Arvind Kumar Mishra I, J.—Heard Sri Gyanendra Kumar Singh, learned counsel for the appellants in Criminal Appeal No.1444 of 1994 and Sri J.N. Singh assisted by Sri Animardan Yadav, learned for the appellant in Criminal Appeal No.1445 of 1994 and Sri Saghir Ahmad, Kumari Meena and Mrs. Manju Thakur, learned AGAs for the State and perused the record of this appeal.
2. Relevant to mention here that appellant no.1 Siyaram in Criminal Appeal No.1444 of 1994 has died during pendency of the appeal. Therefore, the appeal qua appellant no.1 Siyaram stood abated on 28.08.2014.
3. By way of instant criminal appeals, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 21st September, 1994 passed by Sessions Judge, Farrukhabad in Sessions Trial No.5 of 1992 (State v. Siya Ram and others), arising out of case crime no.48 of 1991, under Sections 302/34 IPC, 323, 323/34 IPC, Police Station Jahanganj, District Farrukhabad, whereby the appellants Amar Singh and Rakesh have been sentenced to life imprisonment, under Section 302/34 IPC. Appellant Amar Singh has been further sentenced to three months R.I., under Section 323 IPC. Appellant Rakesh has been sentenced to three months R.I., under Section 323/34 IPC. All sentences shall run concurrently.
4. Since both the aforesaid appeals arise out of one and the same judgment dated 21st September, 1994 passed by Sessions Judge, Farrukhabad, therefore, both the appeals are being disposed of by way of a common judgment.
5. Factual stream of this case leading upto this appeal, as discernible from record, appears to have its seed in the first information report, Exhibit Ka1, which was lodged by informant Jagdish Singh S/o Murlidhar Lodhi, R/o Village Kundan Ganeshpur, Police Station Jahanganj, District Farrukhabad at Police Station Jahanganj on 16.03.1991 at 00.15 Hrs. against the accused persons with allegation that Siyaram is related to the informant and he is his uncle. Siyaram''s daughter Ram sakhi was a lady of easy virtue and one Balbir Lodhi of informant''s village had eloped away with her. Due to aforesaid reason, the informant and his family members arranged marriage of Ramsakhi and asked Siyaram not to make visit to the house of his daughter''s in laws and not to call his daughter at his home. In the meanwhile, Balbir Lodhi kept on visiting Siyaram''s home regularly. Due to this, Siyaram became inimical and was grudging illwill towards the informant. Today on 15.03.1991, some altercation took place between the wife of Siyaram and the wife of Jiledar (deceased) on account destruction of cowdung cake. When exchange of abuse was going on amid altercation, informant''s brother Jiledarcame out of his house after taking his meal and asked Siyaram as to why he is quarelling with ladies; this flared up the dispute and the informant also intervened, but Siyaram and his son Amar Singh, who were possessing lathi and Rakesh who was possessing licensed single barelled gun of his father appeared on the spot, extending abuses. An electricity bulb was illuminated on the spot. Om Prakash standing over there, exhorted to kill as the dispute had been going on for the last one year. In the meanwhile, Siyaram gave lathi blow to Jiledar; Amar Singh gave lathi blow to Raghuvir; and Rakesh, with intention to kill informant''s brother Jildedar, fired on him with the gun. The fire hit Jiledar on his chest and he died on the spot. The incident was witnessed by the informant and his brother Raghuvir and his two relativesnamely, Shobharan Singh of village Naygaowa and Ram Kishan r/o Div Dhiwdhrapurwho were staying at informant''s home. Besides a number of villagers including women had also arrived on the spot. The incident took place at about 9:30 p.m. The dead body was lying on the spot and it was requested that report be lodged and appropriate action be taken. Written report is marked as Exhibit Ka1.
6. Contents of written report were taken down in the concerned check FIR No.12 at Case Crime No.48 of 1991 under Sections 302, 323 and 504 IPC at Police Station Jahanganj, District Farrukhabad at 00.15 A.M. on 16.3.1991. The copy of check FIR is Ex.Ka.14. Consequent upon entries so made in the check FIR, a case was registered against the accused persons at Police Station Jahanganj on 16.3.1991 at aforesaid crime number, under aforesaid sections of Indian Penal Code vide entry made in the concerned General Diary. The relevant GD entry is Exhibit Ka.15.
