1. The appeal and revision are being disposed of by this common judgment as these arise out of order dated 7-11-1977 by Sri L.R Kohli, learned Addl. Sessions Judge, Nainital in S.T No. 209 of 1976 convicting the appellants under sections 307, 149 of I.P.C and sentencing each of them to five years R. 1, appellants Pran Dutt, Ganesh Dutt and Mohan Dutt were further convicted under S. 148 I.P.C and each of them was sentenced to one and half years' R.I appellants Amba Dutt Kesho Dutt and another Kesho dutt son of Purshottam were convicted under section 147 I.P.C and each of them was sentenced to one year's R.I Mohan appellant was further convicted under section 27 of Indian. Arms Act and sentenced to one year's R.I Appellant Amba Dutt was further convicted under section 379 IPC and sentenced to two years' R.I All the sentences were ordered to run concurrently. Following pedigree which was not controverted before me shall show the relationship amongst the appellants:
2. Thus all these appellants are inter related; Kesho Dutt son of Purshottam appellant is their associate; all these appellants are residents of Chharail Nayabad Police Station Haldwani, district Nainital. It was in 1973 when Ram Dutt Bhandari and his son was attacked by some of the appellants; Ram Dutt lodged a report in that connection which resulted in the convictions of two appellants. So the relations amongst the parties were embittered at time of occurrence. Appellants were out to exterminate the family of Ram Dutt. Bhuwan and Km. Suman children of Ram Dutt used to attend their schools in August 1976 and went on cycles. However Ram Dutt and his sons were apprehensive and used to escort them. It was on 20th August, 76 at 5.45 A.M when Bhuwan and Km. Suman left on a cycle for their school they were followed by Ram Dutt Bhandari, and his sons Jagdish Chandra P.W 3 and Gauri Shanker P.W 4 who were riding a motor cycle. Ram Dutt also possessed his gun. The motor cycle was being driven by Jagdish Chandra; they however overtook the cycle of Bhuwan and Km. Suman near Sindhi gate; as the road was damaged there so the speed of the motor cycle was slow. All the appellants who were hiding in the sugarcane field emerged equipped with arms and waylaid Ram Dutt Bhandari and his children. Mohan exhorted his associates that family members of Ram Dutt should not be permitted to escape; on this utterance he fired a pistol shot which landed on the leg of Jagdish Chandra who was riding the motor cycle. Pran Dutt had a khukhari, Ganesh Dutt had a tabal and the remaining appellants had gandasas and lathis. Ganesh Dutt struck a blow on the right hand of Ram Dutt with tabal with the result that his gun fell down and was lifted by Amba Dutt; Ram Dutt, Gauri Shanker, Bhuwan and Jagdish Chandra were soundly trounced by the assailants. Gauri Shanker P.W 4 seizing an opportunity ran to his house and informed his mother Smt. Mohni Devi P.W 2 about the mishap. On that information Smt. Mohni Devi along with co-villagers reached the scene of occurrence; meanwhile assailants had decamped along with the gun of Ram Dutt. Injured were carried by Smt. Mohni Devi with the help of co-villagers to the hospital and along with Jivan Bhatt her brother-in-law she reached Police Station Haldwani where a written report Exh. Ka. 1 scribed by Jivan Bhatt to her dictation was made over in informant; on the basis of this report F.I.R Exh. Ka. 2 was drawn by head constable Indramani P.W 5 in the same morning at 8-15 A.M Distance of Police Station from scene of occurrence was 4 kms. Case was registered in Station Diary vide Exh. Ka. 3.
3. Dr. R.C Gupta P.W 6 examined Ram Dutt Bhandari in Haldwani Hospital in the same morning at 8-45 A.M and detected nine injuries on his person as detailed in injury report Exh. Ka. 6. Out of these injuries 8 were incised wounds on his head etc. The injuries were kept under observation and X'ray of injuries Nos. 2, 6, 8 and 9 was advised by Doctor. Dr. Gupta opined that all the incised wounds were capable of being caused by some sharp cutting weapon except injury No. 8 which was capable of being caused by some heavy sharp edged weapon. Only injury No. 8 was capable of being caused by some blunt object like lathi.
