Madhya Pradesh High Court
State Of M.P. vs Bhagwansingh And Ors. on 12 May, 1999
Equivalent citations: 2000CRILJ123
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This is State's appeal against acquittal of 16 accused/respondents of charges of forming unlawful assembly with object to commit murder and mischief and in pursuance of their common object committing triple murder of Amarnath, Hariram and Surendra on 11-11 -85 between 10 11 p.m. in village Sarai, P.S. Piplod, Dist. Khandwa. The judgment was passed in S.T. No. 38/86 by'Addl. Sessions Judge, Burhanpur, Dist. Khandwa on 24-6-87.
2. The acquittal is based mainly on the probability that all the accused might have acted in self defence. Accused Ramsingh suffered one injury resulting in fracture of right frontal and temporal bone, while Bhagwansingh suffered simple injuries on his little finger and Roopsingh suffered simple injuries on the upper part of his right hand. These were blunt weapon injuries. The trial Court had rejected the testimony of eye-witnesses including injured witnesses namely PW 7 Kiran, sister of deceased Surendra, PW 12 Mukesh, nephew of Hariram and Amarnath, PW 22 Jagdish, son of deceased Amarnath. One eye-witness PW 23 Habib became hostile and said that he had seen only a crowd and no violence.
3. The FIR had been recorded on the statement of PW 22 Jagdish at 2 a.m. in the night between 11-12 November, 85 in the form of Dehati Nalishi Ex.P-77. This statement was given by Jagdish to investigating officer PW 24 Ramsingh. He had gone to the spot that night at about 1-00 a.m. as accused Sardarsingh had gone to the police station at 11-30 p.m. and made a report Ex. D-5 that in his village Sarai, his brother Bhagwansingh and Roopsingh were being beaten by Amarnath, Jagdish, Surendra and Hariram. Sardarsingh had gone to the police station along with Hiralal. S.H.O. Ramsingh reached the spot of incident. He noticed 3 deceased lying sprawled at various points. Amarnath was already dead and other two had still their breaths though they were seriously injured with large number of injuries and were unconscious. The place of incident was near the house of the deceased as also near the house of the accused. Doors and roof tiles of the house of the deceased were found broken with stones. The house of the deceased is in the immediate neighbourhood of the house of the accused. The S.H.O. recorded the statement (Ex.P-77) of PW 22 Jagdish at 2 a.m. According to his narration, that evening they were at their house watching T.V. Amarnath and Hariram were also in the house watching T.V. He was about to start his meals when they heard the cries of Bachao-Bachao raised by Surendra. They noticed all these 16 accused (all 16 are named in the statement) were assaulting Surendra with lathis, Dhariya, Khartaliya and Pata. Hariram went to intervene. These accused attacked him. Then Amarnath went forward and they assaulted him also. Ramsingh called out to others, "Yahi Sala Sab Kuchh Karta Hai, Aaj Isko Bhi Khatam Kar Do". Ramsingh, Bhagwansingh, Sardarsingh, Roopsingh, Dhyansingh attacked Amarnath with lathis and other weapons. This witness rushed forward to save his father and he was also attacked by these accused. He ran away to the house to save himself. The accused then threw stones on the house which broke roof tiles and doors and also damaged the walls. The background of enmity between the parties in which this incident has occurred is also narrated by him and is not in dispute. It was stated that there were few mango trees on the boundary wall of field of Ramsingh. The deceased already claimed to have purchased them about 50 years back and they were collecting its fruits. But about a year back during settlement the revenue authorities depicted these mango trees in the field of Ramsingh. So Ramsingh wanted to collect the fruits and so they quarrelled with the deceased. There had been reports to the police on this count between the parties and even proceedings Under Section 107, Cr. P.C. had been started by police against both sides. However, at the relevant time of this incident there was no fruit on the trees and the immediate cause of the dispute could not be known.
4. The investigating officer sent the injured Surender and Hariram to the Dist. Hospital, Khandwa, but they died the same night. The intimation was sent to the police by hospital authorities. The S.H.O. also found Mukesh injured and he sent him to the hospital. Similarly he found accused Bhagwansingh, Roopsingh and Ramsingh having some injuries and they were also sent to Khandwa Hospital for medical examination.
5. PW 20 Dr. Shukla had conducted the autopsy on the body of Amarnath. He found the following injuries on his body :--
1) A.M.L.W. 1/2" x 1/2" bone deep medial aspect of lower l/3rd Lt. leg.
2) A.M.L.W. 1/2" x 1/2" medial aspect of lower 1/3rd of Lt. leg.
3) fracture of tibia and fibula of lower 1/3 comprising of above injuries.
4) Bruise 3" in diameter bluish over danuo Rt. hand. 5) A.M. Bruise 2" x 1" over dorsem of Rt. forearm. 6) Brain A.M. 2" x 2" over back. 7) A.M.L.W. 3" x 2" x bone deep at Rt. parito temporal region.
