JUDGMENT
1. All the above named appellants stand convicted under Section 302 read with Section 149, I. P. C. and sentenced to life imprisonment. Appellants Ramakant. Satyapal and Banwari have further been convicted under Section 148, I.P.C. and Ram Niwas and Subedar under Section 147, I.P.C. and all these have been further sentenced to one year R.I. each. The sentences have been ordered to run concurrently.
2. The prosecution case in brief is that appellant Ramakant was being prosecuted for the murder of Dinesh Chaprasi in which Ram Raj deceased was a witness. Ramakant, had threatened Ram Raj not to give evidence against him. He had made a report to the police and since then the appellant had a serious grouse against him. It is alleged that on 30-10-1983 at about 4 P.M. when informant P.W. 1 Bhagwan Deen and his brother Ram Raj deceased were returning’ from their field with a load of fodder and reached to the north of the grove of Siya Ram on the Pagdandi, appellant Ramakant. Satyapal and Baowari armed with guns, Ram Niwas and Subedar armed with Lathis suddenly appeared from behind and challenged Ram Raj. Ram Niwas and Subedar shouted, “ISKE BARE DIMAGH KHARAB HAIN SALE KO JAAN SE MAAR DO BACHNE NA PAWE”. thereupon Ramakant, Satyapal and Banwari Lal fired at his brother on his back as a result of which he fell down and died after some time. On hearing the alarm and gun shots, witnesses Daya Ram, Chhotey Lal, Mitthu Lal and many others from the village arrived. The assailants managed to make good their escape. The F.I.R. of the occurrence was lodged at 6.30 P.M. on the same day at P.S. Kanth, District Shahjahanpur at a distance of six miles. On the basis of the F.I.R. case was registered against the appellant and the Investigating Officer arrived at the scene of occurrence, prepared inquest report and sent the deadbody for postmortem which was conducted by Dr. U.D. Kapoor who noted the following injuries, vide postmortem report (Ex. Ka-2).
Ante Mortem Injuries :–
1. Abrasion 3 cm x 1 cm on the left upper arm 4 cm below left shoulder joint.
2. Abrasion 4 cm x 2 cm on the lateral side of left elbow joint 3 cm above left elbow joint.
3. Lacerated wound 12 cm x 6 cm on the left scapular region extending over to its back left upper arm upper part skin, subcuteneous tissues, part of muscle over the wound was missing. Half of the wound over scapular got inverted margins. Portion of wound front over back and upper arm had averted margins. No blackening and no charring. 4. Six fire-arm wounds on entry in an area of 9 cm x 4 cm over the right side of back extending up to right glutal region. Margins inverted and lacerated. No blackening. No charring present. Each wound of size of 0.7 cm x 0.75 cm x abdominal cavity deep. 5. One fire-arm wound 1 cm x 1 cm in front of abdomen about 6 cm below umblicus. 6. Two fire-arm wounds each of size of 1 cm x 1 cm on left side of front of abdomen at the level of umblicus. Margins averted.
On internal examination stomach and intestines were badly lacerated. Kidney was also lacerated. Three big pellets were recovered. 8 ounces semi-digested food was present in the stomach. After completion of the investigation these accused were charge-sheeted, committed and at the trial prosecution in all examined five witnesses of whom P.W. 1 Bhagwan Deen and P.W. 2 Daya Ram are the eye-witnesses of the occurrence. P.W. 3 constable Dhiraj Singh had taken the dead-body for postmortem. P.W. 4 Inspector P.C. Pathak was the Investigating Officer and deposed about the various steps taken by him during the course of the investigation. Lastly, P.W. 5 Dr. U.D. Kapoor had done the autopsy on 31-10-1983 on 12.45 P.M. and has proved the injuries and other facts found by him at the time of postmortem as noted above. He has further stated that the death was caused on account of shock and haemorrhage, as a result of the antemo(SIC)em injuries and the same could have taken place on 30-10-1983 at 4 P.M.
3. Version of the appellants has been that they had been falsely implicated on account of enmity; that they have also denied that the deceased was a witness in the murder case of Dinesh Chaprasi. Ramakant has, however, admitted that he was an accused in that case. It is further alleged that the deceased himself was a man of bad character and, therefore, was killed by some other person.
