Sureshwar Thakur, J.
1. The instant appeals are directed against the impugned judgment rendered on 29.6.2012, by the learned Additional Sessions Judge, Sirmaur District at Nahan, in Sessions trial No. 7/N/7 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellants as under:
Section 302/34 IPC: to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- each and in default to further undergo simple imprisonment for a period of three months;
Section 307/34 IPC: to undergo 4 years rigorous imprisonment each and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo simple imprisonment for 1 month;
Section 120-B IPC: to undergo rigorous imprisonment for 6 months.
However, the learned trial court acquitted the accused/appellants of the charge under Sections 148 and 149 of Indian Penal Code. Remaining accused Devinder Kumar, Gurprit Singh, Ajay Kumar and Ravi Kumar were acquitted by the learned trial Court of the charges framed against them.
Cr. Appeal No. 466 of 2012
2. The instant appeal has arisen against the impugned judgment rendered on 29.6.2012, by the learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh in Sessions trial No. 7-N/7 of 2011, whereby, the learned trial Court acquitted the accused Devinder, Gurpreet, Ajay Kumar and Ravi Kumar for the charges framed against them as also acquitted all the accused for theirs having allegedly committed offences punishable under Sections 148 and 149 of Indian Penal Code.
Cr. Appeal No. 349 of 2012 a/w connected matters
3. Brief facts of the case are that on 23.3.2011, reporter Naresh Kumar alongwith Kuldeep, Chetan, Sandeep, Jaswant, Narender, Shelli, Sunil, Anil and Sanju after visit to the fair at Paonta Sahib were returning to their house situated at village Hirpur. Kuldeep parked his motor bike at Maszid Gali. At about 8.30 p.m. Chetan, Kuldeep and Shelly were about to leave to their home, all of a sudden, accused Sumit Bhardwaj alias Tota alongwith other co-accused had appeared on the spot. They were armed with knives. Accused Sumit at once pounced upon Shelli near Maszid wali gali and attacked with knife. When Chetan and Kuldeep has started rescuing shelli from the clutches of accused Sumit, then accused Nitish stabbed Chetan on his abdomen. Thereafter, Sumit Bhardwaj and others hit Sanju on his body, he collapsed on the spot. Accused Sumit Bhardwaj and others had intercepted Sunil and Anil and stabbed them with knife. The injured were then removed by the local residents to the Civil Hospital, Paonta Sahib. Naresh Kumar reporter had come to know that Sunil, Anil and Sanju had succumbed to their injuries. The police reached Civil Hospital, Paonta Sahib on receipt of telephonic information and had recorded statement of Naresh Kumar, which was endorsed to police station, Paonta Sahib for acknowledgment of crime. After registration of the case, the investigation was carried out. After fulfillment of codal formalities, the autopsy of deceased sunil Kumar was conducted by the Medical Board, which had revealed that he had died of stab wound on left side of chest which damaged his left lung and heart and the death was immediate. The postmortem examination of the dead body of deceased Anil Kumar was conducted by the Medical Board and they opined that deceased probably died of sharp long instrument which injured his left lung and left side heard and death was immediate. Postmortem of deceased Sanjeev Kumar had revealed per opinion of Medical Board the deceased had died of multiple stab wound which injured left lung, heart and right kidney. Death was immediate. During the course of investigation, MLRs of injured Chetan and Shallender were collected from Herbertpur Christian Hospital, District Dehradun, in which it was opined that there was penetrating injury left side of abdominal wall and nature of the injury was grievous. The accused persons were arrested. Accused were medically examined. On disclosure statements made by accused Sumit, Nitish, Praveen Kumar, Rohit and Ravi Kumar, weapons of offence i.e. Knives, Danda and Baseball stick were recovered. On disclosure statements made by accused Devinder Kumar, Gurpreet Singh and Ajay Kumar, scene of the crime was identified and got demarcated. In the presence of witnesses, one blood stained stick, earth sample and controlled earth sample were put in packets and then in cloth parcel by the police. During investigation, police on spot Y, had collected the blood stained stick, earth