Arun Mishra, J.
1. The appeals have been preferred by the seven accused appellants aggrieved by their conviction under Section 302/149 IPC and sentence of imprisonment for life and fine of Rs.200/-, convictions, under Section 324/149 IPC and sentence of two years R.I. and fine of Rs.100/-, under Section 147 IPC R.I. for six months and fine of Rs.100/-, under Section 148 IPC R.I. for six months and fine of Rs.100/-, in default of payment of fine additional imprisonment for one month each,imposed by 2nd Addl. Sessions Judge, Chhatarpur in ST No. 26/1993.
2. Prosecution case in brief is that on 1.9.92 accused persons formed unlawful assembly armed with weapons, they inflicted injuries on Komal Singh, Sumer Singh and Mijaji Singh, two of them, namely, Komal Singh and Sumer Singh died, Mijaji Singh sustained injuries. FIR has been lodged by Rajjan Singh, resident of Village-Chhati Bamhori, brother of deceased and injured Mijaji Singh, incident took place at about 6-6.30 PM on 1.9.92 when Komal Singh, Sumer Singh and Mijaji Singh were going back from their agricultural field, when they reached near Thudwaghat, they found accused Shankar Singh, Babu Singh, Chhuttu Singh, Laxman Singh, Kallu Singh, Natthu Singh, Maheepat Singh and Bhimsingh hiding behind Besharm bush, they were armed with spear, dagger, ballam and lathis and inflicted injuries on Komal Singh, Sumer Singh and Mijaji Singh, Sumer Singh and Komal Singh succumbed to the injuries on the spot itself, thereafter they ran away to catch hold of Rajjan Singh, complainant, he ran away to the village and informed the incident to the villagers brother,Nana, Peshwani Shukla, Mangal Singh, Ramsingh, Raju, Binda,etc. and went to the spot along with them, on the spot he met with Jagdish and Kalicharan of village Silgaon. Thereafter he went to PS-Chandla to lodge the report, he reached to the police station at about 10.50 PM and report (P/1) was reduced in writing. Investigation was done, Patwari prepared the spot map (P/2), Mijaji Singh was sent along with requisition (P/4) for treatment to the hospital at Chandla, on the next day inquests of body of Komal Singh and Sumer Singh (P/6 and P/7) were prepared. Blood stained and plain soil were seized along with shoes, spot map (P/40) was also drawn, the bodies of Sumer Singh and Komal Singh were sent for autopsy to the District Hospital, Chhatarpur. After arrest of accused, at their instance, ballam, dagger, farsa were seized. Seized articles were sent to FSL, an arrangement was made to record dying declaration of Mijaji Singh, Executive Magistrate recorded dying declaration of Mijaji Singh on 2.9.92 at 2.50 AM, ultimately he survived.
3. Accused had been charged for commission of offence under Sections 147,148,302,302/149,307 and 307/149 IPC, they abjured their guilt and contended that due to party fractionalism and old enmity they had been falsely implicated in the case and set up their innocence. Accused Maheepat Singh, Chhuttu Singh and Shankar Singh in their statements under Section 313 Cr.P.C. stated that when they were returning back, they were beaten by Sumer Singh, Komal Singh and other, Sumer Singh inflicted injuries with ballam on the back of Shankar Singh, Maheepat Singh,. Kallu and Chhuttu Singh went to PS-Chandla along with Shankar Singh to lodge the report. Shankar Singh had been sent for medical examination. Accused had also adduced defence evidence in order to prove the FIR lodged by them and statement of Mijaji Singh recorded by Executive Magistrate in the intervening night of 1st/2nd September, 1992. Aggrieved by the conviction and sentence as aforesaid, appeals have been preferred.
