The Judgment of the Court was delivered by

Mohammad Rafiq, J.:— This appeal is directed against the judgment of the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur, who has thereby convicted accused-appellant Gyan Singh for offence u/Sec. 302 IPC simplicitor and a fine of Rs. 1,000 and in default of payment of fine, he was to further undergo simple imprisonment of six months, accused-appellant Shiv Singh was convicted for substantive offence u/Sec. 307 IPC and sentenced to undergo simple imprisonment of four years with fine of Rs. 1000 and in default whereof six months simple imprisonment. The rest of the accused-appellants i.e Rajveer, Indal Singh and Prabhu Dayal along with Shiv Singh were convicted for offence u/Sec. 302 with the aid of Section 149 IPC and were awarded same sentence as given to the accused-appellant Gyan Singh. Similarly, all other four accused-appellants namely; Gyan Singh, Rajveer, Indal Singh and Prabhu Dayal, except Shiv Singh were convicted for offence u/Sec. 307 with the aid of Section 149 IPC and were awarded the same sentence as was given to accused Shiv Singh for his conviction for the substantive offence of Section 307 IPC. All the accused-appellants were convicted for offence u/Sec. 459 IPC and sentenced to simple imprisonment of four years and fine of Rs. 1000, in default of payment of fine, they were required to further undergo simple imprisonment of six months. Accused-appellant Gyan Singh was additionally convicted for offence u/Sec. 3/25 of Arms act and sentenced to simple imprisonment of one year with fine of Rs. 1000, in default whereof, he was to further undergo simple imprisonment of six months. All the accused-appellants were convicted for offence u/Sec. 460 IPC and sentenced to four years simple imprisonment with a fine of Rs. 1,000, in default whereof, they have to undergo simple imprisonment of six months and were also convicted for offence u/Sec. 147 IPC, they were sentenced to one year's simple imprisonment and for offence u/Sec. 148 IPC, they were sentenced to one year's simple imprisonment.

2. Brief facts of the case are that complainant Vikram Singh S/o Dhujiram lodged a written report Ex. P/14 on 2.5.97 at PS Chiksana alleging therein that in the night of 1.5.97 he was sleeping at a distance of 15-20 yards from his brother Gopal in his house. In the night at around 1.00 a.m he got up on hearing the sound of fire shot and saw Prabhu, Indal, Rajveer, Gyan and Shiv Singh armed with weapons standing, near the cot on which his brother-Gopal was shouting that Prabhu has fired on his chest. Then Prabhu told Shiv Singh to kill his bhabhi Smt. Devi and thereupon Shiv Singh opened fire and injured her. It is alleged that Prabhu, Rajveer, Indal and Shiv Singh were having kattas in their hands and Gyan was armed with farsa. When they were going outside, 4-5 persons were also seen standing outside but he could not identify them because of the darkness. Prabhu was shouting that today they have killed him and now they will see who dared come to oppose them. Informant raised hues and cries thereafter, Surjan, Ramesh, Subhash, Pappu and other neighbours reached over there.

3. The police on the basis of the aforesaid written report registered a regular first information report for offence u/S. 147, 148, 149, 452 and 307 IPC. During the course of investigation, however, the injured Gopal died, therefore offence u/Sec. 302 IPC was added. Eventually on completion of investigation, charge-sheet was filed against as many as ten accused for offence u/Sec. 147, 148, 149, 307, 302, 459, 460, 120-B, 118, 176 IPC and 3/25 of Arms Act. Charge against the accused-appellant Gyan Singh was framed for substantive offence of Section 302 IPC and Shiv Singh for substantive offence of Section 307 IPC, but they along with other accused were alternatively charged for aforesaid offences with he aid of Section 149. Additionally, all the accused were charged under Section 147, 148, 459 and 460 IPC. Accused-appellants denied the charges and claimed to be tried. The prosecution produced 34 witnesses and exhibited 56 documents, whereas defence produced only 2 witnesses and did not produce any document. The learned trial Court on completion of trial, acquitted accused Maya, Guddi, Roopwati and Vijay and convicted and sentenced the aforesaid five accused-appellants in the manner indicated above. Hence, this appeal.

