1. Per Justice Brij Kishore Dube The judgment of absolviter dated 24 th November,1997 passed in Sessions Trial No.174/1992 (State of Madhya Pradesh v. Devi Singh and others) by the Additional Sessions Judge, Mungawali, District Guna, acquitting the respondents / accused including the deceased respondents from the charge under Sections 148, 302 in the alternate 302/149, 307 in the alternate 307/149, 323/149 of IPC and further acquitting the respondent Shivraj Singh from the charge under Section 27 of the Arms Act, has been made pivot in this appeal filed by the State of Madhya Pradesh under Section 378(3) of the Code of Criminal Procedure, 1973, after obtaining leave to file appeal.
2. During the pendency of this appeal, the respondents Bahoran and Baldev had died and their name have been deleted from the cause title, as the appeal stood abated against them.
3. The prosecution case, in brief, may be narrated as under: (i) That, the complainant, Dayaram (P.W.4) reached alongwith Munna (P.W.10) and Gaya Prasad (P.W.9) at the Police Chowki, Sehrai on 25 th January, 1992 at 17.30 p.m., and lodged a report to the effect that on 25 th January, 1992 at about 4.00 p.m., he came back from village Mitha Khera, at that juncture, Bahoran (son of Sarpanch) came and dealt a blow with luhangi on his head from its back side as a result of which blood was oozing out, therefore, he shrieked. On hearing his shriek, Narayan [his (Dayaram's) father and hereinafter referred to as the deceased] came and complained Devi Singh, why his son, Dayaram had beaten his (Narayan's) son. On this, Devi Singh who happens to be the Sarpanch of the village hurled abuses and by taking honour issue said that you barbers are not cutting their hair, therefore, he will the see him today, and scolded by saying that bring his gun and kill the barbers. Thereupon, accused person Devi Singh himself armed with 12 bore gun, Bahoran armed with Topidar gun, Prabhu, Malkhan and Shivraj armed with Topidar guns, Laxman and Narayan armed with luhangi and the remaining accused, Chandan, Harnam, Parmal and Baldev armed with lathies came and entered into his house. Accused, Malkhan fired a shot from his gun which hit below the knee of left leg to Kallu (P.W.5). Malkhan fired another shot to P.W.8, Amar Singh (grand father of Dayaram) which hit at his right thigh. Accused, Boharan fired his gun which caused injury to Harkunwar (P.W.6). Accused, Devi Singh fired gun shot at his father, Narayan as a result of which Narayan received injury on his thigh. Thereafter, Devi Singh again fired which also caused injuries to Narayan on his thigh and private parts as a result of which Narayan died on the spot. Another gun shot fire of Devi Singh hit Phulbai (P.W.7) on knee of her right leg. Accused, Prabhuraj and Shivraj fired inside his house and pelted stones at his (Dayaram's) 15 days old infant. Accused, Laxman caused injuries to Gaya Prasad (P.W.9) by lathi and the accused Parmal caused injuries by lathi to Munna (P.W.10). Accused, Harnam, Chandan and Narayan damaged the household goods; (ii) That, on the basis of the aforesaid information, a case under Sections 302/ 307/ 452/ 426/ 323 /34 of the IPC (Exhibit P/28) was registered. The criminal law was triggered and set in motion. The investigating agency reached on the spot and sent the injured for medical examination. After preparation of inquest report, the dead body was sent to for the post mortem examination. The post mortem of deceased, Narayan was also conducted by Doctor S.R.Shiddarth (P.W.3) on 26 th January,1992 at 10.30 a.m., and opined that death was caused due to shock and excessive haemorrhage. Severe haemorrhage was caused due to gun shot injuries. The death was homicidal in nature; and (iii) That, the Investigation Officer recorded the statements of the witnesses who were acquainted with the facts of the offence; prepared the map of scene of occurrence (Exhibit P/43); seized blood stained and ordinary earth, etc., from the spot; arrested the accused persons and on the basis of statement leading to recovery seized the weapons used in the commission of the offence. On completion of the investigation, a charge sheet was filed against appellants/ accused persons including the deceased appellants, total 11 in number before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for the trial.