4. In defence, appellant Banwari examined himself on oath as D.W. 1 and deposed that after the case his wife Smt. Rama Devi, Ram Charan, Sri Kishan, Babu Ram and Satyapal had made a complaint against the Investigating Officer Inspector P.C. Pathak and he proved the two applications (Ex. Kha-2 and Kha-3). He also proved the application of Satyapal (Exs. Kha-4 and Kha-5). He is also an employee of the Jail. Learned Trial Judge, however, believed the prosecution evidence and disbelieved the defence version, hence convicted and sentenced the appellants as above. On being aggrieved this appeal has been preferred. Learned counsel for the appellants argued that the evidence on record is not free from suspicion and not sufficient to bring home guilt to the appellants and, therefore, they are entitled to acquittal.
5. Regarding motive, on behalf of the prosecution besides the oral statement of P.W. 1 Bhagwan Deen, brother of the deceased that Ramakant was an accused in the murder case of Dinesh Chaprasi and that Ramakant, Banwari Lal and Satyapal had threatened his brother that if he would give evidence they would kill him. He also proved Ex. Ka-1 the report written by Ram Raj to the Senior Superintendent of Police. On the basis of that report, Ex. Ka-6 Chick F.I.R. was prepared. It is dated 8-8-1983 and it is stated that at 3.30 P.M. the incident is alleged to have taken place on 7-8-1983 at 7 P.M. in the evening. The report was lodged against Ramakant, Satyapal, Maharaj Sahai and Banwari Lal. Daya Ram and Natthu were named as witnesses. Thus, the fact that such report was made by the deceased Ram Raj about two and a half months prior to the occurrence stands fully proved.
6. On behalf of the defence it was also challenged that the deceased was not a witness in the murder case of Dinesh Chaprasi against Ramakant. P.W. 1 Bhagwan Deen his brother stated that he knew about it only because the deceased had so told him. However, the prosecution in support of it has also filed Ex. Ka-17, certified copy of the charge-sheet in that murder case of Dinesh Chaprasi against Ramakant and therein at serial No. 21 of the list of witnesses name of Ram Raj deceased has been mentioned. The prosecution has thus established beyond doubt that appellant Ramakant was an accused in the murder case of Dinesh Chaprasi and therein deceased Ram Raj was a witness and that Ramakant, Banwari and Satyapal appellants had threatened the deceased not to give evidence, otherwise they would kill as contained in the report (Ex. Ka-1) submitted by Ram Raj-deceased to the Senior Superintendent of Police.
7. The occurrence had taken place at about 4 P.M. when Ram Raj deceased and his brother Bhagwan Deen were returning from their field each with a load of fodder and when they reached to the north of the grove of Siya Ram, the appellants waylaid the deceased and thereupon Ram Niwas exhorted them to kill and then Ramakant, Satyapal and Banwari had fired shots at the deceased on his back, as a result of which he fell down and died immediately thereafter. On behalf of the appellants the time and place of the occurrence were not challenged in the cross-examination of P.W. 1 Bhagwan Deen and that of P.W. 2 Daya Ram, the two eyewitnesses.
8. On behalf of the defence it was urged that P.W. 1 Bharwan Deen was the real brother of the deceased and Daya Ram was also an interested witness and, therefore, their testimony was not worthy of credence. No doubt, P.W. 1 Bhagwan Deen is the real brother of the deceased. His testimony cannot be discarded on that account alone, but it has got to be carefully scrutinised. To determine his presence at the scene of occurrence there is ample corroboration as the Investigating Officer did find two heaps of fodder at the scene of occurrence. According to Bhagwan Deen he along with his brother was then returning from their field each with a load of fodder when the occurrence had taken place at that place. P.W. 2 Daya Ram has also deposed that at that time P.W. 1 Bhagwan Deen and deceased Ram Ram were coming with a load of ‘Chara’ of Bajra on their heads. The fact that both were coming with loads of ‘Chara’ on their heads and those two loads were found on the spot was not even challenged in the cross-examination of P.W. 2 Daya Ram. Statement of the Investigating Officer (P.W. 4) Inspector P.C. Pathak also stands uncontroverted on that point. It was, however, asked from him whether he had inspected the field from where they had gathered the Chara, he stated that he did see it, but he had not shown that fact in the site-plan.
