor contractor. All other accused are partners along with Surta Singh, Suchcha Singh, Harbinder Singh & Santokh Singh of the firm M/s. S.S. Dhillon and Company. Accused Suchcha Singh was having Fiat Car No. MPT-7760, Santokh Singh was owner of truck No. CPT-2118 and accused/appellant Avtar Singh was owner of rifle alleged to have been used for the commission of the crime in question. In the year 1980 or prior to 1980, the Sikh community was divided into two factions namely, the Akalis and the Nirankaris. The Akalis are traditionalists and old moralists and form the fanatic group. There were open confrontations between the two factions at Amritsar in the year 1978. Thereafter the Akalis decided to wipe out and finish the Nirankari Chief Baba Gurubachan Singh.
5. On 19-3-1980, the Nirankari Chief Baba Gurubachan Singh came to Durg for laying the foundation stone of Nirankari Satsang Bhawan at Bhilai Sector-8 adjoining to the city of Durg. He stayed in the house of his disciple Pritam Singh whose house was situated in front of the house of Surta Singh. Surta Singh who is follower of the Akalis & other accused persons entered into conspiracy at the house of Surta Singh & also at Green Hotel on 19-3-1980 to commit the murder of the Nirankari Chief Baba Gurubachan Singh. Except accused Mohd. Aziz, the then driver of truck No. CPT-2118 belonging to M/s. S.S. Dhillon & Co., remaining 15 accused persons were the Akalis. On 19-3-1980 at about 5 p.m. the Nirankari Chief Baba Gurubachan Singh proceeded to Bhilai Sector-8 for laying the foundation stone of Nirankari Satsang Bhawan. The Nirankari Chief Baba Gurubachan Singh was sitting in the black Mercedes car behind the white Chevrolet car. In furtherance of the conspiracy, accused Mohd. Aziz & Avtar Singh were waiting for the Nirankari Chief Baba Gurubachan Singh near the Science College culvert. Mohd. Aziz was driving the truck. On the belief that the Nirankari Chief Baba Gurubachan Singh was sitting in the Chevrolet car No. DHC- 9907, Mohd. Aziz dashed the Chevrolet car from wrong side. Appellant Avtar Singh and co-accused Harbinder Singh alias Kukki were sitting inside the truck. After the dash by the truck, accused Avtar Singh jumped out from the truck along with his 315 bore rifle and fired two shots at the Chevrolet car with intent to kill the Nirankari Chief Baba Gurubachan Singh under the belief that he was sitting in the Chevrolet car. But the Nirankari Chief Baba Gurubachan Singh was not sitting in the Chevrolet car and was sitting in the Mercedes car. As a result of the gun shot injury (fire shot), Mrs. Swadesh Neelam who was sitting inside the Chevrolet car died instantaneously. The police party was accompanying the procession of the Nirankari Chief Baba Gurubachan Singh. Avtar Singh tried to flee away from the spot, but he was chased and apprehended by the police on the spot. When the police chased Avtar Singh for apprehending him, he fired with his rifle on the police and finally he was apprehended by Police Officer Udairaj Dubey, ASI (PW-35) who snatched the rifle. Other co-accused Harbinder Singh alias Kukki & Mohd. Aziz immediately rushed towards the Fiat car which was already standing near the place of incident and sat inside the car whereupon accused Suchcha Singh who was waiting for them sped the car and they escaped from the spot by the said car. At the time of incident, other persons sitting inside the Chevrolet car also sustained injuries. Merg intimation was recorded vide Ex.P-120. Bhajan Singh lodged the report on 19-3-1980 vide Ex.P-5 at Mohan Nagar, Durg. He also lodged the F.I.R. Ex.P-5A. P.K. Verma (PW-56), TI, Mohan Nagar, Durg also lodged the report relating to the subsequent act of Avtar Singh who fired upon the police party. Inquest over the body of Mrs. Swadesh Neelam was prepared and the dead body was sent for autopsy to the District Hospital, Durg. Autopsy was conducted by Dr. D.K. Agrawal (PW-12) vide Ex.P-21 who found following injuries:
(1) Oval wound right external ear 2' below the highest curve of the pinna between the helix & antihelix 1 cm. x 0.5 cm. x through of through. Margins inverted. Blood stain near the wound present. No tattooing or blackening of the skin.
(2) Oval wound right mastoid region corresponding to the injury No. 1, 1 cm. x 0.5 cm. x brain deep. Margins inverted. Blood stain + No burning or singeing of hairs.
(3) Extensive laceration of the scalp from right temporal, parietal & occipital region with communited fracture of the temporal, parietal & occipital bone. Producing tear of dura matter & crushing of brain matter corresponding to right temporal, right parietal & occipital lobe.
(4) Oval wound right upper arm lateral aspect 4' below the shoulder 1.5 cms. x 1 cm. x 3'. Margins inverted. Blood stain near the wound present. No tattooing or blackening. Direction of the wound oblique. Post to the numerus towards the axilla. An irregular metal fragment embedded 3' inside the wound.
Mass of metal with jagged sides and sharp angles, blood stained also found in injury No. 4. Cause of death was due to shock as a result of extensive injury over vital part, brain.
6. Gurubaksh Singh (PW-42) was examined by Dr. J. Guha (PW- 13) vide Ex.P-22 who found one superficial injury over right ear ,' x +'. Narsingh was examined by Dr. M. Mohanty (PW-25) vide Ex.P-81 who found one lacerated wound of +' x +' over right supra orbital region. Another injured Manmohan Singh was also examined by Dr. M. Mohanty (PW-25) vide Ex.P-82 who found lacerated wound of _' x ,' over supra orbital region, lacerated wound of 1 +' x ,' over scalp, tenderness over both wrists, lacerated wound of ,' x ,' over left index finger, abrasion of ,' x ,' over right knee and lacerated wound of +' x ,' over occipital region. Amar Singh (PW-45) was also examined by Dr. M. Mohanty (PW-25) vide Ex.P-83 who found two small lacerated wounds and one linear echymosis over left mid thigh. Laxman Singh (PW-60) was examined by Dr. A.K. Verma (PW-26) vide Ex.P-84 who found two contusions and another wound over left forearm. Anurag was examined by Dr. A.K. Verma (PW-26) vide Ex.P-85 who found one contusion and one depressed wound.
