M.C. Jain, J.@mdashEleven persons namely, (1) Mangali, (2) Chhotey Lal, (3) Jag Mohan, (4) Darshan, (5) Matadeen, (6) Rajuwa, (7) Ram Asrey, (8) Ram Autar, (9) Jageshwar, (10) Raja Ram and (11) Ram Khelawan were tried before the II Ird Additional Sessions Judge, Fatehpur in Sessions Trial No. 392 of 1980 which was decided on 23.1.1981. All of them have been convicted and sentenced to life imprisonment u/s 302 read with Section 149, I.P.C. Appellants Ram Khelawan, Matadeen and Darshan have further been convicted u/s 148, I.P.C. and each sentenced to 1-1/2 years'' rigorous imprisonment. The remaining Appellants have been convicted u/s 147, I.P.C. and sentenced to one year''s rigorous imprisonment. The first five Appellants have preferred Criminal Appeal No. 249 of 1981 and rest have come up in Criminal Appeal No. 250 of 1981. It is in this way that the two appeals are conjoined together.
2. Broad spectrum of the prosecution case may be set forth for appreciation of subsequent discussion. It was a double murder of Raghuraj and his sister Smt. Maiki. The incident had occurred at about 6 p.m. on 26.5.1980 in village Shiv Bux Ka Purva, P. S. Malwa, District Fatehpur, the distance of which from the place of occurrence was about 5 miles. The F.I.R. was lodged the same day at 9.30 p.m. by Shanti Devi P.W. 2 wife of the deceased Raghuraj. All the Appellants were named therein as the culprits of this crime. The Appellants belong to one family. Chhotey Lal, Rajuwa and Ram Khelawan are the sons of Mangali. Kaluwa was the uncle of Mangali. The Appellants Jag Mohan, Darshan and Raja Ram are the sons of Kaluwa. Kaluwa had a son Maiku and the Appellants Matadeen, Ram Asrey, Ram Autar and Jageshwar are the sons of Maiku. Raghuraj deceased also belonged to the same family and his house was also adjacent to the house of the Appellants.
3. Mangali, Jag Mohan, Darshan, Rajuwa and Raja Ram died during pendency of the appeal. The appeal in respect of them, therefore, abated as per the order dated 17.12.2002. We are, therefore, presently concerned only with the remaining six Appellants.
4. On the fateful day, Shanti Devi P.W. 2 along with deceased Smt. Maiki and another sister of her husband Smt. Ramkali were sitting outside the house of Raghuraj. Raghuraj had a tubewell at short distance from his house. Raghuraj was going to his tubewell. He had hardly reached near the field of Lalla Singh when the accused Appellants suddenly emerged from behind the trees. Three of them, namely, Darshan, Matadeen and Ram Khelawan were armed with axes and rest had lathis. The accused Mangali exhorted others to kill Raghuraj as the dacoity at his house had taken place with his connivance (Raghuraj). In response to this exhortation, the Appellants assaulted Raghuraj who shouted for help. Smt. Maiki (sister of deceased Raghuraj), his own wife Smt. Shanti Devi P.W. 2. Smt. Ram Kali P.W. 5, Kunji alias Kunj Behari P.W. 1 Mahadeo P.W. 3 and a few others rushed to the place of occurrence to resist the attempts of the accused persons and to rescue Raghuraj from their clutches. Smt. Maiki was the first to rush to the scene of occurrence, but she was also assaulted by them and she met her end at their hands at the place of occurrence itself. Others could not muster up courage to advance further. Raghuraj and Smt. Maiki dropped dead as a result of repeated assaults given to them by the accused Appellants, who, after perpetrating this crime, escaped towards the village. Then Smt. Shanti Devi and others were drawn nearer the victims only to find them dead. They had bled profusely. The news of the double murder spread like wild fire in and around the village and quite a large number of persons assembled including the scribe of the F.I.R.-Brij Bhushan Singh P.W. 9 who was a resident of the adjoining village Mohan Khera. Smt. Shanti Devi P.W. 2 stuck with grief and terror, remained dumb founded for about a little over half an hour. When the initial wave of horror had passed off, she narrated the incident to Brij Bhushan Singh P.W. 9 who scribed the F.I.R. on her dictation. She took it to the police station accompanied by her father-in-law Tulsi. A case was registered and investigation followed at the hands of S.I. Shamim Ahmad Naqvi P.W. 7.
