JUDGMENT
M.L. Visa, J.
1. This appeal by appellants has been filed against the judgment and order dated 27.3.1996 passed by IIrd Additional Sessions Judge, Khagaria in Sessions Case No. 221 of 1994 convicting and sentencing both the appellants to undergo rigorous imprisonment for life under Sections 302/34 of Indian Penal Code (in short ‘IPC’) and to undergo rigorous imprisonment for five years each under Section 27, Arms Act. Both the sentences have, however, been ordered to run concurrently.
2. The case of the prosecution, as stated in the First Information Report, in short, is that on the night of 1.4.1994, informant Guneshwar Sada (P.W. 7), after taking his meal, was sleeping in his house. His son Bajrangi Sada was also sleeping with his wife in a house which he had constructed three years ago on the land of one Brijmohan Prasad. The informant heard sound of firing and also alarm raised by his daughter-in-law and, thereafter, when he went running to the house of his son, he saw both the appellants firing at his son and at that time, Ganeshi Yadav and Ram Swamp Yadav were also standing there. The moment, informant reached the house of his son, both the appellants fired at his son. At the time of occurrence, it was moonlit night and the informant, in the light of moon, identified the appellants and their companions. He saw that both the appellants fired one shot each as the result of which his son died at the spot. He saw both the appellants and their companions, all carrying country-made pistols and on the sound of firing, Ram Pravesh Sada (P.W. 1), Ram Pukar Sada (P.W. 2), Mahendra Sada (P.W. 6) and others came running to the place of occurrence and they also saw the occurrence. According to informant, occurrence took place at 11 p.m.. The informant at about 1 a.m. on 2.4.1994 went to Alauli Police Station and lodged the First Information Report (Exhibit. 4). For the motive, the informant stated in first information report that his deceased son Bajrangi Sada had constructed his house on the land of landlord Brijmohan Prasad of village-Sanhauli and for this reason, at the instance of Brijmohan Prasad, appellants and their other two companions, committed the murder of his son. The First Information Report was registered under Sections 302/34, IPC and Section 27, Arms Act against both the appellants, Ganeshi Yadav and Ram Swamp Yadav. The police, after investigation, submitted charge-sheet against both the appellants and Ganeshi Yadav. Co-accused Ram Swarup Yadav was not sent up for trial.
3. After cognizance, the case was committed to the Court of Sessions where charges under Sections 302/34, IPC and Section 27 of Arms Act were framed against both the appellants and Ganeshi Yadav and they all were put on trial on their denial of the charges. The case of appellants before the Court below, as it appears from the evidence of defence witnesses and from the trend of cross-examination of prosecution witnesses, was that deceased had land dispute with the owner of the land on which he had constructed his house for which a proceeding under Section 107, Cr.P.C. was initiated in which notice was served on deceased and appellants were witnesses of the service of such notice on deceased and when deceased was murdered by some body else, they been falsely implicated in this case.
4. After trial, the Court below did not find co-accused Ganesh Yadav guilty and acquitted him of the charges. So far as appellants are concerned, both the appellants were found guilty under Sections 302/34, IPC and Section 27 of Arms Act and they were convicted and sentenced, as indicated above.
5. In order to prove its case, prosecution examined nine witnesses. Guneshwar Sada (P.W. 7) is informant. Dr. Anil Kumar Singh (P.W. 5) is the doctor who had conducted autopsy on the dead-body of deceased. Narendra Kumar (P.W. 8) is the Investigating Officer of this case. Kaleshwari Devi (PW 9) is the wife of deceased. Ram Prakesh Sada (P.W. 1), Ram Pukar Sada (P.W. 2), Manohar Sada (P.W. 3), Driver Sada (P.W. 4) and Mahendra Sada (P.W. 6) are said to be witnesses who, after hearing the sound of firing, had gone to the house of deceased.
6. Dr. Anil Kumar Singh (P.W. 5) has said that on 2.4.1994, he was posted as Medical Officer at Sadar Hospital, Khagaria and on that day at about 2.30 p.m., he held post-mortem examination on the dead-body of Bajrangi Sada and found the following ante-mortem injuries on the body:
(1) One lacerated circular wound of about 1 cm. diameter with inverted margin over left chest wall mid exillary line about 3″ above coastal margin. It was wound of entry.