7. Spot map was prepared vide Ex.P-125 and snatched rifle of appellant Avtar Singh was seized from Udairaj Dubey, ASI (PW-35) vide Ex.P-20 containing the smell of gunpowder. Empty cartridges were seized from the spot vide Ex.P-17. Seized articles were sent for chemical examination vide Exs.P- 137, 138, 138A, 154A & 157A to Forensic Science Laboratory, Sagar. Blood stained & plain soil were seized from the spot vide Ex.P-16. Bloodstained clothes, articles, pieces of bone, carpet, sari & blouse were recovered vide Ex.P-14. Bloodstained clothes of appellant Avtar Singh were seized vide Ex.P-19. Presence of blood on the shirt of appellant Avtar Singh was confirmed along with other articles by F.S.L. Sagar vide Ex.P-162. Empty cartridges and rifle seized were sent to ballistic expert and use of empty cartridges by the said rifle was confirmed by the ballistic expert vide Ex.P- 55. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Photographs were also taken during the course of investigation. Two cars, motorcycle, truck, firing point, two chappals, empty cartridges were seized vide Ex.P- 103 from the spot.
8. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Durg who in turn committed the case to the Court of Sessions, Durg from where the case was transferred to the Court of Sessions Judge, Mandla by the order dated 7-10-80 passed in M.Cr.C. No. 1262 and modified order dated 17-11-80 passed in M.Cr.C. No. 1436 by the High Court of Madhya Pradesh at Jabalpur. Thus both the sessions trials were transferred to Sessions Division, Mandla.
9. In order to prove the guilt of the accused persons, the prosecution has examined as many as 66 witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence & false implication. They have also examined the evidence of about 26 defence witnesses.
10. After affording opportunity of hearing to the parties, learned Sessions Judge has convicted & sentenced appellant Avtar Singh and acquitted the remaining accused.
11. We have heard learned Counsel for the parties, perused the judgment and record of the trial Court.
12. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, vehemently argued that the prosecution was required to prove its case beyond all reasonable doubts. The Court below was not competent to make out a new case which has not been alleged by the prosecution or defence and without providing opportunity of explaining the circumstances and defending the case to the accused, conviction & sentence on the basis of new case is not sustainable under the law. With a view to falsely implicate the appellant and others who were partners of M/s. S.S. Dhillon & Co., the F.I.R. has been registered after 20-3-80 showing it that it has been recorded on 19-3-80. Registration of F.I.R. has not been intimated to the Magistrate as required under Section 157 of the Code of Criminal Procedure, 1973 (for short `the Code'). The prosecution has tried to adduce false and concocted evidence in support of the compliance of the provisions of Section 157 of the Code. In the present case, according to the case of the prosecution the accused persons have entered into conspiracy at the house of Surta Singh & also at Green Hotel, but no witnesses have been examined by the prosecution to prove any conspiracy. According to the case of the prosecution, Mohd. Aziz, Harbinder Singh @ Kukki & Avtar Singh were sitting in the truck, the truck was being driven by Mohd. Aziz who dashed the Chevrolet car and caused serious injuries to the persons including Mrs. Swadesh Neelam who died instantaneously. After dashing the Chevrolet car by the truck, Avtar Singh jumped from the truck and fired two shots under the mistaken belief that the Nirankari Chief Baba Gurubachan Singh was sitting in the said car and thereby caused the homicidal death of Mrs. Swadesh Neelam. But the prosecution witnesses, especially the doctor has not supported the case of the prosecution and the Court below has reached to the conclusion that Mrs. Swadesh Neelam died as a result of fatal injury due to dash by the truck to the car and not as a result of any gun shot injury and at that time the truck was being driven by Mohd. Aziz, therefore, accused/appellant Avtar Singh could not be held liable for the commission of the death of Mrs. Swadesh Neelam. However, the Court below has convicted the appellant on the assumption and by making out a new case that two unknown persons along with Avtar Singh who were sitting in the truck shared common intention and out of the two persons, one person who was driving the truck has forcefully dashed the car, and Mrs. Swadesh Neelam died as a result of injury sustained by dash. But this was not the case of the prosecution. Simply by sitting of the accused in a truck will not be sufficient for drawing inference that in sharing common intention the driver has committed the aforesaid offence. According to the case of the prosecution, the police have caught Avtar Singh on the spot, red handed and after snatching the rifle, the police has neither produced Avtar Singh nor the rifle to Police Station Mohan Nagar, Durg or to Police Station Bhilai, where the police officer P.K. Verma (PW-56), TI & Bhajan Singh (PW- 1) have lodged the reports. Both the persons viz., P.K. Verma (PW-56) & Bhajan Singh (PW-1) had even not mentioned the fact that Avtar Singh was caught red handed and his rifle has been snatched by the police officer Udairaj Dubey (PW- 35).
13. Mr. Surendra Singh, learned Senior Advocate for the appellant, contended that this fact shows that the prosecution has concocted the entire evidence against appellant Avtar Singh and other accused persons. Empty cartridges have not been used by the alleged rifle and the defence has applied before the trial Court for using the live cartridges by the said fire arm and for examining of empty cartridges with the cartridges so used, during trial by the expert to prove the fact that whether the alleged empty cartridges seized have been used/fired by the rifle or not which was highly contested by the prosecution and the Court has denied the opportunity of such examination/adducing evidence, thereby serious prejudice has been caused to the appellant. Attitude and contest of such application by the prosecution clearly shows that if the trial of rifle was done during trial and was examine by the expert, it would suffice the fact that the empty cartridges have been fired by the seized rifle belonging to the appellant. Learned Senior Advocate further argued that the evidence adduced on behalf of the prosecution is not sufficient to convict the appellant for the charge of murder in sharing common intention or for the charge of attempt to commit murder and charge for commission of homicidal death of the murder of Mrs. Swadesh Neelam was framed against the appellant herein under the Arms Act, but the trial Court has convicted the appellant with the aid of Section 34 of the I.P.C. for which the Court was not competent.
14. Private party Bhajan Singh & Pritam Singh had earlier preferred Criminal Revision No. 342/1983 challenging the acquittal of appellant Avtar Singh of the substantive charge of murder under Section 302 of the I.P.C. and other accused for their acquittal of the charges levelled against them, which was partly allowed vide order dated 9-12-1987 and the case was remanded back for re-trial for the substantive charge of murder under Section 302 of the I.P.C. against appellant Avtar Singh and for the charge under Sections 302 read with Section 34 & 307 read with Section 34 of the I.P.C. against the acquitted accused Mohd. Aziz & Harbinder Singh alias Kukki which has been challenged by Avtar Singh and Ors. in Criminal Appeal No. 428/89 and Harendra Singh and Anr. in Criminal Appeal No. 738/91 before the Apex Court on the ground that during the pendency of appeal against conviction filed by appellant Avtar Singh in Criminal Appeal No. 90/83 (the instant criminal appeal) the order of re-trial without quashing the judgment is not legal. The Apex Court has allowed the appeals on the ground that the order of re-trial was not legal without setting aside the judgment of trial Court and the Apex Court has directed to hear the appeal filed on behalf of the appellant herein on merits. Learned Senior Advocate also argued that now acquittal of the appellant of the charge under Section 302 of the I.P.C. has attained finality, therefore, subsequent modification of conviction of the appellant under Section 302 of the I.P.C. would not be legally possible.