4. The learned Trial Judge on the basis of the material placed on record framed charges as mentioned hereinabove against all the accused persons including the deceased respondents. The accused persons including the deceased respondents denied the charges and claimed to be tried. The defence of all the accused persons is of false implication and the same defence set forth in their statements recorded under Section 313 of the Code of Criminal Procedure, 1973.
5. To bring home the charge, the prosecution has examined as many as 18 witnesses and placed Exhibits P/1 to P/61, the documents on record. The accused persons have examined S.K.Agarwal (D.W.1), Thevan (D.W.2), Sohnalal (D.W.3) and Kala (D.W.4) in their defence.
6. The learned Trial Judge on the basis of evidence placed on record came to hold that charges under Sections 148, 302 in the alternate 302/149, 307 in the alternate 307/149, 323/149 of the IPC and under Section 27 of the Arms Act has not been proved against the respondent No.2, Shivraj Singh and eventually, acquitted him from these offence, The learned Trial Court further came to hold that charges under Sections 148, 302 in the alternate 302/149, 307 in the alternate 307/149, 323/149 of the IPC has not been proved against the deceased/respondents, Bahoran and Baldev and the respondents, Devi Singh, Malkan, Chandan Singh, Laxman, Harnam Narayan, Prabhu and Parmal and, eventually, acquitted them from these offence.
7. In this manner, this appeal has been preferred by the appellant/State assailing the judgment of acquittal passed by the learned Trial Court after obtaining leave to file appeal.
8. Legality and propriety of the impugned judgment has been challenged by the learned Public Prosecutor on the ground of misappreciation of the evidence on record. Learned Public Prosecutor, Shri Deepak Khot submits that looking to the unimpeachable testimony of the injured witnesses Dayaram (PW/4), Kallu (P.W.5), Harkunwar (P.W.6), Phulbai (P.W.7), Amar Singh (PW/8), Gaya Prasad (PW/9) and Munna Lal (PW/10) it is proved that they have been assaulted by the accused persons and their evidence is also corroborated by their respective MLC reports. It is also proved that the accused persons have been caused the death of Narayan, which has also been corroborated by the post mortem report. Thus it has been successfully proved by the prosecution that all the respondents were having common object to kill the deceased and they were armed with deadly weapons and they also assaulted the injured persons. Learned Public Prosecutor has further argued that the learned trial Court erred in acquitting the respondents, hence, this appeal be allowed and the respondents be convicted for the offence.
9. On the other hand, learned counsel for the respondents have supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that there is no explanation of the prosecution that how respondent Devi Singh sustained injuries and therefore, the impugned judgment of acquittal cannot be set aside. It has been further submitted that prosecution witnesses are highly interested as they are related to each other and there is enmity between the parties and, therefore, respondents have been falsely roped. According to learned counsel, this appeal is having no merit and the same may be dismissed. Learned counsel has placed reliance on certain decisions of the Supreme Court, they are; Lakshmi Singh and others Vs. State of Bihar, AIR 1976 SC 2263, Jamuna Chaudhary and others Vs. State of Bihar, AIR 1974SC 1822, Amar Malla and others Vs. State of Tripura, AIR (2002) 3 SC 3052, Rizan and another Vs. State of Chhatisgarh, AIR (2003) 1 SC 976 and Puran Singh Vs. State of Uttarakhand, 2008 CRLJ 1058.
11. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.
12. In the present case, the prosecution has examined as many as 07 eyewitnesses, they are; Dayaram (P.W.4), Kallu (P.W.5), Harkunwar (P.W.6) Phulabai (P.W.7), Amar Singh (P.W.8), Gaya Prasad (P.W.9) and Munna Lal (P.W.10). They are also injured witnesses. Since, the prosecution witnesses, Dayaram (P.W.4), Kallu (P.W.5), Harkunwar Bai (P.W.6), Phulbai (P.W.7), Amar Singh (P.W.8), Gaya Prasad (P.W.9) and Munna Lal (P.W.10) are members of one family and thickly related either by blood or by relation to the deceased and having enimical terms with the accused persons who are members of one family, therefore, their evidence is required to be closely scrutinized with great care and caution.
