Rajasthan High Court - Jaipur
Dungar Ram And Ors. vs State Of Rajasthan on 18 May, 2001
Equivalent citations: 2002(3)WLN328
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT Garg, J.
1. The abovenamed accused appellants have preferred this appeal against the judgment and order dated 3.9.1997 passed by the learned Additional Sessions Judge No. 3 Sri Ganganagar, Headquarters at Sri Karanpur in Sessions Case No. 16/97 (Old No. 66/94) whereby he convicted and sentenced the accused appellants in the following manner: -
Name of accused appellants Convicted under Section Sentence awarded to each accused appellant
1. Dungar Ram 1481PC Three Year's R1 Life Imprisonment & fine of Rs. 100/-, in default of payment of undergo one month RL
2. Khayali Ram 302/149 IPC
3. Banwari Lal
4. Hari Ram 307/149 IPC Ten Years' R1 and fine of Rs. 100/-, in default of payment of fine, to further undergo one month R1.
5. Shankar Lal
6. Raghuveer Singh
7. Surendra 27 Arms Act Five years' R1 and fine of Rs. 100/-, in default of payment of fine, to further undergo one month R1
8. Madan Lal
9. Sohan Lal
10. Bhagirath 147 IPC Two years' RL 302/149 IPC Life Imprisonment & fine of Rs. 100/-, in default of payment of fine, to further undergo, one month R1.
307/149 IPC Ten years' R1 and fine of Rs. 100/-, in. default of payment of fine, to further undergo, one month RL The above substantive sentences were ordered to run concurrently.
2. The facts giving rise to this appeal, in short, are as follows:-
On 7.7.1994 at about 8,00 PM, PW1 Ram Pratap lodged a written report Ex.P/1 before PW19 Vipin Sharma, SHO, Police Station Gha-mudwali District Sri Ganganagar stating inter-alia that his father Asharam (PW4) had two wives and out of first wife, there are Five sons viz.2. Hari Ram - Accused appellant No. 4
3. Sheo Karan
4. Dungar Ram - Accused appellant No.1 5. Khayali Ram - Accused appellant No. 2 and out of the second wife, he (PW1 Ram Pratap) is the only son. It is further stated in the report that PW4 Ashararn made partition of his property before 10-12 years back with consent to panchayat decision. Looking to the sound financial condition of PW-1 Ram Pralap, the other step brothers had a grudge with him and they used to say that they would see him when the proper time would come. Though he himself had no grudge against them, but internally they were not happy with PW-1 Ram Pratap. It is further stated in the report that on 30.6.1994 he went to Delhi and returned back from Delhi in the morning of 6.7.1994 and on 7.7.1994 at about 6-6.30 PM in the evening, his two sons, namely, Rahul and Sidharth (hereinafter referred to as the deceased No.1 and deceased No. 2 respectively) and their friend, namely, PW-2 Bablu @ Suchit and PW-3 Shiv Prakash had gone to field where tube well was also there and at that time, PW1 Ram Pratap was sitting on the roof of the room of the tube well and PW-3 Shiv Prakash was also looking after his crops. It is further stated in the report that when his both sons (deceased) and PW2 Bablu proceeded towards village on the motor-cycle, in the meantime, one moter-cycle and one jeep came from the front side and on the motor cycle, accused appellants Madan Lal and Shankar were there and accused appellants, namely, Dungar Ram, Khyaliram, Raghuveer, Hariram, Surendra and Banwari came out from the Jeep and at that time, they all were having guns and pistols in their hands. The motor cycle was being driven by accused appellant Madanlal and accused appellant Shankar was sitting behind him and accused appellant Shankar was having a pistol. It is further stated in the report that thereafter all of them encircled both deceased and PW2 Bablu and told "AAJ INKA KANTA NIKAL DENGE". Thereafter, first fire was shot by accused appellant Shankar from the front side on deceased No.2 Sidharth and accused appellant Raghuveer fired with pistol on another deceased No. 1 Rahul-and accused appellant Dungar Ram also fired a gun shot on PW2 Bablu and, therefore, he fled away from the scene, while because of continuous firing by accused appellants, both deceased died on the spot. It is further stated in the report that because of fear, PW1 Ram Pratap did not come down from the Kotha. Thereafter, the accused appellants ran away. It is further stated in the report that thereafter PW1 Ram Pratap and PW3 Shiv Prakash came to their village and PW1 Ram Pratap informed to his father PW4 Asharam and also to the villagers about the incident. When PW1 Ram Pratap reported the matter to his father, his father PW4 Asharam also told him that before this incident, in jeep and motor cycle, accused appellants, namely, Hariram, Dungarram, Khyaliram, Raghuveer, Surendra, Banwari, Shankar, and Madanlal and driver of the Jeep, whose name he did not know, came there and took tea and enquired about PW1 Ram Pratap and his sons and it was also informed by the villagers and neighbours that these accused appellants were roaming in the village in search of them and thus, they wanted to kill PW1 Ram Pratap and his sons so that they couid garb his property and in pursuance of that, the accused appellants have killed his sons.
On this report, PW19 Vipin Sharma chalked out police FIR Ex. P/2 and started investigation.
During investigation, post mortem of the dead body of both the deceased was got conducted by PW18 Dr. Chandra Bhan. The post mortem report of deceased No.1 Rahul is Ex. P/63 and that of deceased No.2 Sidharth is Ex. P/64 and the cause of death as assigned by PW18 Dr. Chandra Bhan in both the post mortem reports was that both deceased died due to shock and haemorrhage due to injuries of lungs and liver and spina! cord by fire arms. PW2 Bablu @ Suchit was also got medically examined and his injury report is Ex. P/65, which shows that he received a lacerated wound and his X-ray was also taken and the X-ray report is Ex. P/59, which shows that on thigh, one metallic devise radio opeque shadow in the soft tissue was detected, it means he also received fire arm injury. Thereafter, accused appellants were arrested through Ex. P/21 to P/29 and Ex. P/66 and guns and pistols were recovered from them except from accused appellant No. 10 Bhagirath. PW19 Vipin Sharma also prepared site plans Ex. P/3 and Ex. P/4. The Inquest Reports of both deceased were also prepared and they are Ex. P/5 and Ex. P/6.