4. Shri Mohd. Rahil Kalam, learned counsel for the appellants has argued that the prosecution has utterly failed to prove guilt of the appellants beyond reasonable doubt inasmuch as there are material contradictions in the statements made by the prosecution witnesses. As per the evidence of prosecution, Vikram Singh (PW13), younger brother of deceased Gopal on the day of incident was also sleeping on the nearby cot when deceased was allegedly fired by the accused. Smt. Devi, widow of the deceased (PW-11) has stated that his son Ranjeet, younger brother-in-law Vikram and elder brother-in-law Laxmi Karan were immediately sent to the police station for giving information about the incident. Ex. D/13A is the report entered in the police rojnamcha about the incident. All that was stated was that some miscreants have attacked their house and since the prosecution witnesses are admitting that all the accused are known to them from before and that on that very evening Gyan Singh had come to the house of deceased Gopal where they together had drinks and dinner, therefore, it sounds quite unnatural why he could not name the miscreants while informing the police. The Investigation Officer Mahaveer Singh Solanki (PW30) has also admitted that when initially the information was given to him by Vikram Singh, he did not tell him the name of accused, who were named only for the first time in written report Ex. P/14 submitted at 5.35 a.m The prosecution witnesses had carried the deceased and the injured wife Smt. Devi (PW11) on tractor, but on the way, they were met with Mahaveer Singh Solanki (PW 30). SHO, Police Station Chiksana Shri in Jeep who then carried them in jeep to hospital at Bharatpur. Mahaveer Singh Solanki (PW30), SHO, Police Station Chiksana has stated that he stayed with them throughout night till 5.35 a.m in the morning, but they did not tell him the names of the accused. It is contended that Mahaveer Singh Solanki (PW 30) has admitted that deceased was their informer and that he used to give them information about the accused and the crimes not only with regard to the incidents in the State of Rajasthan, but also in adjoining States of Uttar Pradesh. He has stated that deceased Gopal was formerly Sarpanch of the Gram Panchayat and it is therefore quite possible that he may be having enmity with several persons and dacoits and they would have attacked their house. The accused-appellants have thus been falsely implicate.

5. Shri Mohd. Rahil Kalam, learned counsel for the accused-appellants has argued that in the written report (Ex. P/14) lodged by Vikram Singh (PW13), it was stated that around 1.30 a.m in he intervening night of 1st and 2nd May, 1997, he suddenly heard a fire. When he awoke, he saw accused Prabhu son of Harcharan, Indal and Rajveer sons of Beegha, Gyan Singh and Shiv Singh sons of Girraj Singh, all Thakur by caste running from there. His brother Gopal was crying for help and saying that accused Prabhu has fired on his chest. Prabhu then exhorted Shiv Singh to kill his wife-Smt. Devi (PW11) as well. Shiv Singh thereupon opened fired at Smt. Devi (PW11), who was grievously hurt. Prabhu, Rajveer, Indal and Shiv Singh were all armed with kattas and Gyan Singh had farsa, when he saw then going out. He also saw 4-5 persons staying outside the boundary of the house but due to darkness, they could not be recognized. Learned counsel submitted that this information was the sole basis for commencement of the investigation, but when the matter came to the Court, the prosecution witnesses have completely denied this version. In this connection, learned counsel referred to the statement of Vikram Singh (PW13), the informant, who has stated that his brother Gopal while crying for help, named both Prabhu and Gyan responsible for firing at him. Thereafter, Shiv Singh at the askance of Prabhu fired at the wife of Gopal i.e Smt. Devi (PW11). This witness has stated that Indal and Rajveer had lathis, Gyan had both farsa and katta and Prabhu and Shiv Singh had kattas. It is argued that farsa has not been recovered at the instance of Gyan and one accused could not be supposed to carry two weapons. Vikram Singh (PW13) is not a eye-witness and that he admits that everything that he has narrated was told to him by his dying brother-Gopal. Ranjeet Singh (PW-10), son of the deceased has also changed the version. He too has stated that his father white crying for help named Prabhu and Gyan Singh, who have fired at him. On the askance of Prabhu, Shiv Singh has also opened fired at his mother Smt. Devi, but this witness has in later part of examination-in-chief has made a change in the version and stated that his father told him that Gyan Singh and Shiv Singh had fired at him and his mother told him that Shiv Singh had fired at him. While his mother Smt. Devi (PW11) has stated that Gyan Singh had come to their house that evening and her husband Gopal and Gyan Singh had both consumed liquor together, but her son Ranjeet (PW 10) has in cross-examination denied this. Ranjeet Singh (PW10) has in cross-examination further stated that he heard sound of only two fires. On hearing the sound of the first fire, he awoke and when he opened his eyes, he heard another fire, whereas prosecution has claimed hat there were three fires. In cross-examination, he has admitted that after the death of his father, Shyam Pratap Singh, Director General of Police, had came to their house, whereas his mother Smt. Devi (PW11) has denied so.

