1. A dispute between Meos on the one hand, and Faquirs and Meenas on the other of Village Bhatpura regarding allotment of land by the Government to the Meos in the town of Chhamra had its sequel in the death by gun shot of one Jumma on 21-6-1969 at about 7 p. m. in front of the house of P. W. 8 Umed. situated in the village Bhatpura. The immediate cause of the trouble was that on that day the accused Fazar ' and the Meos, deceased Jumma and P. W. 2 Bhulla. and P. W. 6 Nasru had gone to the village well for taking bath and there Bhulla's foot is said to have fallen on the soap owned by Fazar. This led to exchange of abuses between Fazar and the Meos. However, nothing untoward happened there at the well, but when the Meos while returning from the well came in front of the house of Umed, Fazar is alleged to have given a call to his friends, the accused Kishan Meena and Bhundal to come armed with guns and finish one of the Meos. The prosecution case is that in response to the call given by Fazar. Kishan and Bhundal came armed with guns and Fazar also ran to his house nearby and returned to the spot with a gun. It is further alleged by the prosecution that Bhundal fired at Jumma causing severe injury to his stomach as a result of which Jumma died on the spot. Kishan and Fazar also fired at Nasru and Bhulla but they missed their targets and their shots landed at the wall of the house of Umed. A first information report of the occurrence was lodged by P. W, 1 Banesingh at Police Station. Nagar. District Bharatpur on the next day. that is 22-6-1969 at 9-30 a. m. before the Station House Officer P. W. 11. Daulat Ram Sharma, who proceeded to the spot and recovered the dead body of Jumma and also blood smeared earth lying near the dead body. All the three accused were arrested on 25-6-1969 and were prosecuted in the Court of Additional Munsiff-Magistrate, Deeg on the charge of murdering Jumma and attempting to murder Narsu and Bhulla. The learned Magistrate after holding enquiry committed all the three accused to the Court of Sessions Judge, Bharatpur who by his judgment dated 24-4-1970 convicted Bhundal under Section 302. Indian P. C. and sentenced him to rigorous imprisonment for life. Fazar and Kishan were also convicted under Section 302 read with Section 34 I. p. C. and each one of them was convicted to imprisonment for life. Both these accused were however acquitted of the offence under Section 307, I. P. C.
2. Aggrieved by their conviction and sentences all the three accused have filed this joint appeal.
3. Mr. Bhargava, learned counsel for the appellants has urged in the first instance that the prosecution case deserves to be rejected as a whole and in any case the prosecution has failed to establish that Jumma had died by the gun fire made by Bhundal or that it was in furtherance of the common intention of all the accused that the gun shot was fired at Jumma.
4. That Jumma died on account of gun shot injuries and his dead body was found lying in front of the house of Umed is beyond dispute. The only point which calls for decision is whether Bhundal was the person who had fired at Jumma and whether he had done so in furtherance of the common intention of all the accused.
5. The prosecution case rests on the direct testimony of the alleged eye witnesses PW. 2 Bhulla. PW. 4 Roopan, PW. 6 Nasru. PW. 7 Sheo Singh. PW. 8 Umed and PW, 9 Sampat Bhulla and Nasru were with the deceased standing in front of the house of Umed. whereas P. W. 4 Roopan was taking his meals in his house which is situated just near the house of Umed and Sheo Singh. Umed Singh and Sampat are said to be sitting and smoking in the 'Tibari' of Umed's house and are alleged to have seen the occurrence from there. Out of these witnesses the presence of Bhulla. Nasru, Umed, Sampat and Sheo Singh has been mentioned even in the first information report. It is further clear from the endorsement made by the Station House Officer just below the first information report that the first informant Bane Singh was accompanied by Mehtab. Sampat and Roopan. In addition to the names of the witnesses mentioned above the presence of Hatha Chamar and one Rehmat at the time of the alleged incident hap also been mentioned, but Rehmat and Hatha have not been produced.
