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CASE NO.: Appeal (crl.)  180 of 2004

PETITIONER: Rajinder  & Ors.                                                         

RESPONDENT: State of Haryana & Anr.                                                  

DATE OF JUDGMENT: 25/08/2004

BENCH: B.N. AGRAWAL &  H.K. SEMA

JUDGMENT: J U D G M E N T

B.N.AGRAWAL,J.

       The appellants along with accused Laxman Singh were tried and by  judgment rendered by  the trial court accused Laxman Singh, though  acquitted of  the charge under Section 27 of the Arms Act,  was convicted  under Section 302 of  the Indian Penal Code (hereinafter referred to as "I.P.C.")  whereas four appellants  were convicted under Sections 302/149 I.P.C. and all sentenced to undergo  imprisonment for life and to pay a fine of Rs.500/- each, in default, rigorous  imprisonment for a period of one month.  Accused Laxman Singh was further  convicted under Section 307 I.P.C. and the appellants  under Sections 307/149  I.P.C. and each one of them sentenced to undergo rigorous imprisonment for a  period of five years and to pay a fine of Rs.500/- each, in default, rigorous  imprisonment for a period of one month.  They were also convicted under Sections  148  and 323/149  I.P.C.  and sentenced to undergo rigorous imprisonment for a  period of one year and three months respectively. All the sentences, however, were  ordered to run concurrently. On appeal being preferred, the High Court of Punjab  and Haryana confirmed the convictions whereupon two special leave petitions were  filed before this Court, one by accused Laxman Singh whereas the other by the  appellants.  The special  leave petition of  accused Laxman Singh has been  dismissed but leave to appeal was granted in the case of  appellants giving rise to  the present appeal.         The prosecution case in short was that on 10.4.1999 at about 4.30. P.M.,  when Lakhan Lal, the complainant, and his father Shiv Charan were at their shop,  the appellants and accused Laxman Singh armed with lathies and gun respectively   came there in a jeep bearing Registration No. HR \026 26 J-0051 and  started abusing  the complainant and his father whereupon the complainant and his father came out  of their shop and asked  the reason for abusing them.  At this, the appellants threw  stones and sticks on them and in order to save themselves,  the complainant and  his father ran towards their  house and when they were on raised platform of the  house, accused Laxman Singh, who had a double barrel gun, fired shot from the  same. One shot hit Shiv Charan in his head while the other right calf region as a  result of which  Shiv Charan fell down.  When the complainant tried to take care of  his father, gun was fired at him too and stones pelted.  While he escaped unhurt  from the gun shots as they were off target, he received injuries by pelting of stones  on  his left palm and right calf.  Finding that his father had already died, the  complainant, out of fear,  entered his house and closed the door from within.    Thereafter, the accused persons stoned the women of the house  who were on the  roof and they were also fired at.  The ladies came down out of fear and thereafter  the accused fled away.  Besides the complainant, his brother Johri Mal had also  seen the occurrence. In the meantime, Meenu, wife of the complainant, left for the  Police Station, arrived there at about 6.45 P.M. and reported the incident of  physical violence.  On her information, entry was made in the Daily Diary and  Shakuntala, S.H.O., Police Station, Bilaspur and Vinod Kumar, Inspector, left for  the place of occurrence with her where fardbayan of Lakhan Lal was recorded  stating the aforesaid facts, on the basis of which First Information Report was