4. Shri L.N.Sakle and Shri Siddharth Datt, learned Counsel appearing for appellants have submitted that Rajjan Singh (PW.1) has not witnessed the incident. This witness has also relied upon oral dying declaration made by Sumer Singh, Sumer Singh was not in a position to give any oral dying declaration to Rajjan Singh (PW.1), thus, FIR appears to be manipulated and concocted document, prosecution has failed to establish on what basis it had been lodged. Police statement of Mijaji Singh was recorded after more than one month, though he had suffered injuries in the incident, however, owing to delay in recording his police statement and also considering his statement, he has failed to attribute specific act to the accused, consequently it could not be said that he was a reliable witness, apart from that there were contradictions in the statements of these two witness Mijaji Singh and Rajjan Singh, thus, it would not be safe to convict the appellants on the basis of their statements. Counsel further submitted that injuries had been found on the person of accused Shankar Singh, he has suffered one stab wound, Maheepat Singh has suffered two stab wounds, Chhuttu Singh two injuries, one contusion and one stab wound,found by Dr.Ramesh Chandra Malare, (DW/5), Assistant Surgeon, injury reports D/16,D/18 and D/14 respectively had been proved. The prosecution has failed to offer explanation to the injuries found on the accused. Thus, from version of accused it was probable that deceased and injured Mijaji Singh were aggressors, thus, it was within the realm of right of private defence of the accused to defend and to cause injuries, involvement of all accused persons has not been established beyond reasonable doubt. With respect to involvement of Natthu Singh, trial Court has disbelieved the case. Haricharan (PW.8) was also not credible witness, his testimony does not inspire confidence. He has been contradicted by Gangacharan (DW/3) that he has visited the village of Gangacharan on the date of incident, Haricharan was a chance witness, he has not been able to give the description expected of an eye witness. Thus, conviction could not be based on his testimony, he belongs to the party of complainant, consequently, accused appellants deserve to be acquitted. Alternatively, it was submitted that conviction be altered to Section 304 IPC.
5. Shri R.S.Patel, learned Addl. AG appearing for State has submitted that FIR had been lodged promptly,statement of Mijaji (PW.5) the injured witness, Rajjan Singh (PW.1), Haricharan (PW.8) were reliable, accused persons were much in number, not attributing specific act to each of the accused persons with precision could not dilute the evidential value of the eye witness account. In the instant case, accused persons were hiding behind Besharm bush, they were armed with lethal weapons, when they saw deceased Komal Singh, Sumer Singh and injured Mijaji Singh were going back from their field, they came out, encircled them and started beating them with various weapons carried by them. On the person of injured, Mijaji Singh (PW.5) in all 9 injuries were found on various parts of the body, on deceased Komal Singh 10 injuries were found in the postmortem report (P/31) whereas on the body of Sumer Singh in the postmortem report (P/32) in all 16 injuries were found, thus, total 35 injuries had been found on aforesaid three persons. Thus, involvement of large number of accused persons being writ large, recording of statement of Mijaji Singh on 9.10.92 with delay was of no significance as dying declaration (D/4) stood recorded at 2.50 AM in the intervening night of 1st/2nd September,92 recorded by Executive Magistrate Braj Bihari Pandey (PW.8), Haricharan was also a truthful witness beside Rajjan Singh (PW.1). Sumer Singh had also made oral dying declaration to Rajjan Singh. Accused had formed unlawful assembly, they were waiting for Sumer Singh, Komal Singh and Mijaji Singh to arrive, thus, they were aggressors, right of private defence could not be said to be available to them in the circumstances of the case. Simple injuries had been found on the person of three accused Shankar, Maheepat and Chhuttu Singh, non-explanation of such simple injuries could not be said to be of any significance in the facts and circumstances of the case. Investigation has been done with promptitude and fairness. Prosecution has proved its case against the accused. Appellants had been rightly convicted under Section 302 IPC, no case for interference in this appeal was made out.