(2) One lacerated wound 2.5 cm. x 1.5 cm. with inverted margin on low back 2.5 cm. left of mid line about 6″ above noted cleft. It was wound of exit.
(3) One lacerated wound circular about 1 cm. diameter with inverted margin left orbit lateral side with eye-ball lacerated. It was wound of entry.
(4) One lacerated wound 2.5 cm. x 1.5 cm. with inverted margin over right external eartragus. It was wound of exit. According to him, rigor mortis was present in all four limbs and on dissection, he found blood clots were present in the surrounding tissues in association with abovementioned injuries and injuries No. 1 and 2, and 3 and 4 were communicating with each other. He has, further, said that fracture of left 7th and 8th ribs orbital bone and right mandible were present and the left part of frontal lobe of brain was lacerated and aforesaid injuries were caused by fire arm and death was caused due to shock and haemorrhage because of aforesaid injuries and time elapsed since death, was found within 24 hours from the time of post-mortem examination. He has proved his post-mortem examination report, which is marked as Exhibit-1.
From his evidence, it is established that death of deceased was homicidal. Now it has to be seen how far the prosecution has succeeded in proving its case that the injuries found on the dead-body of deceased, which proved fatal, were inflicted by the appellants.
7. Guneshwar Sada (P.W. 7), the informant, in his evidence, has stated that on the day of occurrence, he was lying in his ‘Angan’ and his son was sleeping in the ‘verandah’ of house when both the appellants along with Ganeshi Yadav and Ram Sharan armed with pistols came from northern side and he then stood up and, thereafter, the appellants and their companions asked each other for killing soon otherwise there would be ‘hulla’ and at the time, he was at a distance of three ‘lagga’ from his son. He has, further, said that appellant Binod Yadav fired from his pistol on the left eye of deceased and appellant Balbir Yadav fired from his pistol on the left lateral side of chest of deceased and his son, after tossing for about two to four times, died. He has also said that on hearing the sound of firing, P.Ws. 1, 2 arid 3 came there and he, after the occurrence, went to Alauli police station and lodged the First Information Report. Kaleshwari Devi (P.W. 9) is the wife of deceased and she has said that on the day of occurrence at about 11 p.m., she was sleeping by putting her hand on the body of deceased in her house and when both the appellants removed her hand, she awoke and saw both the appellants armed with pistols and they fired at her husband and fled away. According to her, appellant Binod Yadav fired at the eye of deceased and appellant Balbir Yadav fired at the lateral side of chest of deceased. She has also said that on hearing the sound of firing by pistol, informant, P.Ws. 1, 2 and 3 came there. Ram Pravesh Sada (P.W. 1) and Ram Pukar Sada (P.W. 2) have said that at the time of occurrence, they were in their respective houses and when they heard sound of firing, they came out from their houses. P.W. 1 has said that sound of firing had come from the house of deceased and when he was going there by running in the way, he saw both the appellants along with Ganeshi Yadav and one another who could not be identified by him and when he reached the house of deceased, he found the deceased lying dead in the pool of blood and the wife of deceased told him that both the appellants, after firing at her husband, had fled away. P.W. 2 has said that after hearing the sound of firing when he came out from his house and proceeded towards west, he saw both the appellants and Ganeshi Yadav armed with pistols but out of fear, he did not tell anything to them and when he went to the house of deceased, he found dead-body of deceased lying in the pool of blood and deceased and injuries on left eye and on left lateral side of the chest and informant, P.Ws. 1 and 6 were also there. Manohar Sada (P.W. 3) has said that at the time of occurrence, he was lying at his house when he heard sound of two firings and also of crying and when he went running towards the house of deceased, he found deceased tossing on a ‘chauki’ and informant had caught hold of him and wife of deceased told him that both the appellants, after firing at her husband, had fled away along with Ganeshi Yadav. Driver Sada (P.W. 4) has said that on the day of occurrence at 11 p.m., he was in his house when he heard sound of two firings and when he, after coming out from his house, went towards west, he found both the appellants along with Ganeshi Yadav coming from there and all of them were armed with pistols and