sample which was put in a packet and then in cloth parcel. Injured Chetan had produced blood stained pant, T-Shirt, vest and underwear to the police which were taken into possession vide separate seizure memo. Injured Shalender had also produced blood stained jean pant, shirt, vest and underwear to the police, which were taken into possession by the police vide separate seizure memo. Site plans of the spot and place of recoveries were drawn. All samples i.e. costumes, blood samples and other samples of sticks etc were then sent to the FSL Junga. After analyses, State FSL, Junga vide report dated 31.5.2011 opined that blood of group A was detected on exhibit 1a pants of Sanjeev Kumar, Exhibit 1b shirt of Sanjeev Kumar, Exhibit 2a pants of Sanjeev Kumar, Exhibit 5 blood sample of Anil Exhibit 8 blood stained wooden piece and exhibit 9 blood stained Bajari taken from Maszid Road, Human blood of group B was detected on exhibit 3a pants of Sunil, exhibit 3c T-shirt of Sunil and exhibit 6 blood sample of Sunil. Human blood was detected on exhibit 1c underwear of Sanjeev Kumar, exhibit 1d vest of sanjeev Kumar, exhibit 2c vest of Anil, Exhibit 2d underwear of Anil, exhibit 3b shirt of Sunil, exhibit 11 bloodstained soil taken from near indane gas agency and exhibit 12 blood stained soil taken from main road Paonta Bazar, but the result were inconclusive in respect of blood groups. It has also been reported by the FSL that soil in exhibit E/7 is similar to the soil in exhibit E/9. The soil in exhibits E/10, E/11 and E/12 are similar. Human blood group A was detected on exhibit 1a shirt of Sumit, exhibit 1b pants of Sumit exhibit 1b pants of Sumit, exhibit 2 blood sample of Sumit and exhibit 6 blood sample of Praveen Kumar. Human blood was detected on exhibit 1d underwear of Sumit and exhibit 3d underwear of Nitish Kumar but the results were inconclusive in respect of blood groups. Human Blood of group O was detected on exhibit 3a vest of Nitish Kumar, exhibit 3b T-Shirt of Nitish Kumar, Exhibit 3c pants of Nitish Kumar and Exhibit 4 blood sample of Nitish Kumar. Human Blood of group B was detected in exhibit 8 blood sample of Devender Kumar. Blood was not detected on exhibit 7b pants of Devender and exhibit 7c underwear of Devender. Further report submitted by the Assistant Director, Biology/Serology Division, SFSL, Junga shows that human blood was detected in exhibit-1 blood sample of Gurpreet Singh, exhibit 3 blood sample of Ajay Kumar, exhibit 4a underwear of Rohit, exhibit 5 blood sample of Rohit and exhibit 7 knife, but the results were inconclusive in respect of blood groups. Blood was not detected on exhibit 2 pants of Ajay Kumar and exhibit-6 Knife. Human blood of group B was detected on exhibit 4a T-Shirt of Rohit and exhibit-4b vest of Rohit. Further report of SFSL, Junga reflects that the soil adhering on the knife in exhibit E/1 is similar to the soil in exhibit E/10. Report of Dr. G.C. Thakur had revealed that human blood of group B was detected on exhibit 1a pans of shailnder, exhibit 1b shirt of shailender, exhibit 1c vest of Shailnder, exhibit 2b shirt of chetan and exhibit 2c vest of chetan, Human Blood was detected on exhibit 1d underwear of shalender, exhibit 2a pants of Chetan, exhibit 2d underwear of Chetan, exhibit 3 dagger and exhibit 4 blood sample of Chetan but the results were inconclusive in respect of blood groups. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. The accused/appellants were charged for theirs having committed offences punishable under Sections 120-B, 149, 302, 307, 148, 324, 326 of the Indian Penal Code, by the learned trial Court to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 33 witnesses. On closure of prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. They chose to lead evidence in defence.
6. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the appellants/accused, namely, Nitish, Praveen, Sumit Bhardwaj and Rohit for theirs having committed offences punishable under Sections 120-B, 302 and 307/34 IPC and acquitted the accused/respondents, namely, Devinder Kumar, Gurprit Singh, Ajay Kumar and Ravi Kumar for the offences charged.
7. The learned counsel appearing for the appellants/accused have concertedly, and, vigorously contended, that, the findings of conviction, recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, they, contend that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of acquittal.