7. Investigation of the case was taken over by the Station House officer Sita Ram Dwivedi P.W.5. He immediately took note of the FIR and recorded statement of informant at the police station and then proceeded to the spot the same night. Record reveals that he got prepared inquest report of deceased Jiledar through S.I. C.P. Singh. The inquest report is Exhibit Ka4. The inquest witnesses opined that the dead body be sent for postmortem examination for ascertaining real cause of death, therefore, relevant papers were prepared for sending the body for postmortem examination. These relevant papers are photonash Exhibit Ka5, Challan dead body Exhibit Ka6, letter to R.I.Exhibit Ka7 and letter to C.M.O.Exhibit Ka8.
8. Thereafter postmortem examination on the cadaver of deceased Jiledar was conducted by Dr. V.K. Bhatiya P.W.4 at mortuary Fatehgarh on 16.03.1991 at 3.00 P.M., wherein, he noted the following antemortem injuries:(
1) Lacerated wound 4cm x 1cm x bone deep right side head 10 cm above the right ear.
(2) Lacerated wound 3cm x 5cm x scalp deep right side head 3 cm in front of injury no.1.
(3) Firearm wound of entry 3cm x .5cm x chest cavity on left infra clavicular region lacerating part surrounded by multiple pellet wound entry in area of 12cm x 11 cm measuring .5cm x .3cm to .3cm x .2cm depth skin to chest cavity deep. Margins of central wound inverted, lacerated echymosed. Direction front to back towards right.
9. In the opinion of doctor cause of death was due to shock and haemorrhage as a result of antemortem injuries. This postmortem report is Ex.Ka.3.
10. Record further reflects that injured Raghuvir Singh P.W.2 was medically examined at District Hospital, Farrukhabad on 16.03.1991 at 2.15 P.M. by Dr. S.C. Tiwari P.W.3, wherein, he found the following injury on his person:
(1) Lacerated wound 4cm x 0.5cm x muscle deep on left side of skull 5cm above the left eyebrow. Clotted present.
11. In the opinion of the doctor, the injury was simple and caused by hard and blunt object. Duration was stated to be about � day. This injury report is Exhibit Ka-2.
12. Consequent whereupon the Investigating officer also inspected the spot on 16.03.1991 and prepared the site plan, Exhibit Ka9. He also took sample of simple and blood stained clayroll from the spot in two separate containers and prepared a memo of the same Exhibit Ka10. One empty cartridge was recovered from the spot, a memo of the same was also prepared as Exhibit Ka11. Accused Siyaram produced single barreled gun in the court of Chief Judicial Magistrate, which was sent for Forensic examination and the gun was identified by the Investigating officer as Material Exhibit 1 and the license of the gun was also identified before the trial court, which is material Exhibit 2. Besides, he also took several other steps for completing his investigation and after recording statement of various persons filed charge sheet against the accused persons, which is Exhibit Ka12. Charge sheet filed against accused Rakesh under Section 25 Arms Act is Exhibit Ka13.
13. Consequent upon filing of charge sheet, committal proceeding took place and the case was committed to the court of Sessions Judge, where the Sessions Trial was numbered as S.T. No.5 of 1992. The learned Sessions Judge after hearing both the prosecution and the accusedon point of charge was primafacie satisfied with the case against the accused, accordingly, framed charges under Sections 302/34, 323 and 504 IPC, which were read over and explained to the accused, who denied the charges and opted for trial.
14. In turn, the prosecution was asked to adduce its testimony in support of the charge, whereupon, prosecution produced in all six witnesses, whose, reference is sketched herein below:
Jagdish Singh P.W.1 is the informant and eyewitness of the occurrence. He has proved lodging of the written report Ex.Ka-1.
15. Raghuvir Singh PW2 is the injured eyewitness of the occurrence and he claims to have been present on the spot at the time of incident and sustained lathi blow.
16. Dr. S.C. Tiwari PW3 has conducted medical examination of Raghuvir Singh on 16.03.1991 at 2:15 P.M. at District Hospital Fatehgarh and has proved injury report Ex. Ka2.
17. Dr. B.K. Bhatia PW4 has conducted autopsy on the cadaver of deceased at mortuary Fatehgarh and has proved cause of death apart from proving other facts he noticed during course of postmortem examination. He has proved the postmortem examination report Ex.Ka3.
18. Sitaram Dwivedi P.W.5 is the Investigating officer of this case. He carried out the investigation and has proved various papers which he prepared during course of investigation and filed chargesheets against accused Ex.Ka12 and Ex.Ka13.
