KX ‘ ég> ‘1” AgL HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.90 of 1983 APPELLANT: (In Jail) Avtar Singh son of Palsingh, aged 26 years, occupation Transport business, resident of Deepaknagar, Durg. Versus State of Madhya Pradesh (now Chhattisgarh) {Appeai under Section 374 (2.) of the Code of Criminal Procedure, 1973} RESPONDENT: Present: Mr. Surendra Singh, Senior Advocate with Mr. Neeraj Mehta, Advocate for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. JUDGMENT (16th December, 2009) The following iudqment of the Court was passed by T.P. Sharma, J: - 1. Chalienge in this appeal is to the judgment of conviction & order of sentence dated 27—12-1982 passed by the Sessions Judge, Sessions Division, Mandia in Sessions Trial Nos.61/80 & 62/80, whereby & whereunder Iearned Sessions Judge after holding the appellant guilty for commission of offence under Sections 302 read with Section 34, 307 read with Section 34 of the l.P.C. & 28 of the Arms Act, sentenced him to undergo imprisonment for life, R.l. for nve years & R.l. for two years, respectively. However, the Sessions Judge has acquitted the appellant herein of the charge under Section 302 of the l.P.C. and the remaining fifteen accused persons of the charge under SeCtions Q120B, 307 read with Section 34, 302 read with Section 111 & 302 read with Section 34 of the l.P.C. 2 . Judgment is impugned on the ground that without any iota of evidence to connect the appellant with the crime in question viz., presence of the appellant armed with rifle at the time of incident, recovery of rifle and by making a new case for prosecution, the Sessions Judge has committed illegality .by convicting & sentencing the appellant in the aforesaid manner. The offence has been committed within the territorial jurisdiction of Sessions Division, Durg, but both the Sessions Trials have been transferred to Mandla by the order of the High Court of Madhya Pradesh at Jabalpur and subsequently, after reorganization of the new State of Chhattisgarh, the present appeal has been received on transfer from the High Court of Madhya Pradesh at Jabalpur. I 4. Case of the prosecution, in brief, is that the appellant is son-in-law of co- accused Surta Singh who is father of Suchcha Singh. Another co- acchsed Harbinder Singh alias Harendré Singh alias Kukki is brother-in- law of Suchcha Singh. Houses of Surta Singh (father of Suchcha Singh) and Nirankari brothers Bhajan Singh & Pritam Singh are situated in Malviya Nagar, Durg, in front of each others’ houses. Accused Suchcha Singh was residing with his father Surta Singh in thesaid house and he was a big liquor contractor. All other accused are partners along with Surta Singh, Suchcha Singh, Harbinder Singh & Santokh Singh of the firm M/s. S.S. Dhillon and Company. Accused Suchcha Singh was having Fiat Car No.MPT-7760, Santokh Singh was owner of truck No.CPT—2118 and accused/appellant Avtar Singh was owner of rifle alleged te have been used for the commission of the crff‘ne in question. In the year 1980 or prior to 1980,‘the Sikh community was divided into ~F'“““"’“"“ two factions namely, the Akalis and the Nirankaris. The Akalis are traditionalists and old moralists and form the fanatic group. There were ‘ a . open confrontations between the two factions at Amritsar in the year 1978. Thereafter the Akalis decided to wipe out and finish the Nirankari Chief Baba Gurdbachan Singh.‘ . On 19-3-1980, the Nirankari Chief Baba Gurubachan Singh came to Durg for laying the foundation stone of Nirankari Satsang Bhawan at Bhiiai Sector-8 adjoining to thecity of Durg. He stayed in the house of his disciple Pritam Singh whose house was situated in front of the house of Surta Singh. Surta Singh who is follower of the Akalis & other accused persons entered into conspiracy at the house of Surta Singh & also at Green Hotel on 19-3-1980 to commit the murder of the Nirankari Chief Baba Gurubachan Singh. Except accused Mohd. Aziz, the then driver of truck No.CPT—2118 belonging to M/s. S.S. Dhillon & Co., remaining 15 accused persons were the Akalis. On 19-3-1980 at about 5 p.m. the Nirankari Chief Baba Gurubachan Singh proceeded to Bhilai “Sector-8 for laying the foundation stone of Nirankari Satsang Bhawan. The Nirankari Chief Baba Gurubachan Singh was sitting in the black Mercedes car behind the white Chevrolet car. In furtherance of the conspiracy, accused Mohd. Aziz & Avtar Singh were waiting for the Nirankari Chief Baba Gurubachan Singh near the Science College culvert. Mohd. Aziz was driving the truck. On the belief that the Nirankari Chief Baba Gurubachan Singh was sitting in the Chevrolet car No.DHC-9907, Mohd. Aziz dashed the Chevrolet