Vijay Lakshmi, J.@mdashThis appeal has been directed against the judgment and order dated 2.8.1982 passed by VII Additional Sessions Judge, Aligarh in Sessions Trial No. 219 of 1980 relating to Case Crime No. 49 of 1980 P.S. Akrabad, District Aligarh, whereby all the appellants having been found guilty are convicted and sentenced as follows:-
For life imprisonment u/s 302 read with 149 IPC, 5 years rigorous imprisonment u/s 307 read with 149 IPC, 5 years rigorous imprisonment u/s 201 IPC, three years rigorous imprisonment u/s 325 read with 149 IPC and one year rigorous imprisonment u/s 323 read with 149 IPC. Besides it, six months rigorous imprisonment u/s 147 IPC was also awarded to all the accused persons except accused Lakhan Singh who was awarded one year rigorous imprisonment u/s. 148 IPC. All the sentences of all the accused persons were directed to run concurrently.
2. Heard Shri Amit Mishra, learned counsel for appellants and Shri Anand Tiwari, learned AGA appearing from side of State. Perused the records.
3. The prosecution story in brief is that on 6.3.1980 at about 1.05 p.m., on an oral information of complainant Ranveer Singh, an FIR was lodged at Police Station Akrabad, District Aligarh to the effect that at about 10:00 a.m. the complainant and his brothers Ravindra Singh had gone to plough their fields. They had taken with them four bullocks, out of which two bullocks were ploughing the fields whereas the remaining two were standing tied up to a tree. The complainant''s brother Ravindra Singh was ploughing the field and the complainant was cutting "Bejhar" (a kind of vegetation). In the meantime, one Mitthan came there and asked to lend him the extra bullocks for some time for the purpose of ploughing his field. At that time, it was about 11:00 a.m. when the complainant''s son Ashok Kumar reached there and informed his uncle Ravindra Singh that when he and his younger brother Pratap were returning through the bridge of canal, Lakhan Singh, Rajjan Singh, Banwari, Amrit Singh, Indal Singh and Ramesh (all accused appellants) asked them as to where, they were going? Holding Ashok by neck, they hanged him into the canal. Seeing this, Ashok''s younger brother Pratap, ran away towards his home out of fear. Hearing this incident, Ravindra Singh called his brother Ranvir (complainant) and narrated the entire episode to him. When they were talking, it was at about 11:15 a.m. when all the accused persons, armed with lathi and accused Lakhan Singh armed with a country made pistol, made a sudden attack on Ravindra Singh. The complainant had also a lathi in his hand. He, with his lathi and Mitthan who had come to borrow the bullocks, with empty hands, tried to rescue Ravindra Singh. During the scuffle, the complainant also sustained some injuries. All the accused persons surrounded Ravindra Singh from all sides and started beating him with Lathis after throwing him into the drain filled with water and continued to beat him mercilessly till he died. Due to fear, the complainant, his son Ashok and Mitthan tried to run away from the spot, whereupon accused Lakhan Singh exhorted them with the words "Bach kar kaha jayega" and opened fire from his country made pistol. Luckily, the complainant had a narrow escape. The accused persons, in order to cause disappearance of the evidence by disfiguring the dead body of the deceased Ravindra Singh, dragged it on a heap of "patel phoos" or the dried leafy remaining part of crops kept in heaps after reaping and separating the grains and after putting some dry grass over the dead body, burnt it by a matchstick. In the meantime, on hearing the alarm raised by the complainant, the wife of Ravindra Singh, had also reached at the spot. They, with the help of Mitthan, took out the dead body from the heap of burning dry ''patel'' and kept it in their field. The motive behind the occurrence is also mentioned in the FIR itself, according to which, several litigations both civil and criminal were pending between both the parties including two criminal cases, first one regarding murder of father of accused Indal by the complainant Ranvir Singh and his brother deceased Ravindra Singh and the second one regarding abduction of sister of complainant by the accused Lakhan Singh and Amrit Singh.
4. The police registered the case and prepared the check report. The matter was investigated. The inquest on the dead body of deceased Ravindra Singh was conducted on the same day at 4:15 p.m. The inquest report is available on record as Ext Ka-12. After inquest proceedings, the dead body of the deceased was sent for post mortem. According to post-mortem report which is available on record as Ext Ka-10, the following ante-mortem and post-mortem injuries were found by the doctor:-
Conditions of body: Average built body, rigor mortis present, face distended and burned, reddish froth from mouth and nostril scrotum with (sic).
Ante Mortem Injuries:-
(1) Lacerated wound 3" x 1" x scalp deep on left side head.
(2) Lacerated wound 3 " x 2" bone deep on Rt. Side fore head just above eye underneath bone fractured.