6. First we have to consider lodging of FIR in the instant case. FIR (Ex.P/1) had been lodged by Rajjan Singh (PW.1) at 10.50 PM on 1.9.92 at PS-Chandla situated at a distance of 10 kms.from the place of incident. Rajjan Singh (PW.1) has stated that on the date of incident he was in the field, he came to know that Sumer Singh, Komal Singh and Mijaji Singh had been beaten, he came to the spot, deceased Sumer Singh made oral dying declaration to him that Shankar Singh, Babu Singh Chhuttu Singh, Laxman Singh, Bhim Singh, Maheepat Singh, Kallu Singh and Natthu Singh had inflicted injuries on them. He has owned report (P/1) as apparent from the statement that Sumer Singh had disclosed the names of accused to him. In cross-examination he has stated that Komal Singh, Mijaji Singh and Sumer Singh were unconscious but at the same time he has stated in examination in chief that out of them Sumer Singh was in the position to speak inspite of his bad condition. This part of statement inspire confidence as Mijaji Singh has ultimately survived the injuries and Mijaji Singh's dying declaration had been recorded in the night by Executive Magistrate, in that he has disclosed the names of accused persons except that of Natthu Singh. This witness Rajjan Singh (PW.1) appears to be truthful as he has not stated that Mijaji Singh was conscious at the time when he reached. It appears that Komal Singh has died, Mijaji Singh was unconscious and though condition of Sumer Singh was bad, but still he could speak, as stated by the witness Rajjan Singh (PW.1), we find no reason to discard his deposition.
7. Coming to the deposition of Mijaji Singh (PW.5), he has sustained as many as 9 injuries, injury no. (1) was incised wound over parietal bones obliquely of 3 x.4 x.3 Inch (2) lacertaed wound over right parietal bone of.5 x.5 x.2 Inch (3) incised wound on index finger of left hand of.8 x.2 x.2 Inch, penetrating wound over right dorsal palm near 2nd metacarpal of.4 x.3 x.8 Inch (5) penetrating wound on the left side of chest of.4 x.3 x.4 Inch (6) penetrating wound of.3 x.3 x.3 Inch, 4 Inch below the right scapula bone (7) contusion of 3 x 1.3 Inch on the left leg (8) abrasion of 1 x.4 x 1.2 Inch on right leg 3.5 Inch below knee and (9) contusion of 3 x 2 Inch on the outer side of right toe. These injuries had been proved by Dr. M.K.Prajapati (PW.11), injury no. (1) and (3) were caused by shard edged weapon, injury no. (4), (5), (6) and (8) by penetrating wound, injury no. (2), (7) and (9) were caused by hard and blunt object. Medical report of Mijaji Singh has been proved by Dr. Prajapati. Thus, Mijaji Singh's presence on the spot has found support by aforesaid 9 injuries. His version was of utmost significance to unfold the story in the instant case. We do not find merit in the submission raised by learned Counsel appearing for accused/appllants that his police statement had been recorded with undue delay after one month seven days of the incident, incident took place on 1.9.92, no doubt his police statement (D/3) had been recorded on 9.10.92, recording of belated police statement (Ex.D/3) has been rendered insignificant in view of the admitted fact that considering his bad condition his dying declaration (D/4) had been recorded by Executive Magistrate Cum Naib Tahsildar Shri B.B.Pandey (DW.8). It was recorded on 2.50 AM on 2nd September,1992 within 9 hours of incident whereas incident took place on 1st September,92 in between 6 6.30 PM. As dying declaration has been proved by examining the defence witness B.B.Pandey (DW.8) and the witness Mijaji Singh remained admitted in hospital for 26 days and after staying for another 4 days, he went back to the village, it was only thereafter that his police statement came to be recorded by I.O. Thus, in the aforesaid circumstances, no dent was caused to the prosecution case as in the earlier statement (D/4) only the name of accused Natthu Singh had not been stated by Mijaji Singh and due to that Natthu Singh has been given benefit of doubt by the trial Court. Much has been tried to be made out by the counsel on behalf of accused that statement of Mijaji Singh (PW.5) cannot be said to be reliable for the reason that he was unable to state whether he had disclosed the names to Executive Magistrate or not as he did not remember the said fact. In our opinion when names of 7 accused/appellants were clearly mentioned in the statement, aforesaid could not be said to be the contradiction. An effort was made by cross examiner to test the memory of the witness, it may not be possible for witness to state what infact he had disclosed at the time when his dying declaration was recorded and since he had named seven accused appellants in statement (D/4), it could not be said to be the contradiction to the advantage of accused. Similarly Mijaji Singh has not been able to state which accused person had inflicted injury on which part, though he has given the version that for about half an hour accused inflicted the injuries. He has also stated in para 13 that Chhuttu Singh had inflicted two injuries, thereafter he fell down, he had also given specific role of certain other accused persons also. In case a witness is not able to give details as to the role of each accused with precision in a case where Section 149 IPC is attracted, mere presence of accused was enough and considering the fact that several accused persons were inflicting the injuries at the same time on three persons resulting into 35 injuries to them, it may not be possible for a person to state with precision the role of each accused person.