8) A.M.L.W. 5" x 1/2" obliquely placed over occipital to pavital region Rt. side scalp.
9) A.K.I.W. 3" x 1/2" bone deep in occipital region traversely placed.
10) A.M.I.W. 11/2" x 1/2" bone deep behind Rt. ear.
11) A.M.I.W. 4" x 1/2" Lt. parital region.
On internal examination of the dead body the doctor found fracture of right parietal bone, right occipital temporal bone and joint of the two parietals, even fracture of sub-temporal bone of the right side was extending up to right scalp. There was haematomma of the right side of the brain. In his opinion the death occurred because of head injury resulting in damage to brain. His report is Ex.P-10. The head injuries even individually were sufficient to cause the death. The postmortem examination had been conducted on 12-11-85 at 1-15 p.m. The doctor opined that even injuries 1 and 2 which were on the legs causing fracture of tibia and fibula could result in death.
6. PW 16 Dr. Mishra had conducted autopsy on the body of Hariram. He gave the report Ex.P-4. All the clothes were found completely blood smeared. He found the following injuries on his body :--
1) Lacerated wound on the left leg over the skin of the left tibia size 3 cm x 1 cm x 1/4 cm. fractured bone is seen through the wound.
2) Abrasion 3 cm x 1 cm blackish in colour on Lt. hand.
3) Abrasion 3 cm x 1 cm linear in shape on Rt. arm.
4) Lacerated wound 2.5 cm x 1 cm x 1 cm. behind the Lt. ear, fractured bone seen through the wound.
5) Contusion 5 cm x 1 cm black in colour on back over Rt. scapula.
6) Contusion 6 cm x 1 cm Blackish in colour over 9th, 10th and 11th rib on Lt. side in pastaoid axillary line.
On internal examination a number of fractures were noticed on left temporal, left parietal and left occipital region. The brain was found ruptured and covered with blood clots. There was fracture of the left 5th and 6th rib. Spleen was found ruptured. All these injuries were caused by blunt weapons and death had occurred within 24 hours of the autopsy. The injuries were found sufficient in ordinary course of nature to cause death.
7. PW 15 Dr. Gupta had conducted the post-mortem examination on the body of Surender on the same day at 11.05 a.m. He gave the report Ex.P-2. He found the following injuries on his person :--
1) Lacerated wound on right side of scalp, 3" x 1/3 x bone deep, 3" above from Rt. ear, oblique.
2) Lacerated wound on chin, horizontal l"x 1/3" x 1/3".
3) Lacerated wound on right eyebrow l"x 1/3" x 1/3".
4) Bruise on left side of chest lateral to sternus oblique with fracture 5th and 6th rib, 6" x 1".
5) Bruise on the left lateral side of left shoulder 3" x 2".
6) Swelling and deformity left arm with lacerated wound on lateral side, 2" above left elbow with fracture humerus left side; wound 1/3" x 1/3", swelling 4" x 2".
7) Swelling and deperivity right forearm 4" x 2" upper 1 /3" with fracture radius ulna Rt.
8) Lacerated wound on pinna of right ear in middle-- l/3"x 1/3: cutting all the layers.
9) Swelling and deformity right thigh with fracture femur, 5" above knee, 5" x 4".
10) Lacerated wound on front of right leg 5" below knee 1 /3" x 1 /3" x bone deep with fracture of right tibia.
11) Bruise on the back of left leg in middle, 3" x 2".
12) Bruise on front of right thigh upper 1/3, 2" x 1".
13) Bruise on front of left thigh 3" above knee 3" x 3".
On internal examination he found fractures of right parietal bone which was depressed fracture and there was also a crack fracture from right parietal to left parietal bone 6" in length. There was a haematoma 3" x 2". The death had occurred within 24 hours of the post-mortem examination. The head injuries were sufficient to cause death. They were caused with blunt weapons.
8. PW 17 Dr. Bhatia had examined the injuries of PW 12 Mukesh and accused Bhagwansingh, Roopsingh and Ramsingh. The doctor found one abrasion on the right shoulder of Mukesh measuring 1/2" x 1/3".
9. Following injuries were found on the person of Bhagwansingh :--
1) lacerated wound on the left little finger 1 1/2" x 2/d" x 1/4".
2) Abrasion 6" x 3 3/4" on the right side of abdomen.
3) Contusion on the left back 7" x 3/4".
10. The following injury was found on the person of Ram Singh--
1. Lacerated wound 2" x 1/2" x 1/2" obliquely placed on the front of temple 3" above the nose.
He was unconscious. On X-ray the injury was found accompanied with fractures of right frontal and temporal bones.
11. The following injury was found on the person of Roopsingh.
1. Swelling and tenderness on the upper half left fore arm.
12. The trial Court proceeded to assess the veracity of the 3 prosecution witnesses on the basis that there was enimity between the two sides.
