Allahabad High Court
Budh Sen And Others vs State Of U.P. on 12 September, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 1152 of 2004 Appellant :- Budh Sen And Others Respondent :- State of U.P. Counsel for Appellant :- Taha Bin Islam,Ambrish Kumar Kashyap.A.C.,Anil Raghav,Arun K. Singh Deshwal,Bal Krishna Yadav,I.M. Khan,J.S. Sengar,J.S. Tomar,Janardan Prasad Tripathi,K.D.Tiwari,N.I. Jafri,Neelesh Kesharwani,P.P.S.Rathore,R.K.Mishra,Rohit Sharan Tomar,S.P.S.Raghav,Sabhajeet Singh,Sanjay Kumar,Vindeshwari Prasad Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL No. - 5391 of 2004 Appellant :- Mahipal Respondent :- State of U.P. Counsel for Appellant :- J.S. Tomar,Dinesh Chandra,Pradeep Kumar,R.S. Tomar,Rohit Sharan Tomar,Sanjay Singh Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL No. - 929 of 2004 Appellant :- Jai Ram Respondent :- State of U.P. Counsel for Appellant :- P.C. Srivastava,J.S.Tomar,Vivek Kumar Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. These criminal appeals emanate from the judgment and order dated 10.02.2004 passed by the learned Additional District & Sessions Judge, Court No. 3, Rampur in Sessions Trial No. 624 of 1999 (State Vs. Buddhsen and others), arising out of Crime No. 93 of 1999, under Sections 148, 302/149 IPC; Sessions Trial No. 625 of 1999 (State Vs. Veerpal) arising out of Crime No. 94 of 1999, under Section 25 Arms Act and Sessions Trial No. 626 of 1999 (State Vs. Janki) arising out of Crime No. 95 of 1999, under Section 25/4 Arms Act, Police Station Patwai District Rampur, whereby the appellants-Buddhasen, Jairam, Hori Lal, Mahipal, Janki and Veerpal, each have been convicted and sentenced under Section 148 IPC for six months rigorous imprisonment and Section 302/149 IPC for life imprisonment and fine of Rs.5,000/-; in default of payment of fine they have to undergo additional imprisonment for a period of six months. Appellants Janki and Veerpal were acquitted of the charges under Section 25 Arms Act.
2. The prosecution case in brief is that on 13.7.1999 at about 8.30 a.m., an F.I.R. was lodged at the Police Station Patwai, District Rampur by the informant Lakhan Singh, who happened to be the brother of deceased Trimal, father of deceased Sompal and uncle of deceased Jamna r/o Village Madauli, Police Station Patwai, District Rampur, by filing a written report. It was stated therein that his mango orchard was located in the south-west direction of the village. His brother Trimal, son Sompal and nephew Jamna s/o Chhiddan used to go and sleep in the orchard to keep a watch. In the intervening night of 12/13.07.1999, at about 2 A.M., first informant, his brother Chheddan, nephew Dharmpal and a resident of his village Lalman went to the orchard where they saw that the appellants Buddhasen with gandasa, Jairam with spear, Horilal and Veerpal with countrymade pistols; Mahipal & Janki with knives entered into the orchard and committed the murder of Trimal, Sompal and Jamna by causing injuries to them. The first informant and other persons identified the assailants and when they made noise, all the appellants ran away towards Kosi River. In the night owing to the fear, they did not go to lodge the F.I.R. In the morning, on the basis of the written report (Tahreer) filed by the informant, the case was registered as Crime No. 93 of 1999 under Sections 147, 148, 149, 302 IPC. The detail of the case was entered into the G.D. at report No. 14.
3. The investigation of the case was handed over to the Station House Officer N.K. Solanki.
4. The inquest of deceased Sompal, Jamna and Trimal, were conducted by A.S.I. Ram Mohan Sharma on the direction of S.I. N.K. Solanki on the same day and the inquest reports were prepared by him along with other relevant papers required for the purpose of post-mortem. Dead bodies were sealed and handed over to constable Bhagwan Das, Anek Singh and Hridesh Kumar who brought them to the Mortuary, District Hospital, Rampur.
5. The post-mortem of the dead bodies of three deceased were conducted on 14.07.1999. It is mentioned in the post-mortem reports that the dead bodies were brought in the Mortuary by constable Bhagwan Das and Hridesh Kumar, sent by S.O. Patwai, Rampur in a sealed cloth with enclosures ten in number. The findings recorded in the post mortem report of Trimal are as under:
Time after death about one and a half day; aged about 32 years; average built body; rigor mortis all over the body; decomposition not yet started; both eyes closed; natural orifices NAD.
Ante-mortem injuries: 1. Incised wound 10 cm x 4 cm x brain cavity deep obliquely placed over left side of forehead underneath fractured bone (frontal) eye orbit , brain tissues peeping out.
2- Incised wound 2 cm x 1 cm x skin deep over right side of forehead above.