4. Gauri Shanker was examined by the same Doctor in the same morning at the same place at 9-05 A.M Four injuries were detected by the Doctor as his person as detailed in injury report Exh. Ka. 6. Injuries Nos. 1, 2 and 3 were incised wounds; injury No. 4 was contusion capable of being caused by a blunt weapon. Remaining injuries were caused by some sharp edged weapon. X'ray of injury No. 2 was advised as that injury was kept under observation.
5. Bhuwan was examined by the same Doctor in the same morning at the same place at 9-30 A.M Two incised wounds were detected on his person. Injury No. 2 was kept under observation for X'ray. Injury No. 1 was simple vide injury report Exh. Ka. 7.
6. Jagdish Chandra was examined by the same Doctor in the same morning at the same place at 9-40 A.M Three injuries were detected on his person as detailed in injury report Exh. Ka. 8. Injuries Nos. 1 and 2 were incised wounds; injury No. 3 was multiple lacerated wound of ¼ cm. radius on the whole of left leg upper half lateral and posterior aspect bleeding….. Injury No. 3 was caused by some firearm for which X'ray was advised. This injury along with injury No. 2 was kept under observation. Injuries Nos. 1 and 2 were capable of being caused by some sharp edged weapon.
7. All the injuries of all the injured were fresh at time of examination and were sustainable in the same morning at 6 A.M Doctor could not opine as to whether incised wounds of all the injured could be caused by a sickle.
8. The investigation of the case was conducted by Satya Vir Singh P.W 7 who visited the spot and interrogated witnesses and after inspection of the locality prepared site plan Exh. Ka. 9 on 25-10-77. On account of rainfall on 20-8-76 no blood could be available on the spot; Amba Dutt was arrested on 20-8-1976 and from his possession gun of Ram Dutt was recovered in presence of witnesses. On completion of investigation charge-sheet Exh. Ka. 10 was submitted against the appellants.
9. In their statements appellants Amba Dutt and Kesho Dutt only admitted that they were sent up earlier in 1973 about an attack at Ram Dutt and his son but denied to have harboured any ill-will towards Ram Dutt and his family members on that score. Amba Dutt denied to have carried away the gun of Ram Dutt during the occurrence. He further stated that the gun was made over to him by his brothers at his house for deposit at Police Station. He went to Police Station and handed over the gun there but his report was not taken down by Police and he was placed in lock up. Pran Dutt and Ganesh Dutt only conceded to have participated in the assault in a different manner. The counter version as stated by Ganesh Dutt was that on that morning at about 6 A.M he was fencing his field: his brother had gone towards canal for evacuation; he was attracted by the outcry of his brother; he ran and saw Ram Dutt and his sons four in number pressing his brother who was held by them down and was being belaboured with kicks and fists; to save his brother he used his sickle; Ram Dutt fired shot with the gun; the gun fell down and he carried it away.
10. Pran Dutt stated that he had gone for evacuation on that morning on the back of canal at a distance of 300 yards towards north of Sindhi gate. While he was washing his face and hands Ram Dutt and his sons arrived on the motor cycle and abused him; on his protest Ram Dutt aimed the gun at him; he pulled the barrel of the gun; sons of Ram Dutt began to belabour him with kicks and fists; he raised alarm which attracted to the scene his brother Ganesh Dutt who carried a sickle in his hand; the sickle was 1 cubit long and 3 digits wide which he used to save him; during the scuffle gun went off and the shot landed on Jagdish.
11. Kesho Dutt appellant stated that in connection with an incident which took place amongst the parties on 19-8-1976 in which his father was belaboured by Ram Dutt etc. he lodged a report at 4-30 A.M He filed that report which was proved by Clerk Constable Harpal Singh D.W 2. This report was taken down by him at 6-30 A.M on 20-8-1976. It is Exh. Kha. 1. Raghubir Singh D.W 1 was examined to support the counter version.