15. Learned Senior Advocate appearing on behalf of the appellant placed reliance in the matter of Pritam Singh and Anr. v. The State of Punjab in which the Apex Court has held that acquittal of accused on certain charges is binding in all subsequent proceedings and the principle of res judicata is applicable in criminal cases also. Learned Senior Advocate further placed reliance in the matter of Amritlal Ratilal Mehta and Anr. v. State of Gujarat in which the Apex Court has held that finding of fact at earlier stage attaining finality is binding and conclusive in subsequent stage in same case. Learned Senior Advocate also placed reliance in the matter of Devilal and Anr. v. The State of Rajasthan in which the Apex Court has held that if the pivot of the prosecution is not accepted a new prosecution case cannot be made to imperil defence. Learned Senior Advocate relied upon the matter of Lakshmi Singh and Ors. etc. v. State of Bihar in which the Apex Court has held that if the witnesses could go to the extent of falsely implicating the five innocent persons, the entire fabric of the prosecution case would collapse and fundamental part of the prosecution case would have to be disbelieved. Learned Senior Advocate further relied upon the matter of Prabhu Babaji Navle v. State of Bombay in which the Apex Court has held that in absence of sharing of common intention with the actual murderer, other accused cannot be convicted with the aid of Section 34 of the I.P.C. Learned Senior Advocate also relied upon the matter of Sukhram v. State of Madhya Pradesh in which the Apex Court has held that in case of benefit given to one accused other accused are also entitled for the same benefit. Learned Senior Advocate placed reliance in the matter of Sawal Das v. State of Bihar in which the Apex Court has held that if two out of three accused were acquitted of the charge of murder with common intention, third is also entitled for acquittal. Learned Senior Advocate further placed reliance in the matter of Shaikh Karimullah @ Babu and Ors. v. State of A.P. in which it has been held by the Apex Court that in absence of specific charge under Section 34 of the I.P.C. conviction with the aid of Section 34 of the I.P.C. would not be possible. Learned Senior Advocate also placed reliance in the matter of Budh Singh and Ors. v. State of U.P. in which it has been held by the Apex Court that F.I.R. in criminal case, particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. Timely intimation of the F.I.R. to the Magistrate under Section 157 of the Code is a check that the F.I.R. is not ante-dated. Learned Senior Advocate relied upon the matter of Sevi and Anr. v. State of Tamil Nadu and Anr. in which the Apex Court has held that in case of original F.I.R. suppressed and substituted by another F.I.R. and failure to produce F.I.R. book in the Court even after direction of the Court, inference can be drawn that the original F.I.R. was suppressed and the prosecution case becomes suspicious. Learned Senior Advocate further relied upon the matter of Gabbu B. Lodhi and Ors. v. State of Madhya Pradesh in which the Madhya Pradesh High Court has held that absence of timely intimation under Section 157 of the Code to the Magistrate, creates doubt that the F.I.R. has been written ante-dated. Learned Senior Advocate also relied upon the matter of Bhadran v. State of Kerala in which the Kerala High Court has held that denial of opportunity to defend the accused is fatal to the prosecution. Learned Senior Advocate placed reliance in the matter of Majidkhan v. State of Karnataka in which the Karnataka High Court has held that denial of opportunity to defend the accused is not always fatal if no prejudice has been caused to the accused.
16. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State/respondent, vehemently opposed the appeal and submitted that the Court below has rightly convicted & sentenced the appellant and the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has committed the murder of Mrs. Swadesh Neelam with intent to cause the homicidal death of the Nirankari Chief Baba Gurubachan Singh amounting to murder, as such, his act is punishable under Section 302 of the I.P.C. in accordance with Section 301 of the I.P.C. Learned State counsel further argued that Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW-35), Krishna Murari (PW-37), Balveer Singh (PW-38), Gurubaksh Singh (PW-42), Amar Singh (PW-45), Indrajit Singh (PW-54), P.K. Verma (PW-56) & Laxman Singh (PW-60) have categorically deposed and proved the case of the prosecution. Evidence of the aforesaid witnesses are sufficient for drawing inference that the appellant is the person who has committed the homicidal death of Mrs. Swadesh Neelam amounting to murder with intent to cause the homicidal death of the Nirankari Chief Baba Gurubachan Singh. The aforesaid witnesses have also proved the fact that the appellant has committed the offence under Section 28 of the Arms Act, beyond all reasonable doubts. Learned State counsel placed reliance in the matter of State of W.B. v. Mir Mohammad Omar and Ors. in which the Apex Court has held that senior Courts should desist from making castigating remarks against the prosecution. Learned State counsel further placed reliance in the matter of Anil Sharma and Ors. v. State of Jharkhand in which it has been held by the Apex Court that only delay in despatching the copy of F.I.R. is not sufficient for drawing inference that the F.I.R. was ante-timed. Learned State counsel also placed reliance in the matter of Bikau Pandey and Ors. v. State of Bihar in which it has been held by the Apex Court that irregularity or illegality in the conduct of investigation in murder case is of no consequence even relating to sending of intimation of the F.I.R. under Section 157 of the Code. The Apex Court has also held that acquittal of some of the accused after giving the benefit of doubt could not be extended to others whose presence and participation in crime established by direct evidence.
17. In the present case, the Sessions Judge, Durg has taken cognizance on the basis of the case committed to it by the Chief Judicial Magistrate, Durg in accordance with the provisions contained in Section 193 of the Code. Subsequently, both the sessions trials were transferred to the Court of Sessions Judge, Mandla vide order dated 7-10-80 passed in M.Cr.C. No. 1262 and modified order dated 17-11-80 passed in M.Cr.C. No. 1436 by the High Court of Madhya Pradesh at Jabalpur and finally, both the sessions trials were tried and decided by the Sessions Judge, Mandla. Both the sessions trials were relating to the territorial jurisdiction of Sessions Division, Durg. However, after reorganization of the State of Madhya Pradesh and formation of the new State of Chhattisgarh by virtue of the Madhya Pradesh Reorganisation Act, 2000 (No. 28 of 2000), the Chief Justice of the High Court of Madhya Pradesh at Jabalpur has transferred this appeal to this Court in accordance with Sub-sections (1) & (2) of Section 30 of the Madhya Pradesh Reorganisation Act, 2000 which read as follows:
30. Transfer of proceedings from Madhya Pradesh High Court to Chhattisgarh High Court.-(1) Except as hereinafter provided, the High Court of Madhya Pradesh shall, as from the appointed day, have no jurisdiction in respect of the transferred territory.