Note:- Post mortem burns all over body except lower part of back, hip and both hips.
5. The frontal bones, temporal and parietal bones of both sides of the head of the deceased were found fractured. Clotted blood was found in the brain and base of skull of the deceased. The cause of death was found to be coma as a result of head injuries.
6. The injured Ranvir Singh (complainant) was also sent for medical examination with police constable 411 Satyveer Singh. The injury report of Ranvir Singh is Ex-Ka-9. The following injuries were found by the Medical Officer, PHC, Akrabad, Aligarh on the body of the injured:-
Injuries:- (1) Traumatic swelling present on dorsum of Rt. Hand size 10 cm x 10 cm. Tender, covering whole hand, adv. X-ray & K.U.O.
(2) Traumatic swelling present on the middle of Rt. Forearm 5 cm x 7 cm on the ulnar side of the forearm, 14 cm from olecranon process, tender, adv. X-ray & K.U.O.
(3) Traumatic swelling present on the front of Rt. Knee joint, 10 cm x 10 cm tender. Adv. X-ray & K.U.O.
(4) A lacerated wound present of on Rt. Parietal region on head size. 3 cm x. 3 cm, scalp deep, covered with blood clot, parallel to sagital plane, 3 cm from mid line. Adv. X-ray & K.U.O.
Conclusion:- All four injuries caused by hard blunt object, fresh and advised X-ray for determination of the nature of injuries.
7. After X-ray, supplementary injury report was prepared which is Ex. Ka-11 on the record. It shows that two fractures one of 3rd metacarpal bone and the other of Parietal bone were seen by the doctor on the body of injured Ranvir Singh.
8. The Investigating Officer collected the samples of blood stained and plain earth from the place of incident and prepared its memo. The ash and burnt clothes were also recovered from the place of incident. After preparing their memos, the Investigating Officer recorded the statements of witnesses, prepared the site plan and after concluding the investigation submitted charge sheet (Ext Ka-19) against all six accused persons namely Lakhan Singh, Banwari, Rajjan, Indal, Amrit and Ramesh.
9. The case being triable by the court of sessions, it was committed to the Sessions Court where the trial commenced after framing charges against the accused persons. The witnesses produced by both sides were examined. After conclusion of the trial, the learned Addl. Sessions Judge found all the aforesaid accused persons guilty under Sections 302/149, 307/149, 325/149, & Sections 147, 148 of IPC and convicted and sentenced them as aforesaid.
10. Aggrieved by the order of conviction and sentence, the appellants have preferred the instant criminal appeal before this Court.
11. During the pendency of the appeal, three of the appellants namely Lakhan Singh, Indal and Amrit Singh expired and the appeal stood abated against them. The three surviving appellants are Banwari, Rajjan and Ramesh in respect of whom it is to be seen in this appeal, as to whether the learned trial court has rightly convicted and sentenced them for the offences they were charged with.
12. The record shows that the prosecution in order to prove its case has produced eight witnesses in all. P.W. 1 is the informant Ranvir Singh who is an injured witness also, P.W. 2 is Mitthan Singh who is said to be present on the spot at the time of occurrence. He has also been produced as an eye witness. P.W. 3 is Constable Satyaveer Singh who has prepared the check report on the basis of oral information given by Ranvir Singh. P.W. 4 is Dr. S.D. Sharma who has medically examined the injured Ranvir Singh and has prepared his injury report. P.W. 5 is Ashok Kumar, the son of injured Ranvir Singh and nephew of deceased Ravindra Singh. He is a child witness and is said to be an eye witness of the occurrence. P.W. 6 is Dr. A.K. Shukla who has conducted post mortem examination on the body of deceased Ravindra Singh, P.W. 7 is Dr. N.K. Maheshwari, the radiologist who has proved X-ray report of injured Ravindra Singh. P.W. 8 is S.I. M.P. Sharma, the Investigating Officer of the case.
13. All these witnesses have supported the prosecution case during their testimony in the court and have duly proved the documentary evidence adduced by the prosecution the details of which are quoted below:-
