JUDGMENT
R.C. Deepak, J.
1. This is a criminal appeal against the Judgment and order of the then Additional Sessions Judge, Shahjahanpur dated 24-3-1981 in Sessions trial No. 427 of 1989 convicting the abovenamed accused-appellants under Section 302/149, IPC and sentencing them thereunder to imprisonment for life and three years’ RI under Section 148, IPC while directing both the sentences to run concur- rently,
2. The prosecution case briefly narrated is that Itwari and Hira Lal (deceased) sons of Sumer were residents of village Mohar Tola P.S. Nigohi District Shahjahanpur. They were living jointly in one and the same house. All the accused-appellants except Malkhan, as mentioned earlier, are residents of the same village Mohar Tola. It is alleged that there elapsed nearly four months since mother of the appellant Mangali was murdered. In her murder case, Mangali implicated Itwari, Hira Lal and two others. Itwari and Hira Lal were consequently enlarged on bail. Consequently they were as usual looking after cultivation etc. together. Mangali, Kanchan and their relation generated a acrimonious feeling of ill will and enmity to- wards Itwari and Hira Lal. Once or twice Mangali hired goondas to kill Hira Lal. It was on 11-10-1979 that Itwari and Hira Lal got up in the morning, untied their cattle from one place and tied them at the other place and gave them fodder. At about 8.30 AM on that date Hira Lal was plastering Gobri on the outer part of the western wall of his Chaupal taking it (Gobri) from an Aluminium pateli in which if was put. His wife Smt. Nanhi was preparing Gobri nearby. Itwari was cleaning the Chaupal. Bhola and Bhimsen residents of the said village Mahavtola were present near the well of Itwari for the purpose of drawing and taking water from it (well). It was at time i.e. 8:30 AM that Mangali armed with a country made pistol, Ram Prasad with an unlicensed single barrelled gun, Bahadur with unlicensed gun. Dwarika with a Kanta, Kanchan with a sword and Malkhan with his licensed single barrelled gun emerged throwing challenge from the house of Kanchan which was very close to the house and Chaupal of Itwari and Hira Lal (deceased) and Malkhan while uttering words and expressing that he would take revenge of the murder of his sister, opened fire from his gun at Hira Lal who sustained injury as a result thereof. No sooner Hira Lal was to run away then Malkhan, Ram Prasad, Mangali and Bahadur opened fire at him (Hira Lal) from their respective weapons. He fell down having sustained injuries. Thereafter Kanchan and Dwarika rushed and caused injuries to him. Consequently he died on the spot. A buffalo that was tied nearby also sustained injuries Bharisen, Bholey, Bhopali, Smt. Nanhi, Badri and Sohan reached the place of occurrence hearing hue and by and witnessed the entire occurrence. They threw, challenge to the accused-appellants who ultimately retreated and ran way towards east-south while threatening the above named persons and others. After the incident was over, Itwari went to the police station Nigohi and lodged the First Information Report Ext. ka 2 there. A case was consequently registered against the accused- appellants. Ganga Singh Sharma, the then Station Officer of the said Police Station was present at the time of the lodging of the re- port. He himself took up the investigation into the case immediately after its registration. He accompanied by Prem Singh, the then S.I. and other visited the place of occurrence and on his instruction Prem Singh prepared inquest report, photolash, challanlash and a letter for post mortem examination etc.
3. Dr. M.L. Tandon conducted the post mortem examination of the dead body and found the following ante mortem injuries therein :
(1) Incised wound 14 cm. x 6 cm. x bone deep on left side head towards the back 2 cm. below and behind the lobule of left ear with first and second cervical vertebral bound outside.
(2) Incised wound 2 cm. x 1 cm. x muscle deep on right side head towards the posterior aspect 9 cm. above injury No. 1. The injury is not mentioned in the police paper,
(3) Abraded contusion 11 cm. x 1 cm. on top of left shoulder extending on outer aspect left arm.
(4) Lacerated wound 2 cm. x 1 cm. x muscle deep on back of left lore arm, 4 cm. be- low the elbow.
(5) Gunshot wound of entry 5 cm. x 4 cm. x through and through in right thigh, and back 24 cm. above back of knee. Oval in shape blackening around and margins of the wound present.
(6) Gunshot wound of exit 13 cm. x 4 cm. x through and through on inner aspect infront of right thigh communicating with injury No. 5.
(7) Lacerated wound 1 cm. x 1 cm. muscle deep oval shaped on outer aspect left ‘thigh 2 cm. above the left-knee.