After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate and from where the case was committed to the Court of Session.
On 9.5.1995, the learned trial Judge framed charges against the accused appellants Dungar Ram, Khayali Ram, Banwari Lal, Hari Ram, Shankar Lal, Raghuveer Singh, Surendra, Madan Lal and Sohan Lal for the offence under Sections 147, 148, 302/149, 307/149 IPC and under Sections 25 and 27 of the Arms Act and against accused appellant Bhagirath for the offence under Sections 147, 148, 302/149 and 307/149 IPC. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial.
During the course of trial, as many as 20 witnesses have been produced by the prosecution and many documents were got exhibited. Thereafter, statements of the accused appellants under Section 313 Cr.P.C. were recorded. The accused appellants did not lead any evidence in defence, but got exhibited some documents in their defence.
The learned Additional Sessions Judge No.3 Sri Ganganagar through his judgment and order dated 3.9.1997 convicted and sentenced the accused appellants in the manner as stated above holding inter- alia:-
1. That both deceased Rahul and Sidharth died because of fire arms injuries and these injuries, which were received by them were sufficient in the ordinary course of nature to cause death.
2. That he had placed reliance on the testimony of PW1 Ram Pratap, PW2 Suchit @ Bablu and PW3 Shiv Prakash as eye witnesses and all submissions which were raised against their testimony, were rejected by him.
3. That report Ex. P/1 was rightly lodged on 7.7.1994 at 8.00 PM and the submission thai it was not lodged on the same day was rejected by the learned Additional Sessions Judge.
4. That the incident took place at 6-6.30 PM on 7.7.1994 as stated in the report Ex. P/1.
5. That recording of statement Ex.D//3 under Section 161 Cr.P.C. of PW3 Shiv Prakash on 13.7.1994 was not found to be fatal to the prosecution by the learned Additional Sessions Judge and the so called delay in recording the said statement was also not found fatal to the prosecution by the learned Additional Sessions Judge holding that if any mistake or dereliction of duty is committed by the Investigating Agency during investigation, it would not affect the teslimony of the witness.
6. That no doubt in the report Ex. P/1, the names of the two accused appellants, namely, Sohan Lal and Bhagirath did not find place, all the same, the learned Additional Sessions Judge held that these two accused appellants were also present at the lime of occurrence and took part in the incident.
7. That all the ten accused appellants formed an unlawful assembly and common object of which was to commit murder of both deceased and also to make a murderous attack on PW2 Suchit @ Bablu.
8. That since accused appellants fired in prosecution of the common object, therefore, it was not necessary to prove which accused appellant caused particular injury on the body of the deceased.
9. That it is also proved that accused appellants had enmity against PW1 Ram Pratap and his both sons (deceased) over the partition of the property made by PW4 Asharam and thus, accused appellants had strong motive to murder both deceased.
10. That the prosecution witnesses especially. PW1 Ram Pratap, PW2 Suchit @ Bablu and PW3 Shiv Prakash have given false statement on the point that accused appellant Raghuveer Singh caused gun shot injury to PW2 Suchit @ Bablu and accused appellant Shankar Lal caused gun shot injury to deceased No.2 Sidharth, as the fact that these three accused appellants individually caused fire arm injuries is not being supported by medical evidence. But, their statement as a whole cannot be disbelieved because if they give false statement on one point, it does not mean that they are telling lie on other points also and thus, the principles of falsus in uno falsus in omnibus would not be applicable in the present case.
11. That the learned Additional Sessions Judge has also observed that these three accused appellants have not fired and according to him, since arms which have been recorded from them cannot fire soft nose copper jacketted projectile therefore, these three accused appellants did not cause any fire arm injury as alleged by the prosecution.
12. That apart from thus, there is also circumstantial evidence on the point that arms have been recovered on the information given by the accused appellants except from accused appellant Bhagirath and this fact also proves the case of the prosecution.
Aggrieved from the said judgment and order dated 3.9.1997 passed by the learned Additional Sessions Judge No.3, Sri Ganganagar, the present appeal has been filed by the accused appellants.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellants:-
1. That PW4 Asharam has stated that all the accused appellants came to his house at about 7.30 PM on 7.7.1994 and if they left the house after taking tea, no question arises that incident would have taken place at 6-6.30 PM. Therefore, PW1 Ram Pratap has wrongly reported in his report Ex. P/1 that incident took place at 6-6.30 PM to avoid darkness at about 8.00 PM. Thus, it should be held that report Ex. P/1 was not lodged at the alleged time of occurrence and it has been lodged after consultations to adjust the timing.
2. That PW1 Ram Pratap, who has lodged the report Ex. P/1, has himself claimed to be an eye witness of the occurrence, but since he has no where stated in his statement that after alleged occurrence, he went near the dead body and checked them to be dead and from there he went directly to his house and then from the house directly to the police station, therefore, it means he has not seen the occurrence and, it should be presumed that FIR was not lodged by PW1 Ram Pratap in the manner and timing alleged by him in the report Ex. P/1 was concocted one and mentioned after consultations with the police. In other words, report Ex. P/1 is not correct picture of the incident and thus, PW1 Ram Pratap cannot be regarded as an eye witness in the present case.
3. That PW2 Bablu @ Suchit cannot be regarded as an eye witness as his presence on the scene is doubtful, looking to his conduct.
4. That PW3 Shiv Prakash, who is brother-in-law of PW1 Ram Pratap and Mama of both deceased, cannot also be regarded as eye witness as he is not resident of village Pharsewala and his village is at distance of 30 km. Had he been an eye witness, he would have certainly gone with PW1 Ram Pratap to lodge the report and recording of his statement by police with some delay also gone lo show that he was not an eye witness.
5. That the names of the accused appellants Sohan Lal and Bhagiralh were not mentioned in the report Ex. P/1, therefore, their presence on the spot is doubtful.
6. That looking to the injuries of both deceased, it cannot be inferred that all accused appellants caused fire arm injuries to both deceased and thus, the case of the prosecution that all accused appellants fired on both deceased cannot be accepted.