8. The Apex Court in Kallu alias Masih and Ors. v. The State of M.P. has laid down that it is not sufficient to disbelieve the evidence of injured eye witness on the ground that there is inconsistency and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows as it is not necessary that all eye witnesses should specifically refer to the distinct acts of each member of an unlawful assembly, infact it is difficult if not impossible. In Mohinder Singh and Ors. v. State of Punjab , the Apex Court has held that presence of
injured witness cannot be doubted at the spot.
9. An attempt is also made to discredit the statement of Mijaji Singh (PW.5) on the ground that he has not explained the injuries caused to the accused Shankar, Maheepat Singh and Chhuttu Singh. These injuries were simple as stated by Dr. Ramesh Chandra Malare (DW.5) as apparent from injury report (D/14) of Maheepat Singh, (D/16) of Chhuttu Singh and (D/18) of Shankar Singh. When we consider the nature of injuries on these accused persons, injury on Maheepat was of.5 x.5 x.5 cm. on left hand, it was caused by penetrating weapon, 2nd stab wound of 1.2 x 1.2 x 1.2 cm.over left hand and 18 cm. below left shoulder, it was also caused by penetrating weapon. Considering the nature of these injuries, they were simple and considering the dimensions, it could not be said to be injuries calling for explanation in the facts of instant case. On the person of Chhuttu Singh, one contusion of 5 x 4 cm.over right outer side of neck was found and one stab wound of.8 x.8 x 1.7 cm. as apparent from report (D/16). On Shankar Singh, one stab wound of.9 x.9 x 3.6 cm.was found in the abdominal region, considering the dimension of the aforesaid injuries, these were quite simple, no radiological examination report had been produced so as to show that these injuries were grievous, considering the dimensions also the injuries were quite simple, in the instant case apparently the accused were the aggressors, they were hiding in a bush, waiting for deceased and injured Mijaji Singh to arrive and thereafter they had started beating them with lethal weapons. Thus, right of private defence by no stretch of imagination could be extended to them in the circumstances of the case. We have no iota of doubt on the statement of Mijaji Singh that these accused person were hiding in the bush and came out and started beating them. Plea of private defence was,thus, not available to accused in the instant case.