1. F.I.R. Dated 6.3.1980 Ex. Ka-1
2. Recovery memo of blood stained and plain earth, dated 6.3.1980, Ex. Ka-2
3. Recovery memo of burnt dried grass, Ash, burnt clothes & blood stained clothes dated 6.3.1980, Ex. Ka-3
4. Recovery memo of sample of Patel (Dried grass) dated 6.3.1980, Ex. Ka-4
5. Recovery memo of ''Bejhar'' & ''Darati'', dated 6.3.1980, Ex. Ka-5
6. G.D. Entries Ex. Ka-6, Ka-7, and Ka-8.
7. Injury report of Ranvir Singh, dated 6.3.1980, Ex. Ka-9
8. P.M. Examination report, dated 7.3.1980, Ex. Ka-10.
9. X-ray report of Ranvir Singh Ex. Ka-11
10. Inquest report Ex. Ka.-12
11. Photo Nash Ex. Ka. 13
12. Challan Lash Ex. Ka-14
13. letter to C.M.O. Ex. Ka.-15
14. Letter to R.I. Ex. Ka.-16
15. Sample of seal. Ex. Ka-17
16. Site plan Ex. Ka.-18
17. Charge sheet Ex. Ka-19.
14. The description of material Exhibit produced in the court by the prosecution is as follows:-
Sickle Ex-1, bundle of Bejhar-Ex.-2, bundle of clothes-Ex.-3, blood stained earth Ex.-4, plain earth-Ex.-5, bundle of dried grass (patel)-Ex.-6, bundle of blood stained grass ''patel'' -Ex.-7, X-ray plates Ex.-8 to Ex.-11.
15. After conclusion of prosecution evidence, the accused were examined u/s 313 Cr.P.C. with reference to the incriminating circumstance appearing against them. All the accused persons denied the charges levelled against them and alleged their false implications in this case due to personal enmity. In their defence, the accused persons have produced three witnesses in all. D.W. 1 is Tejpal Sharma, Principal of Primary School Rudayan. He has been produced by the defence in order to prove that on the day of occurrence, the child witness Ashok Kumar was not present at the scene of occurrence because the school, in which he was studying was open on that day from 10 a.m. to 4 p.m.
16. D.W.-2 is Jaswant Singh Advocate who has been produced in the court by the defence to shake the credibility of P.W.-2 Mitthan Singh on the ground that he had earlier given an affidavit in the court to the effect that he was not present in the village at the date and time of occurrence and had not seen anything. He has proved the affidavit said to be filed by Mitthan Singh in Court by stating that it was prepared by him. DW 3 is Devendra Singh who was a clerk in the office of Oath Commissioner and who used to maintain the records of affidavits. He has also been produced to prove the aforesaid affidavit of witness Mitthan Singh.
17. Now in order to come to a right conclusion with regard to the culpability of the appellants, the evidence adduced by the prosecution is to be scrutinised very carefully and with great circumspection because the burden lies on the prosecution to prove its case against each of accused persons beyond all shadows of reasonable doubt.
18. P.W. 1 complainant Ranvir Singh who is the brother of deceased Ravindra Singh and who is an injured eye witness, has stated on oath that on the day of occurrence he was cutting his crops in his fields. After some time he went to another field of his situated across the canal with his brother Ravindra Singh (deceased) for ploughing. They had taken four bullocks and a plough with them for the said purpose. When his brother Ravindra Singh was ploughing the field, Mitthan Singh (PW-2) came there and asked him to lend him two bullocks. P.W. 1 replied that after ploughing the field, he would give the bullocks to him. Mitthan Singh sat down and waited. Meanwhile when Ravindra Singh (complainant) was cutting ''Bejhar'' (a kind of vegetation), his son Ashok (P.W.-5/child witness) reached there and informed Ravindra Singh that when he and his younger brother Pratap were coming with their goats, the accused Lakhan Singh, Rajjan Sngh, Banwari, Indal, Amrit Singh and Ramesh intercepted them on their way on the bridge of canal asking them as to where they were going. Lakhan and Rajjan hanged him (Ashok) over the canal, holding him by his neck. Seeing this, the younger brother Pratap ran towards his home out of fear. Hearing the entire episode, Ravindra Singh called (Ranvir Singh) PW 1 and told the entire story to him. At the same time all the accused persons armed with lathis reached there. Accused Lakhan Singh had also a country made pistol with him. All the accused persons started beating Ravindra Singh with their lathis. P.W. 1 Ranvir Singh and witness Mitthan tried to save him. During the scuffle Ranvir Singh (P.W. 1) also suffered injuries. The accused persons surrounded Ravindra Singh from all sides. They threw him into the drain water and continued to beat Ravidnra Singh with their lathis till he succumbed to his injuries.
19. When P.W. 1 Ranvir, his son Ashok (P.W.-5) and witness Mitthan (P.W.-2) tried to escape to save their lives, accused Lakhan extorted with the words "Bach ke kaha jayega, jaan se mar denge" and while uttering these words he opened fire.