3- Incised wound 6 cm x 2 cm over abdomen vertically placed 3 cm above umbilicus omentum coming out.
4- Gun shot wound of entry 6 cm x 4 cm over the left arm pit blackening and tattooing present, underneath 2nd, 3rd & 4th ribs fractured.
5-Incised wound 4 cm x 2 cm skin deep over the right hand.
6- Multiple incised wounds in an area of 28 cm x 20 cm x skin deep of 4 cm x 2 cm in size x 1 to 2 cm in size over back of abdomen.
Internal examination:Neck injuries noted. Scalp, skull-underneath frontal bone fractured in multiple pieces. Membranes-cut underneath, a big size of extradual blood clot in the brain tissues. Brain-body cut underneath with large size of blood clot. Base of the skull fractured. Vertebrate-NAD. Spinal cord-not exposed.
Thorax: walls, ribs & cartilages-injuries noted fractured 2nd, 3rd and 4th ribs. Pleurac-lacerated underneath. Larynx-NAD contain bloody froth. Right lung-NAD congested. Left lung-lacerated underneath with (two tikali one card, 15 pallets recovered and sealed) about 500 CC of clotted fluid blood. Pericardium-NAD. Heart-NAD 160 gms both chambers empty. Blood vessels-NAD.
Abdomen: Wall injuries noted, peritoneum cut underneath injury no. 3 omentum coming out about 200 cc of clotted blood (fluid) in abdomen. Buccal Cavity-NAD & teeth-16/16. Esophagus-NAD. Contents-NAD empty. Small intestine-NAD, content-D.F.M. Large intestine-NAD faecal matter. Liver & Gall bladder-NAD wt. one kg congested. Pancreas-NAD. Spleen-NAD wt. 140 gms. congested. Kidneys-NAD 200 gms congested. Urinary bladder-NAD empty. Generation organs NAD.
Cause of death was coma as a result of antemortem injuries.
6. The findings recorded in the post mortem report of Jamna are as under:
Time after death about one and a half day; aged about 18 years; average built body; rigor mortis all over the body; decomposition not yet started; both eyes closed.
Ante-mortem injuries: 1. Incised wound 3 x 2 cm x cavity deep over right side of front chest 2 cm above nipple transversely oblique.
2- Incised wound 4 cm x 2 cm x over front of right lower chest, 6 cm below and inner to right nipple, chest cavity deep.
3- Incised wound 8 cm x 2 cm x cavity deep vertically oblique over the lower part of right chest, 6 cm below and inner to injury no. 2.
4- Incised wound 4 cm x 2 cm x muscle deep over front of right upper and in the middle.
5-Incised wound 3 cm x 2 cm x muscle deep over the inner side of right arm middle.
6- Multiple incised wound 4 cm x 2 cm x muscle deep over the inner side of right elbow.
7- Incised wound 4 cm x 2 cm skin deep over the dorsal of right hand.
8- Multiple incised wound 1 to 2 cm long skin deep over the dorsal of right hand at base of 2nd, 3rd and 4th finger.
9-four incised wounds of 2-6 cm long x 1 to 2 cm wide x muscle deep over the back in the area of 28 cm x 22 cm between the both scapula.
Thorax: walls, ribs & cartilages-injuries noted. Pleura-cut underneath injury no. 1, 2, 3. Larynx trachea & bronchi-NAD contain bloody muscle. Right lung-cut underneath injury no. 1, 2, 3 and about 1 and half litter of cloted blood and fluid in right chest cavity. Left lung-NAD pale. Pericardium-NAD. Heart-NAD wt. 160 gms both chambers empty. Blood vessels-NAD.
Abdomen: Wall-NAD, peritoneum-NAD, Cavity-NAD. Buccal Cavity-NAD & teeth-15/15. Oesophagus-NAD. Contents-NAD contains of fluid materials. Small intestine-NAD D.F.M. Large intestine-NAD contains gases and faecal matter. Liver & Gall bladder-NAD wt. 1200 pale. Pancreas-NAD. Spleen-NAD pale wt. 150 gms. Kidneys NAD pale 200 gms both. Urinary bladder-NAD empty. Genitals-NAD.
Cause of death was shock and haemorage as a result of antemortem injuries.
7. The findings recorded in the post mortem report of Sompal are as under:
Time after death about one and a half day; aged about 17 years; average built body; rigor mortis all over body; decomposition not yet started; both eyes closed.
Ante-mortem injuries: 1. Incised wound 4 cm x 2 cm x chest deep over right side of chest, 8 cm above inner side of right nipple underneath ribs cut oblique vertically placed.
2- Vertical incised wound 4 cm x 2 cm x muscle deep over left side of chest in the arm pit.
3- Incised wound 4 cm x 2 cm over back of left forearm in upper 1/3.