7. That it is a case of blind murder and all the eye witnesses, who have been produced by the prosecution, are false one and all the accused appellants have been falsely implicated and thus, the whole case should be thrown out and accused appellants be acquitted of the charges framed against them.
8. That prosecution case is false one as empty cartridges have not been recovered from the place of occurrence, as admitted by PWI9 Vipin Sharma, 10 in this case and thus, the incident as alleged by the prosecution has not taken place and true story has been suppressed by the prosecution and from this point of view also, the whole prosecution case should be thrown out.
9. That Inquest Reports Ex. P/5 and Ex. P/6 did not disclose the brief facts of the incident and thus, from this point of view also, the report Ex. P/1 was not lodged at the time as alleged in that report.
Hence, it is prayed that this appeal be allowed and the accused appellants be acquitted of the charges framed against them.
4. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant submitted that the findings of conviction recorded by the learned Addl. Sessions Judge No.3 Sri Ganganagar are based on correct appreciation of evidence and thus, no interference is called for with the impugned judgment and order passed by the learned Additional Sessions Judge No.3 Sri Ganganagar.
5. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case.
6. Before proceeding further, we would like to discuss first the medical evidence.
7. In this case, there are two deceased. The post mortem report of deceased No. 1 Rahul is Ex. P/63 and that of deceased No.2 Sidharth is Ex. P/64 and to prove the post mortem reports Ex. P/63 and Ex. P/64, the prosecution has produced PW18 Dr. Chandra Bhan.
8. PW18 Dr. Chandra Bhan states in his statement that on 8.7/1994 he was Sr. Medical Officer, Primary Health Centre, Ghamudwali and on that day, he conducted post mortem of the dead body of the deceased Rahul and found the following injuries on his body:-
1. Multiple lacerated wound of 1/2 cm x 1/2 cm size 30cm x 14cm area on the Lt. side of chest oblique. In direction some are embedded in the wall & some are cavity deep.
2. Lacerated wound with scorched and tattooed 2 1/4 x 2cm and thoracic cavity deep, oblique. In direction just below and lateral to Rt. nipple, Inverted margins.
3. Lacerated wound size 5cm x 3cm bony deep fracture of middle phalaynx and bones are exposed on the Lt. thumb to palmer side.
The cause of death of deceased Rahul opined by PW18 Dr. Chandra Bhan is as follows:
"From the above mentioned observations and findings, the cause of death shock & haemorrhage due to injuries of lungs & liver & spinal cord by fire arm."
PW18 Dr. Chandra Bhan has further stated that on 8.7.1994 he has also conducted post mortem of the dead body of the deceased No.2 Sidharth and found the following injuries on his body:-
1. Lacerated wound 1-1/2 cm x 1-1/4 cm x cavity deep at the level of T11 & T12 with oblique In direction with tattooed with Inverted margin.
2. Lacerated wound size 1-1/4 cm x 1cm x cavity deep. Lt. side of chest at the level of 9th rib. near to strenum with Invested margins.
3. Lacerated wound 3cm x 2cm x cavity deep at the level of 11th rib Rt. side 6cm from the medial line with Everted margins.
4. Lacerated wound size 2cm x 1-1/2 x cavity deep at the RT side of Chief at the level of 1 Oth rib. Lateral side with Everted margins.
5. Lacerated wound size 2cm x 1 1/2 cm muscles deep. Horizontal In Direction lateral side of 12th rib.
6. Contusion 4cm x 1 l/4cm on the pinna of Lt. ear.
Note : Injuries 1 & 2 are entrance wound and injuries 3 & 4 are Exit wound.
The cause of death of deceased Sidharth as opined by Dr. Chandra Bhan (PW18) is as follows:-
"From the above mentioned observations and findings, the cause of death is shock and Haemorrhage due to injuries of lungs & liver & spinal cord by fire arm."
Dr. Chandra Bhan (PW18) has proved the post mortem reports Ex. P/63 and Ex. P/64.
9. Thus, from the statement of PW18 Dr. Chandra Bhan and the post mortem reports, it becomes crystal clear that both deceased died because of shock and haemorrhage due to injuries of lunge & liver & spinal cord by fire arm and therefore, death of both the deceased was not natural one and it was homicidal.
10. Before proceeding further, the injury of PW2 Suchit @ Bablu should also be mentioned here.
11. The injury report of PW2 Suchit is Ex. P/65 and to prove the same, the prosecution has produced PW18 Dr. Chandra Bhan, who states that on 7.7.1994 he examined PW2 Suchit and found the following injury on his person:-
1. Lacerated would 3cm x 1 1/2cm x 1/2 deep with inverted margins, medial side Rt. thigh in middle 1/3.
Dr. Chandra Bhan PW18 has proved the injury report Ex. P/65.
The X-ray of PW2 Suchit was also taken and his X-ray report is Ex. P/59 and for proving the same, the prosecution has produced PW17 Om Prakash, who states that on 15.7.1994 he was Sr. Spl. Radiologist, Government Hospital, Sri Ganganagar and took X-ray of right thigh of PW2 Suchit and one metallic devise radio opeque shadow in the soft tissue detected. He has proved the X-ray report Ex. P/59.
12. Thus, from the injury report Ex. P/65, X-ray report Ex. P/59 and statements of Dr. Chandra Bhan, PW18 and Om Prakash, PW17, it is proved that PW2 Suchit received injury on his right thigh, which was caused by fire arm.
13. Before proceeding further, the salient features of the report Ex. P/1 may be enumerated here:-
1. That on 7.7.1994 at about 6.30 PM. PW1 Ram Pratap, his brother-in-law Shiv Prakash, PW3, his both sons deceased and PW2 Bablu @ Suchit went to his tube well and at that time, PW1 Ram Pratap was sitting on the roof of the room of the tube well and PW3 Shiv Prakash was doing job in his field.