(8) Two contusions each measuring 4 cm. x 1 cm. on outer aspect left thigh 4 cm. Apart from each other 1 cm. inner to injury No. 7.
In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries 11/2 days before the post mortem examination. The post mortem examination report is ext. Ka 3.
3.1 Dr. A. K. Jauhari (PW 1) examined the injuries of the buffalo on 12-10-1989 at 8 PM and found the following injuries on its body :
Nine gun shot wounds on the left side at the lower belley scattered in an area of about 7″ diameter at about 8″ forward from knee joint. No chhurra etc. would be traced out.
Injuries seem to be about twenty four hours old from the time of examination i.e. 8 AM of 12-10-79 in my opinion.
4. The Investigating Officer continued investigation into the case and on its completion, he submitted charge-sheet Ext. Ka 16 against the accused appellants.
5. The prosecution examined as many as 15 witnesses and relied upon the documents filed by it in support of its cases. Itwari (PW 2), Bhola (PW 3), Bhimsen (PW 5) are eye-witnesses whereas other witnesses are formal ones. Smt. Nanhi has been examined as Court witness.
6. The accused-appellants pleaded not guilty. They have stated under Section 313, Cr.P.C. that they have been falsely implicated on account of enmity and that the prosecution witnesses are related to one another. They have however not examined any one as a defence witness.
7. The trial Court ultimately convicted and sentenced the accused-appellants vide its judgment and order as mentioned in the beginning. Hence this Criminal appeal.
8. We have heard the learned counsel for the parties and have perused the records.
9. One Mansha Jatav resident of village Mohar Tola had four sons named Umed, Kanchan, Gyan and Chokhey. Mangali and Ram Charan are sons of Umed and Kanchan respectively Therefore they are also cousins of Bahadur and Ram Dass who are sons of Chokey. Mangali is the real brother-in-law of Ram Prasad, Dwarika and Sheo Dayal are sons of one Khargai. Smt. Rukmini was murdered prior to the present incident. In her murder case Itwari, Hira Lal (deceased), and two other named Keshav and Kalyan were accused. Keshav, Kalyan and Bhagwan Dass are real brothers. Sheo Dayal, Ram Charan. Ram Dass and certain others had deposed as prosecution witnesses in the murder case of Rukmini and Hira Lal, Itwari and other were ultimately convicted and sentenced to imprisonment for life therein. Itwari and Hira Lal (deceased) were subsequently enlarged on bail. They were living jointly in their home situate in the same village Mohartola and looking after their cultivation together in one way or the other after having been released on bail. Hira Lal was subsequently murdered. In his murder to which the present criminal appeal relates, the abovenamed mangali. Malkhan, Ram Prasad, Bahadur. Kanchan and Dwarika are accused-appellants.
10. All the above mentioned facts can- not be disputed on the basis of the careful scrutiny of the evidence on record.
11. The learned counsel for the accused- appellants has however vehemently argued that the occurrence had not taken place on 11-10-1979 at 8:30 AM in the village Mohar Tola but at different time and different place and that the accused-appellants have been falsely implicated on account of enmity. Therefore, the first question which crops up for consideration whether the occurrence took place as alleged by the prosecution or not. Apparently and transparently there constituting two questions, one regarding the date and time and the other regarding the place of occurrence. But the questions are so closely connected with each other and the entire evidence thereon is to intermingle as to impact and inspire or to consider both the questions together.
12. The First Information Report Ext. Ka 2 shows that the occurrence took place on 11-10-79 at 8:30 in Village Mohartola which is at a distance of 5 miles from the P.S. Nigohi towards north-east. The report further shows that it was lodged at the same police station, same day at 11.35 AM. There- fore, it cannot be said that there is delay in lodging the report. On the other hand it can be expressed that it was lodged promptly. This also supports the statement of the in- formant PW 2 Itwari and Sharda Prasad Tripathi (PW 5), then Head Constable of P.S. Nigohi ruled out the possibility of concoction, deliberation, falsification or manipulation of any sort. The contention of the learned counsel for the appellants to the contrary is not tenable.