The Apex Court in Takhaji Hiraji v. Thakore Kubersingh Chamansing and Ors. has held that when three accused persons
suffered injuries of very minor nature, their non-explanation did not cause any infirmity in the prosecution case. The Apex Court has held that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of prosecution to do so the prosecution case should not be disbelieved. Before non-explanation of the injuries on the person 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 :(1) that the injury on the person of the accused was of a serious nature; and (2) that such injuries must have been caused at the time of the occurrence in question. Since the injuries are not grievous in nature to any of the aforesaid three accused persons, in the facts of the instant case the method and manner in which incident has taken place, no dent was caused to prosecution case due to non-explanation of simple injuries. In Mohinder Singh and Ors. v. State of Punjab (supra) witnesses were injured and non-explanation by the prosecution of the minor injuries suffered by Beant Singh and Nirbhay Singh could not dislodge the prosecution case. In Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476 and in Anil Kuamr v. State of U.P. it has been observed that trifling and superficial
injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case. In Triloki Nath and Ors. v. State of U.P. 2006 SAR (Criminal) 57 the Apex Court has laid down that plea of private defence is not available to aggressors accused. In the instant case also as the accused were aggressors, we have found that they are not entitled to raise the plea of private defence. In Shajahan and Ors. v. State of Kerala and Anr. 2007 SAR (Criminal) 338 non- explanation of injuries of minor nature was held to be inconsequential. Counsel have relied upon a decision of Apex Court in Lakshmi Singh and Ors. v. State of Bihar . No doubt about it that in the aforesaid dictum, it has been laid down that prosecution has to explain the injuries on the accused, but as in the instant case the injuries are found to be superficial and accused were the aggressors, right of private defence was not available to them in the circumstances of the instant case no dent was caused to the prosecution case due to non-explanation of minor injuries found on body of three accused persons.
10. Mijaji Singh (PW.5) has also stated that he became conscious in the hospital, thereafter his statement was recorded by Naib Tahsildar. He has clearly stated that Shankar Singh and other 8 accused persons and 2 unknown persons surrounded them, Shankar Singh asked Mijaji Singh what was his intention, on that he told that they did not want to fight, thereafter accused Laxman Singh inflicted injury on the head of Komal Singh with the Farsa, Komal Singh fell down, thereafter all of them started beating Sumer Singh and Komal Singh, they were carrying Farsa, Ballam, etc. He was also beaten, Shankar Singh inflicted Ballam injury on his back, Laxman Singh inflicted injury on his left hand with the Farsa, Babu Singh with Ballam, Maheepat Singh with Farsa, Kallu Singh inflicted injury with Ballam, Chhuttu Singh inflicted injury with axe from the blunt side. He became unconscious on the spot and regained consciousness in the hospital. There was old enmity between them. Enmity is a double edged weapon, that was the cause for the accused in the instant case to commit the offence. Being the injured witness, no doubt he was present on the spot and his deposition alone was sufficient to sustain the conviction of accused/appellants as he has been found to be truthful and reliable witness.
11. Haricharan (PW.8) is yet another eye witness examined by prosecution. He had gone to the Village-Tikuri in order to purchase an Ox,while he was coming back along with Jagdish, had witnessed the incident. He had named 8 accused persons who were put to trial, one of them Natthu Singh has been given benefit of doubt by the trial Court. He was unable to state the individual act of the accused, by that no dent was caused in the light of aforesaid discussion made with respect to Mijaji Singh (PW.5) as it was quite difficult to assign individual acts in such circumstance. He has stated that police made enquiry from him on the same day, however, it appears that his police statement had been recorded on 3.9.92 as stated by I.O.Abdul Mubin Qureshi (PW.16), ASI for the delay of one day, his explanation has not been obtained by the accused. The Apex Court in State of U.P. v. Satish has held that unless I.O. was categorically asked
that why there was delay in examination of the witness, the defence could not gain any advantage therefrom. It could not be laid down as a rule of universal application that if there was any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination was plausible and acceptable and the court accepts the same as plausible, there was no reason to interfere with the conclusion. Similar observation was made by Apex Court in Banti alias Guddu v. State of M.P. . In the instant case, no question had been put to the aforesaid ASI (PW.16) why statement of Haricharan (PW.8) had been recorded on 3.9.92 when he was available in the night on 2.9.92, there was not much delay in the instant case and no explanation has been obtained, thus, we are not inclined to accept the submission on behalf of accused appellants that this witness has been added as an after thought. His name has been mentioned in the FIR, names of Jagdish and Haricharan were mentioned as eye witnesses of the incident, out of them Haricharan has been examined by the prosecution. Maheepat Singh accused had lodged a complaint against him, the defence has cross-examined the witness Haricharan to the effect that he was also present and inflicted the injuries on the accused that also supports his presence on the spot, though in our opinion he was present as witness not as aggressor. Similarly statement of this witness could not be discredited for non-explaining the simple injuries on three accused persons and his statement that all the accused persons were beating with lethal weapon appears to be quite reliable and has been supported by injured witness Mijaji Singh, thus, we find that statement of Haricharan has been rightly believed by trial Court. Merely on the basis of party fractionalism his statement could not be brushed aside in the facts of instant case.