6. Learned counsel for the accused-appellants has highlighted all those contradictions in the statement of Smt. Devi (PW11) who has alleged that Prabhu opened fire, but it did not meet the target the misfired. Thereafter, Gyan Singh opened fire at her husband Gopal, at his back, which exited through his stomach. Thereafter, Shiv Singh opened fire at her at the askance of Prabhu. She has stated that she told her son Vikram Singh at the time of submitting written report that Gyan Singh opened fire at the chest of deceased-Gopal. Learned counsel submitted that the motive is double edged weapon and in the present case, it has to be viewed in the context of the long standing enmity between the parties. Smt. Devi (PW11) widow of the deceased has admitted that her husband Gopal and accused Gyan Singh were litigating with each other in several matters, but eventually all those matters were compromised and then they started visiting each other. Gyan Singh used to come to their house and they also used to dine and drink together. On the date of incident also they did so. If that was so, there was no reason why the accused would indulge in murder of the deceased. All these witnesses were also confronted with the statement made to the police wherefrom they made substantial deviations. Thus there are contradictions and discrepancies in the statement of prosecution witnesses.

7. Learned counsel referring to the site plan Ex. P/1 has argued that in the note that was made at the bottom of the site plan, it has been mentioned that not a drop of blood was found on the cot on which deceased was sleeping and the cartridges, their empties and pallets also could not be recovered despite best efforts. Even then the police has shown recovery of one lead ball vide Ex. P/16 from beneath the surface of the kachcha floor. Recovery of one firearm each has been shown at the instance of accused-appellants Prabhu Dayal and Gyan Singh and Indal respectively vide Ex. P/4 to P/6. The FSL reports Ex. P/26 to P/28 to not conclusively prove that The firearm, which were sent for chemical examination were actually used in the same crime. Even though the allegation has been made against Shiv Singh, but no recovery of firearm has been made from Shiv Singh. It is argued that since the firearm injury has been received on non-parietal part of body of injured Smt. Devi (PW11), the offence of accused-appellant Shiv Singh falls in Section 326 of IPC. Learned counsel argued that all the witnesses are related to the deceased and they have vested interest in implicating the accused because they admit that the accused Gyan Singh was litigating with the deceased, therefore, there is every possibility of accused-appellants being falsely implicated. Learned counsel argued hat no allegation whatsoever has been made against accused-appellant-Rajveer. He has been simply named in the written report and subsequently in the statement of prosecution witnesses with no overt act. In so far as the accused-appellant Indal is concerned, he has died on 26.10.2010 In connection thereof, learned counsel has produced the death certificate of Indal issued by Jaipur Municipal Corporation. It is therefore prayed that to the extent of accused-appellant Indal, the appeal has abated.