8. The learned Deputy Advocate General has with considerable force and vigour, contended that the findings of conviction, recorded by the Court below against the appellants/accused are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. The learned Deputy Advocate General further contends that the findings of acquittal recorded in favour of respondents Devinder Kumar, Gurprit Singh, Ajay Kumar and Ravi Kumar, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of conviction. On the other hand, the learned counsel appearing for the respondents-accused submit that the findings of acquittal, recorded by the learned trial Court in favour of the respondents-accused are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
9. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
10. The ill-fated incident occurred on 23.3.2011 at about 8-8.30 p.m. at Maszid Gali, Paonta Sahib. The accused are alleged to by the incriminatory acts attributed to each of them put to death Sunil, Anil and Sanjeev, besides, the accused are also alleged to have committed offences constituted under Section 307 of the Indian Penal Code qua PWs 3 and 4. The post mortem reports qua the deceased are comprised in Exhibits PW-16/A, PW-16/B and PW-16/C. The clinching emanation which ensues on a perusal of the Post Mortem reports comprised in Exhibits PW-16/A, PW-16/B and PW-16/C, proven by the deposition of PW-16, is of the demise of each of the deceased being attributable to the injuries found on their person being sequallable by the user of knife, danda and baseball stick respectively. With firm and invincible evidence having been led by PW-16 qua the demise of the deceased being attributable to the injuries existing on their person and their being sequallable by the user of weapons aforesaid, the prosecution in tandem thereto relies upon the factum of recovery of weapons of offence comprising of Knives (Ex. P-7, 14 and 15), Danda (Ex. P-8) and baseball stick (Ex. P-9) recovered under memos comprised in Ex. PW-3/B, PW-9/C, PW-13/B, PW-29/A, PW-29/C, recoveries whereof stands preceded by the disclosure statements of accused Nitish (Ex. PW-9/A), Praveen (PW-9/B), Sumit (Ex. PW-29/B) and Ravi Kumar (Ex. PW-13/A), to canvas that the offences for which the accused stood charged and tried had come to be formidably proved. However, though the aforesaid un-impeachable evidence read in conjunction with vivid credible eye witnesses account qua the occurrence having been rendered by the injured/complainant does constrain at this stage an apt conclusion that the prosecution has proven the fact of the accused/convicts having committed offences for which they came to be charged and tried. Nonetheless for reasons to be assigned hereinafter, the factum of disclosure in MLCs qua the accused/convicts, underlining the factum of theirs also having on the ill-fated day sustained injuries, has yet not to be undermined, as the learned trial Court has remained oblivious to, especially when for the further reasons as would be attributed hereinafter on a thorough and threadbare analyses of the testimonies of the prosecution witnesses underscoring the factum of a free sudden fight having occurred inter-se the two warring groups comprising the accused/convicts and the complainants which factum, rather foments a conclusion of the offences, as such constituted by the incriminatory acts attributed to each of the accused, hence constituting an offence rather under Section 304(I) of Indian Penal Code than under Section 302 of the IPC. Consequently, it would render open or pave way for an inference that the conviction and sentence of the accused/convicts for theirs having committed offences punishable under Section 302 read with Section 34 of IPC is commutable to conviction under Section 304(I) read with Section 34 of Indian Penal Code.
11. The prosecution version has been voiced in the deposition comprised in the examination-in-chief of PW-1 Naresh Kumar. He has communicated therein the factum that on 23.3.2011 at about 8-8.30 p.m., he alongwith Kuldeep, Chetan, Sandeep, Shelli, Jaswant, Narender, Sunil, Sanju and Anil after having paid a visit to a fair of Paonta Sahib were returning home to their village named Heerpur. At that time, when they arrived at Maszid Wali Gali, Kuldeep had parked his motor bike there and when he was about to leave to village Heerpur, then in the meantime all the accused identified by this witness in Court had all of a sudden appeared on the spot. The accused have been deposed by this witness to be armed with dandas and knives. Accused Sumeet Bhardwaj has been deposed by this witness to have attacked Shelly with a knife, in sequel whereof he suffered a hurt near his armpit. Though a statement exists in his deposition that his companion Chetan and Kuldeep had started rescuing Shelly from the clutches of Sumeet, however, accused Nitish stabbed Chetan with knife on his abdomen. Shelly injured has been deposed by this witness to have raised an alarm to flee from the site as they suffered wounds by stabbing. He continues to depose that Kuldeep had taken Chetan and Shelli on his Motor Bike to Puran Hospital for treatment. He also deposes that Devinder @ Billa had caught Anil Kumar and accused Sumeet Bhardwaj had stabbed him near his left armpit. Anil has been deposed