JUDGMENT
K.N. Sinha and S.K. Jain, JJ.
1. Since these two appeals are interlinked and a common judgment is the subject matter of challenge, they are taken up together for disposal.
2. The appellants have challenged the judgment and order dated 1.11.2000 passed by the learned Additional Sessions Judge Court No. 9, Bareilly in S.T. No. 675 of 1996, State v. Ram Niwas and Ors. under Section 302/452 I.P.C. and 25 Arms Act and 4/25 Arms Act, relating to P.S. Bhuta, District Bareilly.
3. The trial court after conclusion to trial convicted the appellants under Section 302 read with Section 34 of I.P.C. and sentenced them to undergo imprisonment for life and a fine of Rs. 5000/- and in default of payment of fine six months imprisonment.
4. The appellants were also convicted under Section 452 read with Section 34 of I.P.C. and sentenced to undergo R.I. for period of five years and a fine of Rs. 1000/- and in default of payment of fine three months imprisonment.
5. Appellant Itwari and Ram Niwas were also convicted under Section 25 of Arms Act and sentenced to undergo R.I. for one year.
6. Appellant Bhawani was also convicted under Section 4 read with Section 25 of the Arms Act and was also sentenced undergo R.I. for a period of one year.
7. All the sentences were, however, ordered to run concurrently.
8. We have heard learned Senior Counsel Sri P.N. Misra for appellant Itwari and Sri Apul Misra learned Counsel appointed as Amicus Curiae on behalf of other appellants and learned AGA and perused the record.
9. The first information report of the case was lodged by Tika Ram (PW 1) Mama of deceased Brij Pal at police station Bhuta, sub district Faridpur district Bareilly on 9.5.1996 in the night at about 1.00 a.m. regarding the occurrence which took place on 8.5.1996 at 8.00 p.m. In village Umaura, located at the distance of about 9 k.ms from P.S. Bhuta.
10. The prosecution case, as disclosed in the written report Ext. Ka-1, is that on 7.5.96 the marriage of the son of the information Tika Ram had taken place. In the evening at about 8.00 p.m. Brij Pal, Hori Lal and Rameshwar had come to the house of Tika Ram of dinner. The dinner was served by Kalyan Singh son of Tika Ram. Nearby a gas lantern was illuminating, when accused Ram Niwas, Bhawani of the village of the complainant and their relation Brij Lal and Itwari residents of village Khalpur of P.S. Faridpur came there. Appellant Ram Niwas was armed with gun, Bhawani and Brij Pal were armed with Kanta (a sharp cutting weapon). Itwari was armed with Tamancha (country made pistol). The four appellants entered into the house of Tika Ram. Ram Niwas exhorted Mar Do Salon Ko Bachkar Na Jane Paye. On his exhortation appellants Ram Niwas and Itwari in order to commit murder of Brijpal (Bhanja of complainant) opened fire from the gun and country made pistol. Brijpal received gun shot injuries on his abdomen and on his right front chest. After receiving the gun shot injuries Brijpal ran towards the door, but appellants Bhawani and Brijpal by means of pharsa caused injuries to deceased Brijpal, who fell down and died. When the informant Tika Ram and his companions tried to catch hold of the appellants, the appellants again opened fire and no body could dare to go near to go near them. It was further stated in the first information report that informant. Tika Ram had old enmity with Bhawani Ram and others and his case is pending in the court at Bareilly.