20. Somehow, Ranvir Singh had a narrow escape. In the field of accused Lakhan, heaps of dry grass "(phoos)" were kept in bundles. The accused persons dragged away the body of Ravindra Singh to their field adjacent to the field of informant. They kept the dead body on the heap of dry grass "(phoos)" and set fire to it. Meanwhile, the informant''s wife Sheetal Devi had reached there, who saw the accused persons igniting the fire. After the occurrence, all the accused persons ran towards Tanakpur with their lathis. They also took away the lathi of the informant with them. With the help of witness Mitthan, Sheetal Devi took out the body of Ravindra Singh from the burning heap of dry grass and took it to her field. P.W. 1 has also stated about the motive behind this murder. He has stated that earlier a case u/s 302 IPC was lodged against him and his brother for murder of Kanchan Singh (father of accused Indal Singh and cousin brother of Lakhan Singh and Banwari). P.W. 1 has further stated that his sister Rani Devi was abducted by the accused persons for which he had lodged a criminal case against Lakhan Singh and Amrit. Besides it two more criminal cases were also lodged by both the parties against each other and due to enmity of all these cases, this gruesome occurrence had taken place, about which he had orally informed at the police station, which was reduced to writing on his dictation by Deewanji. He has proved the aforesaid FIR as Ext-Ka-1.
21. P.W.-1 has been cross examined at length by the learned counsel for the defence but despite his extensive cross examination, nothing has been elicited to make his testimony unreliable. His statements as a whole appears cogent and consistent on all the material particulars and inspires confidence.
22. P.W. 2 is Mitthan Singh who is also an eye witness of the case. He has supported the prosecution story by stating almost the same facts stated earlier by P.W. 1 Ranvir Singh as narrated above. Besides it, P.W.-2 has also deposed about the events taking place after lodging of the FIR. For example, the police reaching at the spot and collecting the evidence. He has proved all the recovery memos by identifying his signatures on them.
23. The defence has tried to shake his credibility on the following two grounds:-
1. P.W. 2 is a chance witness who admittedly is a resident of another village so there was no occasion for him to be present at the place of occurrence.
2. Earlier P.W. 2 had filed an affidavit (Ex.-Ka-1) in which he had stated that he was out of village on the day of occurrence and he had not seen anything.
24. P.W. 2 has denied that he had ever filed any such affidavit earlier. He has stated that his lawyer had taken his signatures on some blank papers on the pretext that a case u/s 60 of Excise Act, already pending against him (P.W.-2) would come to an end. P.W. 2 has clarified the reason for his presence on the spot by categorically stating that as he had sold his bullocks, he had come to village "Rudayan" for borrowing bullocks from the informant and his brother.
25. The statements of P.W. 2 does not appear to suffer from any material discrepancy or contradiction so as to make it unworthy of credence.
26. P.W. 3 and P.W. 4 are formal witnesses. P.W. 3 has prepared check report on the basis of oral information of complainant and P.W. 4 is the doctor who had medically examined injured informant Ranvir Singh on the day of the occurrence.
27. P.W. 5 is Ashok Kumar who was aged about 13-14 years at the time of his statement. His statement shows that the Trial Court before recording his statement, has clearly observed that the witness is capable of understanding the sanctity of oath. P.W. 5 has stated that on the day of occurrence, he, along with his younger brother Pratap had gone to the fields for grazing their goats. When they reached at the bridge of canal, accused Lakhan Singh, Banwari, Indal and Ramesh met them. Lakhan asked from him as to where he was going. When he said that he was going to his house, Lakhan caught hold of him by his neck and hanged him over the canal. Seeing this, his younger brother Pratap became afraid and he ran towards his home. After sometime when Lakhan Singh and Rajjan left him, he along with his goats came to the place where his uncle Ravindra Singh was ploughing fields and informed him about the act of accused persons. His uncle called his father and told him the entire episode. When they were talking, all the accused persons armed with lathis and accused Lakhan, armed with a country made pistol, reached there and started beating Ravindra Singh with their lathis. Later on P.W.-5 has also narrated the same story of gruesome assault of Ravindra Singh as deposed earlier by P.W. 1 and P.W. 2. There is no need to repeat the same facts. The statement of P.W. 5 finds corroboration from the statements of P.W. 1 and P.W.-2. It also finds support from the documentary evidence. Despite the fact that even though he is a child witness, yet he has faced a lengthy cross examination by learned defence counsel, his statement appears to remain unshaken. The remaining witnesses P.W. 6, 7 and 8 (two doctors and I.O.) are formal witness who have proved the documents prepared by them during investigation.
28. Learned counsel for the accused appellants Mr. Amit Mishra, has tried to assail the reliability of the prosecution story mainly on the following grounds:--
1. As many as six accused persons have been nominated in this case as assailant by assigning a general role of causing injuries by lathis to all of them, whereas from a perusal of post mortem report it appears that the deceased had received only two lacerated wounds. Thus medical evidence does not corroborate the allegation of prosecution.