4- Incised wound 12 cm x 2 cm x oral cavity deep transversly oblique over the face extend from below right eye nose to the left cheek underneath maxillary bone cut. 5- Multiple incised wounds in 3 to 2 cm long x 1/2 to 1 cm x skin deep over front of neck.
6- Incised wound 2 cm x 1/2 cm x skin deep over front of left hand.
7- Incised wound 10 cm x 4 cm x muscle deep over the front and outer part of thigh above knee joint.
8- Incised wound 8 cm x 2 cm x skin deep over underneath inner side of right thigh in upper 1/3.
9- Two incised wounds 3 cm x 1/2 cm over right flank of abdomen.
10- Incised wound 4 in number in an area of 40 cm x 30 cm over the upper back of size 4 cm x 3 cm x 1/2 to 1 cm x skin deep.
Thorax: walls, ribs & cartilages-injuries noted rib cut underneath injury no. 1. Pleura-cut underneath over right side. Larynx trachea & bronchi-NAD. Right lung-cut underneath injury and about 1/2 litter of clotted blood fluid in right chest cavity. Left lung-NAD pale. Pericardium-Pale. Heart-NAD wt. 160 gms both chambers empty. Blood vessels-NAD.
Abdomen: Wall NAD, peritoneum NAD, Cavity NAD. Buccal Cavity-NAD & teeth-15/15. Oesophagus-NAD. Contents-NAD empty. Small intestine-NAD D.F.M. Large intestine-NAD gases and faecal matter. Liver & Gall bladder-NAD wt. 1200 pale. Pancreas-NAD. Spleen-NAD 130 gms pale. Kidneys-NAD pale 150 gms both. Urinary bladder-NAD empty. Genitals-NAD.
Cause of death was shock and haemorage as a result of antemortem injuries.
8. During investigation, blood stained cot weaving thread, one empty cartridge 12 bore, one empty cartridge 315 bore, plain and blood stained soil were taken into possession and torches in the light of which appellants were seen by the informant were taken into possession and given into the custody of the informant and recovery memo was prepared. After inspection of the place of occurrence, site plan was prepared and statements of witnesses conversant to the facts of the case were recorded. The weapons used in the commission of murder, one Gandasa, one Countrymade pistol, three cartridges 12 bore, one knife and one spear were also recovered at the instance of appellants-Buddhsen, Veerpal and Janki. Recovery memo was prepared. On the basis of the material collected during investigation, prima-facie case was found to be made out against the accused persons under Sections 147, 148, 149, 302 IPC and the charge sheet was submitted to the court concerned. Charge sheet was also submitted under Section 4/25 Arms Act against appellants Janki and Veerpal.
9. Learned Chief Judicial Magistrate took cognizance of the offence and provided copies of the prosecution papers in compliance of Section 207 Cr.P.C. to the accused persons and committed the case to the Court of sessions for trial.
10. The trial court after taking into consideration the material on record, framed the charges under Sections 148, 302/149 IPC against all the appellants; Section 25 Arms Act against appellant Veerpal and Section 4/25 Arms Act against appellant Janki.
11. Charges were read-over and explained to the appellants, the accused appellants pleaded not guilty, denied the charges and demanded trial. Consequently, the case was fixed for prosecution evidence.
12. In support of its case, the prosecution examined P.W.1 Lakhan Singh who is the first informant and happened to be brother of the deceased Trimal, father of deceased Sompal and uncle of deceased Jamna; P.W.2 Chheddan, who happened to be the brother of deceased Trimal, father of deceased Jamna and uncle of deceased Som Pal; P.W. 3 Lal Man resident of the same village as witnesses of facts; P.W.4 Dr. Arvind Kumar Vaishya who conducted the autopsy and prepared the postmortem reports; P.W. 5 HCP Bhuri Singh who prepared check F.I.R. on the basis of written report (tahreer) and made entry in the G.D.; P.W. 6 constable Hridesh Kumar who brought the dead bodies to the mortuary for post-mortem; P.W. 7 A.S.I. Ram Mohan Sharma who conducted the proceedings of the inquest and prepared the inquest reports and other relevant papers; P.W.8 S.I. Raj Singh who made arrest of appellant Buddhsen, Jai Ram, Veerpal, Janki, recorded the disclosure statements of the appellants, recovered the weapons used in the incident and prepared the recovery memo; P.W.9 S.I. N.K. Solanki who investigated the case and prepared the site plan, recorded the statement of witnesses and submitted charge sheet; P.W.10 A.S.I. Ram Mohan Sharma who also conducted investigation relating to the cases under Section 4/25 and 25 Arms Act and submitted charge sheet; P.W.11 Dheeraj Singh who took the case property relating to Crime No. 93 of 1999 for chemical examination to the Forensic Science Laboratory, Agra.
