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TMI Blog2008 (9) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh and when she reached there, she saw the accused persons, 13 in all, armed with guns, spears, pharsas and lathis etc. standing on the road outside the Khalihan whereas her two sons-in-law and her son were inside. She also heard accused Chirkut Singh asking them to come out of the Khalihan and he also opened fire hitting Bacha Singh on which, he fell down. Lakshman Singh thereafter opened fire with a country-made gun in self defence hitting Kishore Singh, as a result of which, he too fell down on the ground. Thereafter, accused Jang Bahadur Singh fired a shot with his weapon hitting Lakshman Singh, and accused Bashishta Singh also fired his weapon hitting Nathuni Singh and they both fell on the ground. The other accused thereafter gave blows with lathis to Nathuni Singh. In the meanwhile Sachmucha Devi, the father's sister of Nathuni Singh covered his body with her own and received gun butt/lathi blows given allegedly by accused Jang Bahadur Singh. It further appears that the accused persons started dragging Lakshman Singh and Bacha Singh in a southerly direction and also assaulted them which resulted in their deaths on the spot. On hearing the alarm raised by Bhagwati Devi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh did not file any appeal in this Court. Jang Bahadur Singh has filed Criminal Appeal No. 408/2005 whereas Bachan Singh and Sobhu Singh have filed Criminal Appeal No. 1176/2004 and Kailash Singh and Kumar Singh have filed SLP No. 599/2007. 6. Mr. R. Sundervardhan, the learned senior counsel appearing for the accused appellants has raised several arguments before us. He has first submitted that the genesis of the occurrence was uncertain and as both sides appeared to have come prepared and determined to fight, injuries had been suffered by members of both groups on this account. It has also been pleaded that the trial court had adopted an extra ordinary procedure inasmuch as it had looked into the case diary to find corroboration for the prosecution evidence as the investigating officer had not cared to record the statements of the prosecution witness and that this procedure was unknown to law and therefore unacceptable in the light of the judgments reported as Habeeb Mohammad v. State of Hyderabad [1954]1SCR475 , Sakal Ahir and Ors. v. Palakdhari Ahir AIR 1931 Patna 96 and Queens Empress v.. As against this, it has been contended by the learned Counsel for the respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his retirement and he died over there and besides that, on perusal of the statements of prosecution witnesses I find that the attention of PW3 was drawn towards his previous statement before the I.O. in Para 15 of his cross- examination. And similarly the attention of PW4 was drawn towards his earlier statement made before the police in Para 12 of his cross-examination. But no such attention was drawn to the first informant, who is PW5. Likewise the attention of PW6 was drawn toward her earlier statement made before the police in Paras 2 and 9 of her cross- examination. The attention of PW7 was drawn towards her earlier statement in Para 4 of her cross-examination and that of PW8 was drawn towards his earlier statement in Paras 12 and 14 of his cross-examination. And I have also perused the case diary in order to appreciate the evidence Under Section 172(2) Cr.P.C. and found that even if the I.O. would have been examined no material contradiction could have come out in the statements of the witnesses examined on behalf of the prosecution because on material points all the witnesses examined before the police have stated that accused Chirkut Singh gave a fatal shot to deceased Bach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arguments raised. 9. Mr R. Sundarvardhan's primary argument has been that the incident was the outcome of a free fight between the two groups after they had made preparations to settle scores. We have examined the statement of PW5 Bhagwati Devi, the first informant, who deposed that 5 or 6 days before the occurrence, Chirkut Singh's crop had been burnt on which a complaint had been lodged against her sons-in-law (the deceased), her son and her husband and that Chirkut Singh had threatened her sons-in-law that they would be beaten. She also stated that Lakshman Singh often carried a country- made gun though he had no licence for it. It is apparent from her evidence that a free fight between the parties had taken place during the course of which several shots had been fired resulting in three deaths from both groups. The stand taken by Bhagwati Devi has been supported on material points by the other prosecution witnesses. We are of the opinion in the facts stated above, that both the parties appeared to be itching for a fight and had collected their relatives and supporters from far and between to augment their strength. In this view of the matter, we are disinclin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 which came to be dismissed by the impugned judgment. For some reason or the other he has not preferred any appeal and has accepted the judgments of courts below. We, in these appeals, have come to the conclusion that the prosecution has failed to establish its case against the appellants which finding is applicable to all the accused. The question then arises whether the benefit of this judgment of ours should be extended to the non- appealing accused namely Sona @ Sonwa Choudhary or not. This Court in a catena of cases has held where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal. [See: Bijoy Singh v. State of Bihar 2002CriLJ2623 ]. This Court while rendering the above judgment has placed reliance on some other judgments of this Court in Raja Ram v. State of M.P. [1994]2SCR114 , Dandu Lakshmi Reddy v. State of A.P. 1999CriLJ4287 and Anil Rai v. State of Bihar (2001) 7 SCC 318, wherein this Court had taken a similar view. Following the above dictum of this Court in the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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