8. Shri Javed Choudhary, learned Public Prosecutor opposed the appeal and submitted that guilt of the accused-appellants has been fully proved beyond reasonable doubt by overwhelming evidence on record. Minor contradictions in the statements of prosecution witnesses especially those of Ranjeet (PW10), Smt. Devi (PW11) and Vikram Singh (PW13) cannot be blown out of proportion. The case of the prosecution cannot be thrown out for such minor discrepancies. Learned counsel submitted that the version given in the first information report has been substantially maintained by the prosecution witnesses in the Court, especially Smt. Devi (PW11) widow of the deceased. The Court has to appreciate that the FIR was not registered by Smt. Devi (PW11), widow of the deceased, but by Vikram Singh (PW13). Even if Vikram Singh is not accepted to be an eye-witness, the widow Smt. Devi has to be believed because she herself sustained a firearm injury and therefore presence of this witness cannot be doubted. As mentioned in the first information report that Gopal was crying that Prabhu has opened fire at his chest, this has been fully clarified by Smt. Devi (PW11), who has stated that first of all Prabhu opened fire, which did not hit anyone and thereafter Gyan opened fire at his husband which hit at his back and came out of his stomach. She then cried for help thereupon Prabhu asked Shiv Singh to finish her. There is consistent version about her injury, which injury she sustained on her leg. The other members of the family woke up, but by that time the accused fled. Learned counsel submitted that Ranjeet (PW10) has also corroborated this statement of his mother by stating that Gopal was crying that Prabhu and Gyan Singh had fired at him. In later part of examination-in-chief, he has inadvertently named Shiv Singh along with Gyan Singh for opening fire at deceased, which has been clarified by him in the cross-examination by again stating that his father named Gyan Singh and Prabhu Singh for opening fire at him. One fire has been received by deceased and that with one misfire fully corroborates that both of them were involved in the crime. Learned counsel submitted that fire that missed and did not reach the target has been proved by recovery of empty cartridge, country made pistol and also lead, beneath the floor vide Ex. P/16, which were both found connected with the country made pistol recovered at the instance of accused-appellant Gyan Singh. The firearm has been recovered at the instance of accused-appellant Prabhu Singh as well as Indal. Mere absence of recovery of firearm from accused Shiv Singh cannot be a reason to discard the testimony of Smt. Devi (PW-11) whose allegation is fully corroborated by the injury she has received. Learned Public Prosecutor in this connection referred to her injury report Ex. P/41 and the post-mortem report of deceased Gopal Ex. P/24 proved by Dr. Baney Singh (PW-28).

9. Learned Public Prosecutor argued that the complainant Vikram Singh (PW13) hurriedly took the deceased Gopal and injured Smt. Devi in a seriously injured condition in a tractor for being taken to hospital, but in route they were met with Mahaveer Singh Solanki (PW30), SHO, Police Station, Chiksana with his jeep. The SHO then took them in his jeep to the hospital at Bharatpur wherefrom they were referred to hospital at Agra. The Investigating Officer Banne Singh (PW30) has recorded the statement of Vikram Singh under Section 161 Cr. P.C on the same day, who stated that deceased Gopal told him that Prabhu and Gyan had fired at him. Therefore, on the same day, this correction was made. Thus the version given in the written report cannot be a reason to completely reject the testimony of the witnesses in the Court.