13. On conclusion of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they had denied all the allegations made against them on account of enmity. The appellant Buddhsen has made statement regarding disclosure statement and recovery to be false. Further stated that at that time he was busy in his field located at village Madauli for plantation of paddy crop from where police had arrested him at 10 o'clock but nothing was recovered from him. The appellants Horilal and Mahipal made similar statements except regarding recovery. The appellant Veerpal has also made similar statement; regarding recovery he stated that it was false and he was arrested by the police from the ice cream factory situated at the Bareilly gate Kanpur, nothing had been recovered from him or at his instance. The appellant Jai Ram had also made the similar statement regarding recovery, he stated that it was false and he was arrested by the police when he was present in the field at Nayagaon and was doing the plantation work of paddy, nothing was recovered from his possession nor at his instance. The appellant Janki had also made similar statement regarding recovery, he stated that it was false, he was arrested by the police from his field at Hazi Nagar where he was working, nothing was recovered from his possession.
14. In defence, D.W. 1 Sultan Khan was examined.
15. The learned trial court passed the order dated 10.02.2004 for convicting and sentencing the appellants as aforesaid, hence this appeal.
16. Heard Sri Arun Kumar Singh Deshwal, Sri Ambrish Kumar Kashyap, Sri J.S. Tomar & Sri Vivek Kumar Mishra, learned Advocates for the appellants and Sri Patanjali Mishra, learned A.G.A. for the State and perused the record.
17. Learned counsel for the appellants submits that the trial court had erred in convicting the appellants without considering and appreciating the evidence on record. The prosecution could not prove its case with cogent and reliable evidence. The appellants are innocent and had committed no offence as alleged against them. There are material contradictions in the statements of prosecution witnesses. The prosecution witnesses are relatives of the deceased. There was enmity between the informant and the appellants and that was the reason, why they were implicated falsely in this case. The incident took place in the night hours and no one had seen it. The recovery of weapons said to have been used in commission of the murder was false and not proved. Spear was said to be in the possession of appellant Jai Ram but no punctured wound was found on the persons of deceased which raises an inference of false implication of the appellants. No independent witness was produced by the prosecution. No witness relating to the memo of recovery was examined. Lastly, it is submitted that the trial court without considering all the above facts had convicted the appellants and the finding recorded by the trial court is based only on hypothesis beyond the evidence on record which gets support from the fact that the charges under Sections 4/25 and 25 Arms Act not found to be proved by the prosecution and the appellants were acquitted of the said charges. In this way judgment in question, thus, pleaded to be erroneous and that the appellants deserve acquittal by allowing the appeals.
18. Learned A.G.A. in rebuttal urged that there is sufficient evidence on record on the basis of which the learned trial court has concluded that the appellants had committed the murder of three deceased persons in their orchard while they were sleeping therein. Prosecution witnesses are natural witnesses because they also went to keep watch on their Mango orchard and they had seen the occurrence in the light of torches. On their making noise, appellants left the place after causing the murder of three persons brutally. The weapons said to be in the hands of appellants were used in the commission of the offence and they were recovered at the instance of accused appellants and also sent to chemical examination to F.S.L. The report disclosed that human blood was found on the weapons which also corroborates the prosecution case. The appellants had motive to commit the murder of the deceased persons because the brother of appellant Buddhsen was murdered prior to this incident in which deceased Trimal and Sompal were named accused and trial was going on. There was strong motive with the appellants to commit the murder of the deceased persons. Though the prosecution witnesses P.Ws. 1 and 2 were relatives of the deceased persons but P.W. 3 Lalmani was not a near relative but he was resident of the village where appellants also resided. There was no enmity of Lalmani with the appellants. The testimony of P.Ws. 1 & 2, thus, gets support with the testimony of an independent witness P.W. 3 Lalmani. The F.I.R. was promptly lodged in the morning. The occurrence though took place in the night at about 2 a.m., but the first informant categorically stated that because of fear, he could not go to the police station which was 13 Km. away from the place of occurrence. The delay in lodging the F.I.R. as alleged cannot be said to be inordinate but it was natural. The acquittal of appellants of the charges under Section 25 Arms Act is immaterial in so far as conviction in other offence is concerned. The appellants were rightly convicted and sentenced under Sections 148, 302/149 IPC which cannot be said to be against law. The decision of the learned trial court is perfectly sound in law and the present appeals being devoid of merit are liable to be dismissed.
19. From the submissions made by the learned counsel for the parties, the questions to be considered by this Court are that whether there was any delay in lodging of the F.I.R. which could be termed as inordinate delay. Whether it is a case of false implication of the appellants on account of enmity. Whether the motive to commit the murder as stated was present in the case and whether the prosecution witnesses being relatives of the deceased persons can be said to have made false statements only on account of suspicion. Whether there were material contradictions in the statements of the prosecution witnesses so as to discard the prosecution case. The contention that appellant Jai Ram was though assigned spear in his hand but no punctured wound was found on the person of the deceased, the conviction recorded by the learned trial Court, thus, becomes wrong, has also to be examined by us.
