TaxTMI 
TaxTMI 
1999 (1) TMI 551
X X X X Extracts X X X X
X X X X Extracts X X X X
....2, under Section 302/34 I.P.C. to the imprisonment for life. However, since Ajay Singh died during the pendency of the appeal his appeal stood abated. 2. Admittedly both the complainant and the accused persons are close relatives, as the deceased Bhagat Singh was the son of the complainant, Ram Singh, (PW 1), who is the real brother of the aforesaid accused Ajay Singh. Both the present appellants, namely, Mohan Singh and Kailash are the sons of Ajay Singh. 3. In short the prosecution case is that on 26th April, 1980 at about 9 AM accused Mohan Singh had beaten Moti Chamar to which Veer Singh son of Ram Singh objected and had enquired as to why he had beaten Moti Chamar. Thereafter Mohan Singh stood up to beat him also. On the same evening at about 4 P.M. accused Ajay Singh, Kailash Singh and one Daulat Singh went to Gajar on the motor cycle and beat the mother of Veer Singh, his brother Gajendra and his sister Meena. Ajay Singh and Daulat Singh were standing there and were exhorting to kill. Ajay Singh had a pistol. On seeing these they went out of the Dalan. Veer Singh's mother and Gajendra Singh received injuries, Meena was slapped by Kailash. Veer Singh thereafter aske....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd accused Ajay Singh, relating to their ancestral land. The following pedigree would reveal the relationship inter se between the accused and the complainant family which in turn will also reveal the motive of commission of the crime. 6. The prosecution case is that the aforesaid Shambhoo Singh had died leaving his widow Sarju Bai, who had adopted Prahlad Singh S/o Ram Singh, the complainant. Similarly, Veer Singh, PW 10, another son of the complainant was also adopted by another brother Pratap Singh. The aforesaid six brothers inter se had about 1400-1450 bighas of land for which the aforesaid partition took place. The complainant alleged that the accused Ajay Singh had given 250 bighas of land to him and kept with him the rest of the land though he was only entitled for 700 bighas of land as Sarju Bai had adopted his son and she was living with him. In order to prove the motive of commission of the crime the prosecution relied on the statement of Veer Singh, PW 10, who stated that he was taken in adoption by Pratap Singh. On the day of the incidence at 9 A.M. his servant Moti Chamar was beaten by Mohan Singh accused and was turned out. When he went to Mohan Singh and enquired....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and concoction of the prosecution story. 9. Learned Counsel for the accused, Mr. Lalit, submitted with vehemence with reference to the first point that the alleged firing on the deceased Bhagat Singh by Mohan Singh from the roof of the third floor is in conflict with the post mortem injuries recorded by Dr. D.P. Tamarkar, PW 4. For ready reference one of such recorded injury No. 1 is reproduced below: Fire arm wound placed over right side of chest (P. Torn) above (Rt) nipple, oval wound inverted edges size 1.25 cm x 1 cm. surrounding skin blackened clotted blood was present around the wound. On exploration the wound was going from right to left side obliquely. There was ruptured of intercostal muscle (Rt) side, plura, Right lung ruptured. The charra was stocked in thoracic wall left side under the skin of the level of 6th rib in anterior axiliring line producing an area of schemes over skin where it was lodged. (Emphasis supplied) 10. The emphasis was blackening of skin clearly indicates that the firing was from a very close range which contradicts the prosecution case that the firing by the accused-Mohan Singh was from the roof of the third floor which coul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. Under this sphere we proceed now to test the submission of the learned Counsel for the accused with reference to the blackening found by the doctor under the injuries in the post mortem report. 12. We find as aforesaid there is another part of the deposition of the same Doctor with reference to the same injuries when he records that the shape of the wounds was oval indicating the injuries being caused from a higher pedestal. In Taylor's Principle and Practice of Medical Jurisprudence, 12th Ed., at page 297, it says: The position of the wound of entrance usually marks a part of the body which was at the moment of discharge facing the muzzle of the weapon, and in a straight line with the barrel; it therefore indicates with precision whether the victim was facing the muzzle or with his back or side to it. Where the weapon is set at a s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llants before us could not point out any incongruity, unreliability or contradiction or their testimony being at variance to distrust them. According to the prosecution case Ram Singh, PW 1, came along with the deceased Bhagat Singh on the motor cycle near the accused house and Kalua, PW 3, who was sleeping in the Dalan also came out after hearing the noise of the motor cycle. 16. Ram Singh, PW 1, stated that on the day of occurrence he received information from his son Bhagat Singh in Bazaar Vidisha, where he had gone that Kailash, Daulat Singh and Ajay Singh entered his house and had beaten his wife, his son Gajendra and his daughter Meena. Then his wife, son and the daughter also reached Vidisha when he saw the hand of his wife bandaged where she also disclosed that the accused had beaten them after entering their house. This fact was also corroborated by Gajendra Singh. On hearing this he returned back and after taking meal proceeded to Village Gajar with Bhagat Singh on motor cycle driven by Bhagat Singh. After reaching there Bhagat Singh parked his motor cycle near neem tree. On hearing the noise of the motor cycle Kalua, P.W. 3, has also come. He was sleeping in the Dalan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccused. 