JUDGMENT
Shiv Kumar Sharma, J.
1. Three ‘History Sheeters’, as per the ocular evidence were cruelly murdered by the assailants with fire arms and sharp edged weapons but the autopsy reports did not reveal gun shot injuries. This consistency persuaded learned Counsel to canvass that conviction of the appellants was virtually a ‘moral conviction’. The question therefore emerges in these appeals is as to whether the distance of the prosecution story between ‘may be true’ and ‘must be true’ is bridged by legal reliable and unimpeachable evidence.
2. As many as seventeen accused persons faced trial in Sessions Cases No. 83/2001, 137/2000 and 60/2002 before the learned Additional Sessions Judge No. 1 (Fast Track) Kota (for short ‘trial judge’) who vide Judgments dated September 22, 2001, November 22, 2001 and September 23, 2003 acquitted three but conviction and sentenced fourteen as under:
(1) Prabhu Lal, (2) Ram Charan, (3) Akheraj, (4) Nand Bihari, (5) Shiv Prasad, (6) Durga Shankar, (7) Bhagirath, (8) Sita Ram, (9) Kanhaiya Lal @ Kana, (10) Badri Lal, (11) Daulat Ram, (12) Radhey Shyam s/o Raghunath, (13) Bhawani Shankar and (14) Radhey Shyam s/o Heera Lal:
Under Section 148 IPC:
Each to suffer rigorous imprisonment two years and six months and fine of Rs. 1000/-, in default to further suffer seven days simple imprisonment.
Under Section 302/149 IPC:
Each to suffer life imprisonment and fine of Rs. 5000/-, in default to further suffer one month simple imprisonment.
The substantive sentences were directed to run concurrently.
3. These fourteen accused are the appellants in the instant nine appeals. Since all these appeals arise out of the same incident, we proceed to decide them by a common judgment.
4. First information report regarding the incident was lodged by Kishan Lal (PW.1) with police station Itawa (Kota) at 1 AM on May 13, 1990 in regard to murder of Surajmal, Shishupal and Khemraj. The fourteen appellants and three others were named in the report. Appellants Durga Shankar and Sita Ram were alleged to open fire with the guns, pallets of which hit Shishupal, Suraj Mal, Khemraj and Raghu Nath (PW. 4). Informant Kishan Lal and Raghu Nath some how escaped but Shishupal, Suraj Mal and Khemraj had been given merciless beating with sharp edged weapons and they died on the spot. Police Station Itawa registered a case under Sections 147, 148, 149, 307 and 302 IPC and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 (Fast Track) Kota. Charges under Sections 148, 302/149 and 307/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
5. We have heard the arguments of learned Counsel for the appellants and learned Public Prosecutor and scanned the entire evidence on record. Before we deal with the contentions raised, it will be appropriate to take stock of the injuries sustained by the three deceased and injured Raghunath.
6. As per post mortem report (Ex.P.27) deceased Shishupal sustained following ante mortem injuries:
Incised wound over forehead : size 4″ deep to bone, Transverse in direction
Incised wound over Lt. parietal region size 4″ x 2″ x deep to bone parallel to middle lacerated wound over outer side of Lt. orbit size deep to bone.
The cause of death in the opinion of doctor was cerebral haemorrage following head injury.
7. Deceased Khem Raj vide post mortem report (Ex.P.28) received ante mortem injuries thus:
Lacerated wound 1 over outer side of Rt. orbit size 2″ x 2″ x 1″
Three lacerated wounds over occipital region size 3″ x 2″
Lacerated wound over Lt. leg, medial size, size 1/3′ x 1/3″ x 1 shape no fragments of bullets of vailatin.
The cause of death in the opinion of doctor was cerebral haemorrage following head injury.
8. Post mortem report (Ex.P.29) demonstrates the injuries of Suraj Mal as under:
Two incised wound over chin – size 3″ x 2″ x deep to bone transverse direction,
Incised wound over Lt. Parietal region size 4″ x 2″ x deep to bone. Transverse in direction.
Incised wound over Lt. Leg size 1/3rd x 1/3rd x deep to bone oval shape, no fragments at bonear brought in round.
Two bruise over Lt. knee joint.
The cause of death in the opinion of doctor was cerebral haemorrage following head injury.
9. Raghunath (PW. 4) vide Injury Report (Ex.P.30) sustained one Lacerated wound measuring 1″ x 1/8″ x 1/8″ over Rt. leg back side 6″ below from knee joint.
10. Appellant Sita Ram vide injury report (Ex.P.31) received one lacerated wound measuring 1-1/2″ x 1/2″ x 1/8″ over Rt. Parietal region and one bruise measuring 3″ x 2″ over Lt. shoulder joint.
11. The prosecution case is founded on the testimony of Kishan Lal (PW. 1), Raghu Nath (PW. 4), Kesri Lal (PW. 5), Heera Lal (PW. 6), Latoor Lal (PW. 7) and Kanhaiya Lal (PW. 16). Out of these witnesses Raghunath (PW. 4) was examined as injured eye witness. In his examination in chief Raghunath deposed that after attending the dinner at village Narayanpura while he along with Kishan Lal Surajmal, Shishupaland Khemraj were coming back he saw 17-18 persons armed with fire arms, Dhariyas, Gandasis and axes near the bank of Sukhani river. Out of those persons he could identify only six persons namely Daulat Ram, Ramcharan, Akheraj, Radhey Shyam, Sita Ram and Durga Shankar. Durga Shankar and Sita Ram opened fire and the pallets hit Shishupal, Khemraj and Surajmal. He also sustained fire arm injury. He and Kishan Lal managed to escape but the assailants surrounded Shishupal, Suraj Mal and Khemraj and inflicted injuries with Gandasis and Dharias on their person. Daulat Ram, Ramcharan, Akheraj, Radhey Shyam, Sita Ram and Durga Shankar were also identified by him in the trial Court. Learned Counsel questioned the testimony of Raghunath on two counts.