car from wrong side. Appellant Avtar Singh and co—accused Harbinder Singh alias Kukki were ‘ sitting inside the truck. After the dash by the truck, accused Avtar Singh jumped out from the truck along with his 315 bore rifle and fired two shots at the Chevrolet car with intent to kill the Nirankari Chief Baba Gurubachan Singh under the belief that he was sitting in the Chevrolet car. ‘But the Nirankari Chief Baba‘Gurubachan Singh was not sitting in @ 4 the Chevrolet car and was sitting in the Mercedes car. As a result of the gun shot injury (fire shot), Mrs. Swadesh Neelam who was sitting inside the Chevrolet car died instantaneously. The police party was accompanying the procession of the Nirankari Chief Baba Gurubachan Singh. Avtar Singh tried to flee away from the spot, but he was chased and apprehended by the police on the spot. When the police chased Avtar Singh for apprehending him, he tired with his rifle on the police and finally he was apprehended by Police Officer Udairaj Dubey, ASI (PW- 35) who snatched the rifle. Other co-accused Harbinder Singh alias Kukki & Mohd. Aziz immediately rushed towards the Fiat car which was already standing near the place of incident and sat inside the car whereupon accused Suchcha Singh who was waiting for them sped the car and they escaped from the spot by the said car. At the time of incident, other persons sitting inside the Chevrolet car also sustained injuries. Merg intimation was recorded vide Ex.P—120. Bhajan Singh lodged the report on 19-3-1980 vide Ex.P-5 at Mohan Nagar, Durg. He also'lodged the F.l.R. Ex.P-5A. P.K. Verma (PW-56), Tl, Mohan Naga‘r, Durg also lodged the report relating to the subsequent act of Avtar Singh Who tired upon the police party. Inquest over the body of Mrs. Swadesh Neelam was prepared and the dead body was sent for autopsy to the District Hospital, Durg. Autopsy was conducted by Dr. D.K. Agrawal (PW-12) vide Ex.P-21 who found following injuries: - (1) Oval wound right external ear 2" below the highest curve of the pinna between the helix & antihelix 1 cm. x 0.5 cm. x through of through. Margins inverted. Blood stain near the wound present. No_tattooing or blackening of the skin. , Q ail \ (2) Oval 1 cm. wound X 0.5 cm. right x mastoid brain deep. region Margins corresponding inverted. to Blood the injury stain No.1, + No \ . burning or singeing of hairs. , r (3) Extensive Iaceration of the scalp from right temporal, parietal & occipital region with communited fracture of the temporal, parietal & occipitai bone. Producing tear of dura matter & crushing of brain matter corresponding to right temporai, right parietal & occipital lobe. (4) Oval wound right upper arm lateral aspect 4" below the shoulder 1.5 cms. x 1 cm. x 3". Margins inverted. Blood stain near the wound pres‘ent. No tattooing or blackening. Direction of the wound oblique. Post to the numerus towards the axilla. An irregular metal fragment embedded 3" inside the wound. Mass of metal with jagged sides and sharp angles, blood stained also found in injury No.4. Cause of death was due to shock as a result of extensive injury over vital part, brain. . Gurubaksh Singh (PW-42) was examined by Dr. J. Guha (PW-13) vide Ex.P-22 who found one superficial injury over right ear 1A” x 1/2 Narsingh was examined by Dr. M; Mohanty (PW-25) vide EXP-81 who found one lacerated wound of V2” x 1/2" over right supra orbital region. Another injured Manmohan Singh was also examined by Dr. M. Mohanty (PW-25) vide EXP-82 who found lacerated wound of 3A” x W over supra orbital region, lacerated wound of 1 1/2" x 1/4" over scalp, tenderness over both wrists, lacerated wound of 1A” x 1A” over left index finger, abrasion of 1A” x 1A” over right knee and lacerated wound of 1/2" x 1A” over occipital region. Amar Singh (PW-45) was also examined by Dr. M. Mohanty (PW-25) vide Ex.P-83 who found two small lacerated wounds and one linear echymosis over left mid thigh. Laxman Singh (PW-60) was examined by Dr. A.K. Verma (PW-26) vide Ex.P-84 who found two contusions and another wound over left forearm; Anurag was examined by Dr. A.K. Verma (PW-26) vide Ex.P—85 who found one contusion and one depressed wound. 6 7. Spot map was prepared vide Ex.P-125 and snatched rifle of appellant Avtar Singh was seized from Udairaj Dubey, ASI (PW-35) vide Ex.P-20 containing the smell of gunpowder. Empty cartridges were seized from the spot vide Ex.P—17. Seized articles were sent for chemical examination vide Exs.P-137, 138, 138A, 154A & 157A to Forensic Science Laboratory, Sagar. Blood stained & plain soil were seized from the spot vide Ex.P-16. Bloodstained clothes, articles, pieces of bone, carpet, sari & blouse were recovered vide Ex.P-14. Bloodstained clothes of appellant Avtar Singh were seized vide Ex.P-19. Presence of blood on the shirt of appellant Avtar Singh was confirmed along with other articles by F.S.L. Sagar vide EXP-162. Empty cartridges and rifle seized were sent to ballistic expert and use of empty cartridges by the said rifle was confirmed by the ballistic expert vide Ex.P-55. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. Photographs were, also taken during the course of investigation. Two cars, motorcycle, truck, firing point, two chappals, empty cartridges were seiZed vide EXP-103 from the spot. 8. After completion of investigation, charge sheet was tiled before the Court of Chief Judicial Magistrate, Durg who in turn committed the case to the Court of Sessions, Durg from where the case was transferred to the Court of Sessions Judge, Mandla by the order dated 7-10-80 passed in M.Cr.C.No.1262 and modified order dated 17-11-80 passed in M.Cr.C. No.1436 by the High Court of Madhya Pradesh at Jabalpur. Thus both the sessions trials were transferred to Sessions Division, Mandla. '* 9. In order-to prove the guilt of the accused persons, thetprosecution has examined as many as 66 witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances it?” appearing against them and pleaded innocence & false implication. They have also examined the evidence of about 26 defence witnesses. 10.After affording opportunity of hearing to the parties, Iearned Sessions Judge has convicted & sentenced appeilant Avtar Singh and acquitted the remaining accused. 11.We have heard Iearned counsel for the parties, perused the judgment and record of thetrial Court. 12.Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, vehemently argued that the prosecution was required to prove its case beyond all reasonable doubts. The Court below was not competent to make out a new case which has not been alleged by the prosecution or defence and without providing opportunity of explaining ’ the circumstanCes and defending the case to the accused, conviction & g sentence on the basis of new case is not sustainable under the law. With a view to falsely implicate the appellant and others who were partners of Mls. S.S. Dhillon & Co., the F.l.R. has been registered after‘ 20-3—80 showing it that it has been recorded on 19-3—80. Registration of F.l.R. has not been intimated to the Magistrate as required under Section 157 of the Code of Criminal Procedure, 1973 (for short ‘the Code'). The prosecution has tried to adduce false and concocted evidence in support ’ of the compliance of the provisions of Section 157 of the Code. In the present case, according to the case of the prosecution the accused r persons have entered into conspiracy at the house of Surta Singh & also at Green Hotel, but no witnesses have 'been examined by the prosecution to prove any conspiracy. According to‘the case of the prosecution, Mohd. Aziz, Harbin’der Singh @ Kukki & Avtar Singh were siding in the truck, the truck was being driven by Mohd. Aziz who dashed 8 the Chevrolet car and caused serious injuries to the persons including Mrs. Swadesh Neelam who died instantaneously. After dashing the Chevroiet car by the truck, Avtar Singh jumped from the truck and fired two shots under the mistaken belief that the Nirankari Chief Baba Gurubachan Singh was sitting in the said car and thereby caused the homicidai death of Mrs. Swadesh Neeiam. But‘the prosecution witnesses, especiaiiy the doctor has not supported the case of the prosecution and the Court beiow has reached to the conclusion that Mrs. Swadesh Neelam died as a result of fatal injury due to dash by the truck to the car and not as a result of any gun shot injury and at that time the truck was being driven by Mohd. Aziz, therefore, accused/appellant Avtar Singh coutd not be held liable for the commission Of the death of Mrs. Swadesh Neelam. However, the Court below has convicted the appellant on the assumption and by making out a new case that two ,unk‘nown persons along with Avtar Singh who were sitting in the truck shared common intention and out of the two persons, one person who was driving the truck has forcefully dashed the car, and Mrs. Swadesh Neelam died as a result of injury sustained by dash. But this was not the case of the prosecution. Simply by sitting of the accused .in a truck will not be sufficient for drawing inference that in sharing common intention the driver has committed the aforesaid offence. According to the case of the prosecution, the police have caught Avtar Singh on the. spot, red handed and after snatching the rifle, the police has neither produced Avtar Singh nor the rifle to Police Station Mohan Nagar, Durg or to Police Station Bhilai, where the police ofhcer P.K. Verma (PW-56), Tl & Bhajan Singh (PW-1) have lodged the reports. Both the persons viz., P.K. Verma (PW-56) & Bhajan Singh (PW-1) had even not mentioned the fact that Avtar Singh was caught red handed and his rifle has been snatched by the police officer Udairaj Dubey (PW—35). 