13. It is alleged that when the informant Itwari (PW 2) and Hira Lal (deceased) came up in the morning. They did the routine work i.e. they as usual untied the cattle from one place and tied them to the other place and tied them there and gave them fodder also. Thereafter Hira Lal (decease) started plastering Gobri on the outer part of the eastern wall of the compound of his chaupal while taking the Gobri out in an Aluminium pateli. His wife Nanhi was preparing the Gobri and Itwari was cleaning the chaupal. The occurrence took place when they were busy in doing their respective work. Itwari (PW 2), Bhola (PW 3), Bhimsen (PW 5) and, Smt. Nanhi (CW 1) have constantly sup- ported the above facts in their statements. It may be mentioned in this connection that the Gobri work is a menial nature of work ordinarily speaking poverty stricken people of the lower strata in rural areas in particular doing the Gobri work themselves and that too during the period after sunrise after per- forming daily routine till noon before taking bath and lunch, firstly because they cannot engage labour on account of their poverty and secondly labour is not readily available for doing menial work. These are realisations of the situation and go to point out the truth in the prosecution case.
14. The Investigating Officer Ganga Singh Sharma (PW 9) found the Aluminium Pateli on the spot. He took it into his pos- session and prepared the fard Ext. Ka 11 thereof, A bare reading of this fard would show that there was wet Gobri available in the above Aluminium Pateli even when it was taken into possession and when it (fard) was prepared.
15. Smt. Nanji (CW 1) has categorically stated that she was preparing Gobri and that her husband Hira Lal (deceased) was plastering it on the eastern wall of the Chaupal when the occurrence took place. Her statement finds full support from the statement of Itwari (PW 2), Bhola (PW 3) and Bhimsen (PW 6). The site plan Ext. Ka 14 distinctly shows the place where Nanhi (CW 1) was preparing Gobri, the place where Hira Lal (deceased) was plastering it and the place where the Aluminium Pateli was found. This also lends support to the prosecution case on the point in question. Smt. Nanhi (CW 1) has categorically and emphatically stated that the dry Gobri earth was available in the Aluminium Pateli which was shown to her in the Court on the date of her statement. This also shows the correctness and truthfulness of the prosecution case on the point under consideration.
16. The First Information Report Ext. Ka 2 further shows that a buffalo was tied be- sides the place where Hira Lal received gun shot wounds and that the buffalo also sustained gun shot wounds. It may be mentioned in this connection that buffalo taken to the Pashudhan Vikas Hospital Nigohi District Shahjahanpur where Dr. Ajit Kumar Jauhari (PW 1) examined it and found as many as nine gun shot wounds on it as is clear from the Injury report vide Ext. Ka 1. There is no reason why the statement of Dr. A. K. Jauhari considered with the report Ext. Ka 1 should not be relied upon specially when the statement of Itwari (PW 2), Bhola (PW 3), Bhimsen (PW 6) and Nanhi (CW 1) to the effect, that the buffalo also sustained injuries at the time of the occurrence, go uncrossed, unchallenged and unrebutted. Two empty cartridges were also recovered by Ganga Singh Sharma (PW 9) from the place in question. He prepared a fard Ext. ka 12 in respect thereof. He had corroborated this by his statement on oath.
17. Therefore, the lodging of the FIR with- out any delay, the visiting of the investigating Officer immediately after the registration of the case, of the place where the dead body of Hira Lal (deceased) was lying, the recovery of the Aluminium Pateli containing the wet Gobari, the sustaining of the gun shot wound by buffalo which was tied nearby, the place where Hira Lal (deceased) was plastering Gobari on the outer part of the eastern wall of his Chaupal, the recovery of the two empty cartridges and the avail- ability/presence of the dry earth of the Gobari in the Aluminium Pateli even at the time of statement of Nanhi in the trial Court, all these circumstances go to prove beyond all shadows of doubt that the occurrence took place as alleged by the prosecution and not at any different time and place as con- tended by the learned counsel for the accused-appellants. This is so also because man can tell a lie but the circumstances cannot. Similarly one fact cannot be concealed by hundred Texts. The fate of particular case depends upon the facts and circumstances involved thereon. The above facts and circumstances themselves tell the truth truthfully.
18. The learned counsel for the accused- appellants argued that the informant Itwari (PW 2), Bhola (PW 3), Bhimsen (PW 5) and Smt. Nanhi (CW 1) were not present at the time and place of the occurrence. In view of what has been observed above and in view of their constant statements on all material points, their presence cannot be ruled out. for any reason whatsoever. The arguments of the learned counsel for the accused-appellants to the contrary is just an argument for the sake of argument and has, therefore, no substance.