(i) From his cross examination it is evident that he himself was kept in confinement for four days after the incident.
(ii) From his medical injury report no injury with fire arm was found on his person.
12. We were taken through the testimony of Bajrang Singh (PW. 14), SHO who in his cross examination stated that all the three deceased were history sheeters. Statements of Kishan Lal (PW. 1) Kesri Lal (PW. 5), Heera Lal (PW. 6), Latoor Lal (PW. 7) and Kanhaiya Lal (PW. 16) were also read over before us and it was contended that version of these witnesses has been completely falsified by the medical evidence as no injury with the fire arm was found on the dead bodies. It was also urged that alleged recovery of weapons of offence at the instance of the appellants was a farce and it could not be read against the appellants. It was lastly contended that looking to the fact that these persons were killed the learned trial judge without legal, reliable and unimpeachable evidence punished the appellants on the basis of moral conviction which is not sustainable. Reliance is placed on Mousam Singh Roy v. State of W.B. .
13. Per contra, learned Public Prosecutor supported the impugned judgments and contended that presence of Raghunath cannot be doubted since he himself sustained the injury.
14. Indisputably the ocular evidence and the medical evidence in the instant case is at variance. But having carefully weighed the entire material on record we are of the opinion that this variation does not affect the trustworthiness of injured eye witness Raghunath. His presence at the time of occurrence is quite natural. He sustained injury during the incident and his testimony could not be shattered in the cross examination. He was kept in custody by the police because there was apprehension that he could be killed.
15.In Gangadhar Behera v. State of Orissa , their Lordships of Supreme Court indicated that undue primacy should not be accorded to medical witness to exclude eye witness’s account which has to be tested independently and not treated as ‘variable keeping the medical evidence as constant. In Sumesh Lal v. State of Bihar it was held that when evidence of eye witness was found competent and truthful, there was no need to look for any other evidence. In Masalti v. State of U.P. Constitution Bench of Hon’ble Supreme Court held that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict the accused persons. It was indicated that where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders, it is usual to adopt the test that conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of incident. It was held that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though the quality of the evidence that matters and not the number of witnesses,. still it is useful to adopt such a mechanical test.
16. “Two-witness theory” was also adopted by the Hon’ble Apex Court in Binay Kumar Singh v. State of Bihar (1977 (1) SCC 283), indicating that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It was held that even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of unlawful assembly. It was held that all the same, when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be prudent exercise to insist on at least two reliable witnesses to vouch safe the identification of an accused.
17. In Chandra Shekhar Bind v. State of Bihar , their Lordships of the Supreme Court adopted two-witnesses theory and observed thus:
In our view considering the large number of people Involved, it would be prudent in this case to adopt two-witness theory. On the basis of this two-witness theory, benefit of doubt would have to be and is given to accused 9, 10 and 12 in as much as more than one witness has not identified them.
18. Coming to the facts of the instant case we notice that Kesri Lal (PW. 5), Heera Lal (PW. 6), Latoor Lal (PW. 7) and Kanhaiya Lal (PW. 16) were not named as witnesses in the FIR therefore their presence at the time of occurrence becomes doubtful. Informant Kishan Lal (PW. 1) deposed that he was residing in one house with the deceased Suraj Mal, Shishupal and Khemraj and the deceased were his cousin brothers. The prosecution did not ask this witness to identify the assailants in the trial Court and the appellants were not identified by Kishan Lal in the trial Court. In view of the fact that Kishan Lal was the near relative of the deceased and residing with them in one house possibility of over implication of the accused in the case can not be ruled out.
19. We thus find the evidence of Raghu Nath (PW. 4) and Kishan Lal (PW. 1) consistent, legal, reliable and unimpeachable qua the appellants Radhey Shyam s/o Raghunath, Daulat Ram, Sita Ram, Durga Shankar, Ram Charan and Akheraj only, since they were named and identified by injured eye witness Raghunath in the trial Court. The benefit of doubt is given to the appellants Prabhu Lal, Nand Bihari, Shiv Prasad, Bhagirath, Kanhaiya Lal @ Kana, Badri Lal, Bhawani Shankar and Radhey Shyam s/o Heera Lal.
20. For these reasons we dispose of the instant appeals in following terms:
(i) We allow the appeals of appellants Prabhu lal, Nand Bihari, Shiv Prasad, Bhagirath, Kanhaiya Lal @ Kan Badri Lal, Bhawani Shankar and Radhey Shyam s/o Heera Lal and set aside the impugned judgment of conviction passed against them. They stand acquitted of the charges under Sections 148 and 302/149 IPC. Appellants Prabhu Lal, Nand Bihari, Shiv Prasad, Bhagirath, Kanhaiya Lal @ Kana Badri Lal, Bhawani Shankar and Radhey Shyam s/o Heera Lal, who are in jail shall be set at liberty forthwith if not required to be detained in any other case.
(ii) Appeals of appellants Radhey Shyam s/o Raghiinath, Daulat Ram, Sita Ram, Durga Shankar, Ram Charan and Akheraj stand dismissed.
(iii) the impugned judgment of trial Court stands modified as indicated above.