13.Mr. Surendra Singh, learned Senior Advocate for the appellant, contended that this fact shows that the prosecution has concocted the entire evidence against appellant Avtar Singh and other accused persons. Empty cartridges have not been used by the alleged rifle and the defence has applied before the trial Court for using the live cartridges by the said fire arm and for examining of empty cartridges with the cartridges so used, during trial by the expert to prove the fact that whether the alleged empty cartridges seized have been used/fired by the rifle or not which was highly contested by the prosecution and the Court has denied the opportunity of such examination/adducing evidence, thereby serious prejudice has been caused to the appellant. Attitude and contest of such application by the prosecution clearly shows that if the ’trial of rifle was done during trial and was examine by the expert, it would suffice the fact that the empty cartridges have been fired by the seized rifle belonging to the appellant. Learned Senior Advocate further argued that the evidence adduced on behalf of the prosecution is not sufficient to convict the appellant for the charge of murder in sharing common intention or for the‘charge of attempt to commit murder and charge for commission of homicidal death of the murder of Mrs. Swadesh Neelam was framed against the appellant herein under the Arms Act, but the trial Court has convicted the appellant with the aid of Section 34 of the l.P.C. for which the Court was not competent. 14.Private party Bhajan Singh & Pritam Singh had earlier preferred Criminal Revision No.342/1983 challenging the‘acquittal of appellant Avtar Singh of the substantive charge of murder under Section 302 of the l P C and H other accused for their acquittal of the charges levelled against them 10 which was partly allowed vide order dated 9-12-1987 and the case was remanded back for re—trial for the substantive charge of murder under Section 302 of the l.P.C‘ against appellant Avtar Singh and for the charge under Sections 302 read with Section 34 & 307 read with Section ‘34 of the‘l.P.C. against the acquitted accused Mohd. Aziz & Harbinder Singh alias Kukki which has been challenged by Avtar Singh & others in Criminal Appeal No.428/89 and Harendra Singh & another in Criminal Appeal No.738/91 before the Apex Court on the ground that during the pendency of appeal against conviction filed by appellant Avtar Singh in Criminal Appeal No.90/83 (the instant criminal appeal) the order of re- trial without quashing the judgment is not legal. The Apex Court has allowed the appeals on the ground that the order of re-trial was not legal without setting aside the judgment of trial Court and the Apex Court has directed to hear the appeal filed on behalf of the appellant herein on . merits. Learned Senior Advocate also argued that now acquittal of the appellant of the charge under Section 302 of the l.P.C. has attained finality, therefore, subsequent modification of conviction of the appellant under Section 302 of the l.P.C. Would not be legally possible. 15.Learned Senior Advocate appearing on behalf of the appellant placed reliance in the matter of Pritam Singh and another v. The State of Punjab1 in which the Apex Court has held that acquittal of accused on certain charges is binding in all subsequent proceedings and the principle of res judicata is applicable in criminal cases‘ also. Learned Senior Advocate further placed reliance in the matter of Amritlal Ratilal Mehta and another v. State of Gujaratz in which the%Apex Court has held that finding of fact at earlier stage attaining finality is binding and conclusive in subsequent stage in same case. Learned Senior Advocate AIR 1956 sc 415 2AIR 1980 sc 301 also placed reliance in the matter of Devilal and another v. The State of Rajasthan3 in which the Apex Court has held that if the pivot of the prosecution is not accepted a new prosecution case cannot be made to imperil defence. Learned Senior Advocate relied upon the matter of Lakshmi Singh and others etc. v. State of Bihar4 in which the‘Apex Court has held‘that if the witnesses could go to the extent of falsely implicating the five innocent persons, the entire fabric of the prosecution L case would collapse and fundamental part of the prosecution case would have