by this witness to have collapsed on the spot. Accused Gurpreet Singh and accused Ajay Kumar have been deposed by this witness to have caught Sunil Kumar and accused No. 1 Sumit has been deposed by this witness to have stabbed him near his armpit. He also collapsed and died on the spot itself. He continues to depose that their companion Sanju absconded from the spot through Masjid Gali and from the opposite direction accused No. 6 Rohit had hit him with knife on his abdomen while accused Ravi and accused No. 3 hit him with Dandas. Subsequently all the accused stabbed Sanju on his abdomen and on his back. The aforesaid Sanju has been deposed to have been carried to the hospital however enroute he succumbed to the injuries sustained by him. After the crime had come to be consummated, the accused left the spot. In his deposition on oath he voices the fact that 400-500 people alongwith police officials were present on the spot and witnessed the scene however, none came to the rescue. In addition he deposes that accused No. 1 Sumit was inimical towards Shelli as they had some quarrel in the school. This witness is stated to have joined the investigation and in his presence the SHO had taken into possession blood stained piece of stick, controlled earth and concrete from Masjid wali Gali where the occurrence had taken place. The controlled earth were put in small bottles while piece of wood was inserted in different parcel and sealed with seal impression X at three places. To the above effect seizure memo Ex. PW-1/B and Ex. PW-1/C were prepared on which he and Ram Lal appended their signatures. The said parcels on being opened with the permission of the Court were identified by this witness to be the same. In his cross-examination he concedes to the factum of deceased Shelly being his real brother. Moreover, in his cross-examination he concedes to the factum of he and his companions numbering 8 to 9 whereas the numerical strength of all the accused being 8. The factum of accused No. 6 having sustained injuries his being hit by Sanju in the course of his i.e. latter rescuing himself, stands conceded by this witness. However he denies the fact that other accused also sustained injuries in the scuffle that ensued inter-se the accused and the complainant party. Further more, in this cross-examination he deposes that none of the people had prevented the accused from fleeing from the spot. He concedes to the factum of Sanju having been attacked in front of the Dhaba of Asgar. However he deposes that Sanju was attacked after the initial assault having been perpetrated on the person of Sunil and Anil. Nonetheless, he deposes that when the initial assault was perpetrated on the person of Sunil and Anil a number of people were present at the site. Jaswant, Sandeep and Narender have been deposed by this witness to have run away from the street to save themselves. Preponderantly, he deposes that on the day preceding the occurrence he was mercilessly beaten up by accused Sumeet and his companions and he had sustained injuries. In his further cross-examination he deposes that his village is housed with Bahati Community. He denies that on 24.3.2011 they set afire the houses belonging to the Balmiki Community. However, he concedes to the fact that FIR No. 107 under Sections 436/427 IPC under Sections SC and ST Act was registered against them. He denies that the names of accused Ajay and Praveen have been falsely included in Ex. PW-1/A. He feigns ignorance whether the stick used by Sanju remained at the spot or not. Sanju has been deposed to have been given 3-4 danda blows on the head. A scuffle inter-se him and accused Ravi has been deposed to have occurred on 22.3.2011. The deposition of this witness, an eye witness to the occurrence has received corroboration from PW-3. PW-3 deposes that he remained associated with the investigation. He further deposes that one jean pant, one T-Shirt, Baniyan and underwear were taken into possession vide seizure memo comprised in Ex. PW-3/A. On the aforesaid parcel being permitted to be opened by the Court and the items contained therein having been retrieved therefrom the same have been identified by him to be the same as were given by him to the police on 6.4.2011. He deposes that the police of Paonta Sahib got the accused Nitish identified from him. He further deposes that he had disclosed to the police that he was the stabber. He continues to depose that accused Nitish got recovered one knife from a place near burial ground in the bushes behind the broken boundary. Knife Ex. P-7 has been identified by this witness to be the same, which was recovered at the instance of accused Nitish under memo Ex. PW-3/B. In his cross-examination he concedes to a quarrel having erupted inter-se PW-1 and other persons on 22.3.2011.
12. PWs 4, 6, 7 and 12 also support and corroborate the ocular version qua the incident deposed by PW-1.
13. PW-5 Gurdas Ram is witness to seizure memo Ex. PW-4/A, under which Shalender Kumar handed over his blood stained clothes to the police. PW-9 Mohan Chaudhary is witness to recovery memo Ex. PW-3/B under which knife Ex. P-7 was taken into possession by the police, in pursuance to the disclosure statement of accused Nitish. PW-10 Deepak Kumar prepared the site map of the spot Ex. PW-10/A.