6. An argument has been advanced by the learned counsel for the appellants that the alleged eye witnesses examined by the prosecution are all Meos and partisan witnesses and the failure on the Part of the prosecution to produce Hatha Chamar and Rehmat in evidence must be construed against it. We are, however, not impressed by this argument inasmuch as it was not obligatory on the part of the prosecution to have produced all the persons, who may have been present at the spot either at the time of the incident or who may have come at the spot immediately after. The prosecution has examined a number of eye witnesses alleged to be present at the spot, as many as 6 named above and if the accused thought that the evidence of Hatha and Rehmat would be favourable to them, it was open to them to have examined these witnesses,
7. Another criticism advanced against the prosecution in this connection is that the trial court has discarded the testimony of the eye witnesses pertaining to the alleged firing by Fazar and Kishan at Bhulla and Nasru. and, therefore their evidence regarding the alleged fire by Bhundal at Jumma must also be rejected. It is submitted that these witnesses are wholly unreliable and in any case unless there is material corroboration of their evidence against Bhundal. no value should be attached to their testimony.
8. Before we proceed to examine this argument we may mention that as regards the attempted firing by Kishan and Fazar at Nasru and Bhalla the trial court has come to the conclusion that neither in the first information report nor in the police statements these witnesses had specifically stated that Kishan fired at Nasru. and Fazar fired at Bhalla. It is further clear from the record that only one empty cartridge was found on the spot in front of the house of Umed and that even though the witnesses have stated that the shots fired at Kishan and Fazar missed their targets and hit at the wall of Umed, no marks are stated to have been found in the wall of Umed In this state of evidence the learned Sessions Judge found that the offence under Section 307. I. P. C. was not proved against these twp accused. The finding is undoubtedly final as the State has not filed appeal from the acquittal of these two accused under Section 307, I. P. C. True as it is there is absolutely no corrobora-tion either by medical evidence or by any other circumstance regarding the alleged firing by these two accused at Nasru and Bhulla. and therefore, in our opinion it was certainly not safe for the trial court to have accepted the testimony of these witnesses. As already stated above, there is no evidence on the record that there were any marks of bullets at the wall of Umed. nor any of the two victims Nasru and Bhulla was injured. The relations between the Meos on the one hand and the Faqirs and the Meenas on the other were highly strained and the chances of the Meo witnesses overimpli cating their adversaries cannot be ruled out. In this state of circumstances the lower court has rightly not accepted the prosecution case regarding the offence under Section 307, I. P. C. but it would not be proper to construe the judgment of the lower Court as one of dubbing the eye witnesses as complete liars and we are inclined to think that it is more in the nature of giving benefit of doubt to the accused that this part of the prosecution story has not been accepted by the court below. We are therefore unable to accept the contention of the learned counsel for the appellants that these witnesses are complete liars and their evidence is wholly unreliable from start to the finish.
9. Another criticism levelled by the learned counsel for the appellants is that the accused were arrested after three days of the first information report and the guns recovered from them have not been connected with the offence. In this connection it has been pointed out that according to the statement of the Sub-Inspector of Police. Daulat Ram Sharma. the guns were sent to the Ballistic Expert for examination but the report of the Ballistic Expert has not been put on the record. Some doubt has also been created as to the identity of the guns possessed by the three accused at the time of the occurrence with those recovered from them. We may point out in this connection that even though P. W. 11 Daulat Ram Sharma. Station House Officer, Nagar has stated in examination-in-chief that he had despatched the bottle containing the pellets extracted from the body of the deceased and the pistol recovered at the instance of Bhundal to the Ballistic Expert Calcutta. Nothing has. however, been shown from the cross-examination of this witness that the Ballistic Expert's report had been received and that it was adverse to the prosecution. Moreover, the weapons have been recovered on the information supplied by the accused themselves after their arrest; and that all that we can say in the circumstances is that there is absolutely no evidence on the record to connect these weapons with the crime. It is certainly a circumstance of which the prosecution cannot take any advantage. But we fail to understand how this matter goes to disprove the prosecution case so far as the alleged firing at Jumma by Bhundal is concerned. May be that Ballistic Expert's report was not received or that by sheer inadvertence it was not put on the record. In any case we do not think that this is a ground on which we can throw out the prosecution case altogether.