(2) Such proceedings pending in the High Court of Madhya Pradesh immediately before the appointed day as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances, to be proceedings which out to be heard and decided by the High Court of Chhattisgarh shall, as soon as may be after such certification, be transferred to the High Court of Chhattisgarh.
18. Acquittal of appellant Avtar Singh under Section 302 of the I.P.C. and acquittal of other co-accused have been challenged by the private party Bhajan Singh & Pritam Singh in Criminal Revision No. 342/1983 before the High Court of Madhya Pradesh and the High Court of Madhya Pradesh vide order dated 9-12-1987 has set aside the acquittal of appellant Avtar Singh under Section 302 of the I.P.C. and other co-accused Mohd. Aziz & Harbinder Singh @ Kukki under Sections 302 read with Section 34 & 307 read with Section 34 of the I.P.C. Paras 1 & 53 of the order dated 9-12-1987 read as follows:
1- This revision has been filed by complainants Bhajan Singh and Pritam Singh challenging acquittals of non-applicant No. 1 Avtar Singh of the substantive charge of murder under Section 302 IPC and of other non- applicants of charges under Sections 120-B, 307/34, 302/111 or 302/34 IPC.
53- In view of the limited power exercisable under Section 401 (3) of the Code of Criminal Procedure, we set aside the acquittal of accused/non-applicant Avtar Singh for the substantive charge of murder under Section 302 IPC. We also set aside the acquittal of Aziz Mohammad and Harbinder Singh alias Kukki of the charge under Sections 302/34 and 307/34 IPC. Revision against acquittal of the remaining accused/ non-applicants is dismissed. The case is remanded to Sessions Judge, Mandla for retrial of accused/non- applicants Avtar Singh, Aziz Mohammad and Harbinder Singh alias Kukki for the aforesaid charges. These accused/non-applicants are directed to appear before the Sessions Judge on 9.1.1988 to stand their trial afresh.
19. The order dated 9-12-1987 passed in Criminal Revision No. 342/1983 was challenged before the Apex Court vide Criminal Appeal Nos. 428/89 & 738/91 and the Apex Court has quashed the order only on the ground that retrial could not have been ordered without setting aside the judgment of the trial Court. Relevant portion of the judgment dated 27-11- 1997 passed by the Apex Court reads thus,
It is contended by the learned Counsel for the appellant that the order passed by the High Court is illegal inasmuch as retrial could not have been ordered without setting aside the judgment passed by the trial Court. As the appeal filed by the appellant No. 1 is pending in the High Court, we do not propose to say anything else except that the order passed by the High Court is clearly illegal. As retrial could not have been ordered without setting aside the order of the trial court, on that short ground alone, we allow this appeal and set aside the judgment and order passed by the High Court.
In view of this order, Crl.A. No. 738/91 preferred by appellant Nos. 2 and 3 will not survive. Both the appeals are disposed of accordingly.
20. In order to appreciate the arguments of the parties, we have examined ocular and documentary evidence of the prosecution and of the defence.
21. Homicidal death of deceased Mrs. Swadesh Neelam has not been substantially disputed by the appellant, on the other hand, it is established by the evidence of Dr. D.K. Agrawal (PW-12) and the autopsy report Ex.P-21. Dr. D.K. Agrawal (PW- 12) has deposed in his evidence that on 19-3-1980 the dead body of Mrs. Swadesh Neelam was brought by the police for autopsy, he has conducted autopsy on 20-3-1980 at about 11.45 a.m. and found the injuries mentioned in para 5 of this judgment. In para 8 of his evidence, he has specifically deposed that the injuries found on the body of Mrs. Swadesh Neelam were sufficient for causing her death in the ordinary course of nature.
22. Case of the prosecution rests on the direct evidence of Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW- 35), Amar Singh (PW-45), P.K. Verma (PW-56), medical evidence of Dr. D.K. Agrawal (PW-12) and the autopsy report Ex.P-21. Judgment is challenged by the appellant on the following grounds:
(a) non-compliance of the provisions of Section 157 of the Code which makes the first information report ante-timed;
(b) dispute relating to identity of the appellant;
(c) non-mentioning of presence of the appellant and snatching of rifle from the appellant by Udairaj Dubey (PW- 35) in the F.I.R. and other documents of the Police Station;
(d) non-identification of chappals founds on the place of incident;
(e) conflict between medical and ocular evidence;
(f) making out a new case by the trial Court which is not permissible under the law; and
(g) denial of opportunity of adducing defence by retrial of the weapon during the course of trial.
23. As regards complicity of the appellant in the crime in question, the prosecution has examined Bhajan Singh (PW-1) as eyewitness.
24. Bhajan Singh (PW-1) has deposed in his evidence that he know all the accused including appellant Avtar Singh, accused Surta Singh was residing in front of his house, on the date of incident the Nirankari Chief Baba Gurubachan Singh stayed in his house, all the accused were present in the house of Surta Singh and they are members of the Akalis. Considering the activities of the appellant and other accused, they doubted that the accused may kill the Nirankari Chief Baba Gurubachan Singh, therefore, they took the police help. While they were going for laying the foundation stone of Satsang Bhawan, the Nirankari Chief Baba Gurubachan Singh was sitting in the black Mercedes car along with Pritam Singh, when they reached near the place of incident they saw one standing truck, its engine was on, the appellant was sitting inside the truck along with two other persons including Harbinder Singh @ Kukki & one driver. Suddenly, the truck dashed the Chevrolet car with full force and damaged the car. Immediately, appellant Avtar Singh jumped from the truck and fired upon the Chevrolet car twice, and ran towards the college hostel, he was firing with his rifle upon the police personnel and lastly he was caught hold by the police officer along with his rifle. Mrs. Swadesh Neelam sitting in the Chevrolet car was badly injured, blood was coming from her head and door of the car was open. At the time of incident, the Mercedes car in which the Nirankari Chief Baba Gurubachan Singh was sitting went towards Durg. Other persons sitting in the Chevrolet car also sustained injuries and they were shifted to the hospital by jeep. He has lodged the F.I.R. at Police Station Mohan Nagar, Durg vide Ex.P-5.