2. That when his both sons deceased and PW2 Bablu @ Suchit proceeded towards the village on motor-cycle, at that time, a motorcycle came there, on which two accused appellants, namely, Madan and Shankar were sitting and, thereafter, a Jeep came there, in which accused appellants, namely, Dungar Ram, Khyaliram, Raghuveer, Hariram, Surendra and Banwari were sitting and they all were having guns and pistols in their hands. The motor cycle was being driven by accused appellant Madanlal and accused appellant Shankar was sitting behind him and accused appellant Shankar was having a pistol. Thereafter, they all encircled both deceased and PW2 Bablu and told."AAJ INKA KANTA NIKAL DENGE."
3. That thereafter, first fire was caused by accused appellant Shankar towards deceased No. 2 Sidharth. Thereafter, accused appellant Raghuveer fired on another deceased No. 1 Rahul and accused appellant Dungar Ram fired on PW2 Bablu and, therefore, he ran away. Rest accused appellants also fired.
4. That both deceased died on the spot.
5. That thereafter, accused appellants ran away.
6. That thereafter, PW1 Ram Pratap and PW3 Shiv Prakash came to the village and PW1 Ram Pratap narrated the whole story to his father PW4 Asharam and upon this, PW4 Asharam also told him that accused appellants also came in the evening and enquired about PW1 Ram Pratap and his sons both deceased.
7. That this report was lodged at the Police Station Ghamudwali on 7.7.1994 at about 8.00 PM and the time of occurrence as mentioned in that report is 6-6.30 PM.
14. The learned counsel of the accused appellants has argued at length on the point that in all circumstances, this report Ex. P/1 could not have been lodged with such promptness and in this respect, the conduct of PW1 Ram Pratap appears to be unreasonable, especially when his both sons died, he would lodge the report within one and half hour of the incident. He further argues that in report Ex. P/1, the time of incident as 6-6.30 PM has been intentionally mentioned so that a case for the witnesses could be made out that they saw the occurrence, otherwise incident took place near about 8.00 PM on that day and at that time, darkness must have prevailed and, therefore, there was no occasion to see the occurrence by the alleged eye witnesses.
15. The learned Addl. Sessions Judge has met out this argument at page 11 of his impugned judgment. The learned Addl. Sessions Judge observed that medical examination of PW2 Bablu @ Suchit was got conducted by Dr. Chandra Bhan, PW18 at 9.05 PM on 7.7.1994 and the same was done by him at the requisition of the police and the injury report of PW2 Bablu is Ex. P/65. According to the learned Addl. Sessions Judge, this fact itself goes to show that report Ex. P/1 was presented in the Police Station by PW1 Ram Pratap on 7.7.1994 at 8.0 PM and, thereafter, medical examination took place. Therefore, he came to the conclusion that in all respect, report Ex. P/1 was lodged at 8.00 PM on 7.7.1994 and no question of doubt arises.
16. In our considered opinion, the above findings of the learned Addl. Sessions Judge appear to be correct one as they are based on correct appreciation of facts and circumstances of the case.
17. The argument that since both sons (deceased) of PW1 Ram Pratap were murdered, therefore, Ram Pratap first would weep for them and he would not lodge the report so promptly, is not tenable, rather promptness shows that PW1 Ram Pratap was present on the scene and that is why, he lodged the report with promptness. Thus, in lodging the report so promptly, the conduct of PW1 Ram Pratap cannot be said to be unnatural one.
18. It may be stated here that the alleged incident took place in the month of July and the time of alleged incident as mentioned in the report Ex. P/1 is 6-6.30 PM and in the month of July, at 6-6.30 PM, sufficient light remains available. Apart form this, if PW4 Asharam has said that accused appellants came to his house in the evening at 7.00 PM, it does not mean that this time should be taken as a final one and the word "evening" by a rustic man may be 6.00 PM or 6.30 PM or 7.00 PM. The witnesses from the village are usually ignorant about the dates, months and timing. Therefore, mere fact that in the present case, PW4 Asharam has said that occurrence took place at about 7.00 PM, it would not discredit the version given by PW1 Rain Pratap in his report Ex. P/1.
19. Therefore, from every point of view, it is held that the report Ex. P/1 was lodged by PW1 Ram Pratap at 8.00 PM on 7.7.1994 and the incident took place at about 6-6.30 PM and the findings of the learned Addl. Sessions Judge in this respect are liable to be confirmed.
20. Thus, the above argument of the learned counsel for the accused appellants stands rejected:
21. Before proceeding further and before appreciating the evidence of eye witnesses, something should be said about motive.
22. The motive is that which moves a man to do a particular act. There can be ho action without a motive, which must exist for every voluntary act. Motive plays an impdrtant role and becomes a compelling force to do a crime. Therefore, motive behind the crime is relevant factor for which evidence may be adduced. The evidence of motive is material in criminal cases. To say that motive is an important factor only in circumstantial evidence is a wrong conception. The Hon'ble Supreme Court in a recent decision in State of UP v. Baguram (i), has held that motive is equally relevant where case is based on direct evidence and where the case is based on circumstantial evidence.
23. Therefore, since the present case is based on direct evidence, motive would also be very much relevant and the same is found in the report Ex. P/1 and also in the statement of PW1 Ram Pratap. Thus, the findings of the learned Addl. Sessions Judge that accused party had strong motive against PW1 Ram Pratap and his both sons deceased are liable to be confirmed.
On Eye witnesses
24. In this case, as per report Ex. P/1, there are three eye witnesses of the alleged incident, namely,-
1. PW1 Ram Pratap lodger of the report Ex. P/1 and father of both deceased).
2. PW2 Bablu @ Suchit (friend of both eceased)
3. PW3 Shiv Prakash .
(brother-in-law of PW1 Ram Pratap and Mama of both deceased.
and their presence is mentioned in the report Ex. P/1 and that report was lodged just after the occurrence. This is one of the aspects of the case to see whether these witnesses were present on the scene or not.
25. The learned counsel for the accused appellants has argued at length that these witnesses could have never been on the spot or if they were on the spot, they could have never seen the occurrence and, therefore, their evidence has been wrongly relied upon by the learned trial Judge as eye witnesses and their evidence should have been rejected.