19. Constable Shivraj Singh P.W.6 has noted relevant entry in the concerned check FIR and the concerned GD of Police Station Jahanganj on 16.03.1991 and has proved both the papers as Ext. Ka14 and Ext. Ka15, respectively.
20. Except as above, no other testimony was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C. Accused claimed their implication false on account of enmity and village partibandi.
21. The defence did not lead any evidence, whatsoever. The trial court after hearing both the sides on the merit of the case and after appraising facts and evaluating the testimony on record, returned finding of conviction against the accused and sentenced them accordingly, as above.
Consequently, this appeal.
22. It has been vehemently claimed on behalf of the appellants that it is a case of no evidence. The motive imputed for committing the offence is ambiguous and vague. Entire evidence, on wholesome reading qua facts and circumstances of the case, exuberantly divulges fact that there was no such motive ever to commit murder of Jiledar. The motive imputed for committing the offence was based on fact that daughter of Siya Ram Ram Sakhiwas lady of easy virtue, was never proved before the trial court. Assuming it to be that the motive so imputed was relevant, even then the motive loses significance in the face of testimony and fact that the very cause of quarrel or dispute between the wife of Siyaram and the wife of Jiledar (deceased) was confined to placement of cowdung cake. There is no whisper of any motive either contained in the FIR or in the examination-in-chief of the prosecution witnesses of fact that the quarrel or the dispute that took place on the fateful night around 9.30 P.M. had any relevance or link with fact of loose character of Ram Sakhi and her elopement with her lover Balbir Lodhi. The two eyewitnesses of fact (Jagdish Singh P.W.1 and Raghuvir Singh P.W.2) are highly partisan as they are relative of the deceased. The injury on the person of Raghuvir Singh P.W.2 can be easily manufactured. The FIR is antetimed and the FIR was in fact lodged only after the inquest had been prepared. Testimony of both the witnesses of fact (Jagdish Singh P.W.1 and Raghuvir Singh P.W.2) is grossly contradictory on material particulars of the incident. Presence of the witnesses on the spot is highly doubtful. In the postmortem examination report of deceased Jiledar, semidigested food had been noted by the doctor, whereas, fact is that Jiledar immediately after taking food, came out of his house when he was allegedly shot by Rakesh. Even the site plan is faulting on many counts regarding respective places of the witnesses and the deceased. The position of the witnesses and the assailants has not been properly depicted. Assuming it to be, that any incident took place as stated by the prosecution even then, two accused persons, namely, Siyaram and Amar Singh, who were possessing lathi at the relevant time of the incident, cannot be said to have shared any common intention with Rakesh to commit murder of Jiledar. Their culpability is distinguishable from the culpability of Rakesh, who allegedly fired on the deceased. Act of accused Rakesh in firing on Jiledar becomes his own voluntary act and that too is deeply rooted in provocation being extended by Jiledar himself. When viewed from that angle, the culpability of appellant Rakesh shall not be covered under Section 302 IPC, but it would be covered under para2 of Section 304 IPC. It is not a fit case for applying common intention among the accused to kill Jiledar. Circumstances also show that the two coaccused other than Rakesh had no intention to cause any graver harm than to inflict only lathi blow. Looking to the nature of the injury caused by lathi blow, it cannot be said that these two coaccused shared any common intention with Rakesh to commit murder of Jiledar. The trial court could not visualize the aforesaid different aspects of this case in correct perspective and misread the evidence and failed to take wholesome view of the incident and erroneously recorded finding of conviction against the accused persons, by imputing sharing of common intention among all accused, which finding is perverse and erroneous, on the face, and is liable to be set aside.
23. While retorting to aforesaid contention, learned AGA submitted that it is a case where the incident has been proved decisively against the accused persons to the ambit that they committed murder of Jiledar apart from causing hurt to Raghuvir Singh. Both the eyewitnesses of the occurrence are natural witnesses of the occurrence. Their testimony on the whole proves factum of the incident. There is no material contradiction in their testimony. There is nothing on record to indicate that the FIR is antetimed. The manner and style of commission of the offence ipso facto proves fact that the offence was committed conjointly by all the accused persons and they knew it well that one of them was armed with deadly weapon of assaultsaygun. All the accused were present on the spot. Their intention was to commit murder of Jiledar and all the accused simultaneously started assaulting the deceased and Raghuvir, which fact and particular aspect sufficiently indicates their sharing of common intention in furtherance of the offence. When the incident is scrutinized from that angle, it leaves no room for doubt about the apparent intention being shared by all the accused at the time of the commission of the crime. This aspect further establishes fact that culpability of each accused is equally attributable on account of their sharing of common intention in furtherance of the offence. In cases like the present one where eyewitness account of the occurrence is forthcoming, the motive loses its effectiveness, therefore, motive in such cases cannot form the base of the case. Although, the motive has been specifically stated in the written report and has been sufficiently proved in the testimony of the prosecution witnesses of fact. The testimony of witnesses of fact on the whole is consistent and inspires confidence. The trial court has rightly appreciated the evidence and fact on record and has rightly recorded conviction and passed just sentence against the accused.