13. P.W.4, Dayaram has categorically stated that at the relevant point of time after attending a marriage, he was returning back from village Mitha Khera to his home, Bahoran son of Devi Singh, Sarpanch met him on the road nearby his (Dayaram) house. As and when he proceeded ahead, Bahoran dealt a luhangi blow on his head, therefore, he shrieked. On hearing his shriek, his father, Narayan came out from his house and complained to Devi Singh, Sarpanch why his son had beaten by his son, Bahoran. On this, Devi Singh hurled abuses by saying that you barbers are not cutting their hair since last two years and scolded by saying that boys go and bring the guns and kill these barbers, whereupon Devi Singh himself having 12 bore gun, Boharan having double barrel topidar gun, Malkhan having topidar gun, Shivjra having topidar gun, Prabhu having gun, Narayan and Laxman armed with luhangies while Harnam and Chandan having lathies came to his house. Firstly, Malkhan fired gun shot which hit below the left knee of Kallu kaka. Malkhan fired another gun shot to Amar Singh and the pellets struck on his person. Devi Singh fired first gun shot at his father (Narayan) which struck on his thigh, the pellets through and through the thigh and the second gun shot also struck on his thigh and the private parts as a result of which his father, Narayan died on the spot. A gun shot fired by Devi Singh also hit Phula Bai.
14. Further, this witness says that Bahoran fired his gun which caused injuries to his sister, Harkunwar on her both the thighs. Prabhu and Shivraj fired gun shots inside his (Dayaram) house but he was unable to see to whom the gun shot fired was struck. Accused, Narayan dealt a luhangi blow on the head of Amar Singh. Laxman dealt a luhangi blow to his elder brother, Gaya Prasad. Laxman threw stone at his 15 days infant which hit on her left shoulder. Harnam dealt a lathi blow on the head of Kallu and Chandan struck lathi blow on the waist of Harkunwar. Accused persons also damaged his household articles. The inhabitants of the village had witnessed the incident but on account of fear, no one dared to intervene and rescue them.
15. This witness further says that he went to the Police Chowki, Sehrai to lodge the report. This witness has proved his FIR (Exhibit P/28). A very long crossexamination was made, but except minor contradictions and omissions, on the material points this witness remains firm.
16. The statement of this witness has been corroborated by the evidence of Kallu (P.W.5), Harkunwar (P.W.6), Phulbai (P.W.7), Amar Singh (P.W.8), Gaya Prasad (P.W.9) and Munna Lal (P.W.10). Long crossexamination was made to these witnesses, but on the material point they remained embedded despite there being a roving cross examination over them.
17. We would like to consider the evidence of Autopsy surgeon, Dr. S.R.Shiddarth (P.W.3) and the post mortem of the deceased (Exhibit P/27). According to the Doctor, the deceased sustained the following injuries: “(1) Gun shot wound over left side of chin. 1.5 cm x 1.5 cm. (2) Gun shot wound over lower part of abdomen and pubic symphisis. 9 cm x 9 cm (area). Multiple in number. (3) Gun shot wound over genital organs. (4) Gun shot wound over upper 2/3 rd of right thigh medially and femoral region. Damage the femoral (multiple in number). Vessels. Gun shot puncture wound scattered over ellip and did area of 18 cm x 12 cm area of thigh. Death from injury to femoral vessel. Pellets are found in the wound. Wound showing burning and charring. Bleeding from wounds and clotted blood present over left thigh and clothes. (5) Gun shot wound over 2/3 rd of left thigh frontally. 7 cm x 7 cm x 3 cm. Multiple in number. (6) Gun shot wound over upper 2/3 rd of right leg fronto medially. 6 cm x 6 cm are multiple in number. (7) Gun shot wound over right foot fronto medially. 11 cm x 9 cm are Multiple in number. “ According to the Autopsy surgeon, the cause of death was shock and severe haemorrhage. Severe haemorrhage was caused due to gun shot injuries. The death was homicidal in nature. Therefore, the testimony of the eye witnesses is corroborated by the medical evidence.