when he went to the house of deceased, he found the dead-body of deceased and informant and wife of deceased told him that deceased had been murdered. He has not said that either the informant or wife of deceased told him the name of assailants. Mahendra Sada (P.W. 6) has also said that on the day of occurrence at about 11 p.m., he was in his house when he heard the sound of firing and when he left his house, he saw both the appellants along with Ganeshi Yadav fleeing away towards east and all the aforesaid persons had pistols with them. It was a moonlit night and when he went to the house of deceased, he found the dead-body of deceased lying in the pool of blood having injuries on his left eye and left lateral side of his chest and at that time informant, wife of deceased, P.Ws. 1, 2 and 3 were present there. Narendra Kumar (P.W. 8), the Investigating Officer of this case, in his evidence, has said that on 2.4.1994, he was posted at Gogri police station as a Junior Sub-Inspector of Police and on that day, on the basis of statement of informant. Gogri P.S. Case No. 21 of 1994 was registered and he was entrusted the investigation of the case. According to him, he visited the place of occurrence, which is a hut of one room without any door on the land of one Brijmohan Prasad and there was ‘Ekchari’ (verandah) towards east of this hut and under this ‘Ekchari’, a ‘chauki’ with a plastic bed, was there on which dead-body of deceased was lying in the poof blood and there was sufficient blood on the plastic bed and also beneath the “chauki’, and he also found front portions of two fired 303 cartridges. According to him, the southern portion of ‘Ekchari’ was covered by ‘tatti’ and its northern side was open and there was open courtyard towards north and east of this ‘Ekchari’ and there was open field towards sought of the place of occurrence. He has further said that he prepared the inquest report of the dead-body of deceased and sent the dead-body of deceased for post-mortem examination along with a ‘challan’ (Exhibit-3) prepared by him and after recording the statement of witnesses and completing the investigation, submitted charge-sheet. He has proved the formal First Information Report (Exhibit-4) and fardbayan of informant (Exhibit-5).
8. The earned Counsel appearing on behalf of the appellants has submitted that the informant, in his fardbayan, stated that at the time of occurrence, he was sleeping in his house and after hearing the sound of firing and alarm of his daughter-in-law, he went to the place of occurrence where he saw both the appellants firing at his son by their fire arms in actual contact of the body of deceased but in his evidence, he has said that when he was lying in his ‘Angan’, both the appellants along with Ganeshi Yadav and Ram Sharan Yadav came from northern side armed with pistol, and when he stood up then they told to kill soon otherwise there will be ‘hulla’ and at that time, he was at a distance of three ‘lagga’ from the deceased and, thereafter, he saw firing by both the appellants at the deceased. He has further submitted that in para-4 of his cross-examination, this witness has admitted that before Investigating Officer, he has said that the occurrence took place at 10.30 a.m. meaning thereby in day time and evidence of Kaleshwari Devi (P.W. 9), the wife of deceased is that after firing, this witness along with others, came to the placed of occurrence on hearing the sound of firing and in these circumstances, the evidence of informant that he is an eye-witness to the occurrence cannot be relied upon. It is true that there are some contradictions in the statement of informant which the gave in his fardbayan and in his evidence but then there is the evidence of Kaleshwari Devi (P.W. 9), who is the wife of deceased who has fully supported the case of prosecution, that both the appellants fired at her husband. Her evidence is further, supported by the evidence of P.Ws. 1, 2, 3, 4 and 6 who, immediately after the occurrence, reached the place of occurrence and saw the deceased lying dead with fire arm injuries and they have further stated that they saw both the appellants along with Ganeshi Yadav fleeing away from the place of occurrence carrying pistols with them. The evidence of P.Ws. 8, the Investigating Officer, that he had found dead-body of deceased lying in the pool of blood and parts of two fired cartridges were found at the place of occurrence, further supports the case of prosecution. In this case, occurrence is said to have been taken place at 10 p.m. and FIR was lodged at about 1 a.m. on 2.4.1994 meaning thereby that there was no delay in lodging the First Information Report which was lodged promptly.