24. We have also considered the rival submissions and also considered the rival claims and in the light of above, the core consideration that crops up for determination of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt against the accused persons?
25. Before we scrutinize the testimony, facts and circumstances of this case and evaluate the entire case on its merit, it would be appropriate at this stage to have stock of crux of the allegations made in the first information report. We on careful perusal of the written report, Exhibit Ka1, notice that certain specific allegations have been made regarding fact that daughter of Siyaram (Ram Sakhi) was lady of easy virtue and she had eloped three years before with one Balbir Lodhi of the same village. In order to restore dignity and honour of the family, the informant side arranged marriage of Ram Sakhi and Siyaram was asked not to make any visit to the house of inlaws of Ram Sakhi nor allow Ram Sakhi to come over to village (Kundan Ganeshpur). However, in the meantime, Balbir Lodhi started visiting Siyaram''s home in the village and this was resented by Siyaram and he developed grudge against the informant side and on 15.03.1991, the two ladies were quarreling among themselves on point of destruction of cowdung cake, when Jiledar, who after taking night meal in his house came out of the house and asked Siyaram as to why he is quarreling with ladies. This sparked off controversy and the quarrel intensified. The informant side tried to intervene in the dispute, but in the meanwhile Siyaram and his son Amar Singh possessing lathi and Rakesh possessing licensed single barrelled gun of his father arrived on the spot extending abuses and Om Prakash exhorted that the quarrel has been going on for the last one year; at this, Siyaram caused lathi blow to Jiledar and Amar caused lathi blow to Raghuvir and Rakesh, with intention to kill, fired on Jiledar, which fire hit him on his chest due to which he died on the spot. The incident was witnessed by the informant, his brother Raghuvir and the two relatives of the informant Shobharan Singh and Ram Kishan and it was alleged that the incident was also witnessed by a number of villagers. In the ending part of the written report time of the incident was stated to be 9.30 P.M. and this report was lodged at Police station Jahanganj at 00.15 hours (12.15 A.M.) on 16.03.1991 at case crime no.48 of 1991, under Sections 302, 323, 504 IPC.
26. In the background of aforesaid particular facts and circumstances the testimony of the two witnesses of fact Jagdish Singh P.W.1 and Raghuvir Singh P.W.2 will be evaluated by us vis-a-vis testimony of other witnesses. It is noteworthy that Raghuvir Singh P.W.2 claims himself to be an injured witness, therefore, his testimony is of greater relevance than that of any other witness.
27. However, we will cumulatively weigh and evaluate weight of testimony of both the witnesses of fact, in order to assess merit of the case and particularly the factum of incident in question. Informant Jagdish Singh is the informant. He has testified in his examination-in-chief that co-accused Siyaram is his uncle. Ram Sakhi is daughter of Siyaram. She was carrying bad reputation and she is lady of easy virtue. She had previously eloped with one Balbir Lodhi of the village. Later on her marriage was arranged with one Ram Ratan of another village. Looking to the bad reputation and loose character of Ram Sakhi the informant asked Siyaram not to make visit to the house of inlaws of her daughter and also asked him not to take back Ram Sakhi to the village.