14. PW-11 in his examination-in-chief deposed that on the ill-fated day a quarrel had occurred between two groups. However since he resiled from his previous statement recorded in writing, hence he was declared hostile and was permitted by the trial Court on the request of learned PP to be cross-examined. In his cross-examination he deposes that he and his wife tried to rescue Sanju. He also deposes that the accused Sumit, Rohit and Nitish were grappling with Sanju. He continues to depose that accused persons who belong to the Basti were known to him. In his cross-examination by the learned defence counsel he admits the fact that the complainant party had knives and dandas in their hands.
15. PW-13 HC Kamlesh Kumar deposes that on the disclosure statement made by accused Ravi Kumar comprised in Ex. PW-13/A, baseball stick was got recovered and same was taken into possession vide seizure memo Ex. PW-13/B in presence of Balbir Singh and Jagdish Chand. PW-14 and PW-15 Balbir Singh and Jagdish Chand are the witnesses to recovery memo Ex. PW-13/B under which baseball stick was recovered.
16. PW-16 Dr. N.K. Bhardwaj had conducted post mortem examination on the body of deceased Sunil, Anil and Sanjeev Kumar on application moved by the police. He deposes that committee of doctors in Post mortem report comprised in Ex. PW-16/A opined that deceased Sunil died owing to stab wounds on the left side of chest, which damaged his left lung and heart. He continues to depose that committee of doctors in post mortem report comprised in Ex. PW-16/B opined that the deceased Anil died owing to left stab wounds on left side of chest which damaged his left lung and heart. He further deposes that deceased Sanjeev Kumar died owing to multiple stab wounds which injured left lung, heart, stomach and right kidney. His post mortem report is comprised in Ex. PW-16/C. He continues to depose that all the injuries found on the persons of deceased Anil, Sunil and Sanjeev Kumar are possible with knife, stick and baseball stick.
17. PW-17 Dr. Rakesh Kumar conducted the medical examination of accused Sumit and Nitish. Theirs MLCs are comprised in Ex. PW-17/A and PW-17/B. PW-18 Dr. Kamal Pasha examined accused Gurpreet Singh and issued MLC comprised in Ex. PW-18/A. PW-19 Dr. K.K. Prashar conducted the medical examination of accused Devinder and Rohit and issued MLCs PW-19/A and PW-19/B. PW-27 Dr. Daniel examined Chetan and Shalender and opined that the injuries on their person are grievous in nature. He further deposes that the injuries found on their person were possible with stabbing.
18. The oral depositions of the eye witnesses to the occurrence whose testimonies are bereft of any inter-se or intra-se contradictions qua the inculpatory and incriminatory acts of the accused/convicts hence when they have deposed in harmony qua the incident which occurred on the ill-fated day, as a corollary then their testimonies constitute credible evidence against the accused/convicts. The credibility foisted to the ocular versions qua the incident narrated by the prosecution witnesses besides gains momentum from the effectuation of recovery of Knives (Ex. P-7, P-14 and P-15), Danda (Ex. P-8) and baseball stick (Ex. P-9) under memos comprised in Ex. PW-3/B, PW-29/A, PW-29/C, PW-9/C, PW-13/B at the instance of accused Nitish, Rohit, Sumit Praveen and Ravi Kumar, concomitantly then the recoveries aforesaid at the instance of the aforesaid lend succor to the ocular version qua the incident narrated by the prosecution witnesses aforesaid. Formidable efficacy to the recovery of weapons of offence stands pronounced besides underlined in the Post Mortem Reports comprised in PW-16/A, PW-16/B and PW-16/C wherein they have been communicated to be the weapons whose user at the instance of the accused sequelled the injuries on the persons of the deceased and ultimately caused the demise of each of the deceased. The recovery of weapons of offence, at the instance of the accused/convicts, does not hence suffer from any illegality or inefficacy so as to discount their concomitant user by each of the accused on the person of deceased as well as upon the injured/complainants, who too have communicated a consistent hence credible ocular version qua the occurrence. Consequently with infirm evidence existing on record qua the factum of recovery of weapons of offence at the instance of the accused/convicts being legally inefficacious, accordingly their user at the instance of the accused upon the persons of each of the deceased as well as on some of the prosecution witnesses who, too then were recipients of injuries as displayed in MLC comprised in Ex. DB and Injury reports comprised in PW-27/A and PW-27/B, does also lend reinforced vigour, succor and sinew to the depositions of the ocular witnesses to the occurrence. Even though a conclusion has been drawn by this Court qua the accused/convicts hence having delivered blows with knife, baseball stick and Danda on the person of each of the deceased as well as upon the complainant/prosecution witness who witnessed the occurrence. Nonetheless, the prosecution witnesses have smothered the factum of the accused too having received injuries on their person. The factum of the accused/convicts having received injuries on their person stands underscored by apposite portrayals in MLCs, qua the accused/convicts. The perusal of MLCs aforesaid discloses that at the time contemporaneous to the ill-fated incident, the accused/convicts too had sustained injuries on their person. The portrayals in the MLCs comprised in PW-17/A to PW-17/C, PW-18/A