5. The post-mortem over the dead body of the deceased Raghuraj was conducted by Dr. Shitla Prasad Pandey P.W. 8 at 4 p.m. and of Smt. Maiki at 5.30 p.m. on 27.5.1980. The following ante-mortem injures were found on dead body of Raghuraj:
(1) Incised wound 3" - 1" - bone deep on left temporal region extending from lateral canthus of left eye to left ear upper part anteriorly. Temporal bone fractured. Direction was transverse.
(2) Incised wound 2" - 1/2" - bone deep 1/2" below injury No. 1. Maxilla bone left side was fractured. Direction transverse.
(3) Incised wound 3" - 1" - boned deep 1/2" below injury No. 2. Mandible left side was fractured. Direction transverse.
(4) Incised wound 3" - 1" - bone deep 1/2" below and lateral to injury No. 3. Mandible left side fractured. Direction transverse.
(5) Incised wound 1" - 1/2" - bone deep over chin on right side. Right mandible frac-tured. Direction transverse.
(6) Incised wound 3" - 1/2" - muscle deep just below chin. Direction transverse.
(7) Incised wound 2" - 1/2" - trachea deep on front of neck at level of thyroid cartilage. Larynx cut, Trachea cut. Direction transverse.
(8) Incised wound 5" - 1" - vertebrae deep just below injury No. 7. Direction transverse. Trachea, oeso-phagus, blood vessels and interior part of 3rd cervical vertebrae and spinal cord cut.
(9) Incised wound 1" - 1/2" - muscle deep over the back of neck and its root.
(10) Lacerated wound 2" - 1/2" - muscle deep on back of head left side 2" above and left to occipital.
(11) Incised wound 2" - 1/2" - muscle deep on outer aspect of lower part of left buttock.
(12) Incised wound 2" - 1/2" - muscle deep on back of right leg 4" above knee joint. Direction transverse.
(13) Incised wound 2" - 1" - bone deep on front of left thigh 3" above knee. Direction transverse and left femur bone fractured.
He was aged about 35 years and about one day had passed since he died. The cause of death was shock and haemorrhage resulting from ante-mortem injuries sustained by him. The injuries received by Raghuraj deceased were sufficient in ordinary course of nature to cause his death. He could have died on 26.5.1980 at about 6.30 p.m.
6. Smt. Maiki was aged about 40 years and about one day had passed since she died. The following ante-mortem injuries were found on her person:
(1) Incised wound 3" - 1" - bone deep on lower part of forehead left side. Direction from below upward (Frontal bone fractured).
(2) Lacerated wound 2" - 1/2" - scalp deep on top of skull 6" above the root of the nose.
(3) Incised wound 2" - 1/2" - scalp deep on left side head 2" above left ear.
(4) Incised wound 1" - 1/2" cutting pinna of left ear from above downward.
(5) Incised wound 1" - 1/2" - bone deep over angle of mandible left side (Mandible bone fractured). Direction transverse.
(6) Incised wound 3" - 1/2" - muscle deep right side neck 1" below right ear. Direction transverse.
(7) Incised wound 2" - 1/2" - 2nd cervical vertebrae deep front of neck just above thyroid cartilage. Direction transverse.
(8) Incised wound 3" - 1" - 3rd cervical vertebrae deep 1/2" below injury No. 7, Direction transverse. Larynx trachea, blood vessel, oesophagus and muscles all are cut upto anterior part of cervical vertebrae.
(9) Lacerated wound 1" - 1/2" - muscle deep on right side chin.
(10) Contusion 3" - 1" on front of left shoulder.
(11) Contusion 18" - 1-1/2" over front of chest and abdomen on left side. Direction from below upward.
(12) Contusion 2" - 1/2" on back of left forearm 2" above wrist with fracture of radius and ulna present.
(13) Abrasion 2" - 1" on back of left elbow.
(14) Abrasion 1" - 1/2" at lower part of right knee.
She too could have died on 26.5.1980 at about 6.30 p.m. The cause of death was shock and haemorrhage resulting from ante-mortem injuries.
7. The accused Appellants pleaded not guilty.
8. Accused Mangali also stated u/s 313, Cr. P.C. that both Raghuraj and Maiki were dacoits and they entertained animosity against him as he did not help them. He also stated that they had been killed by dacoits on account of differences over distribution of booty.