28. Further testified that some dispute/altercation was going on between the wife of Jiledar (deceased) and the wife of accused Siyaram concerning destruction of cowdung cake on 15.03.1991 at about 09.30 P.M. and abuses were being exchanged, in the meanwhile, his brother Jiledar came out of his house after taking his meal and asked Siyaram, who was present over there as to why he is quarreling with the ladies, whereupon, the accused persons Siyaram and Amar Singh possessing lathi and accused Rakesh possessing licensed single barrelled gun of his father along with empty handed Om Prakash arrived on the spot. Om Prakash exhorted that the dispute has been nagging for the last one year and said "Maar do saalo ko" (Beat them). An electric bulb was illuminated on the spot. Accused Siyaram gave ''lathi'' blow to Jiledar and Accused Amar Singh gave ''lathi'' blow to Raghuvir and accused Rakesh fired with the licensed gun on Jiledar with intention to kill him, which shot hit him on his chest. He (Jiledar) fell down and died. The incident was witnessed, apart from this witness, by informant''s brother Raghuvir, Ram Kishan and Shobharan Singh and a number of village women. His testimony further reflects that the report was written by this witness at his house, which has been proved by him as Exhibit Ka1. The report was given at the police station Jahanganj around 12.15 in the night (A.M.) and inquiry was made from him by daroga ji in the police station. This witness has been cross-examined strenuously by the defence, wherein nothing adverse of any sort has emerged, which may affect credibility of this witness or which may create any doubt on the version of the incident and the manner and the style of the incident. We will evaluate wholesome testimony on point of occurrence after we take into account testimony of injured witness Raghuvir Singh, as testified by him. Factual narration of the incident has been made by Raghuvir Singh P.W.2 on the same line, as has been narrated by Jagdish Singh P.W.1, with slight variation that the timing of the incident has been stated to be around 8 to 8.15 P.M. on 15.03.1991 by this witness (P.W.2). But in the examination-in-chief itself Raghuvir Singh P.W.2 has testified that the deceased came out of his house around 9.30 P.M. and rest of the description of the incident virtually tallies and matches with the description of the incident given by Jagdish Singh P.W.1. Various questions have been asked by the defence with both the witnesses in their cross-examination, wherein also no shadow of doubt emerges from it.
29. While we scrutinize the wholesome testimony of both the aforesaid witnesses of fact particularly emerging from their cross-examination, we come across certain factual aspects of the case, which need be discussed by us at this stage. Before we take on to the factual aspect of the incident itself, it would be relevant to take note of fact that certain suggestions have been made by the defence about the motivating factors for falsely implicating the accused in the incident. One of such suggestions pertains to fact that some dispute was going on with accused Siyaram for breaking open some door one year before and accused Siyaram and his sons had forced closure of the room. On point of enmity with Balbir Lodhi, it has emerged that the magnitude of abhorrence was felt only to the extent that Balbir Lodhi had enticed away/eloped with the daughter of Siyaram and some altercation had taken place in that connection between the witnesses and Balbir Lodhi. One of such suggestions pertains to fact that the deceased was killed some where else in the pitch darkness of night around the midnight and the dead body had been brought at the door after the murder and the name of the accused has been dragged only on account of enmity. In this case, it is admitted position that accused Siyaram is relative of the informant and the informant side and the accused side are related to each other. The motivating cause for false implication loses its gravity for falsely implicating the accused while sparing the real culprit. There is no specific allegation regarding enmity on account of obtaining or grabbing property of any accused by the informant side. There is no specific challenge to fact that the daughter (Ram Sakhi) of accused Siyaramhad not eloped away with Balbir Lodhi. Further, it has not been denied that Ram Sakhi was never wedded to Ram Ratan of another village after the incidence of elopement had taken place. The suggestions so made as the causes behind the occurrence can be said to be working as the motivating force for causing the occurrence.
30. In so far as the investigative aspect of this case is concerned, we come across testimony of Sita Ram Dwivedi P.W.5 the Investigating officer, who took over the investigation soon after the lodging of the FIR on 16.03.1991 has stated to have proceeded to the spot after recording statement of the informant and the concerned Constable, who entered relevant entry in the FIR and the Check FIR and the inquest was held from 7.00 A.M. to 10.00 A.M. on 16.03.1991 in the presence and supervision of the Investigating officer. Inquest report is Exhibit Ka4. Merely because the inquest was held in the morning of 16.03.1991 will not itself be a reason sufficient to doubt lodging of the FIR at 00.15 hours on 16.03.1991 at police station Jahanganj. It has also emerged in the testimony of the witnesses of fact and the Investigating officer that there was illuminated light of electric bulb on the spot though, electric bulb was not seized by the Investigating officer, but that by itself would not render the testimony on point of source of light doubtful. Because the Investigating officer has categorically testified to the ambit that he had already seen the illuminated bulb, but he did not mention as to whose bulb was it and he did not check the electricity connections in the area because he found lights in various houses of the locality. Therefore, he did not think it proper to make such effort. The Investigating officer has also denied suggestion that there was no electricity bulb lit on the spot. This specific testimony emerges on page no.43 of the paper book in the cross-examination of the Investigating officer. We also come across fact that the Investigating officer also collected simple and blood stained clayroll from the spot and prepared memo of the same Exhibit Ka 10 and made site plan Exhibit Ka9 at the instance of the informant and the prosecution witnesses, wherein each necessary detail pertaining to the incident has been described, which fixes certainty of the place of occurrence. If each and every particular detail has not been included in the site plan then the Investigating officer owes an explanation for the same but that aspect would not throw away case of the prosecution.