10. All that we have to see therefore is whether the prosecution has succeeded in establishing the case against the accused under Section 302 and S. 302 read with S. 34, I. P. C. by the direct evidence of the alleged eye witnesses? For the sake of convenience we may first take up the case against Kishan and Fazar.
11. All that is stated by the prosecution witnesses against Kishan is that he came to the spot on the call of Fazar. Admittedly he did not do any thing beyond coming there with a gun. It has not been established that he used his gun in any way. The uniform statements of the eye-witnesses are that on the call having been given by Fazar Bhundal came with .12 bore gun and Kishan came with a muzzle loading gun and thereafter Fazar also ran to his house and brought a muzzle loading gun. Then it is said that Fazar, Kishan and Bhundal all gave abuses to the Meos whereupon Jumma asked them not to do so and since he was ahead of the three Bhundal fired at Jumma. and the shot hit on the right side of Jumma's abdomen. Thus it would be clear that there was no overt act on the part of Kishan. The overt act of Kishan comes later on when he is alleged to have fired at Nasru, but this part of the prosecution has not been believed by the trial court and, in our opinion rightly so. In the earlier incident at the well Kishan was admittedly not present. Consequently, there was no meeting of minds between Kishan and any of the ather accused for firing at any of the Meos, In these circumstances we are of opinion that Kishan's conviction under Section 302 read with S. 34 I, P. C. cannot stand and must be set aside.
12. Coming to Fazar. undoubtedly, he is the person on account of whom the unfortunate occurrence took place in front of the house of Umed. It appears to us that there was some heated argument and very likely offensive abuses were exchanged between Fazar and the Meos not only on the well, but even thereafter when they proceeded towards their respective houses, and when they came in front of the house of Umed the incident suddenly took a serious turn. Truly speaking the charge against Fazar is that he abetted the murder when he called upon Bhundal and Kishan to come with guns and kill one of the Meos. He ought to have therefore been charged under Section 302 read with Section 114, I. P. C. In this connection an argument was also raised by the learned counsel for the appellant that in the absence of charge for abetment under Section 114 I. P. C the case of Fazar was seriously prejudiced.
13. In W. Slaney v. State of Madhya Pradesh : 1956CriLJ291 . Chandra Sekhara Aiyar J. speaking on behalf of himself and Jagannadhadas J. observed as follows:
Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common ob.iect or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made con-stuctively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence without a charge, can be set aside prejudice will have to be made out. In most of the cases of this kind evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.
If the gravity of the defect (mistake in procedure) is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree it will be an irregularity and prejudice by way of failure of justice will have to be established.
14. The accused is, therefore not entitled to get a clean acquittal merely because of the defect in charge unless prejudice is shown to have been caused to him. However we find that in the examination of this accused under Section 342, Cr. P. C. the circumstance that he had instigated Kishan and Bhundal to fire at one of the Meos was not put to him and thus this accused was never called upon to meet a case of the alleged abetment which the prosecution wanted to establish against him. Thus both on account of the defect in charge as well as omission to put the relevant circumstances against him in his examination under Section 342. Cri. P. C. we are of opinion that we should not alter his conyiction under Section 302 read with Section 34 I. P. C. to one under S, 302 read with Section 114. Indian P. C.