18. The learned Trial Court disbelieved the statement of the material eyewitnesses on minor contradictions and omissions which arrived in their testimony. The Apex Court in the case of Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 has held that the testimony of the injured witness is accorded a special status in law and observed as under: “The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”
19. The learned Trial Court disbelieved the prosecution case on the ground that the inhabitants of the village arrived at the spot and have seen the incident, but these independent witnesses have not been examined by the prosecution. Merely because inhabitants of the village were not examined by the prosecution, according to us, no adverse inference could be drawn against it because it is not necessary to examine each and every witness and particularly when occurrence of the incident is proved from the statement of the injured witnesses. Nowadays, no body would like to place his life in danger by giving evidence against the accused persons.
20. The another reason to disbelieve the evidence of Dayaram, P.W.4 by the learned Trial Court is that infant daughter of Dayaram was not got medically examined. The infant daughter was only 15 days old and, therefore, she was not referred to for medical examination and the same did not became a ground for disbelieving the testimony of Dayaram, P.W.4, which is otherwise acceptable.
21. One reason to disbelieve the evidence of Dayaram, P.W.4 has been assigned by the learned Trial Court is that in paragraph 4 of the chiefexamination, he deposed that first of all Malkhan fired the gun shot while in the cross examination, he stated that Devi Singh fired the first gun shot. If we gone through the whole testimony of the witness, we find that the witness categorically deposed the whole incident and also the fact that the injured person who had received the injury from whose gun shot fire.
22. The next and important reason which the learned Trial Court has assigned to disbelieve the statement of eye witnesses as well as the prosecution case is that in the same incident, respondent – Devi Singh sustained grievous injuries and no explanation has been given by the prosecution in this regard and, therefore, the evidence of the eyewitness is unreliable. Shri Madhukar Kulshrestha, learned counsel for the respondents has also submitted that the prosecution is under an obligation to explain the injuries on the person of the respondent – Devi Singh but the same was not explained, therefore, the entire case of the prosecution suffers.
23. Regarding effect of the nonexplanation of injuries sustained by the accused, the Hon'ble Apex Court in the case of Lakshmi Singh and others v. State of Bihar AIR 1974 SC 2263, has observed as under: “There may be cases where the nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.”
Further, in the case of Amar Malla and others Vs. State of Tripura AIR 2002 (3) SC 3052, it has been held by the Hon'ble Apex Court that: “.... it is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating Officer. In the case of Rizan and another v. State of Chhatisgarh AIR 2003 SC 976, it has been held that the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injures by the prosecution may not affect the prosecution case in all cases. This principle applies to cases whether the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” In the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others (2001) 6 SCC 145, it has been held that: “
17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar, (2004) 4 SCC 298, Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh v. State of U.P., (1990) 3 SCC 190, all three judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before nonexplanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.”
24. From the aforesaid, as well as from the latest pronouncement of the Apex Court in the case of Sikandar Singh and others Vs. State of Bihar (2010) 7 SCC 477, the legal position is clear that the prosecution is not required to explain the injuries which are of minor or superficial in nature. The injuries which are of serious nature and sustained by the accused in the same incident have to be explained and nonexplanation may affect the prosecution case unless the prosecution case is established by clear, cogent and trustworthy evidence in which situation even nonexplanation of serious injuries may be inconsequential.
25. In the present case, the respondent Devi Singh was examined on 27 th January, 1992 at 11.00 p.m., at the Civil Hospital, Mungawali by Dr. S.K.Agrawal (D.W.1) and found the following injuries on his person: “(1) Incised wound. 3.1 cm x 1.0 cm x 0.8 cm. Middle of forehead, just above the portion of the nose. (2) Incised wound. 5.0 cm x 1.0 cm x bone deep over right parietal region of scalp. (3) Incised wound. 6.0 cm x 1.0 cm x bone deep on right parietal region of scalp. (4) Incised wound. 4.0 cm x 1.0 cm x 1.0 cm. Middle and left parietal region of scalp. (5) Contusion. 10 cm x 8 cm. Posterior aspect of left fore arm (6) Abrasion. 1.5 cm x 1 cm Dorsal aspect of left fore arm.” According to Dr. S.K.Agrawal, injury No.5 was grievous in nature while injury Nos. 1 and 6 were simple in nature. Injury Nos. 2, 3, and 4 may be dangerous to life. Thus, it was proved that the injuries on the person of the accused, Devi Singh were not of minor or superficial in nature.
