S.S. Kulshrestha, J.@mdashThese both the appeals arise out of the judgment and order dated 30.3.1982 passed by the Addl. Sessions Judge, Mainpuri in ST. No. 71/81, whereby convicting accused appellant Smt. Saroopa Devi for the offences under Sections 302/149, 147, 307/149 IPC and sentencing her to undergo life imprisonment under Sections 302/149 IPC, four years rigorous imprisonment under Sections 307/149 IPC and one year''s imprisonment u/s 147 IPC and also separately convicting accused appellants Rajveer, Ramveer and Premveer for the offences u/s 148, 302/149, 307/149 IPC and sentencing each of them for life imprisonment under Sections 302/149 IPC, seven years rigorous imprisonment under Sections 307/149.
2. It is said that the trial court has not properly appreciated the evidence and materials on record. Merely on conjuncture and surmises the guilt of the accused appellants has been established. Independent witnesses were not examined by the prosecution though their presence is also ascertainable from the evidence on record. The injured witness namely Shishupal Singh (PW-5) had not given the account of the entire incident. His statement remained confined to his sustaining of the injuries. His testimony would not render any support to the prosecution version with regard to the homicidal deaths of his brother Balbir Singh and his wife Smt. Ganga Devi. The testimonies of the child witnesses are also said to be not trustworthy and their presence at the time of the incident is also not believable. The statements of both the prosecution witnesses namely PW-1 Km. Asha Devi and PW-2 Km. Kusma Devi are inconsistent with regard to the place from where they had witnessed the incident. Further the recovery of the weapon after about one month would not render any assistance to the prosecution when the possibility of the country made pistol passing on in different hands cannot be ruled out. So is also the position of the empty cartridges which were sent for the report from the ballistic expert after a considerable delay. Moreover the witnesses of the recovery have also not been examined by the prosecution and so such recovery of the weapons used in the crime would itself becomes doubtful.
3. These appeals are resisted by the learned Counsel appearing on behalf of the State. It was contended by him that there was strong motive for the accused to have, eliminated the deceased and the injured for all times to come as they were not keeping harmonious relation. There is evidence of the injured witness namely Shishupal Singh (PW-5) which is corroborated by the medical evidence. Such testimony of the injured witness sufficiently proves the guilt of the accused appellants. The other witnesses namely PW-1 Km. Asha Devi and PW-2 Km. Kusma Devi were the natural witnesses. The incident had taken place in the evening hours and their presence cannot be ruled out. They have also given the clear account of the incident. The minor discrepancies which are natural to occur would not deter the prosecution case.
4. The accused appellants took various defense. Some of them stated that they have falsely been implicated due to enmity and the deceased Balbir Singh had bad antecedents as was involved in several cases. He could be killed because of his criminal activities and the accused appellants have falsely been roped into this case. So far as the instant case is concerned, three witnesses on fact were examined by the prosecution. Out of them PW-5 Shishupal Singh is the injured witness, PW-1 Km. Asha Devi is the daughter of deceased Balbir Singh and Smt. Ganga Devi and PW-2 Km. Kusma Devi is the daughter of the injured PW-5 Shishupal Singh. They both were residing in the same accommodation. The trial court has found that the evidence of the prosecution witnesses, one of them is the injured witness, is worthy of credence and can be relied upon for convicting the appellants. The medical evidence on record was also found by him to have corroborated the case of the prosecution. The grotesque details of various aspects of the prosecution case are to be found in the judgment of the trial court and even, therefore, not necessary for us to dwell or dilate on the comprehensive facts of the case and the circumstances which led to the conviction of the appellant by the Sessions Judge. In order to appreciate the judgment of the trial court, it may be necessary to give a bare and concise summary of the circumstance under which occurrence had taken place. The incident is said to have taken place on 21.10.1980 at about 3.00 p.m. and its report was lodged at case crime No. 108 under Sections 302/307/394 IPC at P.S. Alaau, District Mainpuri at the same day at 4.30 p.m. when the police station was at a distance 8 km from Village Manchana where the incident had taken place. This report was submitted by Km. Asha Devi (PW-1), the daughter of the deceased Balbir Singh. It was reported by her that few days before, some altercation had taken place on the cutting of a Neem Tree between her father and accused appellants. Rajveer and Ors. were claiming their shares also in that tree. It was on 21.10.1980 at about 3.00 p.m. her uncle Shishupal Singh (PW-5) made exit for market on cycle from house and simultaneously her father proceeded to fields. In the meantime her grandmother Smt. Saroopa Devi (accused) exhorted and asked her sons Rajveer, Ramveer and Premveer (accused appellants) that this is the opportune time for eliminating them so as to end the dispute for all times to come. By that time Rajveer was armed with single barrel gun and other accused Ramveer and Premveer were armed with country made pistol. They opened fire with their respective weapons inflicting injuries to Shishupal Singh (PW-5) and her father Balbir Singh. The injured ran towards Galli (lane) for their protection but they were chased. However, Shishupal Singh (PW-5) managed escape from that place after sustaining injuries but her father Balbir Singh was apprehended in front the house of Ram Ratan. Further fire shots were made and he died at the spot. After hearing such fire shots her mother Smt. Ganga Devi reached at the place of occurrence. She too was shot dead by the accused appellants in front of the shop of Bhola Nath. The incident is said to have been witnessed by Km. Kusma Devi, Km. Sunita, Satyawati, Smt. Bittan Devi and many other villagers.