11. The prosecution in support of its case, examined informant Tika Ram as P.W. 1 Kalyan Singh as P.W. 2 Hori Lal as P.W. 3 who are eye witnesses of the occurrence. Dr. S. Tandon who had conducted the post mortem examination on the dead body of deceased. Brijpal was examined as P.W. 4, Constable Rewati Prasad who registered the case at crime No. 134/96 under Section 302, 452 I.P.C. and entered the details of the same in the G.D. had been examined as P.W. 5 Constable Har Pal Singh who had written the chick report Ext. Ka-5 at case crime No. 136 of 1996, under Section 25 of Arms Act against and who on 28.5.1996 registered the case against the appellant Bhawani under Section 4/25 of Arms Act as per chick report Ext. Ka-7 and as per details of G.D. as Ext. ka-8, has been examined as P.W. 6. P.W. 7 Megh Raj witness of inquest report and of recovery memo of gas lantern and of taking blood stained and simple earth has been examined as P.W. 7. S.I. Samay Singh is the investing officer of the case who has been examined as P.W. 8 and S.I. Mordhwaj, who has been examined as P.W. 9 is the witness of recovery of gun on the pointing out of accused Ram Niwas and recovery of Kanta on the pointing out of accused Bhawani. Dinesh Chand Dodiyal, the Investigating Officer and witness of recovery of the alleged gun and Kanta on the pointing of appellant Ram Niwas and Bhawani has been examined as P.W. 10. S.I. Gajendra Pal Singh sent the recovered country made pistol, pharsa, blood stained clothes, blood stained earth and plain earth to Chemical Analyst has been examined as P.W. 11.
12. The appellants pleaded not guilty and claimed that they have been falsely implicated because of their enmity with informant Tika Ram. However, no defence evidence was adduced.
13. Considering the above evidence and hearing the learned Counsel for the parties, the trial court recorded the conviction of the appellants and awarded sentences as above.
14. Learned Counsel for the appellant submitted that there was no independent witness examined. Only Mama of the deceased Tika Ram who admittedly had enmity with the appellant, the son of the informant Kalyan and real brother in law of the informant Hori Lal have been examined by the prosecution. All the three eye witnesses examined by the prosecution are the dose relatives of the deceased Brij Pal. It has also been submitted by the learned Counsel for the appellants that in this case it is highly doubtful that any gas lantern was illuminating at the time of the occurrence. A perusal of the recovery memo of alleged lantern, Ext. Ka-11 suggests that when this lantern was taken into possession by the police its ‘mantel’ had broken. It has also been submitted by the learned Counsel that as per the prosecution story the appellants had a motive against the informant Tika Ram, therefore, it is unusual that the appellants spared Tika Ram and preferred to commit: murder of his Bhanja, deceased Brij Pal. The learned Counsel lastly’ submitted that in fact deceased Brij Pal was killed by some unknown person at some unknown place and appellants have been falsely implicated in this case.
15. Per contra, the learned AGA submitted that the relationship of the witnesses with deceased is not a factor to affect their credibility. The incident took place inside the house of the informant, Tika ram, where feast was going on and it has come in the evidence that only few people were invited it has also been submitted by the learned AGA that it has come in the evidence that mantel of the gas lantern was broken after the occurrence. The deceased was a close relative of the informant. It is unnatural that the informant shall spare the real assailants and will falsey implicate the appellants due to previous enmity. The learned court has discussed the evidence in detail and found the witnesses trustworthy and convicted the appellants in the aforesaid manner.
16. We have given our thoughtful consideration to the rival submissions made by the learned Counsel for the parties.
17. The first question to be examined in the present appeal is whether deceased Brijpal received injuries in the manner alleged by the prosecution at the house of informant Tika Ram, or he had received injuries at some other place by some unknown person and appellants have been falsely implicated in this case due to enmity.
18. P.W. 4 Dr. S. Tandon conducted the post mortem of the dead body of the deceased] on 9.5.96 at about 5.00 p.m. In District Hospital, Bareilly and found the following ante mortem injuries:
(I) Incised wound 8 cm x 1 cm x brain cavity deep on the Rt side top of the head from middle to back, inside the wound there was fracture present on Rt parietal & occipital bone.
(II) Incised wound 8 cm x 1, cm x brain cavity deep on the Rt. side skull 1 cm below injury No. (1) brain matter coming out of wound.
(III) Incised wound 15 cm x 1.5 cm x brain cavity deep over Rt. temporal region 2 cm below injury No. (II) and over the wound Rt. temporal, occipital bone fractured and brain matter coming out of wound.