10. We have given our anxious consideration to the rival submissions and perused the material on record.

11. Although, it is true that in the written report that was submitted, Vikram Singh has stated that his brother Gopal was crying for help stating that Prabhu has opened fire at his chest and thereafter in Court he has given statement in sync with Smt. Devi (PW11) widow of Gopal, who was indeed an eye-witness of the incident because whatever she is saying is on the basis of her own observation. According to her, she along with her husband Gopal was sleeping on the same cot, whereas Vikram was sleeping on another cot at some distance. Vikram in the written report submitted that it was around 1 and 1.30 a.m in the night that he woke up on hearing sound of fire and when he looked at the direction of such sound, he saw acused Prabhu, Indal, Rajveer, Gyan and Shiv Singh running therefrom with their arms. Smt. Devi (PW11) has however stated hat she had fever that day and therefore her husband told her to sleep out in the chowk. When they were both sleeping on the same cot all these five accused came around 1.00 a.m in the night. Prabhu had a katta and Gyan had both katta and farsa. Indal had lathi and also katta. Shiv Singh had a katta and Rajveer had a lathi. Prabhu opened fire, but it did not hit anybody and Gyan also opened fire, which hit her husband-Gopal. When she cried for help, Prabhu asked Shiv Singh to finish her. Shiv Singh fired at her leading to injury on her leg. What she says is quite possible because both Prabhu and Gyan Singh had fired in the vicinity of each other at a time when deceased Gopal was sleeping. At that crucial moment, it was quite natural for deceased to misjudge as to whose fire hit him. If the fire opened by Prabhu did not hit anybody and the fire of Gyan Singh as hit him, this cannot be said to be such a major contradiction to justify the argument of false implication because a stranger has not been introduced in the crime. Gyan Singh in any case has been named as one of the accused in the written report itself.

12. Contention that Vikram Singh when initially informed the Investigation Officer, has not given the names of the accused and that such written report was submitted only at 5.35 a.m in the morning, thus proving false implication, is noted to be rejected. This has been proved by Ranjeet (PW10) and also by Vikram Singh (PW13) that initially the deceased Gopal was taken in a seriously injured condition to hospital at Bharatpur and thereafter he was removed to G.G Nursing Home, Agra. The Investigating Officer Mahaveer Singh Solanki (PW30) has proved the treatment of the deceased at Agra. The treatment slips are Ex. P/51 and P/52, the operation note is Ex. P/53, post operation treatment slip is Ex. P/54, the document referring deceased Gopal to SMS Hospital, Jaipur is Ex. P/47, Ex. P/48 is the admission and discharge record of Gopal, Ex. P/49 is the consent for treatment of Gopal, Ex. P/50 is the consent for operation of Gopal, Ex. P/55 is the note regarding his death and Ex. P/56 is the receipt regarding delivery of dead body of Gopal Singh. All these documents were collected by the Investigating Officer Mahaveer Singh Solanki (PW30) and have been proved by him. Neither the Investigating Officer, nor any other one has stated hat the Investigating Officer stayed throughout the night with the complainant-party in the hospital at Agra till he breathed his last, therefore, the contention that the names of the accused were not immediately disclosed to the Investigating Officer may not have any serious consequence on the fate of prosecution case. The prosecution made up for that deficiency by recovery of a country made pistol of 315 bore with two cartridges at the instance of Prabhu vide Ex. P/4, which was put in sealed packet ‘H’, a 12 bore ‘katta’ with three cartridges from Gyan; two live and one used vide Ex. P/5, which was put in sealed packet ‘G’ and one ‘katta’ 12 bore with one cartridge vide Ex. P/6, which was put in sealed packet ‘F’ from Indal. It is not correct to say that no recovery of any remains of firearm was made from the place of occurrence. The police has recovered lead ball of a fired cartridge vide Ex. P/16 beneath of floor. Ex. P/25 is the report of FSL according to which human blood was found on blood smeared soil collected from he place of occurrence, also on the ‘rajai’ recovered from the cot on which deceased was sleeping and blood filter paper. In so far as the country made 12 bore katta and one live cartridge recovered at the instance of Indal seen in packet ‘F’ to FSL is concerned, the result of the examination by FSL vide Ex. P/28 was that the 12 bore cartridge case (C/1) has not been fired from 12 bore country made pistol (W/1). It was however opined that one 12 bore cartridge case (C/1) contained in packet ‘G’ recovered at the instance of Gyan has been fired from 12 bore country made pistol (W/2). Regarding recovery of one 12 bore pistol at the instance of Gyan (W/2) and 2 live cartridges (L/2) and (L/3) and one cartridge case empty (C/1), the result of the examination was that the country made pistol was serviceable firearm and the examination of the barrel residues indicates that it had been fired. Based on stereo and comparison of microscopic examination, it was opined that the cartridge case (C/1) from packet ‘G’ recovered at the instance of Gyan could have been fired from submitted 12 bore country made pistol (W/2). It was however further opined that one lead ball (B/1), which in fact was recovered from beneath the floor on the place of incident vide Ex. P/16 from packet ‘A’ could have come out from 12 bore cartridge case (C/1), from packet ‘G’ and further that it could have been fired from 12 bore pistol (W2), both of which were recovered at the instant of accused Gyan. The cartridge case which matched with the country made pistol was, in fact, retained in its chamber and the lead which passed through the body of the deceased, all the three were thus linked with each other. Regarding packet ‘H’ recovered at the instance of Prabhu Dayal, the result of examination vide Ex. P/27 was that it was found in working order, but has tendency to misfire the ammunition. The possibility of tempering of firing pin of this pistol also could not be ruled out. However, no opinion could be given on one misfired 8MM cartridge (L/1) from packet ‘H’, in order to link with one 8MM country made pistol (W/1) from packet ‘H’ due to its tempering of the firing pin. It was however opined that the examination of barrel residue indicates that submitted 8MM country made pistol had been fired and that one 8MM/315 cartridge (L/2) from packet ‘H’ was found fireworthy ammunition. However, coming now to the case of the accused Shiv Singh, not only there was consistent allegation in the written report Ex. P/14 as also in the statement of the injured eye witness Smt. Devi (PW11) and thereafter the other witnesses Ranjeet Singh (PW10) and Vikram Singh (PW13), who witnesses part of the incident that it was Prabhu, who exhorted accused Shiv Singh and at his askance Shiv Singh opened fire at Smt. Devi. Even though she has received injury on her left thigh, but since it was a firearm aimed at her, the intention was to murder her, therefore, accused-appellant Shiv Singh has rightly been convicted for the substance offence u/Sec. 307 IPC.