5. 5. Investigation of this case was entrusted to Mahipal Singh Sisodia, S.I.(PW-7), who after the registration of the case recorded the statements of Km. Asha Devi and Km. Kusma Devi at the police station on that very day and thereafter proceeded to the place of occurrence. He prepared the inquest report of Smt. Ganga Devi vide Exhibit Ka -7 and also prepared other documents such as photo of the dead body etc. vide Exhibits Ka-18 to Ka-11. He had also prepared the inquest report of the dead body of Balbir Singh vide Exhibit Ka-12 and had drawn other necessary documents vide Exhibits Ka-13 to Ka-16. After rapping the dead bodies of the deceased they were sent through Constable Dalbir Singh and Constable Ram Sahai for postmortem. He had also prepared the site plan vide Exhibit Ka-19 on the pointing of the witnesses. Further he had also taken the empty cartridges vide Exhibits Ka-15 and Ka-16 from the spot and its fird Exhibit Ka-20 was prepared. Further he had also taken blood stained and simple earth from the spot vide Exhibit Ka-17 and its fird was also prepared vide Exhibits Ka-17, Ka-21, Ka-22, Ka-23 and Ka 24. He further recorded the statement of the injured Shishupal Singh (PW-5) on 25.10.1980. Again on 14.11.1980 co-accused Siya Ram had handed over empty cartridges (vide Exhibits Ka-22 to Ka-25) near to Nahar Ki Kothi, which were kept in a Potli by him. Its fird Exhibit Ka-27 was also proved by the witness. Further on 7.11.1980 accused Ramveer and Premveer also handed over country made pistols which were used in the commission of crime and its fird (Exhibits Ka-31 and Ka-32) was prepared. The place from where such recovery was made its site plan vide Exhibit Ka 33 was also prepared.
6. Injuries of Shishupal Singh were examined by Dr. Surendra Singh (PW-3). He found the following injuries:
A fire arm wound of entrance round in shape 4 cm x 3.5 cm x bone deep on the Rt. Hip on upper outer quadrant. Blackening is present. Bleeding is present. Margins are lacerated & inverted. Pellet is not palpable. Cloth has burnt & torned. Scorching & tattooing around the wound is not present. Injury is kept under observation & advised X-ray.
7. Dr. S.C. Verma (PW-8) on the basis of the X-ray found injuries to have been caused by firearm (Exhibit....). Autopsy on the dead body of Balbir Singh was conducted by Dr. S.C. Golecha (PW-4) and he found the following ante-mortem injuries:
1. G.S.W. of entrance 4 cm � 2 1/2 cm � cavity deep just below right ear lobule. Margins are inverted and blackening present all around the wound. Wound is over in shape directing upwards into the brain cavity towards left side. Clotted blood present. 2 Tikli and 16 small metallic pellets recovered from brain cavity.
2. Two G.S.W. of left side of entrance 2 cm � 2 cm and 1.5 cm � 1.5 cm x cavity deep on upper part of abdomen and lower part of chest 9 cm below left nipple. Margins inverted. Wound is rounded in shape. Clothes above injuries are holed & Blood stained. No mark of blackening, scorching or tattooing present. Surrounded by multiple small fire arm wound of entrance in area of 22 cm � 13 cm measuring average size from 3 cm � 3 cm, 0.5 � 5 cm � cavity deep. Margins inverted. No mark of blackening, tattooing or scorching present. Cloth over the injury holed & blood stained.
3. G.S.W. of exit 4 cm � 2 cm over right side of abdomen just above middle of iliac crust of right hip hone. Would is oval in shape. Margin everted. Cloth over the wound is blood stained and holed. Injury No. 2 & 3 through & through directing downwards & latterly, towards right side.
4. L.W. 10 cm � 3 cm � bone deep over posterio lateral aspect of upper part of left forearm 5 cm below left elbow. Clotted blood present.