20. Before we deal with the contentions of the learned counsel for the appellants, it would be convenient to take note of the evidence adduced by the prosecution.
21. The prosecution had examined eleven witnesses out of which P.Ws. 1 to 3 are the witnesses of fact.
22. P.W. 1 Lakhan Singh, related to three deceased & the first informant, stated that in the south west direction of the village, there was a Mango Orchard measuring six and half bighas. It was the season of Mango and to keep watch a hut was built in the orchard under a tree. The orchard was owned by him, his brothers Chhiddan and Trimal. On the fateful night his brother Trimal, son Sompal, nephew Jamna were there in the garden to keep watch. All those persons used to sleep there. In a routine manner, three deceased persons were sleeping on the cots in front of hut. At about 2 o'clock in the night, he, Chhiddan, nephew Dhrmpal and Lalman went to the orchard as usual, they saw Buddhsen, Jairam, Mahipal, Veerpal, Janki and Hori Lal assaulting the deceased with gandasa, spear, knives and countrymade pistol. Buddhsen was carrying gandasa, Jairam spear, Mahipal & Janki knives, Veerpal and Hori Lal were carrying countrymade pistols. He knew Veerpal and Janki prior to this incident being relatives of Buddhsen and that they used to come to his house. At the time of the incident the witnesses had torches with them and in the light of the torches they saw the incident. Narrating the motive to commit the crime it was stated that 3-4 years prior to the incident, brother of Buddhsen was murdered wherein Trimal and Chhiddan were named as accused and at the time of the incident, the trial was going on. He further stated that he wrote the written report (tahreer) himself and presented it in the police station and he proved the tahreer in his handwriting and signature as Ext.Ka-1.
23. P.W. 2 Chhiddan, the brother of first informant & deceased Trimal, the father of deceased Jamna and uncle of deceased Sompal, stated that an Orchard of Mango measuring six and half bighaas was situated on the west side of the village. Mango trees therein were bearing fruits, there was a hut to keep watch in the garden. His son Jamna, nephew Sompal and brother Trimal used to go and in the night and sleep there. On the fateful night, all of them had gone there as usual. Jamna, Sompal and Trimal were lying asleep on two cots and the incident took place at about 1 O'clock. He, his brother Lakhan Singh, son Dharmpal and uncle Lalman in the light of torches saw that the appellants Buddhsen with gandasa, Horilal and Veerpal with countrymade pistol, Mahipal and Janki with knives and Jai Ram with spear were assaulting the deceased Jamna, Trimal and Sompal. Janki and Veerpal were relatives of appellant Buddhsen whom he knew prior to this incident as they used to come to the house of Buddhsen. The appellants ran away towards the river after committing the murder. Further stated that four years prior to this incident, brother of Buddhsen namely Horilal was murdered wherein his brother Trimal was named falsely. Owing to this enmity these murders were committed. It was stated that Lalman went to his field to keep watch of the engine at his field with him. They had torches. Report relating to this incident was filed by Lakhan. Torches were taken into possession by the sub-inspector and then returned to them. Trimal was shot and also assaulted with other weapons.
24. P.W. 3 Lalman had deposed that on the fateful day at about 2 O'clock in the night, he was going to keep watch of his engine in his field. On the way, he met Chhiddan, Lakhan and Dharmpal who were carrying torches and they were going to their orchard. He also joined them and reached near the orchard of Chhiddan at about 2 O'clock in the night. Hearing noise in the garden of Chhiddan, Lakhan and Dharmpal they flashed light with their torches and saw that the appellants Buddhsen having gandasa, Jai Ram with spear, Hori Lal and Veerpal with countrymade pistols, Mahipal and Janki with knives were assaulting Trimal, Jamna and Sompal. When they shouted the appellants ran away in the south direction. When they reached at the place where the incident took place, Trimal, Jamna and Sompal were found dead. The motive of murder as narrated by this witness is same as that of P.W.1 and P.W.2. P.W.3 stated that he knew appellants Veerpal and Janki who used to come to his village.
These three witnesses (P.W.1, P.W.2 and P.W. 3) were subjected to lengthy cross-examination by the defence but they were consistent throughout and none of them could be shaken about their stand in their examination-in-chief relating to the incident.
25. P.W.4 Dr. Arun Kumar Vaishya had conducted the post-mortem of the three deceased. He proved the postmortem reports being in his handwriting and signature which he proved as Ext. Ka-5, 6 & 7.
26. P.W.5 Bhuri Singh posted at the police station concerned on the day of incident, proved the check F.I.R. as Ext. Ka-8 being in his handwriting and signature. He stated that the case was registered on the basis of written report (tahreer) Ext. Ka-1 presented by the informant, Lakhan Singh and that he entered its detail in the G.D. report no. 14. He had also proved the carbon copy of the G.D. by comparing with the original as Ext. Ka-9.