and PW-19/C qua the accused/convicts and their underlining the evident fact of injuries existing on their person and their being contemporaneous to the ill-fated incident, gives leverage to an inference that the injuries existing on the person of the accused/convicts, were sustained by them in the ill-fated occurrence. However, it appears that, even when the accused/convicts too sustained injuries in the free fight which occurred on the ill-fated day, the Investigating Officer carried out a partisan/slanted investigation, borne out by the fact of his having omitted to recover the weapon/weapons of offence used by the complainant party/injured witnesses to inflict injuries on the person of the accused. Consequently, the natural concomitant deduction is that, given the numerical strength of all the accused/convicts and the complainant each indulged in a free fight. The deposition existing in the cross-examination of PW-1 wherein he has feigned ignorance qua the fact whether the stick used by the deceased Sanju remained placed on the spot or not, does obviously foment a deduction that the deceased Sanju was carrying a stick, which was used by him for perpetrating an assault on the person of the accused. Further more, naturally then he was not unarmed. Moreover, given the admission existing in the cross-examination of PW-11 Asgar whose presence at the site of occurrence remains undisputed, especially when on his having come to be cross-examined by the learned defence counsel during course whereof on an apposite suggestion having been put to him by the learned defence counsel qua the factum of the complainant party also wielding knives and Dandas, his rendering an answer thereto in the affirmative, does foist or succor an inference qua the truth of the said factum, especially when the fact aforesaid disclosed by him has remained un-concerted to be shattered by the learned PP by recalling this witness for his re-examination, for eliciting an explanation qua the aforesaid fact existing in his cross-examination. Consequently, given the factum existing in the cross-examination of PW-1, wherein he feigned ignorance qua the fact whether the stick used by Sanju remained placed on the spot or not, hence, communicative of the fact, especially when he omits to in the subsequent part of his testimony wherein the said fact occurs, clarify that the deceased Sanju was not carrying any stick, that the deceased Sanju was wielding a stick which, read in conjunction with the factum existing in the cross-examination of PW-11 of the complainant party wielding knives and dandas, does rear and nurse an inference that the complainant party as well as the accused/convicts while being equal in numerical strength, besides being armed indulged in a free scuffle. Necessarily when law does not ordain an initial determination being rendered qua the initiator of aggression nor when such a determination is indispensable, for rendering a further conclusion on the strength of the evidence existing on record, that the offence as connoted by oral as well as documentary evidence to have been committed by the accused/convicts while carrying the requisite mens rea in their mind, given the severity of assault with lethal weapons on vital parts of the body of the deceased, hence stands subdued or mitigated in gravity, in as much as with exception 4 to Section 300 IPC alongwith its explanation while constituting an exception to the offence under Section 302 IPC while omits to render open its invocation or applicability only in the event of a determination emanating from the court qua the initiator of aggression, rather with the mandate of the explanation to it, permitting its application or invocation even when the initiators of the aggression are the accused/convicts, especially when in the duel or the sudden fight which occurred in the heat of passion inter-se the accused/convicts and the complainant, blows were exchanged inter-se them nor also it is mandated in exception 4 to Section 300 IPC that in the event of the accused inflicting lethal blows, with deadly or lethal weapons besides the lethal blows being disproportionate to the injuries received by them, its applicability or invocation would not come to the rescue of the accused/convicts. Tritely in aftermath the factum of eruption of a sudden duel inter-se both the accused/convicts and the complainant with both being armed and equal in numerical strength, in course whereof in the heat of passion both warring groups exchanged blows, received injuries, as such, even if the enormity or magnitude of the blows delivered on the person of the participants in the duel begot the demise of some of them, yet if in the assault the lethal injuries inflicted upon the person of the deceased were disproportionate to the injuries received by the complainant or the accused, the mitigatory effect of exception 4 to Section 300, in as much as its diluting the rigor of section 302 IPC to an offence under Section 304(I) IPC would yet come to be attracted. Moreover, the evident fact which further provides a pedestal to the applicability and invocation of exception 4 to section 300 IPC is comprised in the MLCs qua each of the accused/convicts. Succinctly without determining the factum whether the accused/convicts or the complainant initiated the aggression, with the sine qua non of the parameters enshrined in exception 4 to section 300 IPC alongwith its explanation having stood satiation comprised in the aforesaid evidentiary facts would hence render their prompt and immediate attraction to the facts of the instant case.