5. L.W. 3.5 cm � 2 cm � muscle deep over posterio lateral aspect of upper part of right forearm 2 cm below right elbow joint. Clotted blood present.
Further he had also done the autopsy on the dead body of Smt. Ganga Devi and noticed the following ante-mortem injuries:
1. L.W. 11 cm � 9 cm � mouth cavity deep on he lower jaw including upper part of neck & base of chin. Margins are lacerated and inverted at places. Blackening present on right side of injury. Clotted blood present. Tissue and bone cut. Upper part of injury are not distinguishable.
2. L.W. 10 cm � 5 cm � muscle deep over base of right side of neck extending in the front of neck margins are lacerated. Clotted blood present.
3. G.S.W. of entrance 2 cm � 2 cm over front lateral aspect of left upper arm 5 cm below top of shoulder. Margins inverted. Wound is rounded in shape. Blackening present around the wound.
4. G.S.W. of exit 1.5 cm � 1.5 cm over front of upper part of left upper arm 5 cm below top of shoulder. Margins are everted. Wound is rounded in shape. Wound No. 3 and 4 are through & through directing transversely and interiorly towards medial side. Clotted blood present. Clothes over the injury holed & blood stained.
5. G.S.W. of entrance 2 cm � 2.2. cm � cavity deep on lower part of left side of back 11 cm below inferior angle of left scapula and 4 cm left lateral to mid line. Wound is oval in shape. Margins are inverted. Blackening present. Clothes above the injury are blood stained & holed. Wound is directed upwards and obliquely. Clotted blood present.
L.W. 4 cm � 2.5 cm � muscle deep on dorsal surface of right palm on upper & outer part. Margins lacerated. Clotted blood present.
On the basis of the extensive investigation the charge sheet was submitted against the accused appellants and also against Siya Ram, Ram Baboo and Bhola Nath.
8. Accused appellants namely Rajveer, Ramveer, Premveer and Smt. Saroopa Devi faced trial for the offences under Sections 302/307/394 and 120B IPC and they were also convicted for those offences. However, co-accused Siya Ram faced trial for the offences under Sections 147, 302, 307/149 IPC and Ram Baboo who faced the trial u/s 120B IPC were acquitted by the trial court giving the benefit of doubt to them.
9. The learned Counsel for the accused appellants contended that the prosecution must discharge its burden to establish the complicity of the accused beyond reasonable doubt. In this regard it may be mentioned that the prosecution examined eyewitnesses namely Km. Asha Devi (PW-1), Km. Kusma Devi (PW-2), Shishupal Singh (PW-5) and other formal witnesses. PW-1 Km. Asha Devi, the daughter of the deceased Balbir Singh made it clear that her grandfather Sri Hukum Singh had two wives. From his first wife Balbir Singh (deceased), Shishupal Singh (injured) and Beerbal were born and from the wedlock of his second wife Smt. Saroopa Devi, accused appellants Rajveer, Ramveer and Premveer were born. It was also clarified by her that co-accused Siya Ram, Ram Baboo and Bhola Nath are the party men of the accused appellants. She further stated that about two days back from the date of the incident, some Maar-Peet had taken place on the issue of cutting of Neem Treee. That was said to be the motive of this incident. This Maar-Peet, which had taken place about two days back, had also been referred in the written report (Exhibit Ka-1) lodged at the police station and also in the statement of PW-2 Kusum Devi, who had also stated that some scuffle had taken place on the cutting of the Neem Tree. The testimonies of these witnesses have not been assailed by way of preferring cross examination. There appears to be dispute and differences between the sons of first and second wives of Hukum Singh on account of non-division of the holdings amongst them. It was also clarified by PW-5 Shishupal Singh that the partition of the holdings was objected by his stepmother Smt. Saroopa Devi. This would also show that the parties were in inimical terms and the accused had sufficient motive to commit the crime. However, it may be mentioned at this stage that the motive is not always capable of precise proof and if proved may only lend additional support to strengthen the possibility of the commission of the offence by the person accused. Identical view was also expressed by the Apex Court in the case of
10. PW-1 Km. Asha Devi further stated that at about 3.00 p.m. when her father and uncle were leaving to Bazar and to the fields, respectively, her grandmother Smt. Saroopa Devi called her sons to eliminate the deceased to finish the dispute for all times to come. Rajveer, Ramveer and Premveer shot fire from their respective weapons. In that incident her uncle sustained firearm injuries and made an attempt to run away to south for his escape. Her father ran towards west in the lane but he was overpowered by the accused appellants in front of the house of Ram Ratan and he was shot dead by the accused appellants. It was also stated by the witness that after killing her father when the accused were running to the north they saw her mother coming from that place. She was also shot dead by them. She has also stated about the presence of the other witnesses. By making lengthy cross-examination nothing could be elucidated by the defence from the statement of this witness to show that she is tutored witness and could not see the