27. P.W. 6 constable Hridesh Kumar brought the dead bodies to the mortuary for post-mortem. He proved that the dead bodies were in his custody and he kept them safe in the sealed state and did not allow any other person to touch it.
28. P.W.7 A.S.I. Ram Mohan Sharma stated that on the direction of S.O. Solanki he had prepared the inquest of three deceased Sompal with other relevant papers which he proved to be in his hand-writing and signature as Ext. Ka-10 to 15; Ext. Ka-16 to 21; Ext. Ka-22 to 27 and stated that the dead bodies were handed to constable Hridesh Kumar (P.W.6) for taking them to the Mortuary for the post-mortem
29. P.W.8 S.I. Raj Singh made arrest of appellants Buddhsen, Jai Ram, Veerpal, Janki, recorded their disclosure statements leading to recovery of gandasa, spear, knife and countrymade pistol 12 bore at the instance of the appellant Veerpal along with three live cartridges of 12 bore. He had prepared recovery memo at the dictation of Station House Officer which he proved being in his handwriting and signature as Ext. Ka-28. He also proved the recovered articles blood stained gandasa as Material Ext-1, blood stained bhala as Material Ext.-2, knife as Material Ext.-3 and country-made pistol and cartridges as Material Ext.4 to 7 in his deposition.
30. P.W.9 S.I. N.K. Solanki, the Investigating Officer, proved the documents prepared during investigation of the case, site plan as Ext. Ka-29. Fard relating to blood stained and plain earth, three empty cartridges 315 bore and 12 bore and the weaving thread of cot (bandh) as Ext. Ka-30, 31, and 32 being in his handwriting and signature and also proved the entries in the G.D. He proved the charge sheet being in his handwriting and signature as Ext. Ka-38.
31. P.W.10 A.S.I. Ram Mohan Sharma, is the witness of the case registered investigated the cases relating to Crime Nos. 94 of 1999 and 95 of 1999 under Sections 25 Arms Act and 4/25 Arms Act wherein the appellants have been acquitted.
32. P.W. 11 Dheeraj Singh proved the fact that he took the case property to the F.S.L. Agra for chemical examination.
33. There is no dispute regarding the place of the occurrence. The incident took place in the Mango Orchard of the informant. At the time of the incident, deceased persons were lying on the cots, blood stained weaving threads of the cots were taken into possession, blood stained and plain earth collected from the place of the occurrence and all the collected materials were sent to F.S.L for chemical examination. The reports sent by F.S.L. are on record and proved as Ext. Ka-3 & 4. These reports show that human blood was found on all these things and the blood stained and plain earth similar in its characteristics. The above material on record proves the place of occurrence being the Mango Orchard of informant. P.Ws. 1 to 3 also proved the place of occurrence being the Mango Orchard in their fields in their testimony. None of these facts could be disputed by the defence.
34. The ante-mortem injuries found on the person of the deceased were proved to have been caused by weapons like gandasa, knife & fire-arm. P.W. 4 Dr. Arun Kumar Vaishya who conducted the post-mortem of the dead bodies opined that the injuries might have been caused with countrymade pistol, gandasa and knives on the day 12/13.7.1999 at about 2 O'clock in the night. He categorically stated that the injuries on the person of the deceased were caused with sharp edged weapon like knife, gandasa, sharp edged spear. P.Ws. 1 to 3 also stated that the deceased persons were assaulted with Gandasa, country-made pistol, knife and spear. In this way, the medical evidence about the manner of death of three deceased correlates with the ocular evidence about the date, time and manner of the injuries caused, i.e. the weapon used.
35. The incident took place at 2 o'clock in the night and the F.I.R. was lodged by the informant at the police station, which was 13 Km. away from the village, on the next morning at about 8.30 a.m. The first informant mentioned in the written report (Ext. Ka-1) that he could not go to the police station during night due to fear. Where three deaths were caused in the night in such a ghastly manner, it was natural that the inmates of the deceased persons would be frightened. They might not be in a position to do something at the instant moment. The police station was at a distance of about 13 Km. from the place of the incident. To go to the police station for lodging the F.I.R., against those who caused brutal murder of three persons did not seem possible. In the morning, without making any delay the informant had reached the police station by bicycle and lodged the F.I.R. In the said circumstance of the case, it cannot be said that there was any inordinate delay in lodging of the F.I.R. at the police station. The delay, if any, was natural and the explanation offered by the informant is liable to be accepted.
36. As brought on record, there was strong motive with the appellants to commit the murder of the deceased persons. The informant had mentioned in the F.I.R. that there was old enmity with the appellants. During his examination before the Court, the informant disclosed that in the murder of the brother of Buddhsen, namely Hori Lal 3-4 years prior to the instant incident the deceased Trimal and Chhiddan were named and at the time of the incident, the trial was going on. P.Ws. 2 & 3 has also stated the same motive. The appellants in their statements under Section 313 Cr.P.C. asserted that the witnesses made statements against them on account of enmity which also supports the version of the informant that there was enmity between the parties.