25. Pritam Singh (PW-2), who was sitting with the Nirankari Chief Baba Gurubachan Singh, has corroborated the evidence of Bhajan Singh (PW-1). Just after the incident, the driver of the Mercedes car turned the car and went back towards Durg.
26. Amar Singh (PW-45) was sitting inside the Chevrolet car. He has deposed in his evidence that at the time of incident he was driving the Chevrolet car, Gurubaksh Singh & Jogender Singh Puri were sitting besides him; Manmohan Singh, deceased Swadesh Neelam, Mata Maan Kaur & Guruprakash Singh were sitting on the middle seat; Anurag Tanha, Vimal Kailash, Harimohan Sharma & Narsingha were sitting on the back seat/last seat. The Nirankari Chief Baba Gurubachan Singh and others were sitting in the Mercedes car. He has further deposed that at the time of incident the truck dashed his car with force, three persons were sitting inside the truck, one person having rifle jumped from the truck and fired twice with the rifle within a distance of 7-8 yards upon the Chevrolet car, immediately he bow down his head, the first bullet passed above his head & the second bullet caused injury to Mrs. Swadesh Neelam and as a result of the bullet injury she fell down inside the car. The person fired by rifle tried to flee away, but finally he was caught hold by the police. He has also deposed that other persons sitting inside the Chevrolet car sustained simple injuries and right side of the car was damaged. Mrs. Swadesh Neelam died inside the car. They shifted the injured persons to the hospital.
27. Udairaj Dubey (PW-35), Assistant Sub Inspector, has deposed that he was accompanying the procession of the Nirankari Chief Baba Gurubachan Singh and he was deputed for the safety of the Nirankari Chief along with P.K. Verma (PW- 56). He has further deposed that the truck dashed the Chevrolet car, appellant Avtar Singh jumped and fired upon the car twice, at that time, Kukki & Mohd. Aziz also jumped from the truck and ran away. He has also deposed that they chased appellant Avtar Singh who fired upon the police party and finally they caught appellant Avtar Singh. He has snatched the rifle from the appellant.
28. P.K. Verma (PW-56) has deposed in his evidence that he was deputed for the safety of the Nirankari Chief, they were moving towards Bhilai and at the time of incident the truck dashed the Chevrolet car. Appellant Avtar Singh jumped from the truck and went towards the Chevrolet car, he was holding the rifle and fired twice on the car. He has further deposed that he challenged Avtar Singh on which accused Kukki & Mohd. Aziz jumped from the truck and ran away. They chased Avtar Singh who challenged them and fired upon the police party, but finally, they caught appellant Avtar Singh along with the rifle and Udairaj Dubey has snatched the rifle.
29. Defence has cross-examined these witnesses at length. All these witnesses have specifically deposed that Avtar Singh jumped from the truck and after two fires upon the Chevrolet car tried to flee from the spot but he was caught hold by the police party. Two F.I.R.s Exs.P-5 & P-9 have been lodged by Bhajan Singh (PW-1) & P.K. Verma (PW-56), respectively, but the material facts that Avtar Singh was caught & apprehended on the spot and his rifle was snatched by Udairaj Dubey (PW-35) have not been mentioned in the two F.I.R.s. In the detailed cross-examination of Bhajan Singh (PW-1), he has deposed in para 76 that he has mentioned the fact that the person who has fired was caught hold by the police, but same does not find place in the F.I.R.
30. P.K. Verma (PW-56), who has written the report, has admitted in para 6 of his evidence that he has not arrested appellant Avtar Singh but has taken him into custody. In paras 66, 67, 68, 69 & 70 of his cross-examination, he has deposed that he was under obligation to arrest Avtar Singh but has not arrested him and only detained him.
31. Udairaj Dubey (PW-35), who caught appellant Avtar Singh with the help of Constable Krishna Murari (PW-37) and snatched the rifle, has deposed in para 13 of his evidence that he took Avtar Singh along with him in the jeep to the Police Station where he handed over Avtar Singh to the police who were on duty. He has further deposed in para 14 that nothing has been mentioned in the police record to show that he has handed over appellant Avtar Singh to Mohan Nagar Police. He has also deposed that after snatching the rifle it was with him till its seizure vide Ex.P-20.
32. Defence has vehemently argued that the appellant was not present on the spot at the time of commission of such offence, his identification is highly disputed, his presence on the spot does not find support from the F.I.R. or other documents recorded/ought to be recorded in the Police Stations, even the fact of snatching rifle from the appellant has not been supported by the F.I.R. and other documents of the Police Station. The police officers were under obligation to mention the facts of snatching of rifle, recovery, deposit of the arms of criminal case in the Police Station that too by making entry in red ink, but such entry does not find place in the record of the Police Stations.
33. As regards the question of identity of the appellant, Bhajan Singh (PW-1) has deposed in paras 37 & 38 of his evidence that he cannot say the colour & specification of the turban which the appellant was wearing, at the time of apprehending the appellant his turban fell down, chappals were seized before him but the turban was not seized before him. Pritam Singh (PW-2) has deposed in para 72 of his evidence that appellant Avtar Singh was wearing turban and his beard was small. Udairaj Dubey (PW-35) who has apprehended and caught the appellant has deposed in para 39 of his evidence that appellant Avtar Singh was not wearing turban and coat.
34. In the present case, on the basis of size of beard, colour & specification of turban and non-seizure of turban, defence has tried to dispute the identity of the appellant, however, Bhajan Singh (PW-1) & Pritam Singh (PW-2), residents of Malviya Nagar, Durg, have specifically deposed that they know appellant Avtar Singh whose father-in-law is residing in front of their house and he was partner of M/s. S.S. Dhillon & Co. They have further deposed that the appellant was not stranger to them, after lapse of time and the manner in which the incident took place it was not possible for the persons to explain that at the time of incident, the appellant was wearing what colour of turban, what size of beard he was having and what was the colour of his clothes. This is not the case where the appellant has been identified on the basis of his description and was unknown to the witnesses. The appellant was dealing in the business of liquor contract and attached with biggest liquor contractor Surta Singh. The police personnel Udairaj Dubey (PW-35) & P.K. Verma (PW-56) also know the appellant before the incident. They have not deposed that they caught the person and afterwards they came to know the name of the appellant, but they have specifically deposed that they have caught and apprehended appellant Avtar Singh. All these witnesses have specifically deposed that appellant Avtar Singh jumped from the truck and committed the offence, police chased, caught and apprehended appellant Avtar Singh. Even Udairaj Dubey (PW-35) has deposed that he has snatched rifle from the appellant and took him in the jeep. Therefore, any discrepancy in the evidence relating to specification of turban & beard of the appellant would be of no consequence.