(IV) Incised wound 11 cm x 2 cm x bone deep, the wound extended from front face to back of the neck cutting the Rt. ear through and through.
(V) Incised wound 8 cm x 1.5 cm x vertebra bone deep on Rt. side neck 1 cm below injury No. (iv) cutting all the blood vessels inside the wound.
(VI) Incised wound 7 cm x 1.5 cm x bone deep in front of left side fore head 4 cm above root of nose.
(VII) Incised wound 5 cm x 1 cm x bone deep on left forehead just above left eye brow.
(VIII) Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on the Rt. side front chest 7 cm Rt. lateral to Rt. nipple at 8 O’ clock position. Blackening, tattooing present and direction of wound is from Rt. to left and below the wound Rt. side V and VI Ribs are fractured.
(IX) G.S.W. of entry 2 cm x 2 cm x abdominal cavity deep on left side abdomen. Evidence of blackening & tattooing present. It is situated left lateral 5 cm away fracture at 2 O’ Clock position and the direction of wound is from front to back.
(X) G.S.W. of entry 2.5 cm x 2 cm x muscle deep on the Rt. lateral aspect of middle of thigh. Evidence of blackening & tabooing present. Direction of wound is from Rt. to left side.
(XI) I.W. 3 cm x 1 cm x muscle deep on back of left scapular region.
(XII) I.W. 2 cm x .5 cm x muscle deep on back of left side chest 4 cm below injury No. XI.
(XIII) I.W. 2 cm. X 1/2 cm x muscle deep on Rt. side scapular region.
(XIV) I.W. 2 cm x 1/2 cm x muscle deep on left forearm middle
19. On internal examination skull was found cut and congested, corresponding to neck injury scalp was cut and congested corresponding to scalp injury with fracture of forehead occipital bone right parietal bone right temporal bone Right brain membrane were also cut and congested. Rt. side brain was lacerated and brain matter was coming out of brain. Rt side chest valve congested and lacerated. Rt. side 5th and 6th ribs were fractured. Rt. side pleura was lacerated. Both lungs were lacerated. One wadding piece and 25 small rounded metallic shots were recovered from both lungs and chest cavity. Pericardium was found lacerated. From cavity about half litre of clotted blood and one wadding piece and 20 small metallic round shot were recovered about 100 grams of semi digested food was found in the stomach. In the opinion of the doctor the death was due to comma, shock and haemorrhage as a result of ante mortem injuries sustained by the deceased.
20. The doctor in his statement has stated that the deceased could die on 8.5.1996 at 8.00 p.m. and all incised wound suffered by the deceased could be caused by Kanta and remaining ante mortem injuries could be caused by fire arms like tamancha and gun.
21. In view of above medical evidence when we examine the oral evidence of PW 1 Tika Ram, informant, of the case , PW 2 Kalyan and PW3 Hori Lal, who claimed to have witnessed the incident, we find that their statements are corroborated by medical evidence on record.
22. PW 1 Tika Ram, Mama of deceased stated in his evidence that deceased Brijpal was his Bhanja, At the time of occurrence at about 8.00 p.m. A dinner party was arranged at his house on the occasion of Barat of his son. Brijpal his bhanja, Hori Lal, (father of the Brijpai), and Rameshwar had come for the dinner. The dinner was arranged in the courtyard of his house when the invitees were having dinner.The dinner was served by his son Kalyan Singh in the light of the gas iantern and kerosene dibbi. At that time four appellants Ram Niwas, Itwari, Bhawani and Bripal came there. Ram Niwas was armed with gun, Itwari was armed, with Tamancha. Bhawani and Brijpal were armed with Kanta. They had come from the eastern door of his house into the courtyard. Seeing his Bhanja (Brijpai), Ram Niwas exhorted MAR DO SALON KO. Itwari and Ram Niwas opened fire from their weapons. Brijpai received gun shot injuries on his chest and abdomen. Brijpai ran towards door. Ram Niwas again exhorted MAR DO SOLON KO BACHKAR JANE NA PAYE. Bhawani and Brijpai caused injuries to deceased Brijpal by means of Kanta, Brijpai fell down and when they tried to catch hold of the accused they opened fire. It was further stated by this witness that his family members had enmity with appellant Bhawani. Appellant Itwari and Brijpai are Bhanja and son in law of Bhawani and appellant Ram Niwas is their close acquaintance. Witness Hori Lal is his brother in law.