incident. Prosecution further examined PW-2 Km. Kusma Devi. She also reiterated the FIR version and gave the total account of the incident. Her testimony also remained consistent to what had been mentioned in the written report. The testimonies of these witnesses have been challenged on the point that when the entire family of the deceased and the injured Shisupal Singh (PW-5) were to be eliminated, there could be no reason for the accused to have left these witnesses. Suffice it to mention that both these witness were lucky enough to escape any injury, she could not be disbelieved for that purpose. In fact it was extremely uncharitable, and unkind illogical and indecorous that they were not injured and their testimonies cannot be rejected. It is manifest that in such a gruesome occurrence when PW-1 Km. Asha Devi and PW-1 Km Kusma Devi saw their own relatives being killed, one after another, they would naturally make every disparate attempt to protect themselves and that is why they were hiding their presence. However, PW-1 Km. Asha Devi in her statement stated that when she was being assaulted by one of the accused Premveer, the other co-accused Siya Ram and Ram Baboo told that she should be left so as to weep for the deceased. Under such circumstances the non-sustaining of the injuries by these witnesses would not be the ground to reject their testimonies.
11. The testimony of PW-1 Km. Asha Devi has also been challenged on the ground that her statement is not in sequence with the FIR version. There is no description in the written report with regard to the accused chasing her father craving mercy from Siya Ram for his safety but was told that he deserves death. The absence of such details in the written report would hardly affect to the prosecution case. It is not necessary that an elaborated account of everything that had happened should have been given by the complainant while writing the report. It is nether customary nor necessary to bring every minute details in the FIR. PW-1 Km Asha Devi herself was extremely perturbed because of killing of her parents. It is in that state of mental agony if other details are not there in the written report, would not render the prosecution case to be unbelievable. Reliance may also be placed in the case of
12. It has further been argued by the learned Counsel for the accused appellants that PW-1 Km. Asha Devi and PW-2 Km. Kusma Devi are the cropped up witnesses who have not witnessed the natural occurrence and merely because the deceased had no good relations with the accused they have falsely been roped into this case. As has been mentioned above, the witnesses have given the detailed account of the incident. There presence at the house is also not doubtful. Having heard the fire shots they had witnessed the incident by hiding their presence. Minor discrepancies in between the statements of these witnesses with regard to the place from where they had witnessed the incident would not be of any significance. Such minor discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. There is no such material discrepancies in the statements of these witnesses. Their testimonies cannot be discarded on this count. Reliance may be placed in the cases of (i) Krishan Mochi and Ors. v. State of Bihar AIR2002 SCW 1909, (II) Sucha Singh v. State of Punjab AIR 2003 SCW 3984, (iii) Zahira H. Shekh v. State of Gujarat AIR 2004SCW 2325 , (iv)
13. It has next been contended by the learned Counsel for the accused appellants that the independent witnesses were not examined by the prosecution when number of villagers had seen this incident. Evidence of these witnesses cannot be discarded merely on the ground that they are closely related to deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution so that neither the guilty is escaped nor the innocent is wrongly convicted. If on such careful scrutiny of the evidence they were found to be reliable and probable, their testimonies can therefore be relied upon.
14. The prosecution had further examined PW-6 Kunwar Pal Singh who had registered the FIR at the police station and Ram Sahai (PW-9) who had taken the dead bodies for postmortem. Prosecution had also examined R.A. Pandey, Balletic Expert (PW-10) and other witnesses Bhoori Singh (PW-11) and Prem Singh (PW-12) in whose custody the recovered arms and cartridges remained at the relevant time. The testimonies of these witnesses also find corroboration from the medical report and also from the statement of the investigating officer who had drawn the site plan at the place of occurrence.
18. PW-5 Shishupal Singh, who is the injured witnesses gave the account of the incident. He sustained firearm injuries. That is also supported by the medical evidence. The presence of the injured witness at the place of the occurrence cannot be disputed as was also held in the case of
16. We do not find any justified and justifiable reason to interfere with the finding of the guilt recorded by the trial court. In view of the aforesaid discussion both the appeals are devoid of merits. The Judgment and order of the trial court are affirmed. In the result both the appeals are dismissed. Accused appellants are directed to surrender before the C.J.M. within 15 days, failing which the coercive measures shall be taken against them by the C.J.M. They be sent to jail for serving out the sentence.