12. Prosecution examined Ram Dutt P.W 1 and his sons Jagdish Chandra P.W 3 and Gauri Shanker P.W 4 about the occurrence. All these witnesses are injured and testified about the prosecution version. Ram Dutt also testified about the incident which took place in 1973; it was an attempt on his life and on the life of his son; the case resulted in conviction of two appellants; two appellants were acquitted. On account of that conviction appellants harboured ill-will towards him. He further testified about the occurrence which need not be repeated.
13. Smt. Mohni Devi P.W 2 is wife of Ram Dutt; she was not present at time of occurrence but was apprised about it by her son Gauri Shanker who ran from the spot in an injured state and informed her about the matter. She reached the scene of occurrence and found her husband and son etc. injured; she carried them to Police Station and made over written report Exh. Ka. 1. She vouched about its accuracy.
14. I have already given above testimony of Dr. R.C Gupta P.W 6 and investigator Satya Vir Singh P.W 7.
15. In the interest of justice court examined Bhairo Dutt as C.W 1 Bhairo Dutt claimed to have seen the occurrence but did not go the whole hog. According to learned trial Judge he performed a drama in the court and feigned ignorance about assailants; instead of prayag Dutt he laid his fingers on Ganesh Dutt and alleged that he did not know them. Seven persons emerged from the field but only four or six participated in the actual assault. It was strange that the witness was cross-examined with his statement recorded by investigator although such statements recorded under section 161 Cr. P.C were not usable for contradiction of a court witness vide Tahsildar Singh AIR (1959) SC 1012 1026. However, learned trial Judge did not pin faith on his statement although he believed the injured and recorded the conviction and sentenced aforesaid.
16. Aggrieved by that decision appellants have preferred this appeal and Ram Dutt has preferred Criminal Revision as according to him the sentences awarded to appellants by learned trial Judge were inadequate.
17. I have heard learned counsel for parties and perused the record.
18. It was frankly conceded before me by Sri B.P Gupta learned Advocate for appellants that the counter version as put forward in defence has no legs to stand upon. I also find that story as put forward by Ganesh Dutt and Pran Dutt and Raghubir Singh D.W 1 is simply a cock and bull story which cannot be swallowed. It is not possible to believe that Ram Dutt and his sons armed with guns etc. could not overpower Pran Dutt who was single handed and unarmed and yet Ram Dutt was such a bad marks-man that the shot fired. In him landed on the person of his son Jagdish and could not touch Pran Dutt and Ganesh Dutt who successfully snatched away the gun of Ram Dutt. This version does not explain serious injuries of Ram Dutt, Gauri Shanker, Bhuwan and Jagdish Chandra. It is correct that appellants were not bound to prove their plea of self defence to the hilt but could have shown circumstances to render the prosecution version doubtful. Such a flimsy or fantastic evidence is not sufficient to create a reasonable doubt in the mind of the court about the guilt of the appellants. The doubt contemplated by law is the doubt of a reasonable man and not a vacillating mind. So when Ganesh Dutt and Pran Dutt did not have a scratch on their persons nor lodged report at Police Station about the counter version the plea has to be discarded out of hand.
19. Sri B.P Gupta, Advocate successfully argued before me that the prosecution version has been improved specially about the role assigned to Kesho Dutt son of Purshottam and Kesho Dutt son of Narain Dutt, Amba Dutt and Narain Dutt. At the stage of evidence Ram Dutt who is an injured testified that Ganesh Dutt was armed with a tabal; Mohan was armed with a countrymade pistol; Kesho Dutt son of Narain Dutt and Amba Dutt were armed with Gandasas; Narain Dutt and Purshottam were armed with lathis. Mohan fired a pistol shot which landed on the leg of Jagdish; remaining assailants began to beat them. Even in the examination in chief he did not particularise the role of these assailants and stated:
“I have no idea about the manner in which each assailant dealt blows on the victims”.