31. It emerges from the testimony of the prosecution witnesses of fact that the dead body of Jiledar was removed from the spot where Jiledar had fallen after receiving gunshot injury and was brought at the door of the informant. It has also emerged in the testimony that after sustaining gunshot injury, the injured walked few steps 1012 and then fell down. Contention has been raised on behalf of the appellants that testimony of Dr. V.K. Bhatiya P.W.4 in his cross-examination reflects that after sustaining firearm injury (referred in the postmortem report as antemortem injury no. III), possibility of deceased walking away to some extent would be reduced because his heart was lacerated. We may take note of the firearm wound, as noted by the doctor at the time of autopsy, which refers the injury in the shape of firearm wound of entry 3cm x .5cm x chest cavity on left infra clavicular region lacerating part surrounded by multiple pellet wound entry in area of 12cm x 11 cm measuring .5cm x .3cm to .3cm x .2cm depth skin to chest cavity deep. Margins of central wound inverted, lacerated ecchymosed. Direction front to back towards right.
32. On internal examination doctor found right parietal bone fractured, membranes, brain, left side pleura, left lung, pericardium, heart and vessels lacerated; cerebral haematoma, cavity full of blood. Large and small intestines contained pasty and faecal matter. The cause of death was due shock and haemorrhage as a result of antemortem injuries.
33. It is correct that the heart was lacerated, but we can notice that a man, who was young about 35 years of age, when sustained gunshot wound of this magnitude, would ordinarily take few steps after receiving gunshot by way of impact and force exerted on the body by the gunshot. Since Jiledar (deceased) had just come out of his house and was shot at by accused Rakesh there was possibility of his moving 1012 steps and then falling down on the ground. Therefore, opinion of the doctor based on the nature of the gunshot antemortem injury no.3 cannot be said to be conclusive in nature, but it is merely an opinion based on the nature of the injury, but that is not universal truth that a man after sustaining gunshot of such particular nature, would not move from his place and his capacity to move will be invariably crippled. Therefore, the contention raised by the appellant does not hold good.
34. The Investigating officer had already collected bloodstained clayroll from the spot, which also confirms the place of occurrence. The doctor has already suggested that the antemortem injuries could have been caused by use of lathi and gun. Use of lathi and gun as the weapons of assault have been attributed to the accused. Contention has also been raised on point that as per testimony of prosecution witnesses, the deceased Jiledar came out of his house after taking meal, but semidigested food was discovered in the postmortem examination of deceased Jiledar which shows that theory of taking meal immediately before the incident, does not conform to the postmortem examination report Ex.Ka.3, but it can be observed that there is no specific testimony on fact that the deceased was in fact eating food and he came out of the room just after taking the meal. It may be that he took meal prior to the incident but exact time of taking meal is not definite. Therefore, no definite time can be fixed as to when the deceased took the meal. It means the deceased might have taken some eatables even around 4.30 or 6.00 P.M. on the day of occurrence. There is no circumstance or factual testimony on point that the deceased took some eatables or food immediately only before the incident. That way, semidigested food will not create any doubt on the manner and style of the occurrence caused by the accused appellants.
35. In so far as the contention regarding the first information report being antetimed is concerned, it can be conveniently observed that constable Shivraj Singh P.W.6 has testified that he received written report on 16.03.1991 at 00.15 hours at police station Jahanganj which was noted down on check FIR No.12, which is Ex.Ka.14 and relevant GD entry was also made at the same time which entry is Ex.Ka.15 and special report regarding the FIR was sent by constable Ram Govind in the morning at 6.05 A.M. on 16.03.1991, therefore, it cannot be said that the FIR is antetimed.
36. One particular aspect of this case pertains to injury caused to Raghuvir Singh P.W.2. It is true that Raghuvir Singh was medically examined on 16.03.1991 at 2.15 P.M. by Dr. S.C. Tiwari at District Hospital, Fatehgarh, wherein, on examination, magnitude of injury was noted to the ambit:
Lacerated wound 4cm x 0.5cm x muscle deep on left side of skull 5cm above the left eyebrow. Clotted present.