26. Now the question arises is that whether the injuries found on the person of accused, Devi Singh have been sustained at the time of occurrence in question. Admittedly, the occurrence in question was occurred on 25 th January, 1992 at 4.00 p.m, while the accused, Devi Singh was medically examined after two days, i.e., on 27 th January, 1992 at 11.00 p.m. Dr. S.K.Agrawal (D.W.1) was not opined that the injuries which were found on the person of Devi Singh were caused on 25 th January, 1992. Apart from this, looking to the nature of the injuries, the fact that the injured, Devi Singh was not examined and treated for more than 48 hours seems to be not believable. The alleged FIR (Exhibit D10) was lodged by Devi Singh on 27 th January, 1992 at 19.30 hours with great delay, as and when he was arrested in the case registered against him on 27 th January, 1992 at 19.30 hours. The delay in lodging the FIR has not been explained. P.W.17, R.K.S.Tomar, the Investigating Officer has deposed that the report lodged by Devi Singh was got investigated but no case was made out on his report. In these circumstances, we are of the considered view that it is not proved or established that the injuries found on the person of Devi Singh were caused at the time of occurrence in question. Therefore, we do not find any merit in the contention of Shri Madhukar Kulshrestha, learned counsel for the respondents.
27. According to us, the circumstances for acquittal which the learned Trial Court has assigned are minor and do not go to the root of the matter. There is unimpeachable testimony of Dayaram (P.W.4) and other injured witnesses that respondents No.1 to 8 were armed with the weapons, the description whereof has been mentioned in the report as well as in the Court statements, came together at the residence of the complainant and attacked the deceased as well as the other injured witnesses. The learned Trial Court on unjustified reasons on the face value of the evidence which is extremely credible and on account of perversity has acquitted the respondents No.1 to 8.
28. We have closely scrutinized the testimony of the eyewitnesses and we find that their evidence is sufficient so as to prove the guilt of the respondents No.1 to 8 that all of them came together armed with deadly weapons and attacked the deceased and, therefore, the interference by this Court is called for in this State appeal. We may profitably place reliance on the pronouncements of the Supreme Court in the case of Himmat Sukhadeo Wahurwagh and others v. State of Maharashtra, (2009) 6 SCC 712 and also State Rep. By Inspector of Police Vs. Saravanan and another, AIR 2009 SC 152.
29. Hence, for the reasons stated hereinabove, we hereby hold that the respondents No.1 to 8 have committed the offence punishable under Sections 148 and 302/149 of the IPC, the judgment of acquittal acquitting the respondents No.1 to 8 under Sections 148 and 302 and in the alternate under Section 302/149 of the IPC is accordingly set aside.
30. We shall now advert ourselves that what offence the respondents have committed while causing injuries to P.W.4, Dayaram, P.W.5, Kallu, P.W.6 Harkunwar, P.W.7 Phul Bai, P.W.8, Amar Singh, P.W.10, Gaya Prasad and P.W.10, Munna Lal. According to Dayaram (P.W.4) when he was returning back from village Mitha Kheda after attending a marriage, Bahoran met him on the road nearby his (Dayaram's) house and as and when he proceeded ahead, Bahoran dealt a luhangi blow on his head. The injury on the head of Dayaram (P.W.4) has been corroborated by the medical evidence. According to P.W.4, Dayaram and P.W.6, Harkunwar, the accused Bahoran fired his gun to Harkunwar which caused injury on the person of Harkunwar (P.W.6). The gun shot injuries on the person of Harkunwar have been corroborated by the evidence of Dr. S.R.Shiddarth (P.W.3). Be that as it may, since the accused, Bahoran had died during the pendency of this appeal, we are not considering this aspect of the matter, whether he dealt luhangi blow and fired the gun shot or not since the appeal has been abated against him.