Statement of Gangacharan (DW.3) to the effect that Haricharan did not visit him on the date of incident has no effect on the otherwise reliable statement of Haricharan (PW.8). Haricharan has not improved upon his earlier version and has substantially supported the case of prosecution, thus, we do not find any force in the submission raised by learned Counsel for appellants that version of aforesaid three witnesses Mijaji Singh, Haricharan and Rajjan were not reliable and conviction could not be based on that basis.
12. Arrest and factum of seizure has not been impinched upon by the counsel for appellants, however, V.N.Singh (PW.12) has stated that he had arrested the accused Kallu and seized Lathi as per memos (P/18 and P/19), at the instance of Laxman Farsa was seized as per seizure memo (P/20), from accused Babusingh, Ballam was seized as per memo (P/22). Krapal Singh (PW.15) has supported the prosecution with respect to seizure from the accused Chhuttu Singh, Maheepat Singh, Shankar Singh, Kallu Singh and Laxman Singh. Ashok Kumar (PW.3), Patwari, had prepared the spot map (P/2), he has proved it. Another spot map was prepared by Shri Abdul Mubin Qureshi (PW.16), inquest has also been proved by him and the seizure of blood stained and control soil.
13. Dr. M.K.Prajapati (PW.11) has clearly proved the injuries found on the person of deceased in his medical reports (P/16-A, P/16-B) and the reports (P/16 and P/17) of deceased Komal Singh and Sumer Singh. With the help of diagrams also he has explained the injuries, he has opined that injuries could be caused by the weapons seized. Sumer Singh's right parietal bone was found to be broken beside peritoneum was found to be cut, fractures were also found on the right leg, on the person of Komal Singh 10 injuries were found, his parietal bone had been fractured, peritoneum of brain was found cut, cause of death was due to excessive bleeding and shock due to brain injury. The injuries were found to be sufficient in ordinary course of nature to cause death. He has also examined Mijaji Singh in the night and has proved the injuries on him and the report.
14. Considering the facts and circumstances of the case, in our opinion, it cannot be said to be a case falling under Section 304 Part I IPC. The counsel for appellants have relied upon a decision in Naveen Chandra v. State of Uttaranchal . It was a case of
"sudden fight" in a Panchayat which had been convened, three persons died, case was held to be falling within the said exception and they were convicted under Section 304 Part I IPC. Facts of the instant case were quite different, incident has not taken place all of a sudden, but accused had formed an unlawful assembly, they were hiding behind Besharm bush and started beating mercilessly when deceased Komal Singh and Sumer Singh, and injured Mijaji Singh were going back to the village from the field. Thus, neither plea of self-defence could be said to be available to accused nor it would be a case falling under Section 304 Part I IPC. Accused knew what they were doing and what was intended. It was not a case falling under any of the exception to Section 300 IPC. Thus, accused were rightly convicted for commission of offence under Sections 302, 149 of IPC for causing death of Komal Singh and Sumer Singh, under Section 324/149 IPC for causing injuries to Mijaji Singh (PW.5) and also under Sections 147 and 148 IPC.
15. In view of above, the appeals being devoid of merits are hereby dismissed.