37. In the opinion of the doctor, the injury was simple and caused by hard and blunt object. Duration was stated to be about � day. This injury report is Exhibit Ka-2.
38. On point of late medical examination of Raghuvir Singh (P.W.2), it has emerged in the testimony of constable Shivraj Singh P.W.6 that the doctor was not residing in the Government Hospital, therefore, the hospital was closed at 6.00 P.M. and presence of doctor at the hospital in the morning was not availed. But this delayed medical examination of Raghuvir Singh by itself would not render his presence on the spot doubtful. If the police personnel involved in the investigation were negligent of their duty in ensuring timely medical examination of Raghuvir Singh then it would fall within category latches committed during course of investigation. Moreover, testimony of Raghuvir Singh P.W.2 on the point of sustaining lathi blow has been established beyond doubt that it was caused by accused Amar Singh. The Investigating officer had also testified on particular fact that he came to know on the spot about fact that wives of the informant and the deceased had taken away dead body of the deceased from place ''F'' to place ''G''. Smt. Urmila Devi is the wife of informant and Smt. Dhan Devi is the wife of deceased Jiledar. Merely because no bloodstained marks were found on their clothes would not ipsofacto affect credibility of version of witnesses of fact that the dead body was removed from the place where the deceased fell down after covering certain distance after he sustained gunshot injury. The manner and style of the occurrence as described in the first information report stands corroborated and established by the testimony of the prosecution witnesses of fact qua circumstances of the case. Thus, the prosecution has been able to prove the incident against the accused.
39. In so far as point of existence of sharing of common intention of all accused in furtherance of the offence is concerned, we discover on careful evaluation of testimony and the facts and attendant circumstances that the style and the manner of causing assault, when tallied with facts of this case throws sufficient light on the specific intent of each accused and shows that intent of each accused was different from the other and it cannot be coloured as sharing of common intention by all the accused. It is obvious that the scene of occurrence was charged with the altercation that took place between the wife of Siyaram and the wife of Jiledar (deceased). When the male persons of both the sides intervened in the altercation, this aggravated the degree of altercation and each accused acted with his own capacity as per his reactionary instinct. There was no conjoint attempt on the part of the accused persons to cause death of Jiledar. Therefore, sharing of common intention in furtherance of the offence by all the accused to cause death of Jiledar is not discernible. It is obvious that as soon as Jiledar asked Siyaram as to why he is quarreling with the ladies or why he is indulging in fight with ladies, it flared up the dispute on the spot and each one of the accused reacted in his own way according to his intent and capacity. It has been testified that Siyaram and Amar Singh caused lathi blow, whereas Rakesh fired on Jiledar, which fire hit Jiledar on his chest. Jiledar after receiving injury walked upto 1012 steps and then fell down and died.
40. On point of motive, it can be observed that the motive suggested for commission of the offence is quite relevant for proving existing animosity between the two sides on account of various reasons and particularly on ground that the daughter of Siyaram had previously eloped away with Balbir Lodhi of the same village and her marriage had been arranged with some other person by the informant side for restoring honour and reputation of the entire family and certain directions were given by the informant side to Siyaram asking him not to make any visit to the house of inlaws of his daughter nor allow his daughter to come over to the village. This particular aspect was resented by the accused side, which was the motivating force working as grudge for the accused side. That way, we can safely base our finding that the nature of assault which was caused by Amar Singh and another coaccused by their lathi was never intended to be fatal in itself but was confined to causing hurt to Jiledar and Raghuvir Singh.
41. On the wholesome reading of the testimony on record and the circumstances of this case, it cannot be considered to be a case where the offence has been committed by all the accused persons in furtherance of common intention of all so as to make each one of them vicariously responsible for the act and offence of another person. Here, in this particular case, premeditation and prior meeting of mind to cause death of Jiledar is altogether missing. Fact established by evidence shows that the offence was committed in the heat of passion when male people of both the sides intervened in the quarrel which resulted into the incident of assault being caused to the informant side. Therefore, it can be safely concluded that the incident of assault being caused on the victims was sudden outcome of provocation emanating from the quarrel of two ladies.
42. When viewed from that angle, we are of the view that it would not be proper to bring case of accused Rakesh within purview of Section 302 IPC, instead his case would fall squarely under Section 304 Part I IPC. We may consider the particular aspect of assault being caused by Rakesh on Jiledar (deceased) by gun on point of intention and knowledge to cause death of Jiledar. The nature and magnitude of the gunshot injury shows that it was caused on the chest of the deceased, which lacerated heart and other internal limbs of the deceased. This particular aspect of injury by itself is indicative and suggestive of fact that the accused had intent to cause such assault as may ordinarily result in death of Jiledar.