26. The learned counsel for the accused appellants argues that so far as alleged eye witness PW3 Shiv Prakash is concerned, he is an interested witness, as he is Mama of both deceased and, therefore, his presence is very much doubtful and his name has been intentionally added to make the case strong one. In this respect, he has further argued that though the incident took place on 7.7.1994, his statement was recorded on 13.7.1994 and thus, from this point of view also, he appears to be a false witness.
27. For PW1 Ram Pratap, it has been argued by the learned counsel for the accused appellants that since there was darkness at the time of alleged incident, therefore, no question of seeing the incident by him arises.
28. So far as alleged eye witness PW2 Bablu @ Suchit is concerned, it has been argued by the learned counsel for the accused appellants that first he does not know the name of accused appellants as he has admitted in his statement as PW2 and furthermore, he ran away from the scene and, therefore, his conduct is not natural one and thus, his evidence should have been disbelieved.
29. To appreciate the above contentions, it may be stated here at the very outset that so far as the presence of PW2 Bablu @ Suchit at the place of occurrence is concerned, since he is an injured witness, therefore, his presence on the scene cannot be doubted, as held by the Hon'ble Supreme Court in Avdesh and Ors. v. State of U.P. (2). In this respect, the decision of the Hon'ble Supreme Court in Ram Kumar v. State of Haryana (3), may also be referred to.
30. It may be stated here that when dealing with the serious question of the guilt or innocence of persons charged with crime, the following general rules may be helpful to the Court for determining whether the evidence in a particular case is admissible or not:-
1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
2. The evidence must be such as to excludes, to a moral certainty, every reasonable doubt of the guilt of the accused.
3. In matters of doubt it is safer to acquit than to condemn, since it is better that several guilty persons should escape than that one innocent person should suffer.
4. There must be clear and unequivocal proof of the corpus delicit (substance of the offence).
5. The hypothesis of delinquency should be consistent with all the facts proved.
31. It may be further stated here that the fact that a witness improves his testimony at the trial does not ruin the value of his testimony in its entirety.
32. It may further be stated here especially for PW2 Bablu @ Suchit, who is an injured witness, that where sufficient accused persons suddenly attacked the victim party with fire arm and one of the victim gets injured and he ran away, his testimony could not be discarded on the basis that he has left the place of occurrence and such type of conduct cannot be called unnatural one.
33. The Hon'ble Supreme Court in State of UP v. Noorie (4), has held that for appreciating the evidence of eye witnesses, the Court has to adhere to two principles:-
1. Whether it was possible for witnesses to be present, and
2. Whether there is anything inherently improbable or unreliable.
34. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbablise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.
35. Apart from this, some thing should be said about the maxim "falsus in uno falsus in omnibus".
36. The maxim "falsus in uno falsus in omnibus`` is in itself worthless; first in point of validity and secondly, in point of utility because it merely tells the jury what they may do in any event, not want they must be or must not do, and, therefore, it is a superfluous form of words. It is also in practice pernicious. (Wigmore on Evidence, Vol. III, para 1008).
37. This maxim-falsus in uno falsus in omnibus has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. AH that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded.
38. The maxim falsus in uno, falsus in omnibus (false in one thing, faise in everything) is neither a sound rule of law nor a rule of prudence. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff.
39. On this point, the decisions in Bhe Ram v. State of Haryana (5), State of Punjab v. Surja Ram (6), and Jeevan v. State of M.P. (7), may be seen.
40. Thus, the law is well settled that evidence of a witness need not necessarily be true in all respects. It may be partly true and partly untrue and the said maxim "falsus in uno falsus in omnibus" is not applicable in India and it is open to the Court in India to accept a part of evidence of a witness while rejecting the rest of it.
41. This point has been discussed here as the learned Addl. Sessions Judge has disbelieved the statement of PW1 Ram Pratap on that point where he has specifically mentioned that which injury was caused by which accused. This aspect of the learned Addl. Sessions Judge would not be found correct one, as would be discussed later on.
42. Before examining the evidence of alleged eye witnesses, something should also be said about the evidence of relatives.
Evidence of relatives
43. Relationship by itself is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Hon'ble Supreme Court in Sarwan Singh v. State of Punjab (8).
44. Similarly, the Hon'ble Supreme Court in State of Rajasthan v. Kalki and Ors. (9), has held as under:-
"'Related' is not equivalent to 'interested'. A witness may be called 'Interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested.' "
45. In this respect, the decisions of the Hon'ble Supreme Court in Ram Adhar v. State of U.P. (10), Gopal Singh v. State of U.P. (11) and State of Punjab v. Wassan Singh and Ors. (12), may be seen.
46. Thus, evidence of relative where he happens to be an eye witness, should be assessed carefully. This is the only rule of caution. Where prior enmity of accused against the deceased and the witnesses is established as in the present case is also there, in such a case, evidence of such eye witnesses has to be examined cautiously. However, the plea that their evidence should be rejected outright is not tenable.
47. Keeping the above well settled principles in mind, the evidence of alleged eye witnesses is being examined.
Evidence of PW1 Ram Pratap
48. PW1 Ram Pratap is the father of both deceased and he is the son of PW4 Asharam and accused appellants Dungaram, Khyaliram and Hariram are his stepbrothers and accused appellants Raghuveer and Sohanlal are his nephews.
This witness has stated in his statement that first motor cycle came which was being driven by accused appellant Madanlal and on his back, accused appellant Shankar was sitting and, thereafter, Hariram, Dungar Ram, Khyaliram, Surendra, Raghuveer, Banwari and Sohanlal came in a Jeep and Jeep was being driven by accused appellant Bhagirath and they all were armed with fire-arms. He has further stated that they encircled both deceased and PW2 Bablu a Suchit and also spoke "AAJ INKA KANTA NIKAL DENGE" and thereafter, accused appellant Shankar made a first fire on deceased No. 2 Sidharth and then, accused appellant Raghuveer made fire on deceased No. 1 Rahul and Dungar Ram made fire on PW2 Bablu @ Suchit and, thereafter, they all fired and the incident was being witnessed by PW3 Shiv Prakash from his field. He has further admitted that in the report Ex. P/1, the names of two accused appellants, namely, Bhagirath and Sohanlal were not mentioned by him because of harriedness.