2. The accused Lakhan Singh is said to have been armed with a fire arm, but no fire arm injury has been caused either to deceased or to the alleged injured.
3. No intention to cause death is apparently present in this case because despite having a deadly weapon, i.e. a country made pistol, no fire arm injury has been caused to any one. Had there been any intention to kill the deceased, accused Lakhan could have easily killed him by his country made pistol.
4. There is a delay in sending the report to the Magistrate. The despatch of FIR on the next date i.e. 7.3.1980 makes the time of occurrence wholly doubtful.
5. Not a single independent witness has been examined in this case. P.W. 1 is the brother of deceased, P.W. 5 who is a child witness, is the son of deceased and P.W. 2 is also a related highly interested and partisan witness.
6. P.W. 2 is a chance witness and his presence on the spot is wholly doubtful.
7. No incriminating article or weapon of assault i.e. lathi or country made pistol has been recovered from any of the accused persons.
8. Blood stained earth etc., have not been sent for chemical examination which creates doubt on the credibility of the prosecution story.
9. No immediate motive has been proved by the prosecution nor the common object of unlawful assembly has been proved. At the most, the accused Indal (now dead) alone could have the motive because his father Kanchan Singh was murdered by the complainant''s family and that the murder case had culminated into acquittal.
10. In the month of March ploughing of fields is out of question, so the story of prosecution becomes wholly unreliable.
11. P.W. 2 Mitthan Singh had filed an affidavit in the Court, in which he has denied to have witnessed any such occurrence which affidavit has been proved by D.W. 2 and D.W. 3 i.e. the advocate and clerk of Oath Commissioner''s office, who had prepared it. There is no reason to disbelieve the evidence of these two defence witnesses.
12. P.W. 5 is a child witness who can easily be tutored. The story of hanging him over the canal is absurd Moreover, the Investigating Officer has not shown the canal in the site plan.
13. The deceased was aged about 20 years. He was a bachelor. He was a step-brother of the informant and from his death the only beneficiary could be the informant himself. This aspect of the matter was not considered by the lower court.
14. There are serious contradictions between the oral and medical evidence. It is alleged that after the fatal assault the deceased was dragged to the heap of dry grass "(phoos)" and after he was set ablaze his, burnt out body was again dragged by his family members into their field. But no marks of dragging have been found on the person of the deceased. No witness has received any burn injury while bringing out the dead body from the burnt grass.
15. It is alleged that Lakhan shot a fire while fleeing from the spot, but neither any empty cartridge nor any country made pistol has been recovered, during investigation.
16. It cannot be said with certainty as to whether the three surviving appellants, have actually caused any injury or not because the witnesses have neither specifically named any accused person nor any witness has assigned any specific role to them. By the evidence available on record, it cannot be ascertained as to who was wielding lathi and who inflicted the fatal injuries on the head of the deceased. It is also not clear that who had taken away with him the lathi of PW 1. Per contra, learned AGA has contended that the genuineness of the FIR, day, time, place, and the manner of occurrence, all these facts have been successfully proved by the prosecution in this case by most credible and cogent evidence. The time and manner of occurrence finds corroboration by the injury report and the post mortem report, both of which have been duly proved by the doctors P.W. 4 and P.W.-6. The motive has also been stated by the prosecution in the FIR itself which was personal enmity due to several criminal cases pending between both the parties. Learned AGA has argued that it is a case of direct evidence and the well settled legal principle is that in a case of direct evidence motive looses its importance.
29. Learned AGA has further argued that the nature of injuries of P.W. 1 clearly demonstrates that the same cannot be fabricated. He has contended that It is well settled law that evidence of injured witness has greater evidentiary value and unless compelling reasons exists, his statement should not to be taken lightly, because an injured witness has no motive to implicate the accused persons in place of the real culprits.
30. Learned AGA has vehemently contended that it would be unreasonable to expect from a witness to give a perfect picture of the injuries caused individually by each of the accused persons particularly where it has been proved on record that the injuries have been caused by six accused persons.
31. Learned AGA has further submitted that charges u/s 149 IPC have been framed against all the accused persons and it is a well established legal position that when the charge is u/s 149 IPC, the mere presence of the accused as part of that unlawful assembly is sufficient for his conviction even if no overt act is imputed to him.