9. The prosecution in all examined nine witnesses. Out of them Smt. Shanti Devi P.W. 2 (wife of the deceased Raghuraj) and Ram Kali P.W. 5 supported the prosecution case as eye-witnesses. The other two eye-witnesses Kunj Behari P.W. 1 and Mahadeo P.W. 3 did not support the prosecution as against the Appellants as the culprits of this crime, though both of them admitted to have seen the dead bodies of the two deceased near the field of Lalla Singh on the fateful day after occurrence had taken place. They were declared hostile by the prosecution. The remaining evidence consisted of the Doctor and regarding investigation of the case.
10. We have heard Sri I. M. Khan, learned Counsel for the Appellants in both the appeals and learned A.G.A. from the side of State in opposition thereof.
11. It has first been argued by learned Counsel for the Appellants that the motive assigned for the prosecution for the commission of this crime is too weak and tenuous. It would be recalled that the motive on the part of the accused persons who committed this crime allegedly was that about a fortnight before the incident, a dacoity took place at the house of accused Mangali in which the gun of Ram Khelawan accused (son of Mangali) was taken out by the offenders. Accused suspected that the dacoity had been masterminded by Raghuraj deceased. We wish to say that the motive is not evidence in a case. It also deserves mention that the different persons react differently in a given situation. Some take even a slight insult or loss seriously and react in extremity against the person they think to be the wrong-doer. There are others who take even serious events lightly, believing in the philosophy that good and bad ; gain and loss are the shades of life and the mind should be trained to live with them. Judged in this right perspective, it cannot be concluded that the motive assigned by the prosecution against the accused for the commission of this crime is weak and tenuous. It is there in the statement of Smt. Shanti Devi P.W. 2 that Mangali had expressed his indignation over the commission of dacoity at his house in which he suspected her husband Raghuraj to be behind the scene. He had specifically told her 8 or 9 days before the incident that Raghuraj would have to pay dearly for that mis-adventure. Therefore, in our view, the accused Appellants do not gain any point by complaining that motive assigned by the prosecution is weak or tenuous.
12. The second argument of learned Counsel for the Appellants is that the F.I.R. was ante-timed. Reference has been made to three fards-Ext. Ka-14 to Ka-16, prepared by the Investigating Officer in which the crime number and sections of the offence have been written in different ink than the rest of the writing of these fards. True, the Investigating Officer Shamim Ahmad Naqvi P.W. 7 could not give any reason for this disparity, although he categorically denied the defence suggestion that as the F.I.R. had not been recorded till then, crime number and sections of the offence were not written in these fards and were later on supplied therein by a different ink. It is, however, to be pointed out that the crime number and sections of the offence are found written in the inquest report with the same ink as that used by the Investigating Officer for writing other contents thereof and it is an indicator that it was after the lodging of the F.I.R. and, registering of the case that the inquest report was prepared. A little carelessness on the part of Investigating Officer in scribing the crime number and sections of the offence in fards Ext. Ka-14 to Ka-16 with a different ink or his deliberate attempt to help the accused in doing so would not affect the merits of the case. Sterling evidence of the eye-witnesses cannot be ignored in cursory and cavalier manner on the ground that the Investigating Officer was negligent or purposely attempted to help the accused during investigation. The prosecution would not fail on account of laches on the part of the Investigating Officer pointed out by the learned Counsel for the Appellants. It is also pertinent to state that in the present case, it has emerged from the evidence on record and has also been the defence suggestion that the deceased Raghuraj was a man of notorious character and he was an anti-social element. He had several criminal cases to his credit and had been jailed in a few of them. The defence suggestion was that he was a history-sheeter and was a dacoit, so much so that on one occasion, he was apprehended by the villagers, who attempted to blind him three years before. Obviously, such a person like Raghuraj must have been the source of constant nuisance and headache for the police. His death would have come as a relief to the police. It could be for this reason that the Investigating Officer had a soft corner for the accused persons and wanted to help them by his omission as they had killed a dacoit who was also a constant source of menace and trouble to the police. We are of the view that the lapses on the part of the Investigating Officer, as pointed out by the learned Counsel for the Appellants, do not lead to the conclusion that the F.I.R. was ante-timed.