19. Dr. M.L. Tandon (PW 4) conducted the post mortem examination on the dead body of Hira Lal (deceased). The post mortem examination report is Ext. Ka 3. He has stated in his examination-in-chief that there was possibility of the death of Hira Lal having taken place on 11-10-1979 at 8:30 AM. In his cross-examination he has, however, stated that there was in his opinion possibility of the difference of six hours in the duration of death of Hira Lal. Dr. Ajit Kumar Jauhari (PW 1) examined the injuries of the body of the buffalo on 12-10-1979. In his examination-in-chief he has stated that there was the possibility of the injuries having been caused to the buffalo on 11-10-1979 at 8:30 AM. In his cross-examination he has, however, stated that there could have been the possibility of difference of six hours on either side in the duration of the said injuries. It is on the basis of the statement of Dr. M.L. Tandon (PW 4) and Dr. A. K. Jauhari (PW 1) in their cross-examination that the learned counsel for the accused- appellants has argued that the occurrence has taken place at the time quite different from the time alleged by the prosecution. It may be mentioned in this connection that all the Doctors who performed the post mortem examination on the dead bodies or who examined the injuries of the injured support the prosecution case on the point of the date and time of the death or injuries and corroborated their reports already filed them in respect thereof by their statements in examination-in-chief but they gave their statements in their cross-examinations indicating the difference of 4-6 hours in the duration of the death or of injuries or both as the case may be. This is found invariably in each and every case. However, the medical evidence is not substantive but only a corroborative piece of evidence. The prosecution case on the point of this finds full support from the constant statement of eye- witnesses Itwari (PW 2), Bhola (PW 3). Bhimsen (PW 5) and Smt. Nanhi (CW 1). Therefore, the contention of the learned counsel for the accused-appellants to the contrary carries no weight.
20. The other question for consideration is that whether the occurrence took place in the same mode and manner as alleged by the prosecution. The house of the accused- appellant Kanchan is quite adjacent to the house of Informant Itwari and his brother Hira Lal (deceased) towards east. The door of the house of Kanchan opens in the open space towards north whereas one door of the house of Itwari and Hira Lal (deceased) opens towards north of their chaupal and others towards north in the open space. Itwari and Kanchan can therefore become in other words next door neighbours to each other. There is a wall in the Chaupal of Itwari and Hira Lal (deceased). This is all evidently clear from the site plan Ext. Ka 14 prepared by the Investigating Officer on the spot.
21. We have already discussed, observed and concluded that Smt. Nanhi (CW 1) was preparing Gobri, how and where Hira Lal (deceased) was plastering it where the buffalo was tied and how and when it sustained injuries. The FIR contains all the facts in detail indicating how the occurrence took place. The eye-witnesses Itwari (PW 2). Bhola (PW 3) and Bhimsen (PW 6) and Smt. Nanhi (CW 1) have constantly corroborated the facts mentioned in the FIR regarding mode and manner of the occurrence. There is no reason worth why their uncontradicted and unrebutted constant statements should not be implicitly relied upon. It may also be mentioned in this connection that if the occurrence had not taken place in the broad day light, the question of the mode and manner of the occurrence might have been somewhat important, therefore, the contention of the learned counsel for the accused- appellants to the contrary has no basis at all.
22. The learned counsel for the accused- appellants has very strongly argued that Itwari (PW 2) has falsely implicated the accused-appellants on account of enmity. It may be mentioned in this connection at the very out set that there can be dispute that there was enmity between Itwari, Hira Lal and certain others on the, one side and the accused-appellants and certain others on the other in one way or the other. Enmity disables the vision, dulls the intelligence of one to commit the murder of ones enemy or falsely implicate him in any criminal case or offence, therefore, enmity can be said to be a double edged weapon. In the instant case, the probability of falsely implicating the accused-appellants and sparing the alleged real assailant without any rhyme or reason is altogether ruled out and specifically when the occurrence took place in the broad day light in the village itself and when the facts and circumstances discussed and observation made thereof in detail elsewhere speaks the truth of the prosecution case truthfully. The arguments of the learned counsel for the accused-appellants to the contrary carry no weight.
23. In view of the discussions and observations made hitherto above, we arrive at irresistible conclusion that this criminal appeal should be dismissed. Accordingly, we dismiss it. The conviction of the accused- appellants under Sections 302/149 and 148, IPC and sentences awarded to them to undergo imprisonment for life and three years’ RI, respectively, thereunder by the trial Court in S. T. No. 627 of 1979 are hereby confirmed/upheld. Both the sentences shall run concurrently as directed by the trial Court. The accused-appellants are on bail. Their bail bonds are cancelled and sureties are discharged. The appellants are directed to be taken into custody forthwith and send to jail to serve out the sentences.
24. This criminal appeal stood disposed of accordingly.
Binod Kumar Roy. J.
25. I fully agree.