20. He further testified that Gauri Shanker fell down in an injured state and ran towards south; Bhuwan also ran towards south. Bhairo Dutt Joshi had reached the spot. His gun was carried away by Amba Dutt. They were carried to hospital by his wife with the help of co-villagers; he regained consciousness in the hospital and then saw the injuries of Bhuwan who was aged about 12–13 years at time of occurrence; after recovery Police handed over the gun to him; his right hand was damaged to the extent that it is permanently bent. There is an observation by the court also about his damaged hand seen at the time of his deposition. Smt. Mohani Devi P.W 2 was not present at time of occurrence and so was not in a position to testify about the occurrence, and her statement can be safely ruled out vide S. 60 of Indian Evidence Act as hearsay.
21. Jagdish Chandra P.W 3 testified that all the assailants emerged from the sugarcane field; he named all of them. He alleged that Pran Dutt was armed with khukhari, Ganesh Dutt was armed with Tabal; Nand Kishore alias Mohan was armed with a pistol; remaining assailants were armed with Gandasas and lathis.
22. About the role of the appellants he testified I was riding the motor cycle; I jumped down; Mohan remarked ‘kill them. Let them not escape today’. With this utterance Mohan fired a pistol shot which hit him; remaining assailants dealt blows on him and Gauri Shanker and his father and Bhuwan. Gun fell down from the hand of his father and was carried away by Amba Dutt, Bharon Dutt etc. reached there. Subsequently his mother arrived on the scene of occurrence and carried them to the hospital.
23. In this cross-examination he testified that he could not specify the assailant who dealt blows on his father; “I fell down after two minutes; accused belaboured me even while I was fallen.” On behalf of appellants it was successfully pointed out before me that the number of injuries sustained by Jagdish Chandra as detected in medical examination exposes the falsity of his statement about the role assigned to lathiwalas; had he been beaten by lathiwalas even in fallen posture he could have sustained any contusion or abrasion etc.; Exh. Ka. 8 shows that he did not sustain any injury caused by a blunt weapon and so his statement about the role of lathiwalas can be safely discarded.
24. Gauri Shanker injured P.W 4 testified that all these assailants named by him emerged on that morning and belaboured him and his father and brothers. Gun of his father was carried away by Amba Dutt as the gun fell down when his father sustained injuries. He ran away to his house and informed his mother about this occurrence. He was not even cross-examined. He did not particularise the role of the assailants.
25. I have already dealt the statements of court witness Sri Bhairo Dutt, C.W 1 who was stigmatised by learned trial Judge for his dramatic performance which was untrustworthy.
26. Thus while assessing the aforesaid testimony it has to be kept in view that the assailants whose role has not been particularised and shows presence on the spot seems doubtful cannot be convicted by an omnibus inclusion of their names by informant in the report specially when informant herself had not seen the occurrence and the nomination could have been result of enmity and party factions. In Raghubir Singh v. State Of U.P., (1972) 3 SCC 79 : AIR 1971 SC 2156 (Para 8), it was pointed out that where there is enmity between two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and rope in even innocent members of the rival faction in a criminal case.
27. Earlier also a similar word of caution was given by Supreme Court in Pandurang v. State of Hyderabad, AIR (1955) SC 216 221 where it was pointed out that unless a witness particularises, where there are number of accused it is ordinarily unsafe to accept omnibus inclusion like this at their face value. Narain Dutt appellant was aged 77 years at time of occurrence. In the report no specific act was assigned to him nor the injured did assign any specific role to him during the occurrence. So his complicity in this crime is not free from reasonable doubt and he is acquitted herewith.
28. Kesho Dutt son of Purshottam and Kesho Dutt son of Narain Dutt are alleged to have used lathis during this crime. None of the injured testified that any of them was the author of the injuries sustained by them. The appellants denied that Kesho Dutt son of Purshottam was their associate. Under these circumstances participation by both of them in this crime is doubtful and they are acquitted herewith.