9. Earned Counsel for the appellants has argued that the Investigating Officer, in his evidence, has stated that in her earlier statement, P.W. 9 had stated that both the appellants had fired at deceased in actual contact but P.W. 5, the doctor, who conducted post-mortem examination on the dead-body of deceased, has said that he did not find blackening, charring and singing marks near the wounds found on the dead-body of deceased and he has further said in his evidence that if a shot is fired from a distance within six feet in that case there will be blackening, charring and singeing. According to him, this circumstance shows that P.W. 9 had not seen the occurrence. According to him, the observation of the Court below that P.W. 9, in her evidence, has not specifically stated that firing was made within a range of six feet, therefore, absence of blackening, charring or singeing makes near the wounds will not make the evidence of P.W. 9 unbelievable, is not correct in view of specific statement of P.W. 9 before Investigating Officer that fire arms were discharged in actual contact. P.W. 9, in her examination-in-chief, has not said that firing was made in actual contact although in cross-examination, she has admitted that before Investigating Officer, she had stated that firing by appellants was made in actual contact. For actual contact, she has used the words “Sata Kar”. Her evidence shows that firing by appellants was made on her husband in ‘Exchari’ which is a part of her own hut. Her evidence does not show that firing was made from a very long distance. Her evidence, which is convincing in all other aspects, cannot be thrown away only on the ground that doctor did not find marks of blackening, charring and singing on the dead-body. Besides this, in Modi’s Medical Jurisprudence and Toxicology by quoting Simsbury, Lancet, 28 Feb. 1925, 421, it is stated that “Moreover, these signs may be absent when the weapon is pressed tightly against the skin of body, as the gases of the explosion and the flame smoke and particles of gunpowder will follow the track of the bullet in the body” (22nd Edition page 354). I, therefore, find that the absence of blackening, charring or singeing marks on the dead-body, as stated by P.W. 5, cannot be itself can be a ground for disbelieving the entire evidence of P.W. 9 which is supported by the evidence of other witnesses who had immediately reached the place of occurrence and they had been told about the occurrence by P.W. 9 and also supported by the evidence of Investigating Officer.
10. The earned Counsel appearing on behalf of appellants has argued that P.W. 9, in her evidence, has said that at the time of occurrence, she was sleeping in her house by putting her hand on the body of deceased and she awoke when both the appellants removed her hand and, thereafter, she saw the appellants armed with pistols. He has submitted that when she was sleeping, she could not have seen the appellants removing her hand. The evidence of P.W. 9 that at the time of occurrence, she was sleeping in her house with her husband by putting her hand on his body, has not been challenged. In that circumstance, when she felt removal of her hand and on this action, she awoke and saw both the appellants standing there with pistols, she must have felt that her hand was removed by the appellants because no body else was present there in her house at that time. The part of evidence of P.W. 9 in which she said that she awoke when her hand was removed from the body of her husband by the appellants, cannot be treated as a major contradiction which discredits her evidence. It has also been argued on behalf of the appellants that P.W. 9, in her evidence, has admitted that she had filed a petition before the Government for compensation on account of murder of her husband stating therein that her husband was killed by terrorists. In my opinion, this cannot be a ground for disbelieving her evidence on the point of inflicting fire arm injuries on her husband by appellants because obviously this petition was filed for receiving money from the Government and not for taking any action against any assailant of her husband. The earned Counsel appearing on behalf of the appellants has further argued that P.W. 5, the doctor, who conducted post-mortem examination on the dead-body of deceased, in his cross-examination, has said that if the time of death is found within 12 hours, in the report, it is mentioned as within 12 hours, if it is found within 18 hours, in the report, it is mentioned 18 hours and if the time of death is found beyond 18 hours and within 24 hours, it is mentioned within 24 hours and he, in his examination-in-chief, has stated that time elapsed since death was within 24 hours from the time of postmortem examination and according to the case of prosecution, occurrence took place at 11 p.m. on 1.4.1994 and post-mortem examination was held at 12.30 p.m. on 2.4.1994 and, therefore, the evidence of P.W. 5 about the time of death of deceased does not support the case of prosecution. P.W. 5, in his evidence, has stated that time elapsed between the death of deceased and post-mortem examination was within 24 hours. This supports the case of prosecution and because the post-mortem examination was held after about 18 hours from the time of death of deceased, therefore, this evidence is not against the case of prosecution about the time of death. It is true that P.W. 5, in cross-examination, has said that if time of death is beyond 18 hours but within 24 hours, in that case in the report, it is mentioned within 24 hours but then I find that the time of death given by P.W. 5 is an estimated time and not the exact time which is very difficult to give. In this connection, I would like to quote below few lines from the book of Modi’s Jurisprudence and Toxicology. (22nd Edition, page 246) “it is very important from a medico-legal point of view, that a medical jurist should always be prepared to give an opinion as to the time which elapsed since death, when a body is brought to him for post-mortem examination. The points to be noted in ascertaining the time are warmth or cooling of the body, the absence or presence of cadaveric hypstasis, rigor mortis and the progress of decomposition. All these points have been discussed at full length, but it must be remembered that the conditions producing these changes very so much in each individual case, that only a very approximate time of death can be given….