23. This witness, was subjected to lengthy cross examination, but nothing could be elucidated in cross examination to doubt his testimony. P.W. 2 Kalyan and P.W. 3 Hori Lal have corroborated the version given by P.W. 1 Tika Ram. It also clear that their version is fully supported by the medical evidence on record.
24. Undoubtedly the three eye witnesses are close relative of the deceased but this is no ground to reject their testimony.
25. Hon’ble Supreme Court in the case of Sushil Kumar and Ors. v. State of U.P. 1994 (3) Crimes 83 has held that mere fact that the witnesses are either relatives of the deceased or nimical towards the accused by itself is not a circumstances to throw away thier evidence. The evidence has to be closely scrutinised with care and caution and if found consistent and supportable there is no reason to discredit their testimony.
26. In the case of Ram Gopal v. State of Rajasthan , the Hon’ble Apex Court held that if the occurrence took place in the dwelling house of the deceased at about mid night, the independent witnesses could be expected to be present and the inmates of the rouse would be the most natural witnesses, in such circumstances their evidence can not be discarded merely because they are relatives of the deceased
27. When in the light of the above law we examine the evidence, we find that the incident took place at about 8.00 p.m. inside the house of the informant Tika Ram who is mama of deceased Brijpal, P.W. 2 Kalyan is cousin of deceased Brjjpal and son of informant and P.W. 3 Hori Lal is father of the, deceased Brijpal. It has come in the cross examination of P.W. 1 informant Tika Ram at page 16 that at the time of dinner there were only 5-6 people in his house. He had invited only 5-6 persons and at the time of occurrence only Hori Lal, Birjpal, Ram Avtar and Rameshwar were having dinner. In view of the above, the evidence of these three witnesses can not be discarded on the ground that they are related to the deceased and no independent witness has been examined.
28. The second question which arises for consideration, is whether at the time of occurrence there was sufficient light at the place of occurrence of not. As per the prosecution story the dinner was arranged on the occasion of the marriage of the son of the informant and at the place of occurrence a gas lantern was burning. It is true that it has come in the evidence that when the Investigating Officer took the gas lantern into possession its mantel was broken. All the witnesses of fact have deposed that at the time of occurrence a gas lantern was illuminating Regarding the fact that the mantel was found broken, it has been stated by P.W. 3 in his cross examination that the same was broken as the pellets had hit the mantel. We, therefore, find no force in this argument that there was no light at the time of occurrence.
29. The last submission of the learned Counsel for the appellants that the appellants would have not spared Tika Ram, with whom they had previous enmity also has no force as the deceased was close relative of Tika Ram.
30. The recovery of weapons on the pointing out of the three accused, namely, Ram Niwas Bwani and Itwari is evident from the statement of the investigating Officers. P.W. 8 S.I. Samay Singh and P.W. 9 S.I. Mordhwaj, From the evidence on record it is also clear that the weapons recovered on the pointing out of the three appellants were sent for chemical examination along, with the used cartridges found at the place of occurrence and as per the report of Vidhi Vigyan Prayogshala Ext. Ka-34 to Ka-36, the cartridges were fired from these weapons and human blood was found on the Kanta.
31. In view of above foregoing discussions, we do not find any merit in these appellant. The appeal are dismissed accordingly.
32. The appellants are in jail. They shall serve out the sentences (sic) awarded to them by the trial court.
33. Sri Apul Misra, learned Amicus Curiae shall be paid Rs. Fifty five hundred as fee for rendering assistance to Court on behalf of few appellants.