15. We further find from the evidence of the eye witnesses that after Kishan and Bhundal had come with guns on the call given by Fazar there was no fire and Fazar himself ran to his house and came back with a muzzle loading gun and while all the three were standing with the guns in front of the house of Umed they are alleged to have abused the Meos and it was on the protest having been raised bv Jumma against abuses being hurled at them that Bhundal is alleged to have fired at Jumma. From this narration of facts by the eye witnesses it cannot be said that Fazar was the abettor of the offence. Moreover there is material discrepancy in the prosecution evidence regarding the words of instigation alleged to have been uttered by Fazar. In the first information report it was stated that Fazar cried out to Kishan and Bhundal that they may come and beat one of the Meos (Phod-Do) So that this long standing dispute may come to an end. In the course of evidence the prosecution has tried to improve the case against Fazar and the witnesses have stated that Fazar shouted to Bhundal and Kishan to bring their guns and to kill one or two Meos so that the dispute may come to an end for ever. We are, therefore, not inclined to place much reliance as to the evidence given by the prosecution regarding the words spoken by Fazar at that time. What appears to us is that in the background of the dispute regarding allotment of land the incident at the well assumed grave proportions, and the situation became tense in front of the house of Umed which ultimately resulted in firing of a shot from the side of the accused at Jumma. But there is no evidence of the shot having been fired by Bhundal at Jumma in furtherance of the common intention of all the three accused. In this view of the matter we are inclined to give benefit of doubt to Fazar and set aside his conviction under Section 302 read with Section 34, I. P. C.
16. This brings us to the case against Bhundal. There is consistent evidence of all the eye witnesses against him that it was he who fired the shot at Jumma. This fact has been mentioned in the first information report, there is also material corroboration of the eye witnesses regarding the part assigned to Bhundal. All the eye witnesses have stated that the shot hit Jumma at the right side of the stomach, and according to the medical evidence (vide postmortem report Ex. P. 8. and the evidence of PW. 5 Dr. Madho Singh) there was a lacerated wound 2'x2' on the right side abdomen at the leval or umbilicus thus the evidence of the eye witnesses is corroborated by the medical evidence. An empty cartridge was also found at the spot and in view of the finding that it was not established that the other two accus ed had fired their guns, the empty cartridge found at the spot must relate to the shot fired at Jumma. As already pointed out above, there is specific mention in the first information report that it was Bhundal who had fired at Jumma. Thus there is material corroboration of the evidence of the witnesses against Bhundal, Who is allleged to have fired at Jumma, The defence failed to point out that the Meos or the eye witnesses had any particular grudge against Bhundal so that they should have left out the real culprit, who fired at Jumma, and have falsely implicated Bhundal. On the other hand, according to the narration of events the Meos and the witnesses had a particular grievance against Fazar with whom the incident regarding breaking of the soap had taken place at the well and if it was a case of falsely implicating a person for the murder of Jumma there is greater likelihood of the witnesses having implicated Fazar as the person who had fired at Jumma. We are. therefore of the opinion that the evidence of the eye witnesses against Bhundal must be accepted and he must be held to have fired at Jumma which resulted in his death.
17. In this connection We may refer to another argument advanced by the learned Counsel for the appellants that there is inconsistency between the direct evidence and the medical evidence as to the distance from which Bhundal is said to have fired at Jumma. According to the eve witnesses PWs. Nasru and Sheo Singh. Bhundal fired at Jumma from a distance of 10 to 15 paces, whereas PW, 5 Dr. Madho Singh has stated that the distance from which the gun was fired was in his opinion about 5 to 8 feet from the body. There was no charred wound. The distances given by the eye witnesses as well as by the doctor are, in our opinion very much approximate. No cross-examination was directed to the Station House Officer as to whether he had made any investigation at the spot regarding the distance from which Jumma was fired at. The condition of the wound does not show that it was a contact fire or a fire from a very close range. In these circumstances we are not prepared to discard the prosecution evidence against Bhundal.
18. The result is that we partially allow this appeal, set aside the convictions and sentences of Kishan and Fazar and hereby acquit them of the charge under Section 302 read with S. 34, Indian P. C. They shall be released forthwith if not required in connection with any other case The appeal of Bhundal is dismissed and his conviction and sentence are maintained.