13. The third argument of learned Counsel for the Appellants is that the case hinges on the interested testimony of Smt. Shanti Devi P.W. 2 (wife of the deceased) and Ramkali P.W. 5 (married sister of the deceased). It has been pointed out that the two independent witnesses Kunj Bihari P.W. 1 and Mahadeo P.W. 3 turned hostile and did not support the prosecution case. No doubt, both these witnesses did not name the Appellants as the culprits of this crime and were declared hostile by the prosecution. But it is significant to note that the place and time of the incident is also established by the testimony of these two witnesses. Both of them had found the dead bodies of the two deceased at about the time of incident alleged by the prosecution near the field of Lalla Singh. The prosecution case cannot be thrown over-board if they did not name the Appellants to be the culprits of this crime. As we said, the prosecution case stands partially supported with regard to the time and place of the incident by the testimony of these two hostile witnesses too. We need not labour on the point that it is only the quality of evidence that matters, and not the quantity. Smt. Shanti Devi P.W. 2 and Ramkali P.W. 5 are undoubtedly near relations of the deceased, being his wife and sister respectively, but culpability of the accused Appellants would be judged by scrutinizing their testimony judiciously in the light of other attending circumstances.
14. The learned Counsel for the Appellants then criticized the testimony of Smt. Shanti Devi P.W. 2 (wife of the deceased) by reasoning that she neither tried to save her husband nor received single scratch on her body whereas specific case of the prosecution is that Smt. Maiki (married sister of the deceased) tried to save Raghuraj and she also became the object of the fury of the accused Appellants and died on receiving injuries at their hands. To us, the presence of Smt. Shanti Devi P.W. 2 at the time of the incident cannot be doubted. It was she who got the report scribed by Brij Bhushan Singh P.W. 9 and took the same to the police station accompanied by her father-in-law Tulsi where it was lodged the same night at 9.30 p.m. She was examined also by the Investigating Officer at the police station itself. In ordinary course, she would have been present in her Sasural unless there were special reasons for her to be away from her husband''s house. No such special reason or ground was suggested by the defence which could improbabilise her testimony or indicate that she had been falsely produced as an eye-witness of the incident. Her evidence receives corroboration from the circumstances of the case as well. The incident had taken place just about 20 or 25 paces from her house when her husband was going to his tubewell and she was sitting at her door. Her house is even depicted in the site plan prepared by the Investigating Officer.
15. Her not making any overt act to render any real help to her husband when he was being assaulted by the accused persons is well explained. The ferocity of the accused can well be understood that Smt. Maiki who jumped into the conflict to save her brother was given repeated blows by the accused Appellants at the venue of the incident and she lost her life. Had Smt. Shanti Devi P.W. 2 ventured to advance further to intervene, she was bound to meet the same fate as Smt. Maiki. She, an unarmed lady, was a helpless spectator to the assaulting of her husband by the accused. Jumping to the arena by her was to be meaningless because she was not at all in a position to give real or substantial help to her husband. She could not have saved her husband from the clutches of the accused and was wholly incapable to meet their aggression bare-handed. It would have been an utter misadventure on her part and must have resulted in her sure death as was the case with Smt. Maiki. But it cannot at all be interpreted to mean that she was not present at the spot and did not witness the incident.
16. The testimony of the other eye-witness Ram Kali P.W. 5 has also been subjected to criticism by the learned Counsel for the Appellants on the premise that she was not named in the F.I.R. It is to be pointed out that in her statement recorded by the Investigating Officer u/s 161, Cr. P.C. at the police station itself, Smt. Shanti Devi P.W. 2 informant had specifically mentioned the name of Ram Kali who had been present at the spot. The statement was recorded by the Investigating Officer at the police station immediately after the lodging of the F.I.R. by her. It is suggestive of the fact that the omission to mention the name of Ram Kali as an eye-witness was just an accidental slip. It has to be taken note of that the F.I.R. was got scribed by Smt. Shanti Devi P.W. 2 immediately after the incident when she was overwhelmed with grief at the tragedy. She had witnessed her husband and her sister-in-law being murdered by the accused. Allowance had to be made to the emotion ridden and tension packed situation coupled with terror when she had got the F.I.R. scribed and failure to mention the name of Ram Kali in the F.I.R. would not be a valid ground to uphold the defence suggestion that she was not present at the time of occurrence. The evidence of Ram Kali P.W. 5 is emphatic and specific that she had come to live with her brother for sometime. There is nothing unnatural in it as affection of unmarried woman for her parents and other members of the family of her parents is well known. Ram Kali P.W. 5 has stood the test of cross-examination and remained firm. Indeed, it could be possible only if she was actually present at the spot and had witnessed the incident. Therefore, we reject this argument also of learned Counsel for the Appellants that Ram Kali P.W. 5 is curious witness imported by the prosecution to support its case.