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drawn up.  The police after registering the case took up investigation and on   completion thereof submitted chargesheet, on receipt whereof the learned  Magistrate took cognizance and  committed all the aforesaid accused persons,  including the appellants, to the Court of Session to face trial.          The defence of accused persons was that they were innocent, no   occurrence, much less the one alleged, had taken place, the deceased might have  received injuries at some other place of occurrence in some other manner and the  accused were falsely implicated by  members of the prosecution party to feed fat  the old grudge.          During trial, the prosecution examined sixteen witnesses in all, out of whom  PW1 was Dr. Sanjay Narula, who conducted the post-mortem examination on   dead body of the deceased  and PW2, Lakhan Lal, the informant, and his brother  Johri Mal, PW3, who  claimed to be eyewitnesses to the alleged occurrence.  PWs  4, 5 and 8 to 15 were formal witnesses and PW6,  Dr. Rajesh Kumar Sharma,   examined the injuries of PW2 whereas PW7 and PW16 were the two Investigating  Officers in the case.  The defence had not examined any witness in the case  on  hand.  Upon the conclusion of trial, the learned Additional Sessions Judge  convicted all the accused persons, as stated above, and their convictions having  been confirmed by the High Court,  the present appeal by special leave by the  appellants; conviction of accused Laxman Singh having been confirmed by this  Court by dismissal of his special leave petition.          Mr. U.R. Lalit, learned Senior Counsel appearing in support of the appeal,  submitted that  though the occurrence has taken place in the broad day-light, the  prosecution failed to examine a single independent witness but has examined PWs  2 and 3 who are nobody else than sons of the deceased. These witnesses  consistently supported the prosecution  case, disclosed in the First Information  Report, in all material particulars, in their statements made before the Police as  well as  substantive evidence in  Court. The trial court as well as the High Court  has placed reliance upon their evidence and were of the view that merely because  they were related to the deceased, the same ipso facto could not have been the  ground to discard their evidence.  In our view, the trial court as well as the High  Court was quite justified  in placing reliance upon their evidence as they  were  natural witnesses and  consistently supported  the prosecution case.  That  apart,  their evidence has been accepted by this Court by upholding  conviction of accused  Laxman Singh and there is no reason to discard their evidence even in relation to  the appellants.          The learned Senior Counsel next submitted that the prosecution case and  evidence of firing by accused Laxman Singh were highly doubtful and evidence of  PWs 2 and 3 on this count could not have been relied upon.  In our view,  submission has been made only to be rejected. So far as Laxman Singh is  concerned, his conviction having been  upheld by this Court by dismissal of his  special leave petition, in the facts and circumstances of the present case, it is not  possible for this Court to go into the correctness or otherwise of conviction of the  said accused. The learned counsel then submitted that though according to  prosecution case, the appellants were armed with sticks and  used the same during  the course of occurrence,  no stick was recovered.  It is true that  sticks were not  recovered from any place, much less possession of  any of the appellants, but that  cannot be a ground  to throw out the prosecution case when the same has been  otherwise found to be truthful by credible evidence. The learned counsel also  submitted that PWs 2 and 3 stated in court that the appellants exhorted for killing  the deceased, though no such case was disclosed  either in the First Information  Report or in the statement of these witnesses before the police.  Even if the  prosecution failed to prove case of exhortation by the appellants by credible   evidence,  the same cannot  affect the prosecution case in relation to the   appellants.          Learned counsel further submitted that the prosecution case of pelting  stones on the deceased as well as on PW2  and assaulting them by lathies is not  supported by the medical evidence as the doctor found injuries by fire arm.   The  doctor - PW1, who conducted post-mortem examination on the dead body of the  deceased, found as many as eight injuries on his person and in his opinion, injury  nos. 1 and 2 alone could have been caused by fire arm and not the other six  injuries which does not eliminate  the fact of causing  injuries by lathies and stone  pelting by the appellants. So far as  the evidence of  doctor - PW6, who examined  the injuries of PW2, is concerned,  he  specifically stated that injuries found on him  could be caused by blunt weapon, as such the injuries could have been caused by

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lathies and pelting of stones by the appellants. Thus, we have no difficulty in  holding that the prosecution case of causing injuries by lathies and pelting of  stones is corroborated by medical evidence.           The learned  counsel lastly submitted that the common object of the unlawful  assembly, of which the appellants were members, could not have been to cause  death of the deceased  but the same could have been, at the highest, to cause  simple hurt.  In our view, the submission has been made only to be rejected as the  definite prosecution case as well as the evidence is that  the five accused persons,  including the four appellants, came together in a jeep, one of whom was armed  with gun and others  with lathies, after arriving at the place of occurrence, they  abused members of prosecution party and on protest being made by them,  accused Laxman Singh fired at the deceased, who succumbed to the injuries,  whereas the appellants pelted stones upon the deceased and PW2 and threw  lathies upon them, as a result of which they received several other injuries apart  from the two injuries by fire arm  inflicted by accused Laxman Singh upon the  deceased, and thereupon,  they fled away together  from the place of occurrence.   On these facts, we have no difficulty in coming to the conclusion that the common  object of the unlawful assembly, of which the appellants were members, was to  cause death of the deceased  and pursuant to that common object, one of the  members of the unlawful assembly, namely, accused Laxman Singh inflicted two  fatal  injuries upon the deceased by fire arm   whereas the appellants inflicted six  other injuries on him.  Thus, we do not find any substance in this submission as  well. In view of the foregoing discussion, we are of the view that  prosecution has  succeeded in proving its case beyond reasonable doubt and the High Court has  not committed any error in upholding  convictions of the appellants,  as such no  interference is called for by this Court.          Accordingly, the appeal fails and the same is dismissed.