In cross-examination, this witness admits the following facts:-
1. That PW3 Shiv Prakash is his real brother-in-law and Mama of both deceased.
2. That he saw whole incident from the Kotha of tube well.
3. That accused appellants caused 10-10 fires each on both deceased.
4. That in the report Ex. P/1 and police statement Ex. D/1, it is not mentioned which weapon was with which accused.
Evidence of PW2 Bablu @ Suchit
49. The statement of PW2 Bablu @ Suchit is also similar to the statement of PW1 Rani Pratap on the point that first accused appellants Shankar and Madan came on motor-cycle and rest accused appellants came in the Jeep and the names of persons, who were on motor-cycle were told by deceased No. 2 Sidharth to him and they all were armed with guns and pistols and he has also said that accused appellants told "AAJ INKA KANTA NIKAL DENGE" and first accused appellant Shankar fired on deceased No. 2 Sidharth and some one has also fired on him and another deceased.
In cross examination, this witness admits the following facts:-
1. That he did not know the exact names of accused appellants earlier.
2. That accused appellants were not identified by him in jail.
3. That the names of accused appellants were told to him by both deceased.
4. That at the time of alleged incident, he did not call PW1 Ram Pratap and PW3 Shiv Prakash.
50. So far as the statement of PW2 Bablu is concerned, his presence on the scene cannot be doubled as he is an injured person and his statement is very much natural in all respects and especially he does not say which accused appellant caused which injury to him and after fire on deceased No. 2 Sidharth by accused appellant Shankar, he tried to run away.
51. Thus, his statement is very much relevant on the point that both deceased received fire arm injuries and he also received fire arm injury and the same is corroborated by medical evidence, Hence, his presence on the scene cannot be doubted in any manner and his statement can be taken as a corroborative evidence to the statement of PW1 Ram Pratap.
Evidence of PW3 Shiv Prakash
52. PW3 Shiv Prakash has clearly stated in his examination-in-chief that motor-cycle came; Jeep came; PW1 Ram Pratap was there; both deceased were there; all accused appellants were having arms; accused appellant Shankar fired on deceased and they also used the words "AAJ INKA KANTA NIKAL DENGE"; therefore, deceased No. 1 Rahul cried and accused appellants Dungar Ram, Raghuveer, Surendra and Banwari were following deceased No. 1 Rahul and accused appellants Shankar Lal, Hariram, Khyaliram, Sohanlal, Madanlal and Bhagirath were also following deceased No. 2 Sidharth. He has further admitted that his statement was recorded by police on 13.7.1994.
53. So far as his statement is concerned, his presence on the spot cannot be doubted as is name is mentioned in the report Ex. P/1, which was lodged just after the occurrence. However, his statement that accused appellants Dungar Ram, Raghuveer, Surendra and Banwari were following deceased No.1 Rahul and accused appellants Shankar Lal, Hariram, Khyaliram, Sohanlal, Madanlal and Bhagirath were also following deceased No. 2 Sidharth does not get corroboralion from the statement of PW1 Ram Pratap and since his statement was recorded later on, therefore, in all circumstances, it can be said that he has improved his statement to some extent.
54. Therefore, in the present case, the main witness is PW1 Ram Pratap and whose statement should not be doubted in any manner and his presence on the scene from every point of view appears to be reasonable one and he appears to be eye witness in real sense.
55. The statement of PW1 Ram Pratap further gets corroboration from the report Ex. P/1 in alt material particulars and further from the statement of PW4 Asharam, father of PW1 Ram Pratap and grand-father of both deceased on the point that in the evening, accused party met him and asked with regard to whereabouts of both deceased and PW1 Ram Pratap.
56. The next questions that arise for consideration are (i) as to what extent the statement of PW1 Ram Pratap should be believed; (ii) whether from his statement, the case of prosecution against all ten accused appellants can be held to be proved; and (iii) whether a case of application of Section 149 IPC is made out or not.
57. The facts that accused appellants Shankar and Madan came first on motor cycle and motor cycle was being driven by accused appellant Madan and the words "AAJ INKA KANTA NIKAL DENGE' were spoken by accused appellants and, thereafter, first accused appellant Shankar fired on deceased No. 2 Sidharth and accused appellant Raghuveer fired on deceased No.1 Rahul and accused appellant Dungar Ram fired on PW2 Bablu @ Suchit, are well proved from the report Ex. P/1 and by the statement of PW1 Ram Pratap, which is to some extent also corroborated by the statement of PW2 Bablu and by medical evidence.
58. Therefore, it can easily be said that prosecution has proved beyond all reasonable doubts that only the above three accused appellants, namely, Shankar, Raghuveer and Dungar Ram caused fire arm injures to both deceased and PW2 Bablu. Thus, the findings of the learned Addl. Sessions Judge that prosecution has not been able to prove which injury was caused by which accused appellant cannot be accepted.
59. PW1 Ram Pratap has further stated that rest accused appellants also caused fire arm injuries to both deceased and they caused 10-10 fires each on both deceased. This aspect of statement of PW1 Ram Pratap does not get corroboration from the medical evidence.
60. The deceased No.1 Rahul received three injuries and deceased No. 2 Sidharth received six injuries, out of which, two were exit wound.
61. PW18 Dr. Chandrabhan has clearly stated in his statement that out of six injuries received by deceased No. 2 Sidharth, injuries No. 1 and 2 are entrance wound and injuries No.3 and 4 are exit wound, it means in actual sense two injuries were caused by fire arm.
62. It may be stated here that firearm wounds generally produce two wounds or apertures, namely, one of entrance and the other of exit of the projectile.
63. Thus, looking to the injuries of both deceased and PW2 Bablu @ Suchit, who received only one firearm injury, the statement of PW1 Ram Pratap that 10-10 shots each were fired on both deceased cannot be accepted. It means the case of prosecution or the statement of PW1 Ram Pratap that apart from three accused appellants Shankar, Raghuveer and Dungar Ram, rest accused appellants also caused firearm injuries or used firearms, cannot be accepted.