35. Defence has argued that the F.I.R. has not been written on 19-3-1980 vide Exs.P-5 & P-9 by Bhajan Singh (PW-1) & P.K. Verma (PW-56), respectively, but it was written on 20-3-1980 or 21-3-1980, therefore, they have not sent intimation under Section 157 of the Code immediately. The then C.J.M., Bilaspur V.J. Baradpandey (DW-15) has deposed in his evidence that on 27-3-80, counsel for the defence has filed an application for inspection of the copy of F.I.R. sent to the Court vide Ex.D-35 and he has recorded the order sheet vide Ex.D-36, but till 27-3-80 he has not received the intimation of the F.I.R. Hussain Khan (DW-16), clerk, has also deposed that he has not received the intimation of the F.I.R. and has deposed that he has not signed over Articles `Y' & `T' relating to receipt of intimation of the F.I.R. D.R. Dewangan (DW-17) has also corroborated the same facts.
36. As held in the cases of Budh Singh, Sevi, Gabbu, Anil Sharma & Bikau Pandey (supra), if intimation under Section 157 of the Code has not been sent promptly by the Police Station to the Magistrate concerned it creates suspicion about the time of recording of the F.I.R. and if it is not explained, it may be fatal to the prosecution, however, if it is explained only then, any irregularity or illegality in sending intimation to the Magistrate is not fatal to the prosecution. However, only on the aforesaid ground case of the prosecution cannot be brushed, only minute scrutiny of evidence would be required.
37. The appellant has taken specific defence that on 19-3- 1980 after completing his routine work he went to his house at 6 p.m., at about 8 p.m. one Constable came to him and informed that he has been called by the Kotwali Police, Durg, on which he went there, but the Head Constable present there told him that he has not been called, whereupon he came to his house and on second day again one Constable came and called him along with rifle, when he went to Police Station Durg, he was apprehended and arrested and his rifle was also taken by the police. In the present case, the incident took place on 19-3-1980 at about 5 p.m., even according to the case of defence the appellant was called by the police on the same day at about 8 p.m. i.e. within two hours of the lodging of report and within three hours of the incident and finally second day the appellant was arrested which supports the factum of recording of F.I.R. in time. Therefore, any irregularity or illegality in sending intimation under Section 157 of the Code or even non-sending of such intimation would be of no consequence in the present case.
38. The appellant has filed an application for examination/retrial of rifle which was highly contested by the prosecution and finally denied by the trial Court. But the appellant has not filed any appeal or has not challenged the said order before the senior Courts and in absence of such challenge the said order has attained finality. As held by the Apex Court in the cases of Pritam Singh & Amritlal (supra), the said finding is binding upon the appellant. In the cases of Bhadran & Majidkhan (supra), it has been held that denial of opportunity to defend the accused is normally fatal to the prosecution. But in the present case retrial of rifle has been denied by the trial Court after lapse of sufficient time, however, opportunity of cross-examination was available to the defence. Therefore, in the present case, no prejudice has been caused to the defence, even by non-examination/retrial of rifle.
39. Case of the prosecution rests on the evidence of eyewitnesses Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW-35), Amar Singh (PW-45) - driver of Chevrolet car & P.K. Verma (PW-56). Defence has cross- examined Bhajan Singh (PW-1) in detail and in his detailed evidence of about 104 paragraphs & 39 pages this witness has specifically deposed that the appellant is the person who was sitting inside the truck and after dash by the truck to the Chevrolet car, he jumped along with rifle and fired twice upon the Chevrolet car. Pritam Singh (PW-2) has corroborated the evidence of Bhajan Singh (PW-1). Defence has cross- examined this witness also in detail and in his detailed evidence of about 92 paragraphs & 33 pages, he has specifically deposed that the appellant whom he knows was sitting in the truck, the appellant jumped from the truck and fired twice with his rifle. Udairaj Dubey (PW-35) & P.K. Verma (PW-56) have also corroborated the evidence of Bhajan Singh (PW-1) & Pritam Singh (PW-2), in their detailed cross- examination.
40. In this case, the prosecution has also examined Amar Singh (PW-45) who is not resident of Durg but was resident of Delhi and was working as driver in Nirankari Mandal. On the date of incident, he was driving the Chevrolet car. He has specifically deposed about the persons who were sitting inside the car. He has deposed that at the time of incident his car was dashed by the truck, thereafter one person jumped from the truck and fired twice over the car, he immediately bow down his head, one bullet passed over his head and the second bullet caused injury over the head of Mrs. Swadesh Neelam as a result of which she fell down inside the car and finally died. Police personnel chased that person and that person fired upon the police party also. He has admitted that other persons sitting inside the car including himself also sustained simple injuries.
41. Amar Singh (PW-45) is an independent witness, but he has specifically deposed that after dash by the truck to his car, one person jumped from the truck and fired twice upon his car, the second bullet caused injury over the head of Mrs. Swadesh Neelam. He has also deposed that except Mrs. Swadesh Neelam all other persons sitting inside the car who were ten in number including himself have not sustained any grave or serious injury. He has specifically deposed that that person has fired from a distance of 7-8 yards. Amar Singh (PW-45) is the witness who was sitting inside the car and has seen the incident from close distance. He is the injured witness and he has deposed in detail that except Mrs. Swadesh Neelam, nobody has sustained serious injury and Mrs. Swadesh Neelam sustained injury as a result of fire by rifle.
42. In the present case, Bhajan Singh (PW-1), Udairaj Dubey (PW-35) & P.K. Verma (PW-56) have not mentioned the name of Avtar Singh in the F.I.R. or the police has not mentioned the name of Avtar Singh and seizure of rifle in any other document or record of both the Police Stations and the police has not arrested Avtar Singh on 19-3-1980. But these witnesses have specifically deposed that the police has caught appellant Avtar Singh on the spot, they took him in the jeep and Udairaj Dubey (PW-35) snatched the rifle from Avtar Singh which was ultimately seized by him vide Ex.P-20 on 19-3-1980 at 8 p.m. Presence of appellant Avtar Singh at Police Station Mohan Nagar, Durg at 8 p.m. on 19-3-1980 has not been disputed by the appellant, otherwise, the appellant has taken defence that he was called by the police. This is not the case in which after some days of incident the police has inquired or interrogated or seized articles from the appellant. Even if the defence of the appellant is admitted, it would reveal that the appellant was called by Police Station Durg on the same day at about 8 p.m. which was not possible in absence of any report. Defence of the appellant is suggestive of the fact that the F.I.R. has been lodged by the person concerned and it was recorded in time which is mentioned in the F.I.R.