Findings
32. While deciding a criminal appeal, based on direct evidence, in order to ascertain the fact whether the prosecution has been successful in proving its case beyond all shadows of reasonable doubts, the Court has to pay attention on the following main issues:-
i. F.I.R. (Whether there is any un-explained delay or whether the FIR is ante-timed ?)
ii. Time of occurrence (Whether the time coincides with medical evidence ?)
iii. Place of occurrence.
iv. Manner of occurrence.
v. Motive (Whether the guiding force was of such a strong character so as to persuade a person to commit such offence like murder)
vi. Credibility of witnesses.
vii. Proper identification of accused-persons by the witnesses (Whether there has been sufficient source of light ? Whether the witnesses have prior acquaintance with accused persons ?)
viii. The role of each accused in the incident considering the defence evidence like plea of alibi etc. or whether their participation in the crime as a member of unlawful assembly has been duly proved by the prosecution.
33. The instant case is a case of direct evidence. The occurrence has taken place on 6.3.1980 at 11.15 A.M. and the first information report has been lodged on the same day at 1.05 P.M. Considering the distance of the police station concerned from the place of occurrence which is about 6 miles, it cannot be said that there was any delay in lodging the F.I.R. to provide any opportunity to the complaint for consultation or deliberations. The time of occurrence fully coincides with the medical evidence available on record. The injury report of Ranbir Singh shows that he has been medically examined on 6.3.1980 at 2.15 p.m. i.e. after 2-3 hours from the occurrence and the doctor has found fresh injuries on his body. The post-mortem report shows that the post-mortem has been conducted on the next day i.e. on 7.3.1980 at 2.00 P.M. and the probable time since death has been found to be about one day.
34. So far as the place of occurrence is concerned, all the witnesses are throughout cogent and consistent on the point that the place of occurrence is the field of the complainant Ranvir Singh and the adjacent water filled drain (Gul) meant for irrigating the field in which the deceased Ravindra Singh was thrown away and was mercilessly beaten to death. The place of occurrence finds corroboration from the site plan (Ext. Ka. 18). The investigating officer has also collected the sample of plain and blood stained earth from the place of occurrence. The ash and burnt dry grass (patel or phoos) have been collected by the I.O. from the place of occurrence.
35. Thus, the time and place of occurrence is found to be successfully proved by the evidence adduced by the prosecution.
36. So far as the manner of occurrence is concerned, according to the prosecution case, the occurrence has taken place in four parts -
1. Regarding hanging of P.W. 5 Ashok Kumar from canal bridge over the canal by the accused Lakhan and Rajjan.
2. Regarding Maarpit by Lathis in which all the accused persons actively participated, which resulted in death of Ravindra Singh and causing injuries to Ranvir Singh including two fractures.
3. Regarding the fire ignited by accused Lakhan, for burning of dead body of deceased Ravindra Singh in order to disfigure it.
37. After having heard learned counsel from both sides and considering the facts and circumstances of the case, we have no hesitation in holding that the manner in which all the aforesaid incidents have taken place, has been sufficiently and successfully proved by the prosecution in this case by reliable and trustworthy oral as well as documentary evidence. The manner relating to Marpit by Lathis and Dandas finds corroboration with the description of injuries mentioned in the injury report of injured Ranbir Singh and also with the description of ante-mortem injuries mentioned in the post-mortem report of the deceased Ravindra Singh. According to the prosecution case, P.W. 1 had received injuries during the occurrence when he tried to save the life of his brother Ravindra Singh. His injuries were examined by P.W. 4 on the same day at about 2.15 p.m. and according to P.W. 4 all his injuries were of such nature which may be caused by hard and blunt object. The ante-mortem lacerated wounds found on the body of the deceased Ravindra Singh show that he had sustained two lacerated wounds, one scalp deep and the other bone deep on both sides of his head and his underneath bone was found fractured, causing his instantaneous death. The doctor has mentioned the cause of his death to be coma as a result of these head injuries.
38. Post mortem burns have been found all over the body of the deceased except lower part of back and hip which support the prosecution story about the accused persons dragging the dead body to their field putting dried grass over it and setting it ablaze in order to erase the evidence.
39. So far as the reliability and credibility of witnesses is concerned, learned counsel for the appellant has assailed the credibility of the witness on the ground that all the witnesses of fact produced by the prosecution are highly interested witnesses. He has argued that neither it is safe nor proper to convict the accused persons in this case, relying on the statements of those interested witnesses. In this regard learned counsel for the appellant has place reliance on the case of
40. The above cited case is of no help to appellants because even in the aforesaid case, the Supreme Court has observed that evidence of interested witnesses cannot be discarded on the sole ground of interestness but it should be subjected to close scrutiny.
41. Learned counsel for the appellant has tried to assail the credibility of child witness P.W. 5 Ashok Kumar, a child can easily be tutored.