29. However as regards the remaining appellants complicity of Pran Dutt and Ganesh Dutt is admitted by the statements of these appellants themselves; specific roles have been assigned to Mohan Pathak and Amba Dutt. According to the testimony of investigator the gun of Ram Dutt which was alleged to have been removed by them during the occurrence was traced to his possession. There is no reason to doubt the testimony of investigator which is supported by admission of Amba Dutt in reply to question No. 6. Under the aforesaid circumstances the presence of Amba Dutt on the scene of occurrence is acceptable to me. Thus the aforesaid four appellants did participate in the occurrence.
30. As the number of assailants was less than five so all the conviction and sentences recorded by learned trial Judge under sections 147 and 148 or with the aid of section 149 I.P.C must fall off.
31. Similarly the charge under section 27 Arms Act against Mohan appellant is not made out. No pistol etc. was recovered from the possession of Mohan. In order to attract the operation of S. 27 of Indian Arms Act the possession of Arms had to be established by prosecution. There is no recovery of pistol from the possession of Mohan. So conviction and sentence of Mohan under section 27 of Arms Act must fall through.
32. On behalf of appellants it was pointed out that the conviction of the appellants under S. 307 I.P.C is not sustainable as none of the injuries sustained by injured was dangerous. Even the assailants who used Khukhar 1 etc. could not be convicted for an offence under section 307 IPC but can be convicted under section 326 I.P.C
33. On behalf of revisionist it was pointed out that the sentence errs on leniency.
34. It is correct that in order to attract the penalty under section 307 I.P.C murderous intent is an essential element. That intention can be gathered from the nature of weapon, the parts of the body where injury is inflicted, nature of injuries inflicted, and the opportunity available which the accused gets vide Kalu Ram Brahma v. State, 1977 Cri L.J 98 (Gauhati). I have carefully taken into account all these facts and circumstances and the motive of the assault and the manner in which these assailants lay in ambush to pounce upon the victims with such dangerous weapons like pistol, Khukhar 1, tabal etc. which they used with persistent ferocity. The victims were unarmed except Ram Dutt who was carrying the gun to protect life of his daughter and son as he was apprehensive. In cases of such assault by many hands with such weapons it is legally not permissible to dissect role of each criminal from the other: and seek to salvage those whose blows could not prove fatal and were less dangerous. Conjoint complicity is the inevitable inference when a gory group animated by a murderous intent launches such premeditated unprovoked attack with dangerous weapons at vital parts of bodies of unarmed victims. So all these assailants can be safely convicted under section 307 read with section 34 I.P.C section 34 I.P.C while fixing constructive liability affords a complete answer to the contention that blow of a particular assailant did not imperil the life of the injured. So while upholding the conviction of the aforesaid appellants under section 307 with the aid of section 34 I.P.C the sentence awarded appears to be condign punishment which needs no enhancement or reduction.
35. In the result criminal revision No. 309 of 1978 fails and is dismissed. Criminal Appeal No. 2713 of 1977 is partly allowed. Conviction and sentences of appellants Narain Dutt, Kesho Dutt son of Purshottam and Kesho Dutt son of Narain Dutt under the various counts recorded by learned trial Judge are set aside. All these appellants are on bail. They need not surrender. Their bail bonds are discharged.
36. Conviction of appellants Pran Dutt, Ambu Dutt, Mohan Pathak and Ganesh Dutt is altered to S. 307 read with section 34 I.P.C but the sentence of each appellant under this count of five years rigorous imprisonment is affirmed.
37. Conviction and sentence of appellant Amba Dutt under section 379 I.P.C affirmed. Both the sentences of appellant Amba Dutt shall run concurrently. Pran Dutt, Amba Dutt, Mohan Pathak and Ganesh Dutt are on bail. Take them into custody forthwith to serve out the sentence. The impugned order is modified accordingly.
38. Order accordingly.
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