43. According to the case of the prosecution, on the fateful day, the Nirankari Chief Baba Gurubachan Singh was going to Bhilai in a procession accompanied by the police officers and after the incident, disturbance in public peace was natural, one lady died on the spot and ten other persons sustained injuries, some persons fled away from the spot. In these circumstances, immediate lodging of F.I.R., immediate preparation of documents, immediate seizure of rifle and immediate action was not possible, but with a view to save themselves and police officers, snatching of rifle and taking the custody of rifle was necessary. The act of such snatching of rifle was natural conduct of the police officer.
44. Admittedly, name of the appellant has not been mentioned in the F.I.R. or other any documents of the Police Station, but Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW-35) & Amar Singh (PW-45) have specifically deposed in their evidence that the appellant jumped from the truck, he was caught red handed on the spot and his weapon was snatched by Udairaj Dubey (PW-35). In the light of the aforesaid evidence only on the ground that name of the appellant has not been mentioned in the F.I.R. or other documents, the evidence of these witnesses cannot be discarded.
45. The trial Court has arrived at a finding that the deceased died as a result of injury caused by dash of truck on the car and the appellant herein along with other persons who were sitting in the truck have caused such dash in sharing common intention. The Sessions Judge has convicted the appellant under Section 302 read with Section 34 of the I.P.C. Finding of the trial Court is substantially based on the evidence of Dr. D.K. Agrawal (PW-12) and defence witness Dr. Ambika Prasad Dubey (DW-13).
46. Dr. D.K. Agrawal (PW-12) has deposed in his evidence about the details of injuries sustained by the deceased. He has specifically deposed that no tattooing or blackening of skin was present but has admitted that wound Nos. 1, 2 & 4 were oval wounds, margins were inverted, direction of the wounds was oblique and irregular metal fragment was embedded 3' inside wound No. 4. In his cross-examination para 11, he has admitted that when bullet enters into the body, the wound would be inverted and when bullet exits from the body, the wound would be everted and he has not found any wound of everted margin. He has also admitted in para 17 that no bullet was found inside the head of the deceased.
47. J.P. Nigam (PW-18), Assistant Director, F.S.L. Sagar, has deposed in detail that lead & copper test was found positive which is suggestive of the fact that certain material pieces found in the car were the pieces of bullet.
48. Defence has examined Dr. Ambika Prasad Dubey (DW-13) who has deposed that the post-mortem report reveals that the injuries found over the body of Mrs. Swadesh Neelam were not caused by bullet. He has given his opinion on the basis of absence of tattooing & blackening of skin at the entry at the opening of the wound, absence of cellar of grease or abrasion at the side of wound and absence of parts of the bullet inside the body. But while answering question No. 26, he has admitted that blackening & tattooing will depend upon the distance from where the shot has been fired. He has also admitted while answering question No. 27 that if gun is fired from the distance of 4 feet and beyond, then there will be no tattooing or blackening. It appears that on the ground of absence of tattooing & blackening of skin this witness has opined that oval injuries with inverted margins found over the body of the deceased were not caused by bullet.
49. Amar Singh (PW-45) - driver of the Chevrolet car, substantial witness of this fact, has deposed in para 5 of his evidence that both the gun-shots were shot from a distance of 7-8 yards i.e. more than 4 feet. In these circumstances, obviously, tattooing & blackening of skin would not be found over the injuries. In all cases it is not necessary that bullet or part of bullet should be present inside the body of the deceased, but piece of bullet was found on the floor of the Chevrolet car.
50. On the basis of the aforesaid evidence of Dr. D.K. Agrawal (PW-12) & Dr. Ambika Prasad Dubey (DW-13), the trial Court has arrived at a finding that the death of Mrs. Swadesh Neelam was not as a result of bullet injury, but as a result of the injury occurred due to dash by the truck. Amar Singh (PW-45), who was sitting inside the car and was driving the car, has specifically deposed that as a result of dash all the persons sitting in the car sustained simple injuries, just after the dash one person fired with gun and caused fatal injuries to Mrs. Swadesh Neelam who immediately fell down as a result of such injuries. He has specifically deposed that just after dash by the truck, Mrs. Swadesh Neelam did not fell down, but after receiving the bullet injury she fell down inside the car.
51. It is pertinent to note that other persons sitting inside the Chevrolet car namely, Gurubaksh Singh (PW-42), Narsingh, Manmohan Singh & Amar Singh (PW-45) have also sustained injuries and were examined by the doctors vide Exs.P-22, P-81, P-82 & P-83, respectively, and their injuries were simple in nature. This shows that the persons sitting inside the Chevrolet car have not sustained fatal or dangerous injuries as a result of such dash, only Mrs. Swadesh Neelam sustained fatal injuries resulted into her instantaneous death. Specification of injuries, nature of injuries, absence of tattooing & blackening of skin, inverted margins of injuries, presence of part of bullet inside the car upon the floor of the car, simple injuries to other persons sitting in the car are sufficient for drawing inference that deceased Mrs. Swadesh Neelam has not succumbed to the injuries sustained by her as a result of dash by the truck, but has died as a result of bullet injury. The finding of the trial Court relating to cause of death of Mrs. Swadesh Neelam is perverse and not based on the evidence and other circumstances available on record.
52. This is a criminal appeal against the finding recorded by the Sessions Judge and it is open to the appellate Court to re-appreciate the finding on the basis of the evidence and to correct the finding of the Court below while exercising the appellate jurisdiction in terms of Section 386 of the Code. While dealing with the question of re-appreciation and alteration of the finding of the trial Court, the Apex Court in the matter of Sham Sunder v. Puran and Anr. has held that the High Court, exercising power under Section 386 of the Code, in appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature. Para 2 of the said judgment reads thus,
2. The High Court, exercising power under Section 386, Cr.P.C., in an appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature or the extent or the nature and extent of the sentence but not so as to enhance the same. The powers of the High Court in dealing with the evidence are as wide as that of the trial court. As the final court of facts, the High Court has also duty to examine the evidence and arrive at its own conclusion on the entire material on record as to the guilt or otherwise of the appellants before it.