37. It is settled that enmity is a double edged weapon, it can be used to implicate falsely, on the other hand it can become motive to commit the offence. Further, there is no principle of law that where if the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of crime has not been proved.
38. In State of Himachal Pradesh Vs. Jeet Singh 1999 (38) ACC 550 SC, it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it as it is almost impossible for the prosecution to unravel full dimension of the mental disposition of an offender towards the person whom he offended.
39. In Nathuni Yadav and others vs. State of Bihar and others 1997 (34) ACC 576, it was held that motive for committing a criminal act, is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause unnecessarily need not be proportionately grave to grave crimes. It was further held that many murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable.
40. In the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 the Hon'ble Apex Court has reiterated the same view after taking into consideration the abovementioned cases.
41. This Court has also made such observations in the case of Rameshwar and others vs. State 2003 (46) ACC 581 that when there is direct evidence, the motive was not important. Likewise in the case of State of Haryana vs. Sher Singh and others 1981 Cr. Ruling 317 SC it has been held that the prosecution is not bound to prove the motive, more so, when crime is proved by direct evidence.
42. P.Ws.1 & 2, are related to each other and also to the deceased persons regarding which argument had been made that all these witnesses being relative and highly interested, are not reliable and lack of account of independent witnesses in support of the case is fatal to the prosecution story. No doubt the prosecution witnesses from PW-1 to 2 are members of the same family being in direct relation with the deceased persons but the relationship itself is not a ground to reject the testimony of these witnesses, rather being family members they would be the last persons to leave the real culprit go scot free to falsely implicate the appellants.
43. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Apex Court in Para No.21 has observed as under:-
"merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence."
44. The Apex Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202.
45. In Masalti vs. State of U.P. A.I.R. 1965 SC 202, the Apex Court observed in Para No.14:-
"but it would, we think, be unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on sole ground that it's partisan would inveriably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it's partisan cannot be accepted as correct.
46. It is of common knowledge that village life is faction ridden and involvement of one or the other in the incidents is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to come forth. Lest they may invite trouble for themselves for future. Therefore, relationship of eye-witnesses inter se, cannot be a ground to discard their testimony. There is no reason to suppose the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that witnesses would screen the real culprits and substitute the appellants for them.
47. This Court has also made such observations in Para No.14 of Rameshwar and others vs. State 2003 (46) ACC 581.
48. Further P.W. 3 Lalman is not related either to the deceased or the witnesses namely P.Ws. 1 & 2. He resided in the same village where the appellants Buddhsen, Jairam, Hori Lal, Mahipal also resided. Other appellants Janki and Veerpal being relative of appellants Buddhsen used to go to the village of the witnesses though were resident of another village situated at a distance of about 8 to 10 Km. This witness cannot be said to be inimical to any of the appellants. It was categorically stated by PW3 that he knew all the appellants before the incident.
49. Now, we are required to consider as to whether the testimony of three witnesses namely P.Ws. 1, 2 & 3 is reliable or worthy of credit. In this regard, it is to be noted that P.Ws. 1 & 2 are relatives of the deceased persons and also inimical to the appellant Buddhsen whose brother was murdered. Wherein deceased Trimal was an accused. As aforesaid, the testimony of related and interested witnesses may play double role of false implication or to commit the offence, more caution is, therefore, required in appreciating their testimony.
50. On analysis, P.W.1 & P.W. 2 had clearly deposed about the commission of murder of the deceased persons by the appellants. They were residents of the same village and appellants Janki and Veerpal were the relatives of appellant Buddhsen. There was no reason to implicate these appellants falsely for the commission of murder leaving the real culprits. Further, deceased Trimal was accused in the murder case of brother of appellant Buddhsen, so there may be reason to implicate him but for other appellants there was no reason for false implication at the cost of absolving real culprits. There was no confusion in the identification of the appellants because the witnesses proved to have seen all of them in the light of torches carried by them. The torches were shown to the Investigating Officer. The appellants being the residents of the same village were well known and identifiable to the witnesses. Both the witnesses were consistent during their cross-examination, there was no deviation in their statements. As per their version, the deceased persons were sleeping in the Mango Orchard and they were there for the purpose of keeping a watch. Arrival of P.W.1 & P.W. 2 can not be said to be unnatural because at that time Mango trees were bearing fruits and people living in the village always try to keep watch on their crops for protecting them from damage by any outside source. Further relevant to note that the first informant/P.W.1 went to the police station concerned, 13 Km. away from his village, by bicycle and reached there at about 8.30 a.m. and lodged the F.I.R. without any delay. There was no time gap to concoct a false story after consultation. In case, P.Ws. 1 & 2 had not seen the occurrence in the night, they would have no knowledge of the murder even early in the morning, resultantly the prompt lodging of the F.I.R. was not possible. In this way, the plea of false implication by the informant is not fortified with the circumstances of the case. In addition to this, P.W. 3 Lalman was not related to the deceased persons, and there is no evidence that he was inimical to the appellants. Being a resident of the same village, his presence on the spot with the P.Ws. 1 & 2 also seems to be natural as he gave a reason that he was going to keep watch in his field where engine was installed. There is no inconsistency in the statement of P.W.3 with that of P.Ws.1 and 2. He did not deviate in his cross-examination. The testimony of P.W. 3 renders full support to the testimony of P.Ws. 1 & 2 and makes their version wholly reliable and creditworthy.