18. Returning to the eye witnesses we find both these two eye witnesses PW 1 and PW 3 has fully corroborated the prosecution story. There credibility has been upheld by the Trial Court and we also after going through their testimony fully approve this finding and uphold their testimony. Apart from these two eye witnesses there is also part corroboration by Jagannath Singh, PW 6, who is a neighbour. His house is adjacent to the house of Ram Singh. He stated, he woke up on hearing the noise of firing of gun. Actually he heard the noise of three fires. He then went to the door of the house and heard 'Jee Saheb', the witness clearly stated he always called Ajay Singh as 'Jee Saheb'. He heard him saying that if any person of the village comes out he will be killed. On account of this he did not come out and he remained inside his house till 8 A.M. Scrutinising and examining the evidence we have no hesitation to conclude that the prosecution has proved to the hilt the story of firing by Mohan Singh from his roof top to the deceased Bhagat Singh. This unimpeachable evidence of these two eye witnesses fully corroborates with the other part of the medical evidence....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... narrow ring of discoloration due to the removal of a layer of epithelium by the passage of the bullet. The surrounding skin may be scorched or not, and there may be a zone of blackening or peppering with grains of powder according to the distance from which the weapon was fired. And again at page 431: All entrance wounds, if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of the bullet and the investigation of the skin by the bullet and tends to dry and become discolored shortly after death. It should not be confused with the marks due to powder for it gives no indication of range. And again at 441: The bruised and dark appearance which a gun shot wound sometimes presents, even when the weapon is discharged at a distance from the body has led to the supposition that this effect was due to a burn and that the bullet burnt the parts which it touched, but this idea is not correct. The projectile never becomes sufficiently heated to acquire the power of burning. Again Taylor says at page 430: We must distinguish between near wounds and far wounds. Usually ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case as licence of one of them is in the name of Ram Singh, PW 1. The recovery of two fire arms are, one which is recovered on the pointing of Mohan Singh from his house on 27th April, 1980 and the other which was licensed in the name of complainant Ram Singh, PW 1, is recovered on the information given by this very witness, PW 1, recovered from the Dalan of the accused Ajay Singh on 28th April, 1980. This point was pressed to create a doubt as to which one was used to commit the offence. The High Court has rightly referred to the judgment of the Trial Court with approval on this point. The Trial Court has given good and cogent reason for not accepting this part of the submission on behalf of the accused. Learned Counsel for the accused submitted that it is not recorded in the seizure memo that the gun, Article No. 1, was seized from the door in the Dalan of Ajay Singh to show it to be in possession of Ajay Singh. In this regard the Trial Court referred to the statement of Mohan Singh who admitted that he was keeping a 12 bore gun with one empty cartridge and two empty cartridges in the drain of his house. In this regard a seizure memo, Ex. P 6, was also prepared. The gun, Article ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Chowkidar, PW 2, who admittedly was not an eye witness. Ram Singh told PW 2 who came to the scene later to get the FIR lodged as then on his son's death he must be in remorseful mood. PW 2 did see the dead body of Bhagat Singh and then went to the Police Station and lodged the FIR. It is but natural the man recording the FIR if not an eye witness, no details could be expected to be incorporated in it. It is also natural Ram Singh after seeing his son dead could not have been in a mood to give details except to request the chowkidar to lodge a report. Thus we do not find any merit to this last submission. In view of the aforesaid findings, we clearly come to the conclusion that the prosecution has proved to the hilt the crime committed by the accused Mohan Singh by killing Bhagat Singh by 12 bore gun beyond all reasonable doubt. 24. Next question is whether prosecution has proved its case against the accused Kailash Singh under Section 302 read with Section 34 or not? It is admitted case that he has not used any fire arm nor any active role is assigned, to him. The role assigned to him is merely exhortation. In order to test the prosecution evidence, it is necessary to recor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o accused which indicates common intention if at all matured then the exhortation words attributed to this accused, does not bring home beyond doubt of common intention with common design maturing to kill the deceased so far as the participation of this third accused. Firstly, it is the weakest language used out of the three and is attributed to have been expressed in the last. We find the common intention really matured and concluded much earlier to the time when the role of this accused is introduced. On the facts and circumstances of this case and in the absence of anything more this by itself does not lead to the conclusion so far as the accused Kailash is concerned that his exhortation was also with the same common intention to kill Bhagat Singh. 25. In the cross-examination when P.W. 1 was confronted, whether such words were expressed by Kailash or not and whether he got it recorded with police or not this witness stated that I told this thing to the police but police might not have recorded it. This apart except for the similar repetition by the other eye witness Kalua, PW 3, even he could not refer to any other role played by Kailash except introduction of the said words....