to be disbelieved. Learned Senior Advocate further relied upon the matter of Prabhu Babaji Navle v. State of Bombay5 in which the Apex Court has held that in absence of sharing of common intention with the actual murderer, other accused cannot be convicted with the aid of Section 34- of the l.P.C. Learned Senior Advocate also relied upon the matter of Sukhram v. State of Madhya Pradeshs in which the Apex Court has held that in case of benefit given to one accused other accused are also entitled for the same benefit. Learned ’Senior Advocate placed reliance in the matter of Sawal Das v. State of Bihar7 in which the Apex Court has held that if two out of three accused were acquitted of the charge of murder with common intention, third is also entitled for acquittal. Learned Senior Advocate further placed reliance in the matter of Shaikh Karimullah @ Babu & Ors. v. State of A.P.8 in which it has been held by the Apex Court that in absence of specific charge under Section 34 of the l.P.C. conviction with the aid of Section 34 of the l.P.C. would not be possible. Learned Senior Advocate also placed reliance in 3AIR 1971 sc 1444 4AIR 1976 sc 2263 5AIR 1956 sc 51 6 AIR 1989 sc 772 7 AIR 1974 sc 778 8AIR 2009 sc 1711 / Ztll 11 @w the matter of Budh Singh and others v. State of U.P.9 in which it has been held by the Apex Court that F.I.R. in criminal case, particularly in murder case is a vitai and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. Timely intimation of the F.l.R. to the Magistrate under Section 157 of the Code is a check that the F.l.R. is not ante-dated. Learned Senior Advocate relied upon the matter of Sevi and another v. State of Tamil Nadu and another“) in which the Apex Court has held that in case of original F.l.R. suppressed and substituted by another F.l.R. and failure to produce F.l.R. book in the Court even after direction of the Court, inference can be drawn that the original F.l.R. was suppressed and the prosecution case becomes suspicious. Learned Senior Advocate further relied upon the matter of Gabbu B. Lodhi and others v. State of Madhya Pradesh“ in which I the Madhya Pradesh High Court has held that absence of timely intimation under Section 157 of the Code to the Magistrate, creates doubt that the F.l.R. has been written ante-dated. Learned Senior Advocate also relied upon the matter of Bhadran v. State of Kerala12 in which the Kerala High Court has held that denial of opportunity to defend the accused is fatal to the prosecution. Learned Senior Advocate placed reiia’nce in the matter of Majidkhan v. State of Karnataka” in which the Karnataka High Court has held that denial of opportunity to defend the accused is not always fatal if no prejudice has been caused to the accused. 12 16.0n the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State/respondent, vehemently opposed the 9 (2006) 9 SCC 731 10 AIR 1981 SC 1230 11 2004 Cri. L. J. 2001 I 12 1993 Cri. L. J. 1966 V 13 1993 (2) Crimes 1036 13 @ appeal and submitted that the Court below has rightly convicted & sentenced the appellant and the evidence adduced on behaif of the prosecution is sufiicient for drawing inference that the appeliant has committed the murder of Mrs. Swadesh Neelam with intent to cause the homicidal death of the Nirankari Chief Baba GurubachanA Singh amounting to murder, as such, his act is punishable under Section 302 of the I.P.C. in accordance with Section 301 of the l.P.C. Learned State counsel further argued that Bhajan Singh (PW-1), Pritam Singh (PW-2), Udairaj Dubey (PW-35), Krishna Murari (PW-37), Balveer Singh (PW— 38), Gurubaksh Singh (PW-42), Amar Singh (PW-45), lndrajit Singh (PW-54), P.K. Verma (PW-56) & Laxman Singh (PW-60) have categorically deposed and proved the case of the prosecution. Evidence of the aforesaid witnesses are sufficient for drawing inference that the appellant is the person who has committed the homicidal death of Mrs. , Swadesh Neelam amounting to murder with intent to cause the homicidal death of the Nirankari Chief Baba Gurubachan Singh. The aforesaid witnesses have also proved the fact that the appellant has committed the offence under Section 28 of the Arms Act, beyond all reasonable doubts. Learned State counsel placed reliance in the matter of State of W.B. v. Mir Mohammad Omar and others“ in which the Apex Court has held that senior Courts should desist from making castigating remarks against the prosecution. Learned State counsel further placed reliance in the matter of Anil Sharma and others v. State of Jharkhand15 in whichvit has been held by the Apex Court that only delay in despatching the copy of F.l.R. is not sufficient for drawing inference that the