13. Since accused-appellant Prabhu Dayal has not only been named all throughout, but the allegation against him in so far as exhortion given to accused Shiv Singh, is consistent, right from the stage of filing of the written report, lodging FIR and in the statement of all the above three witnesses and considering that recovery of firearm has been made at his instance, in our considered view, Prabhu Dayal has rightly been held to be a active member of the unlawful assembly, having the common object of murdering the deceased Gopal.

14. The statement of Smt. Devi (PW11) under Section 161 Cr. P.C exhibited as Ex. D/2 has been recorded by the police on the very day of incident and she has been confronted with that statement in her cross-examination. She has clarified that she stated to the police that Prabhu Singh exhorted Gyan Singh to murder her husband. Vikram Singh (PW13) was also confronted with his statement Ex. D/5 recorded under Section 161 Cr. P.C by the police on the same day of incident in cross examination where he stated that his brother Gopal informed him that Prabhu and Gyan had fired at him. The Investigating Officer Mahaveer Singh Solanki (PW 30) has also in his cross-examination proved this fact.

15. Coming now to the case of accused-appellant Rajveer, we find that though he has been named in the FIR and also in the statement of witnesses Ranjeet Singh (PW10), Smt. Devi (PW11) and Vikram Singh (PW13), but there is no active role attributed to him, nor has any recovery has been made at his instance. In view of the strained relationship between the parties, therefore, possibility of his false implication cannot be ruled out. The offence against him cannot be taken to have been proved beyond reasonable doubt.

16. The accused-appellant Rajveer is therefore held entitled to benefit of doubt and he is accordingly acquitted of the charges for offence u/s. 302/149, 307/149, 459, 460, 147 and 148 of IPC. The conviction and sentence of other accused namely Gyan Singh, Shiv Singh and Prabhu Singh is however maintained. As far as accused-appellant Indal Singh is concerned, since he has died and his death certificate is on record, this appeal is dismissed as abated.

17. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Rajveer is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant-Rajveer, on receipt of notice thereof, shall appear before the Supreme Court.

The appeal is accordingly allowed in part.