31. According to Dayaram (P.W.4), Malkhan fired the gun shot which hit below the left knee of Kallu. Malkhan fired another gun shot to Amar Singh and the pellets struck on his person. The accused, Narayan dealt a luhangi blow on the person of Amar Singh while Harnam dealt lathi blow on the head of Kallu and this has been also so stated by Kallu (P.W.5) and Amar Singh (P.W.8). The statement of these 03 witnesses corroborates each other. MLC report of Kallu (P.W.5) is Exhibit P/26 while the MLC report of Amar Singh (P.W.8) is Exhibit P/19 and they were examined by Dr. S.R.Shiddarth (P.W.3). On bare perusal of their MLC reports and the evidence of Dr. S.R.Shiddarth (P.W.3), we find that Kallu (P.W.5) and Amar Singh (P.W.8) have sustained the following injuries on their person: Kallu(P.W.5) “(1) Gun shot wound over upper 2/3 rd of right leg. 2.5 cm x 2 cm x 10 cm fronto laterally. Burning and charring edge inverted. Clinically fracture seen. (2) Gun shot wound over upper 2/3 rd of right leg. 5 cm x 5 cm x 10 cm posteriorly. Bleeding from wound stitches. Irregular everted edges. (3) Lacerated wound over tip of the toe of 1.5 cm x 5 cm x 2.5 cm. Left foot frontally. (4) Lacerated wound over side of frontal. 3 cm x 1 cm x .5 cm Clotted blood over skull and face stitches. (5) Contusion over thumb of left hand. 4 cm x 2 cm. Swelling and dorsal aspect.” Amar Singh(P.W.8) “(1) Multiple gun shot wound over left thigh. 20 cm x 12 cm x 1 cm area. Medially. Bleeding from the wounds. Pellets are present inside the thigh. (2) Gun shot wound. Lower 1/3 rd of left thigh. Posteriorly placed. 1 cm x 1 cm x 0.5 cm. (3) Gun shot wound over II intercostal space of right side of chest. 0.5 cm x .5 cm x upto long. (4) Gun shot wound over upper 2/3 rd of right fore arm. Posteriorly placed. 4.5 cm x 4.5 cm .5 cm. (5) Gun shot wound over wrist joint. Posteriorly 0.5 cm x 0.5 cm x 0.5 cm. (6) Gun shot wound multiple in number over right hand dorsal aspect. 3.5 cm x 3.5 cm x .25 cm area. (7) Contusion over upper lid of right eye. 3 cm x 2 cm. “
32. According to Dr. S.R.Shiddharth (P.W.3) all the injuries found on the person of Amar Singh (P.W.8) were simple in nature, however, the injury Nos.1 and 2 found on the person of Kallu (P.W.5) were grievous in nature while injury Nos.3, 4 and 5 were of simple in nature. Dr. S.R.Shiddharth in paragraph 18 of his crossexamination clearly stated that the injuries found on the person of Kallu were not dangerous to his life. Therefore, according to medical evidence, the respondent – Malkhan has also committed an offence under Sections 324/149 and 326/149 of the IPC for causing gun shot injuries to Amar Singh and Kallu respectively in furtherance of the common object of unlawful assembly of the respondents No.1 to 8. Therefore, the remaining respondents No.1, 2 and 4 to 8 may also be convicted under Sections 324/326/149 of the IPC.
33. Dayaram (P.W.4) further stated that the gun shot fire by Devi Singh also hit Phulabai. This has also stated by Phulabai (P.W.7). The statement of these witness is corroborated by the evidence of each other. The MLC report of Phulabai is Exhibit P/23 and she was examined by Dr. S.R.Shiddharth (P.W.3). On bare perusal of her MLC report and the evidence of Dr. S.R.Shiddharth (P.W.3), we find that Phulabai sustained the following injuries: “(1) Gun shot wound over upper 2/3 rd of left thigh. Medially. 0.5 cm x 0.5 cm x 1 cm. (2) Gun shot wound over left knee. Medially. 0.5 cm x 0.5 cm x .5 cm. (3) Gun shot wound over middle of left leg. Frontally 0.5 cm x 0.5 cm x 0.5 cm.” According to Dr. S.R.Shiddharth (P.W.3), all the injuries found on the person of Phulabai were simple in nature. Therefore, according to the medical evidence, respondent – Devi Singh has also committed the offence under Section 324/149 of the IPC for causing gun shot injury to Phulabai in furtherance of the common object of unlawful assembly.