51. The learned counsel for the appellants lastly indicated the contradictions found in the statements of prosecution witnesses about the time. P.Ws. 1 & 2 stated that they went at the field at 12-1 O'clock whereas P.W.3 Lalman stated that he went there at about 2.15 a.m. The argument is that it is doubtful for P.W.3 to have met P.Ws. 1 & 2 on the way to the field. A perusal of the statement of P.W.3 shows that he also stated in para nos. ''6' and ''15' of the statement that he went to the field at about 1½- 2 O'clock and on the way he met P.Ws. 1 & 2. He further stated that he went to start engine in his field. P.W.1 & 2 also stated that Lakhan met them before they had reached the Orchard. Likewise P.W. 3. further said that he did not see the weapons. P.Ws. 1 & 2 stated that they remained on the spot throughout the night but P.W.3 stated that P.W.1 Lakhan went to call someone. In this regard, it is noteworthy that the witnesses belong to rural area. They being illiterate persons, possibility of minor contradictions cannot be ruled out. In case even a part of the statement of such a witness is found to be untruthful, it cannot be made the basis for discarding his whole testimony as the principal of ''falsus in uno, falsus in omnibus' is not applicable in India. Further, making of some improvement or exaggerations in their testimony by a witness cannot belie his whole statement.
52. The contradictions in the statements of P.W.3 as indicated by the learned counsel for the appellants seem to be of minor character. They cannot be said to be material contradictions as to affect the credibility of prosecution witness. These contradictions are natural and do not strike at the very root of the statements of the witnesses about the incident rather they make their statements more truthful and trustworthy.
53. It was also urged that P.Ws. 1 & 2 were relatives of the deceased persons and they say that they saw the entire incident but did not make any efforts to rescue the deceased, it falsifies their presence on the spot. In this regard, it is to be noted that P.Ws.1, 2 & 3 were not equipped with weapons whereas appellants were carrying deadly weapons and they were seen by the witnesses causing murder of three deceased persons. In such a horrible situation, it cannot be expected that the witnesses (P.Ws.1 & 2) could have gathered courage to resist the assault. They say that they reached the place of the incident making a noise and on their noise the culprits ran away. The argument of the learned counsel that since the witnesses did not react to the incident by making endeavor to rescue the life of deceased persons, this creates doubt on their presence on the spot cannot be said to be realistic. On this point we may refer para ''6' of the judgment by the Apex Court in the case of Rana Pratap Vs. State of Hariyana AIR1983 SC 680:-
6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
54. In this way the testimony of the three witnesses (P.Ws. 1 to 3) is found to be wholly trustworthy and reliable.
55. As regards, the testimony of D.W. 1 Sultan Khan, he has stated that appellant Veerpal was working as a labourer in his ice cream factory on 13.7.1999 at about 12-01 P.M. and the police took him away but the incident took place in the night of 12/13.07.1999 and this witness had nowhere stated that Veerpal stayed there in the factory throughout the night. So the presence of Veerpal (appellant) on the spot cannot be said to be impossible and the statement of this D.W. is of no use in this regard.
56. In the present case, we do not find any major contradiction either in the evidence of the witnesses or any such conflict in the medical and ocular evidence which would tilt the balance in favour of the appellants. The minor improvements, embellishments etc., apart from being far yield of human faculties are insignificant and ought to be ignored since the evidence of the witnesses otherwise overwhelmingly corroborate each other in material particulars.
57. The next submission of the learned counsel for the appellants is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the trial court while convicting the appellants. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746.
58. In the case of Lakahan Sao Vs. State of Bihar and Another (2000) 9 SCC 82, it was held that the non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is available/acceptable.
59. Having given our anxious considerations to the submissions made by the learned counsel for the parties, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and the view taken by the learned Sessions Judge is absolutely correct in the eye of law.
60. In the result, the appeals lack merit and are hereby dismissed.
61. The appellants Buddhsen, Mahipal, Veerpal, Janki and Hori Lal are in jail, they will serve out the remaining period of sentence. The appellant Jairam is on bail, he shall be taken into custody forthwith and sent to jail to serve the sentence.
62. Copy of this judgment alongwith the original record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. The office is directed to keep the compliance report on record.
Order Date :- 12th September, 2022
A. Singh
(Subhash Chandra Sharma,J.) (Sunita Agarwal,J.)