11. So I find that the time of death, as stated by P.W. 5, is the approximate time of death and not the accurate one. The positive evidence of P.W. 9, who is eyewitness to the occurrence, is that occurrence took place at about 11 p.m., cannot be disbelieved only on the ground that the doctor, who conducted post-mortem examination, after first deposing that the time elapsed since death from the postmortem examination was within 24 hours but in cross-examination, has said that when the time of death is beyond 18 hours but within 24 hours from the time of post-mortem examination, it is written within 24 hours.
12. Shanker Prasad Yadav (D.W. 1) has proved the report of the police in the proceeding under Section 107, Code of Criminal Procedure (Exhibit-A) and Ranjan Kumar (D.W. 2) has proved service report of a notice (Exhibit-B) of a case number 97-M of 1972. He has also proved the signature of appellant Binod Yadav (Exhibit-C) as a witness to this service report. Out of other documents, which have been marked as exhibits by the Court below on behalf of defence, Exhibit-D is a copy of complaint petition of a Case No. 201-C of 1993 filed by one Bonu Sada against deceased, Driver Sada (P.W. 4) and others, Exhibit-D/1 is a copy of complaint petition No. 191-C of 1992 filed by one Mulur Devi against deceased, P.W. 6 and others, Exhibit-D/2 is the copy of entry in a complaint register regarding case No. 60-C of 1992 filed by Bonu Sada against deceased, P.W. 6 and others, Exhibit-E is the copy of final report submitted by police declaring Alauli P.S. Case No. 24 of 1993 under Sections 144 and 436, (PC, false and Exhibit-F is copy of order dated 2.5.1995 passed by the Court of Chief Judicial Magistrate, Khagiaria in Case No. 201-C of 1993 in which Bonu Sada was complainant and Raj Kumar Yadav and others were accused-persons. The appellants, on the basis of these documents, want to show that because there was previous enmity between deceased and prosecution witnesses on one end and these appellants and others on other end, therefore, they have been falsely implicated in this case. Out of all the aforesaid documents, I find that in only Exhibit-C, there is the signature of appellant Binod Yadav on the service report of a notice served on Balbir Yadav who was one of 52 persons shown as second party in the proceeding under Section 145, Code of Criminal Procedure in which Brijmohan Prasad was first party and deceased was also one of the members of the second party. This document does not show that there was any enmity between the deceased and appellants. I, therefore, find that the documents, brought on record by the appellants, in no way, support their case that they have been falsely implicated on account of their enmity with the deceased. It is true that Ram Pukar Sada (P.W. 2) has admitted that he was also one of the parties in a proceeding under Section 145, Code of Criminal Procedure along with deceased in connection with occupying the land of one Brijmohan Prasad and the number of that case is 79-M of 1992. The case number is same in which service report (Exhibit-D) of a notice has been proved by defence but then this witness has said that he had not received any notice in the proceeding. Besides this, this witness has also stated that one Jugo Sada had filed a case of arson against appellant Binod Yadav and others in which he, P.W. 1, P.W. 4 and P.W. 6 were witnesses and police had submitted final form declaring the case false. This statement of P.W. 2 does not show that deceased had any enmity with the appellants. Next argument by the earned Counsel for the appellants is that Investigating Officer, in his evidence, has stated that there is no mention in case diary that at the place of occurrence, there was any source of light such as lantern, lamp or persona and because there was no sufficient light at the place of occurrence, therefore, he could not prepare the inquest report of dead-body of deceased in the night which was prepared in the morning. He has further submitted that P.W. 9 has also, in her evidence, not disclosed the source of any light in which she could have identified the appellants because, admittedly, according to the case of prosecution, occurrence took place at about 12 p.m. In the fardbayan (Exhibit-5), informant has stated that at the time of occurrence, there was moonlit night. Mahendra Sada (P.W. 6) has also said that when, after hearing the sound of pistol, he came out from his house, he saw the appellants running away in the light of moonlit night. According to the evidence of Investigating Officer, he found the dead-body of deceased on a ‘Chauki’ kept in ‘Ekchari’ and only the southern portion of ‘Ekchari’ was covered by ‘raft/’ whereas its northern part was open and there was open courtyard towards northern and eastern side of this ‘Ekchari’. Both the appellants belong to the same village to which P.W. 9 belongs. Under these circumstances, I do not find that P.W. 9 could not have identified the appellants, who are her own co-villager in an ‘Ekchari’ opened from three sides in a moonlit night when she had opportunity to see them from a very close range because, according to her, she awoke when appellants had gone near to her and removed her hand which she had kept on her husband. I, therefore, find no substance in the argument on behalf of appellants on this point. It has also been argued by the earned Counsel for the appellants that there is contradiction in the evidence of P.W. 9 and in her earlier statement recorded under Section 164, Code of Criminal Procedure, where she had stated that at the time of occurrence, she was sitting in her house. From the record of Court, below, I find that on 29.4.1994, informant filed a petition for recording statement of his witnesses under Section 164, Code of Criminal Procedure and Chief Judicial Magistrate, Khagaria, by his order dated 1.5.1994, deputed Shri A.K. Srivastava, the then Judicial Magistrate, 1st Class, Khagaria for recording the statement of witnesses, named in the petition of informant, under Section 164, Code of Criminal Procedure. The contradiction, as pointed out by earned Counsel for the appellants in the statement of P.W. 9 recorded under Section 164, Code of Criminal Procedure and in her evidence in Court, is only to the effect that in her earlier statement under Section 164, Code of Criminal Procedure, she stated that at the time of occurrence, she was sitting in her house while her husband was sleeping whereas in her evidence, she stated that on the night of occurrence, she was sleeping along with her husband in her house. No contradiction, in the aforesaid statements of P.W. 9, on the point of firing at deceased by appellants, has been pointed out by earned Counsel for the appellants. Besides this, no attention of P.W. 9 was drawn by defence when she was examined as witness in Court on the aforesaid contradiction which has now been pointed out by the earned Counsel for the appellants. So, I find that this contradiction is not fatal and is minor one which does not affect the credibility of the evidence of P.W. 9. The learned Additional Public Prosecutor, in reply to the arguments advanced on behalf of the appellants that in this case P.W. 9 is the only eye-witness but then she is wife of deceased and highly interested witness and her evidence is not supported by the testimony of any independent witness, has, after relying upon a decision of the Apex Court in the case of Anil Phukan v. State of Assam , submitted that evidence of a single eye-witness cannot be discarded only on the ground of his or her relationship with the deceased if it is otherwise reliable and trustworthy because a close relation of deceased would be the last person to spare the real assailant of his relative and implicate a false person. He has further submitted that in the aforesaid case, however, it has been held, that considering the possibility of a close relation to implicate some innocent person along with the real assailant, the Court may require independent corroboration direct or circumstantial of such an evidence and in the present case, there is strong circumstantial corroboration of the evidence of P.W. 9 by the evidence of P.Ws. 1 to 4, 6 and Investigating Officer.
13. Considering the entire evidence on record, I find that charges against both the appellants stand proved by the evidence of P.W. 9 who is an eye-witness to the occurrence supported by the evidence of other prosecution witnesses who, immediately rushed to the place of occurrence on hearing the sound of firing and identified both the appellants in way running away with pistols. The evidence of Investigating Officer, who had reached the place of occurrence in the night itself because the First Information Report was promptly lodged by informant also lends support to the case of prosecution. I, therefore, find no reason for interfering with the finding of the Court below holding the appellants guilty of the charges levelled against them.
14. In the result, this appeal is dismissed. The judgment and order of Court below convicting and sentencing both the appellants is hereby confirmed. Bail-bonds of both the appellants are hereby cancelled and they are directed to surrender before the Court below to serve the sentences passed against them.