34. P.W.4, Dayaram stated that Laxman dealt a luhangi blow on his elder brother, Gaya Prasad (P.W.9). This has also so stated by Gaya Prasad (P.W.9). The statement of these two witnesses corroborating each other. MLC report of Gaya Prasad is Exhibit P/25 and he was examined by Dr. S.R.Shiddharth (P.W.3). On bare perusal of MLC report and the evidence of Dr. S.R.Shiddharth (P.W.3), we find that Gaya Prasad (P.W.9) sustained the following injuries on his person. “(1) Contusion over middle of left fore arm. Posteriorly. 6 cm x 2 cm. (2) Contusion over left cheek. 7 cm x 2.5 cm. (3) Abrasion over left ear. 1 cm x 1 cm.” According to Dr. S.R.Shiddharth (P.W.3), all the injuries found on the person of Gaya Prasad were simple in nature. Therefore, according to the medical evidence, respondent – Laxman has also committed the offence under Section 323/149 of the IPC for causing injury to Gaya Prasad (P.W.9) in furtherance of the common object of unlawful assembly.
35. P.W.10, Munna Lal has stated that Parmal struck lathi blow on his person as a result of which he fell down. But, according to P.W.5, Kallu, Chandan dealt a lathi blow on the person of Munna Lal. P.W.6, Harkunwar has stated that Narayan dealt a blow on the person of Munna Lal. Therefore, there is inconsistency in the evidence of these eyewitnesses. P.W.4, Dayaram has neither stated about any overt act of Parmal nor he stated about the presence of Parmal at the spot. Therefore, presence and overt act of Parmal has not been proved beyond reasonable doubt.
36. We have gone through the evidence of the eyewitnesses and the role assigned to the accused, Parmal (respondent No.9). There is no consistent evidence of the prosecution that the accused, Parmal came alongwith the other coaccused persons on the spot. Therefore, according to us, he has been rightly acquitted by the learned Trial Court, Jamuna Chaudhary and others (supra), referred to. Therefore, his acquittal under Sections 148, 302 and in the alternate 302/149 of the IPC, 307 in the alternate 307/149 and 323/149 of the IPC is hereby affirmed. Similarly, since it has not been proved beyond reasonable doubt that the fire arm weapon was seized from the possession of Shivraj and, therefore, he was acquitted from the offence under Section 27 of the Arm Act. The acquittal of the accused, Shivraj under Section 27 of the Arms Act is hereby affirmed.
37. Resultantly, this appeal is hereby allowed in part. The judgment of acquittal passed by the learned Trial Court against the respondents No.1 to 8 is hereby set aside and the respondents No.1 to 8 are convicted for the offence punishable under Sections 148, 302/149, 324/149, 326/149 and 323/149 of the IPC and are sentenced to suffer one year's rigorous imprisonment for the offence under Section 148, to suffer rigorous life imprisonment for the offence under Section 302/149, to suffer one year's rigorous imprisonment for the offence under Section 324/149, to suffer three years' rigorous imprisonment for the offence under Section 326/149 and to suffer 03 months rigorous imprisonment for the offence under Section 323/149 of the IPC. All the jail sentences shall run concurrently.
38. The acquittal of respondent No.9, Parmal from all the charges is hereby affirmed. The acquittal of Shivraj Singh, respondent No.2 under Section 27 of the Arms Act is also hereby affirmed.
39. All the respondents are on bail. The bail bonds of respondent No.9, Parmal stands discharged. The bail bonds of respondents No.1 to 8 shall stand cancelled after their surrender before the learned Trial Court on or before 20 th June, 2011 failing which the learned Trial Court shall issue arrest warrants against them and also notices to their sureties and may pass necessary orders against them. However, if the respondents No.1 to 8 are surrendered before the learned Trial Court on or before 20 th June, 2011, their bail bonds shall stand cancelled. The Registry is hereby directed to sent the original bail bonds filed by the respondents No.1 to 8 to the learned Trial Court and photocopy thereof be retained in the original record. The original record of the learned Trial Court be sent forthwith so as to reach on or before 20 th June, 2011.
40. Resultantly, this appeal stands allowed in part to the extent indicated hereinabove.