64. The next point that arises for consideration is whether in the above circumstances, the presence of other accused appellants on the scene can make them as Members of unlawful assembly or not.
65. Before recording a conviction under Section 148 IPC and applicability of Section 149 IPC, the following essential ingredients must be satisfied by the prosecution:-
(i) That five or more persons were assembled.
(ii) That such assembly was unlawful when it was convened or subsequently became unlawful having any one of the five objects specified in Section 141.
(iii) That such object was the common object of those composing such assembly.
(iv) That the accused, or any member of such unlawful assembly, used force or violence.
(v) That such force or violence was used in the prosecution of such common object.
(vi) that the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence.
66. Section 149 IPC creates a specific offence and deals with the punishment of that offence. Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
67. It is well settled that mere presence of persons does not make them members of unlawful assembly. For that two decisions of the Hon'bie Supreme Court in (1) Baladin and Ors. v. State of Uttar Pradesh (13) and (2) Bishambar Bhagat and Ors, v. The State of Bihar (14), may be referred to.
68. When there is unlawful assembly, at that time, it becomes difficult for the witnesses to describe accurately the part played by each one of the assailants and thus, in such cases, criminal courts have to do their best in dealing with such cases and duty is cast upon the criminal court to sift the evidence carefully and decide which part of it is true and which is not. For that, the decision of the Hon'bie Supreme Court in Masalti and Ors. v. The State of UP (15), may be seen.
69. Before recording conviction with the aid of Section 149 IPC, act does by each of the accused must be shown to have been committed to accomplish common object. For that the decision of the Hon'bie Supreme Court in Allauddin Mian and Anr. v. State of Bihar (16), may be seen. Thus, if there is no participation, then no liability can be fastened.
70. For the purpose of application of Section 149, the prosecution has to prove the presence and participation of each of the accused in unlawful assembly, as held by the Hon'ble Supreme Court in Nallamsetty Yanadaiah and Ors. v. State of Andhra Pradesh (17).
71. Keeping the above principles in mind, the present case is being examined on the point whether Section 149 IPC has been rightly applied by the learned Additional Sessions Judge or not or whether each accused appellant was a member of unlawful assembly or not, whose common object was to commit murder of both deceased and - to make murderous assault on PW2 Bablu.
The case of accused appellant Madan
72. So far as the case of accused appellant Madan is concerned, he is the first man to reach on the spot on motor cycle being driven by him and behind him, accused appellant Shankar was sitting, who took part in making fire on deceased No. 2 Sidharth and there is also evidence that the words "AAJ INKA KANTA N1KAL DENGE" were spoken, though there is no evidence which accused appellant uttered these words. Hence, the participation and presence of accused appellant Madan on the spot is very much clear and well proved by the prosecution.
The case of accused appellants Sohan Lal and Bhagirath
73. So far as the case of accused appellants Sohan Lal and Bhagirath is concerned, their names were not mentioned in the report Ex. P/1, therefore, their presence on the scene in all respects becomes doubtful. Thus, they are entitled to benefit of doubt on this ground alone.
The Cases of accused appellants Khyall Ram, Banwari, Hari Ram and Surendra.
74. So far as the presence of these four accused appellants, namely, Khyali Ram, Banwari, Hari Ram and Surendra on the scene is concerned, their names are found in the report Ex. P/1 and since they are relatives of other accused appellants, therefore, their presence might be there on the spot.
75. From the statement of PW4 Asharam, who is father of some of the accused appellants and father of PW1 Ram Pratap, it also appears that these accused appellants went to his house in the evening and touched his feet and asked with regard to whereabouts of deceased and PW1 Ram Pratap. From this statement alone, it cannot be inferred that they were all members of unlawful assembly, whose common object was to murder both deceased.
76. So far as the evidence of recovery of fire arm from each accused appellant other than accused appellant Bhagirath is concerned, the same is not very much helpful in the present case, as there is direct evidence of the fact that only three accused appellants, namely, Shankar, Raghuveer and Dungar Ram used fire arms and they fired on both deceased and PW2 Bablu and recovery of weapons from them does not tally with the injuries sustained by both deceased and PW2 Bablu.
77. In these circumstances, it may be stated that in case of variance between medical evidence and ocular evidence, unimpeachable evidence of eye witnesses should be accepted in preference to hypothetical answers given by medical officer. Where the eye witness account testified that firearms were used and as per medical report, firearm injuries were found, the statement of that witness becomes acceptable irrespective of the fact whether so-called recovery made subsequently tallies with the firearm injuries or not.
78. Therefore, when there is direct evidence, seizure of weapons is not very much material, as held by the Hon'ble Supreme Court in Pradumansingh Kalubha v. State of Gujarat (18).
79. From this point of view also, the recovery evidence is not being discussed here as the recovery of alleged weapons in the present case was also made by PW19 Vipin Sharma on and after 15.7.1994 and it appears to be unreasonable that for such a time, accused appellants would keep with them those weapons which were used by them.
80. Hence, the charge for the offence under Section 27 of the Arms Act cannot be said to have been proved against nine accused appellants and accused appellant Bhagirath was not charged for the offence under Section 27 of the Arms Act.
81. Therefore, the so-called recovery of weapons would also not connect these four accused appellants, namely, Khayali Ram, Banwari, Hari Ram and Surendra with the commission of crime and would not make them members of unlawful assembly.
82. As already discussed above, mere presence of persons does not make them members of unlawful assembly. Before recording conviction with the aid of Section 149 IPC, the act done by each of the accused must be shown to have been committed to accomplish common object. If there is no participation, then no liability can be fastened.
83. Thus, presence and participation of each accused appellant is must. In the present case, four accused appellants, namely, Khyaliram, Banwari, Hari Ram and Surendra might be present on the scene, but their participation is not proved.
84. It may be stated here that in the present case, there is enmity between the accused party and complainant party. In a case where there is enmity between two factions, then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent member of opposite faction in a criminal case. Therefore, duty is cast on the court to sift me evidence carefully and convict only those persons against whom prosecution witnesses can be safely relied upon without raising any element of doubt.