19. Now adverting to the role of acquitted accused named Devinder, Gurpreet, Ajay and Ravi, it is apt to advert to the testimony of PW-1. PW-1, the informant in his examination-in-chief has imputed an inculpatory role to accused Devinder, Gurpreet and Ajay. However in his cross-examination he has admitted to the suggestion put to him by the learned Defence counsel that in his previous statement recorded in writing, he had omitted to disclose the name of the aforesaid accused. Consequently, the omission on the part of PW-1, the informant to divulge to the Investigating Officer, the names of the accused aforesaid in his previous statement recorded in writing and his imputing in his examination-in-chief an inculpatory role to them, constitutes his deposition on oath wherein he has imputed an inculpatory role to the accused aforesaid to be an improvement and embellishment over his previous statement recorded in writing. In sequel, his deposition on oath imputing an inculpatory role to accused aforesaid is to be concluded to be carrying no probative worth. Further more the depositions of other prosecution witnesses wherein they have also imputed an inculpatory role to the accused Devinder, Gurpreet and Ajay, also cannot stand to gain any credibility theirs having deposed a version too, in variance and in contradiction to the factum of the initial reporting qua the occurrence where there is no attribution of any inculpatory role to the accused aforesaid, besides hence their testimonies too are to be construed to be engineered at the behest of PW-1 and the Investigating Officer. Moreover, their testimonies too then acquired the taint of an embellishment and improvement. Moreover the accused namely Devinder and Ajay have not gained/sustained injuries on their respective person which pronounces upon the factum of theirs been not present at the site of occurrence as well as theirs having concomitantly not participated in the duel which occurred inter-se the complainant and accused party. Moreover, the learned counsel for accused Ravi Kumar has been able to efficaciously prove the factum of his propagated alibi, in as much as the fact of his being else-where than at the site of occurrence stands substantiated by the deposition of DW-1. Aggravated momentum and impetus to the said inference is garnered by the factum of recovery memo comprised in Ex. PW-13/B qua baseball stick purportedly recovered by the Investigating Officer at the instance of accused Ravi Kumar falsely disclosing the fact of it having come to be recovered from Shakti Nagar at Paonta Sahib whereas there is a communication in the testimony of PW-13 and PW-14 that Shakti Nagar is not located at Paonta Sahib as erroneously reflected therein rather is located at Nahan. Consequently, with mis-reflection qua the place of recovery of Baseball stick purportedly recovered at the instance of accused Ravi, it appears that the recovery of the aforesaid weapon of offence attributed to accused Ravi Kumar is engineered or contrived by the Investigating Officer to falsely implicate the accused Ravi Kumar.
20. The appeals of the accused/convicts namely Sumit Bhardwaj, Nitish, Praveen and Rohit are dismissed. The conviction and sentence of the aforesaid for theirs having allegedly committed offences under Sections 120-B, 302 and 307/34 of Indian Penal Code, is modified and commuted to conviction and sentence under Section 120-B, 307 and 304(I) read with Section 34 of the Indian Penal Code.
21. Also the appeal filed by the State is dismissed. The appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal in favour of Devinder Kumar, Gurpreet Singh, Ajay Kumar and Ravi Kumar has committed any legal misdemeanor, in as much as, it has either mis-appreciated the relevant evidence or omitted to appreciate relevant and admissible evidence on record. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit any interference.
Let the accused/convicts be heard on quantum of sentence on 18.6.2015.