53. While dealing with the same question, the Apex Court in the matter of Narinder Singh and Anr. v. State of Punjab has held that fresh appreciation of the entire evidence is permissible under Section 386 of the Code. The Apex Court has further held that the High Court was right in overturning the judgment of acquittal of the Court of Session. Perversity is writ large on the face of the judgment of the trial court. Its appreciation of evidence is wholly inappropriate and it has acted with material irregularity. It has taken into consideration inconsequential circumstances to record acquittal of the appellants.
54. On close scrutiny of the evidence of the prosecution & the defence, the finding of the trial Court relating to death of Mrs. Swadesh Neelam as a result of injury occurred due to dash by the truck is not sustainable and the evidence is sufficient for drawing inference that Mrs. Swadesh Neelam died as a result of bullet injury. The evidence of Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW-35) & P.K. Verma (PW-56), who had categorically deposed that the appellant is the person who has caused gun shot injury to Mrs. Swadesh Neelam supported by the evidence of Amar Singh (PW-45) inspire confidence, their evidence is trustworthy and sufficient for drawing inference that appellant Avtar Singh is the person who has caused gun shot injury resulting into instantaneous death of Mrs. Swadesh Neelam.
55. It appears from the evidence available on record that the appellant has not intended to cause the death of Mrs. Swadesh Neelam. The evidence of Bhajan Singh (PW-1) & Pritam Singh (PW-2) reveals that the appellant has caused fatal injuries to Mrs. Swadesh Neelam under the mistaken belief that the Nirankari Chief Baba Gurubachan Singh was sitting inside the Chevrolet car, and with intent to cause homicidal death amounting to murder of the Nirankari Chief Baba Gurubachan Singh, the appellant has fired gun shots upon the Chevrolet car and caused the aforesaid injuries resulting into instantaneous death of Mrs. Swadesh Neelam, but not with intention to cause the death of Mrs. Swadesh Neelam.
56. The trial Court has arrived at a finding, by making a new case, that two unidentified persons and the appellant herein have caused fatal injuries by dash in sharing common intention, but this finding has not been supported by substantial evidence of the prosecution, it was neither the case of the prosecution nor the case of the defence and therefore, such finding is not sustainable under the law.
57. Originally, the appellant herein was charged for the offence under Section 302 of the I.P.C. but the trial Court has convicted him under Section 302 with the aid of Section 34 of the I.P.C. and acquitted him of the charge under Section 302 of the I.P.C. Complete opportunity has been provided to the defence to meet out the case of the prosecution and no prejudice has been caused to the defence. In the matters of Pritam Singh & Amritlal (supra), the Apex Court has held that the finding which attained finality is binding and conclusive in subsequent stage in same case. In the present case, during the pendency of this appeal and in existence of the judgment impugned without setting aside the same, the High Court of Madhya Pradesh at Jabalpur has directed for retrial of accused Avtar Singh, Aziz Mohammad & Harbinder Singh alias Kukki in Criminal Revision No. 342/1993 vide order dated 9-12-1987 and the same has been set aside by the Apex Court in Criminal Appeal Nos. 428/89 & 738/91 vide judgment dated 27-11-1997 only on the ground that retrial could not have been ordered without setting aside the judgment of the trial Court. The Apex Court has not decided the case on merits that whether acquittal of the appellant herein under Section 302 of the I.P.C. was proper or not. The order dated 9-12-1987 passed in Criminal Revision No. 342/1983 has been quashed by the Apex Court only on the technical ground that without setting aside the judgment of the trial Court, retrial could not have been ordered. Therefore, any finding has not attained finality in this case.
58. The evidence adduced on behalf of the parties are sufficient for drawing inference that with intent to commit the homicidal death amounting to murder of the Nirankari Chief Baba Gurubachan Singh, the appellant has caused fatal injuries to Mrs. Swadesh Neelam and thereby caused her death, not with intent to cause the death of Mrs. Swadesh Neelam. The act of the appellant squarely falls within the category of Section 301 of the I.P.C. and the same is commission of the offence of murder.
59. The doctrine of transfer of malice is fully applied in the present case. Section 301 of the I.P.C. reads as follows:
301. Culpable homicide by causing death of person other than person whose death was intended.-If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
60. Thus, the act of the appellant is punishable under Section 302 of the I.P.C.
61. The trial Court has also convicted & sentenced the appellant under Section 307 read with Section 34 of the I.P.C. for attempting to commit the murder of the Nirankari Chief Baba Gurubachan Singh on the ground that the appellant has fired twice upon the Chevrolet car with intent to kill the Nirankari Chief.
62. Entire evidence of the prosecution is sufficient for drawing a definite inference that with intent to commit the culpable homicide amounting to murder of the Nirankari Chief Baba Gurubachan Singh, the appellant has fired and caused the homicidal death of Mrs. Swadesh Neelam. This is not the case in which after knowing the fact that under mistaken belief instead of killing the Nirankari Chief the appellant has killed another person (Mrs. Swadesh Neelam) and then he again attempted to kill the Nirankari Chief. Entire evidence reveals that the appellant herein has succeeded in his object and after repeated firing, he tried to fled away from the spot. This shows that he has not attempted for killing any person including the Nirankari Chief after repeated firing on the Chevrolet car. Therefore, conviction of the appellant under Section 307 read with Section 34 of the I.P.C. is not sustainable under the law.
63. As regards the question of conviction & sentence of the appellant under Section 28 of the Arms Act, the prosecution has adduced ample evidence to prove the aforesaid charge against the appellant. Sentence of R.I. for two years imposed upon the appellant under Section 28 of the Arms Act is just and proper and no interference is called for.
64. On close scrutiny of the evidence of the parties, after re-appreciating the evidence and perverse finding of the trial Court, we are of the view that conviction of the appellant under Section 307 read with Section 34 of the I.P.C. is not sustainable under the law. Evidence available on record is sufficient for drawing inference that the appellant has caused the homicidal death of Mrs. Swadesh Neelam amounting to murder which is punishable under Section 302 of the I.P.C., but not under Section 302 read with Section 34 of the I.P.C.
65. For the foregoing reasons, the appeal is partly allowed. Judgment impugned is modified. The appellant is acquitted of the charge under Section 307 read with Section 34 of the I.P.C. He is convicted under Section 302 of the I.P.C. instead of Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life. Conviction & sentence imposed upon him under Section 28 of the Arms Act are hereby maintained. The appellant is on bail, his bail bonds are discharged and he shall surrender immediately before the Court of Chief Judicial Magistrate, Durg to serve the remaining sentence.