43. Here, existing intent on the part of the accused cannot be ruled out while scrutinizing the gunshot antemortem injury found on the body of the deceased. Therefore, case of both the accused appellants falls in different sections of Indian Penal Code. At the cost of repetition we can observe that the case of accusedappellant Rakesh falls under Part I of Section 304 IPC instead of Section 302 IPC and that of accusedappellant Amar Singh falls under Section 323 IPC. Accordingly, conviction recorded against accused Rakesh under Section 323/34 IPC by imputing sharing of common intention becomes erroneous and he is acquitted of charge under Section 323/34 IPC.
44. In so far as role of Amar Singh is concerned, it can be visualised that Amar Singh caused lathi blow on Raghuvir Singh. Medical examination of Raghuvir Singh is Ex.Ka.2. The nature and magnitude of the injury was found to be simple in nature, therefore, the case of Amar Singh will, in no case, travel beyond Section 323 IPC and to impute knowledge or intention of causing death of Jiledar on Amar Singh would under circumstances be unjust and unfair, therefore, conviction recorded against accused Amar Singh under Section 302/34 IPC becomes erroneous and Amar Singh is acquitted of charge under Section 302/34 Indian Penal Code.
45. At this juncture, we can observe that certain contradictions of trivial nature have emerged in the testimony of both the witnesses of fact on point of occurrence but that contradictions are not material and do not hit to the core of the incident. Moreover, it can be observed that pictorial description of an incident cannot be expected of witnesses when their number is more than one.
46. Normally some variation in the description of incident is bound to occur, but the guiding parameter works on the anvil of nature of contradiction. If the nature of the contradiction is found to be material, then the contradiction hits at the root of the case and renders testimony doubtful. If the contradictions are of trivial nature and they do not hit at the core of the incident, then the same will be discarded and would not affect credibility of prosecution witnesses of fact. In this case, the contradictions are of trivial nature and they do not hit at the core of the incident.
47. The trial court while appraising facts and evaluating evidence on record erroneously failed to come out with correct appreciation on merit and erroneously imputed prevalence of common intention among all the accused persons and thus, erred in convicting them under Section 302/34 IPC interalia under other Sections of Indian Penal Code. Consequently, finding of conviction under Section 323/34 IPC against accused Rakesh being redundant was erroneous for aforesaid reasons. Rakesh cannot be held vicariously liable for lathi blow caused by the other two co-accused.
48. In so far as point of passing just and proper sentence against the accused is concerned, we may observe that case of Rakesh squarely falls under Part I of Section 304 IPC. Mandate contained under aforesaid Part I of Section 304 IPC prescribes punishment for the offence in two different categories. The earlier part of the Section prescribes punishment to the ambit of imprisonment for life and the subsequent part prescribes punishment in form of imprisonment of either description for a term which may extend upto 10 years and also with fine.
49. In this way, looking to the enormity of the offence and the genesis of the occurrence and attendant circumstances of the case, we find it appropriate and just to award sentence of 10 years'' RI coupled with fine Rs.5,000/against accused appellant Rakesh and in case of default, the accusedappellant would have to suffer additional imprisonment for six months under Section 304 Part I IPC.
50. Conviction and sentence of the accused Rakesh stands modified accordingly. The conviction and sentence awarded to appellant Amar Singh under Section 323 IPC by the trial court is affirmed by us.
51. The conviction and sentence recorded by the trial court against both the aforesaid accused (Rakesh and Amar Singh) in Sessions Trial No.5 of 1992 (State v. Siya Ram and others), arising out of case crime no.48 of 1991, under Sections 302/34 IPC, 323, 323/34 IPC, Police Station Jahanganj, District Farrukhabad is modified to the extent indicated herein above. Consequently, both the appeals (CRIMINAL APPEAL No. 1444 of 1994 and CRIMINAL APPEAL No. 1445 of 1994) are allowed partly in aforesaid terms.
52. In this case, the accused-appellants are on bail and they have suffered imprisonment for little period both during course of the trial and during the pendency of these appeals and the entire sentences pronounced by us, as herein above, have not been suffered as yet, since the appellants had been admitted to bail by the Appellate Court. Personal bonds and bail bonds of the accusedappellants are cancelled. They be taken into custody forthwith to serve out the remaining part of their respective sentences.
53. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.