85. In the present case, no firearm injuries were caused by these four accused appellants, namely, Khyaliram, Banwari, Hari Ram and Surendra and no active participation by them is found proved and there appears to be reasonable possibility that these four accused appellants might be implicated due to enmity or their falsely implication due to enmity cannot be ruled out. In these circumstances, the case of the prosecution against these four accused appellants cannot be said to have been proved beyond all reasonable doubts.
86. It may be slated here that so far as the accused appellant Madan is concerned, his case stands on different footing from these four accused appellants in the manner that he and accused appellant Shankar came on motor cycle and accused appellant Shankar was armed with firearm and used the same and he was driving the motor cycle and that fact is very much proved by the statement of PW1 Ram Pratap and by the statement of PW2 Bablu and thus, his presence on the scene cannot be called as presence of spectator.
87. For the reasons stated above, the case of the prosecution that these four accused appellants, namely, Khyaliram, Banwari, Hari Ram and Surendra were members of unlawful assembly and in prosecution of common object, they look part in the occurrence cannot be said to have been proved beyond all reasonable doubts and the result would be that the charges for the offence under Sections 147, 148 IPC go and none accused appellant can be convicted with the aid of Section 149 IPC.
88. The next question that arises for consideration is whether four accused appellants, namely, Shankar, Raghuveer, Dungar Ram and Madan can be convicted with the aid of Section 34 IPC or not.
89. So far as the participation and sharing of common intention among these four accused appellants is learned, it is well proved from the statement of PW1 Ram Pratap that three accused appellants namely, Shankar, Raghuveer and Dungar Rain used fire arms and caused fire arm injuries to both deceased and PW2 Bablu and accused appellant Madan took active part in the incident and thus, it can be said that accused appellant Madan was sharing common intention from the very beginning. Hence, these four accused appellants can be convicted now with the aid of Sec.34 IPC.
90. In this respect, it may be stated here that for application of Section 34 IPC, what is important is sharing of common intention and establishment of overt act is not the requirement of law and from this point of view also, it cannot be said that Section 34 IPC is not applicable so far as accused appellant Madan is concerned.
91. It may be stated here that an argument maybe raised that since in the charge Section 34IPC was not mentioned and only Sections 148 and 149 IPC were mentioned and, therefore, in absence of non-mentioning of Section 34 IPC in the charge, these four accused appellants now cannot be convicted with the aid pf Section 34 IPC.
92. In our considered opinion, this apprehension is not correct one and the same has been answered by the Hon'ble Supreme Court in Dhanna v. State of MP (19), where it has been held as under:-
"II is open to the Court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course."
93. So far as the participation of three accused appellants namely, Shankar, Raghuveer and Dungar Ram is concerned, it has been specifically mentioned by PW1 Ram Pratap that they used firearms and caused firearm injuries to both deceased and PW2 Bablu and so far as accused appellant Madan is concerned, as already stated above, he was sharing the common intention right from the beginning. Hence, all these four accused appellants can be now convicted with the aid of Section 34 IPC for the offence under Section 302 IPC for murder of both deceased and for the offence under Section 308 IPC for attempt to murder PW2 Bablu. Thus, the findings of the learned Addl. Sessions in this respect are liable to be altered accordingly.
94. Thus, from the above discussion, it can be easily concluded that accused appellants, namely, Shankar, Raghuveer, Dungar Ram and Madan had acted in cruel and unusual manner in murdering both deceased by fire arms and made murderous attempt to kill PW2 Bablu @ Suchit and thus, the prosecution has proved its case beyond all reasonable doubts for the offence under Sections 302/34 and 307/34 IPC so far as above four accused appellants are concerned.
95. So far as the argument with regard to non-availability of empty cartridges on the scene is concerned, it may be stated here that if empty cartridges were not recovered from the scene, it does not mean that both deceased and PW2 Bablu did not receive any firearm injuries, as receiving of fire arm injuries by both deceased and PW2 Bablu is well proved from the statement of PW1 Ram Pratap as well as from the medical evidence. Hence, this argument becomes futile.
96. There is one more argument of the learned counsel for the accused appellants that has to be met out here and the same is that the case of prosecution should be viewed from doubt because the inquest reports Ex. P/5 and Ex. P/6 of both deceased did not contain the details of murder of both deceased, in particular the names of accused appellants are also not found there.
97. No doubt in the present case Inquest Reports of both deceased Ex. P/5 and Ex. P/5 and Ex. P/6 did not contain details, but it may be stated here that there is no column in the Inquest Reports against which Investigation Officer is required to mention the names of accused. It may be staled here that Inquest Report cannot be regarded as a complete document. In this respect, the decision of the Hon'ble Supreme Court in Baleshwar Mandal and Anr. v. State of Bihar (20), may be referred to.
98. Hence, the above argument would not be helpful to the learned counsel for the accused appellants.
The resull of the above discussion is that:-
1. That appeal filed by the accused appellants Khyaliram, Banwari, Hari Ram Surendra, Sohanlal and Bhagirath is allowed and the judgment and order dated 3.9.1997 passed by the learned Addl. Sessions Judge No.3, Sri Ganganagar so far as they relate to them are set aside and they are acquitted of all charges framed against them.
Since accused appellants Khyaliram, Banwari, Hari Ram, Surendra and Bhagirath are in jail, they be released forthwith, if not required in any other case.
Since accused appellant Sohanlal is on bail, he need not surrender and his bail bonds stand discharged.
2. So far as the appeal of accused appellants Dungar Ram, Shankar, Raghuveer and Madanlal is concerned, they are acquitted of the charge for the offence under Sections 148 IPC and 27 of the Arms Act and judgment and order dated 3,9.1997 passed by the learned Addl. Sessions Judge No.3, Sri Ganganagar for the said offences are set aside. However, instead of Section 302/149 and 307/149 IPC, they are convicted under Section 302/34 and 307/34 IPC and the judgment of the learned Addl. Sessions Judge No.3, Sri Ganganagar dated 3.9.1997 stands altered accordingly, but order of sentence passed by the learned Addl. Sessions Judge No.3, Sri Ganganagar dated 3.9.1997 for the said offences is maintained.
With the above modification, their appeal stands dismissed.