9. The testimony of these witnesses was also sought to be challenged on the ground that the injuries as noted on the person of the deceased could not be caused when the assailants were standing in the ‘Khai’ two and a half feet deep from where it is alleged that they had fired. The injury No. 3 lacerated wound 12 cm x 6 cm on the left scapular region extending over to the back left upper arm, upper part skin, subcuteneous tissues and part of muscle over the wound was missing completely. Half of the wound over scapular got inverted margins and portion of the wound front over back and upper arm had averted margins without any backening and charring, clearly indicate when read along with the Naksha Lash (Ex. Ka-12) wherein this injury has been shown that such type of chiselled grated injury could be caused by pelats only if the shot had been fired while the assailant was standing at a sufficient lower level. Dr. U.D. Kapoor (P.W. 5) who had done the autopsy had, however, stated that the direction of injury No. 3 was neither upward nor downward and the same would have been caused when the assailant was standing on the same level. Prima facie the Doctor has not correctly appretiated the direction of the injury as described by him in injury No. 3 which clearly describes that the wound of entrance was on the left scapular region and its exit portion was towards left upper arm upper part skin and then on the upper part of the skin of the arm subcutaneous tissues and part of the muscle were missing, i.e. the upper part of the left arm over the scapular region had been completely removed as a result of the injury and the description of the injury as given in the Naksha Lash (Ex. K.a-12) more correctly gives an idea of the same.
10. Of course, injury No. 4 had a straight wound resulting into two exit wounds, Nos. 5 and 6 as follows:
4. Six fire-arm wounds on entry in an area of 9 cm x 4 cm over the right side of back extending up to right glutton region. Margins inverted and lacerated. No blackening. No charring present. Each wound of size of 0.7 cm x 0.75 cm x abdominal cavity deep.
5. One fire-arm wound 1 cm x 1 cm in front of abdomen about 6 cm below umblicus.
6. Two fire-arm wounds each of size of 1 cm x 1 cm on left side of front of abdomen at the level of umblicus. Margins averted.
These injuries could not have been caused if the assailant had been standing on the same level unless he had placed the butt of his gun at the level of his abdomen and kept the barrel straight and such position is seldom taken at the time of firing. If the assailants were standing in the Khai two and a half feet below the level of the deceased, then of course the barrel could be in a straight line to the waist and abdomen of the deceased.
11. The two abrasions injuries Nos. 1 and 2 would have been caused as a result of stray pellets of the shot which caused injury No. 3.
12. On behalf of the appellants it was also urged that though it is alleged that all the three appellants, namely, Ramakant, Satyapal and Banwari had fired four shots but the injuries to the deceased indicate that only two shots were fired, but on that ground the eyewitness account cannot be discarded as the possibility that one of the shots of the gun of the appellants might not have hit the deceased.
13. Thus, a close scrutiny of the injuries found on the person of the deceased also corroborates the eye-witness account of P.W. 1 Bhagwan Deen and there is no reason to doubt the testimony simply because he is a brother of the deceased. 14. As regards participation of the other two appellants, namely, Ram Niwas and Subedar, they are alleged to be armed with Lathis and had not used the same, but to Ram Niwas role of exhortation has been assigned by Bhagwan Deen alone. Daya Ram (P.W. 2) has, however, stated that all these five appellants had challenged when he passed that way. but in his cross-examination in paragraph 9 he has stated as follows : "EK KE BAAD TEEN FIRE SUNE TEEN FIRE SUN KAR MAIN DAR GAYA. MAINE WAHIN KHARE HOKAR KAHA KI KAUN AADMI HAI TO BHAGWAN DEEN NE KAHA KI RAMAKANT. SATYAPAL WA BANWARI HAIN" From the above statement of P.W. 2 Daya Ram it is thus clear that only names of these three appellants were told to him by Bhagwan Deen. He did not name Ram Niwas and Subedar also among the assailants. Hence these two appellants are entitled to be given benefit of doubt. 15. The conclusion, therefore, is that from the evidence on record only guilt under Section 302 read with Section 34, I.P.C. has been brought home beyond reasonable doubt, against Ramakant. Satyapal and Banwari appellants only, hence they arc liable to be convicted under Section 302 read with Section 34. I.P.C. and not under Section 302 149, I.P.C. and also under Section 148. I.P.C. as presence of the other two appellants Ram Niwas and Subedar has been treated with doubt and it is not mentioned in the F.I.R. that besides these appellants two other persons were also among the miscreants. Conviction of Subedar and Ram Niwas under Sections. 147, 302/149, I.P.C. and their sentence thereunder are hereby set aside. They are on bail, they need not surrender. Their bail bonds are cancelled and sureties discharged. 16. Appellants Ramakant, Banwari and Satyapals' conviction is altered from Section 302/149 to Section 302/34, I.P.C. and their sentence for life imprisonment is confirmed. Their conviction and sentence under Section 148, I.P.C. are set aside. Their bail is cancelled. They shall surrender to serve out their sentence forthwith. 17. Copy of the order be sent to the C.J.M. and the learned Sessions Judge Shahjahanpur for getting the appellants apprehended and sent to jail.