42. We do not find any force in the aforesaid arguments of learned counsel for the appellant. It is true that the evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands question put to him and he is capable of giving rational answers. We have no doubt that before relying on a child witness, the court must be satisfied that the attending circumstances do not show that the child was acting under influence of some one or under a threat or coercion and the evidence of a child witness can only be relied upon if the court, with its expertise, ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has ring of truth as has been held in the case of
it is not the law that if a witness is a child, his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with great circumspection because a child is susceptible to be swayed by what others told them and thus a child witness is an easy prey to tutoring.
43. After scrutinising the statement of P.W.-5 in the wake of the above cited legal position, we are of the considered view that P.W. 5 Ashok Kumar about whom the learned trial court has recorded a clear finding that he is capable of understanding the meaning of oath and appears a sensible boy, had no reason to give false evidence in the court against the accused persons. His testimony finds corroboration from the testimony of other witness produced by the prosecution and there appears no reason to disbelieve him.
44. It is also worth mentioning that in this case the prosecution has examined 3 witnesses of facts. Out of them only two, i.e. P.W.-1 and P.W.-5 are relatives of the deceased. P.W. 2 Mitthan Singh is an independent witness. Although P.W. 1 is the brother of the deceased but at the same time he is an injured witness too because he has also received injuries in the same incident. There appears no reason for the injured P.W. 1 who had also suffered fractures including fracture of his parietal bone, to falsely implicate the accused persons while exonerating the real culprits.
45. The Supreme Court in the case of
Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal actual culprit and make allegations against an innocent person. A party has to lay down factual foundation by leading impeccable evidence in respect of its false implication.
46. In
evidence of eye witnesses cannot be disbelieved only because they are related to the deceased.
47. Learned counsel for the appellant has questioned the trustworthiness of Mitthan Singh P.W.-2 by contending that even assuming that Mitthan Singh, P.W. 2, is not an interested witness yet his presence on the spot is doubtful. He is a chance witness and there was no occasion for him to be present in the field of the informant at the time of occurrence. Learned counsel for the appellant has also assailed the credibility of P.W. 2 on the basis of an affidavit filed earlier by him in which he had stated that he had not seen any such occurrence.
48. After having given our thoughtful consideration to the facts of the case, we do not find any substance in the aforesaid argument.
49. P.W. 2 during his statement in court has categorically stated that he had never given any such affidavit. His counsel had taken his signatures on some blank papers on the pretext that he had to file his affidavit in some other case u/s 60 of Excise Act which was already pending against him. The impugned judgment shows that there is a clear mention of the fact in it that on 6.8.1980 Mitthan Singh had filed another affidavit in which he had stated that the earlier affidavit alleged to be filed by him was a forged document, prepared by his counsel by playing a fraud on him. His counsel took his signatures on blank papers on the pretext that it was required in the case u/s 60 of the Excise Act which was pending against him. This fact finds support by the evidence produced by the prosecution. The learned trial court on the aforesaid ground, refused to rely on the affidavit filed by defence and its witnesses.
50. We have no reason to interfere in the aforesaid finding of learned trial court. The presence of P.W. 2 Mitthan Singh cannot be said to be doubtful on the place of occurrence as he has given cogent reasons for his presence on the spot at the time of occurrence. His presence on the spot appears natural in the wake of his statement which is corroborated by the statement of P.W. 1 and also by the F.I.R. P.W. 2 has been cross-examined at length by the learned defence counsel but he has not been given even a suggestion that he was not present on the spot at the time of occurrence. He has duly explained the reason for his presence at the place of occurrence. According to him, first he tried to borrow the bullocks from the residents of his own village. When he could not get the bullocks from his own village he went to the place of the deceased to borrow his bullocks. He has stated that as Ranbir Singh etc. also often used to borrow the bullocks from him, he had gone to them to borrow bullocks when he needed them. He has stated that the borrowing was required in view of the fact that he had sold his own bullocks prior to two or three months from the occurrence.
51. We do not find any reason to disbelieve the testimony of P.W. 2 which has remained unshaken despite his lengthy cross-examination.
52. Learned counsel for the appellant has vehemently argued that the motive in this case is very weak. He has contended that even assuming that there was personal enmity due to several litigations pending between the parties, but there was no immediate motive with the accused persons to commit such a heinous offence like murder. At the most it can be said that the accused Indal alone could have the motive as his father Kanchan Singh was alleged to be murdered by the family members of the complainant and that case had ended in acquittal.
53. We do not find any force in the said argument in view of the well settled legal position that where direct evidence is available, motive looses its importance. If the evidence of eye witness is trustworthy the question of motive is irrelevant. Recently in the case of
availability of direct evidence of witnesses as to commencement of crime make motive for crime insignificant.