17. Learned Counsel for the Appellants then argued that the stomach condition of both the deceased suggests that the incident had occurred at some other time. Reference has been made to the statement of Smt. Shanti Devi P.W. 2 that both the deceased had taken meals at about 12 O''clock in the noon on the day of the incident. It has been pointed out that semi-digested food was present in the stomach and small intestine of Raghuraj whereas large intestine was empty. The stomach and small intestine of Smt. Maiki were empty whereas large intestine was full of faecal matter. The answer to this argument is that Smt. Shanti Devi P.W. 2 could not be supposed to be glued to her husband throughout the period intervening between his taking meals in the noon and the incident. He could have cleared his bowels. After taking food in the noon, he could have again consumed something, which ultimately was found in the form of semi-digested food in the stomach and small intestine. At any rate, stomach condition of Raghuraj cannot be sure determinant of the time of incident and to over-shadow the testimony of Smt. Shanti Devi P.W. 2 and Ram Kali P.W. 5 that the incident occurred at the time as alleged by the prosecution.
18. It has lastly been argued by learned Counsel for the Appellants that as per the prosecution, eight accused persons were armed with lathis and they caused injuries therewith to both the deceased. The statement of Smt. Shanti Devi P.W. 2 has been referred to that her husband had been assaulted by all the accused who were holding lathis besides those who had axes with them and further that blows of lathi wielded by each accused actually struck her husband. It has been pointed out that actually as per the post-mortem report, he received only one injury of lathi-lacerated wound on the back of the head (ante-mortem injury No. 10). His remaining 12 injuries were incised wounds. Smt. Maiki received seven injuries of blunt weapons besides seven incised wounds. The argument of learned Counsel for the Appellants has force that at least some of the accused Appellants to whom lathi had been attributed appeared to have been falsely implicated as the lathi injuries sustained by two deceased were disproportionate to 8 lathi wielding accused. The experience has shown that there is tendency on the part of the prosecution witnesses to exaggerate the guilt of the opposite party. Even when some members of the rival group are involved in the offence, quite often one finds a tendency also to falsely rope in some other members. Therefore, the Court has to be circumspect in appreciation of the evidence to ensure that no innocent person is wrongly convicted. In the present case, three accused, namely, Darshan, Matadeen and Ram Khelawan had axes and there is definite and trustworthy evidence against them which finds corroboration from the attending circumstances also, that they struck blows on two victims. Out of the remaining eight lathi wielding accused, Mangali was definitely there because the commission of dacoity at his house a fortnight before the incident was the foundation of the present incident. Some others must have also been involved in committing this crime, but their names and number cannot definitely be ascertained, though they were definitely more than five who had formed an unlawful assembly. Truth of the matter is that the grain is so inextricably mixed with the chaff in respect of lathi wielding accused that it cannot be separated. It would, therefore, not be safe to convict any of the lathi wielding present Appellants. To say in other words, they should be afforded the benefit of doubt.
19. In view of the above discussions, we finally conclude as under:
Two appeals under decision abate in respect of the accused Appellants Mangali, Jag Mohan, Darshan, Rajuwa and Raja Ram who have died.
In respect of other Appellants, two appeals are partly allowed. The Appellants Matadeen (in Criminal Appeal No. 249 of 1981) and Ram Khelawan (in Criminal Appeal No. 250 of 1981) are convicted u/s 302/149, I.P.C. and u/s 148, I.P.C. Each of them is sentenced to undergo life imprisonment for the former offence and 1-1/2 years'' rigorous imprisonment for the latter offence. Both the sentences shall run concurrently.
The remaining Appellants Chhotey Lal (in Criminal Appeal No. 249 of 1981) and Ram Asrey, Ram Autar and Jageshwar (in Criminal Appeal No. 250 of 1981) are acquitted.
The Appellants Matadeen and Ram Khelawan are on bail. They shall be arrested and lodged in jail to serve out their sentences.
The office shall send a copy of this judgment along with record to the Court below for needful compliance under intimation to this Court within two months.