54. So far as the argument advanced by learned counsel for the appellant regarding delay in sending the report to the Magistrate is concerned, the check report clearly shows that on the very next date of occurrence i.e. on 7.3.1980, the report has been sent to the Magistrate, so it cannot be said that there was any unreasonable delay in sending the report to the Magistrate. Even assuming that the report was not sent immediately to the Magistrate and there was delay of one day, it does not make any difference in wake of the law laid down by Hon''ble Apex Court in
55. Learned counsel for the appellant during the course of argument has pointed out towards some discrepancies and inconsistencies in the depositions of witnesses.
56. All the discrepancies pointed out by learned counsel for the appellant are minor in nature which are bound to occur in the statements of witnesses if they are not tutored. It is a well settled legal position of law that while appreciating the evidence of witnesses, minor discrepancies on trivial matters which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety. Hence, undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution case. (see
57. Learned counsel for the appellant has very vehemently contended that the accused persons who had been assigned the main role i.e. Lakhan Singh, Indal and Amrit Singh have expired during the pendency of the appeal and against three remaining appellants there is only a general allegation that they had participated in the Maarpit. Neither any specific weapon has been assigned to any of them nor they have been assigned any specific role in the occurrence. Learned counsel for the appellant has argued that all of them have been convicted with the help of Section 149 I.P.C. without any proof of fact that they had a common object of murdering Ravindra Singh at the time when they were allegedly beating him with Lathis.
58. We do not find any force in the above argument. The law relating to Section 149 of I.P.C. is well settled. The Apex Court has time and again interpreted Section 149 in various judgments and the legal position is well established that once it is found to be proved that an assembly or group of accused persons had an unlawful common object for prosecution of which the offence was committed, some of those persons cannot be acquitted on the ground that they have not inflicted the fatal blow or any one of them has not participated in the crime.
59. The facts of the case in hand shows that all the accused persons armed with Lathi and Danda reached on the spot, surrounded deceased Ravindra Singh and started beating him mercilessly after throwing him down in the water filled drain (Gul) and continued to beat him till he breathed his last. When Ranvir Singh tried to save his brother, he had also to suffer many injuries.
60. The Apex Court in the case of
Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants.
61. A Constitution bench of the Supreme Court in the case of
Section 149 deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
62. In
Even if no overt act is imputed to a particular person, when the charge is u/s 149, the presence of the accused as part of unlawful assembly is sufficient for conviction.
63. In the wake of the above cited laws, all the appellant are held equally liable vicariously for the death of Ravindra Singh and also for the injuries sustained by Ranvir Singh.
64. Now the only question left to be considered is that whether the common object of the unlawful assembly of which the appellants were member, was to murder deceased Ravindra Singh or only to give him a good beating by lathis.
65. Learned counsel for the appellants has vehemently argued that even assuming for the sake of arguments, that all the appellants participated in the crime as members of the unlawful assembly, it can never be presumed that they shared a common object to kill Ravindra Singh. Learned counsel has argued that except appellant Lakhan, none of them was possessed with any deadly weapon. Therefore, at the most it can be said that a case u/s. 304 (Part-2) is made out against the appellants but learned trial court has wrongly punished them u/s. 302 of IPC.
66. Section 299 and Section 300 of I.P.C. differentiate between "culpable homicide not amounting to murder" and "murder" clause "thirdly" of Section 300 provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing bodily injury to any person sufficient in the ordinary course of nature to cause death.
67. Looking into the facts and circumstances of the present case, specially the nature and seat of injuries of the deceased, we are of the considered view that the act committed by all the accused persons in prosecution of their common object by assaulting with lathis on the head of deceased which, is the most vital part of his body, thereby fracturing his skull bone and causing his death, would come under the category of murder as defined under Clause thirdly of Section 302 of I.P.C. It does not make any difference as to who gave the fatal blow. Even after inflicting fatal injuries on Ravindra Singh the accused person did not stop. They took out the dead body from a drain and dragged it to their fields to disfigured it by burning it. Under these circumstances, it cannot be said that there was no intention to kill the deceased on the part of accused persons.
68. Keeping in view all the facts and circumstances of the case and in wake of the well settled legal position established by various pronouncements of the Apex Court, we are of the considered view that the prosecution has been able to prove its case against all the accused persons beyond reasonable doubt and the learned trial court has rightly convicted the accused persons. We do not see any cogent reason to interfere in the impugned judgment. The present appeal lacks merit and is accordingly dismissed. The appellants are on bail. Their bail bonds are cancelled and they are directed to surrender within four weeks from today before the court concerned failing which the learned Chief Judicial Magistrate, Aligarh shall take them into custody and send them to jail to serve out the remaining part of their sentence.
69. A copy of this order be sent to the learned the learned Sessions Judge, Aligarh by the Registry of this Court for information and compliance.