These witnesses are close family members of the deceased, so they were interested in falsely involving the accused. So, their testimony could not be accepted without corroboration and would be discarded even if there was slight doubt about it. The trial Court proceeded to appreciate their evidence from this angle alone.
13. Apparently this could not be sole consideration to consider whether the testimony of these witnesses was that of interested persons. The first fact which should be seen in assessing evidence in a criminal trial is whether the witnesses were naturally present on the scene of crime. If so the mere fact that they are related to the deceased does not make them interested witnesses, even if there is prior enmity between the accused and the deceased. The trial Court is bound to consider the effect of damage to the house of deceased persons and stones having been found there as is clear from the photographs of site taken on the morning of 18 December by police photographer PW. 19 Pandit Rao. These photographs are Ex.P-67 to P-75. He states that P-68 is the photo of house of Jagdish which shows the bulb also. The site plan Ex. P-22 prepared by PW. 24 Ramsingh shows the spot where body of Amarnath was lying and where injured Hariram was lying and also the relative positions of the house of the accused and Jagdish. They are all in immediate neighbourhood. It has to be kept in mind that the spot is not the one where mango trees were situate. So dispute about mango trees was not the immediate cause of this violence. The immediate cause of the violence, according to the prosecution witnesses was that they heard the cries of Surendra. The accused's case is that 3 deceased. Jagdish and Mukesh had gone to the house of Bhagwansingh to attack him and they attacked Bhagwansingh as well as his father Ramsingh and so Ramsingh became unconscious. The mohalla people gathered and saved them. This is their narration in the statement Under Section 313. So they do not say why the deceased and 2 witnesses entered their house suddenly to attack them at that late hour of night. In the report Ex. D-5 on behalf of these accused there is no mention that injured party had attacked their house or entered their house armed with weapons. They simply said that these people were beating them. PW. 6 Hanshkumar was not named in Ex. D-5. The trial Court has failed to appreciate that this report was nothing but a 'Peshbandi' report. The injured must have been already done to death by that time.
14. No doubt there had been enmity between the parties and its cause was the mango trees. A police report was made by Ramsingh on 3-5-85 that is Ex.D-6. Another report was made on 20-5-85 (D-7). Amarnath lodged the report P-48 on 30-5-85 against Bhagwansingh. That was also a report in respect of mango trees. Again a report was lodged on 9-5-1985 copy of which; is P-25. Another report was lodged by Jagdish copy of which is P-50 and the fourth report was made by Amarnath on 13-5-1985 copy of which is P-51. In this, Bhagwansingh, Dhyansingh, Sardarsingh and Ramsingh are shown as culprits. So there was no doubt a dispute between the parties. The bad feelings were continuing but it could not be the immediate cause of dispute. There is nothing on record as to what happened between the parties on the day of incident, but prior to incident. It is significant to note that if the incident had started because all the deceased and Jagdish went to the house of Ramsingh to attack him and his family members as urged by the defence, they would have gone armed with some lethal weapons. That would have been their natural conduct. So far as cross-examination of witnesses is concerned, Kiran (PW-7) was asked if Amaranth, Surendra and Hariram assaulted any of the accused. Her reply was that she did not see it. The further suggestion was that Jagdish, Sunil, Narendra, Umesh, Mukesh, Suresh, Surendra, Hariram and Amarnath entered the house of Bhagwansingh to assault him. She denied this. She also denied that they destroyed the house of Bhagwansingh. The statement of Jagdish is that he/or the deceased persons had no lathi with them and further he does not know how accused Bhagwansingh, Ramsingh suffered the injuries. It was suggested that he, Hariram, Amarsingh, Surendra, Hansh, Amarnath, Sunil, Madan entered the house of Bhagwansingh to assault him. He denied this.
15. Thus, in cross-examination the accused were suggesting trespass and assault by many other assailants including Hans (PW. 6) along with the deceased, and not only Jagdish and the deceased as reported in Ex.D-5. The significant question would be that if so many persons armed with weapons trespass in a house of Ramsingh accused in order to assault, how it was that the three accused suffered only minor injuries except an injury on the frontal part of the head of Ramsingh and its width is 3/5" suggesting the thickness of the weapon which might have hit there. The other injuries on other accused are very minor. Even if a little finger had fractured, although it is a grievous hurt, but it would not be called a major injury caused in an attack by so many persons. It has to be kept in mind that if so many persons attacked the other party, it is difficult to accept that they will not be able to protect themselves and 3 of them will die and they would suffer the nature of injuries as they did suffer. These all aspects had to be kept in mind by the trial Court in assessing the evidence of prosecution and in concluding whether there was any probability of the deceased having first assaulted the accused in their house armed with weapons.
16. The trial Court appears to have been led astray by the simple fact that these injuries of the accused were not explained by prosecution witnesses. Therefore, the inference taken is that the allegation of the accused that they were first attacked and their neighbours and they acted in their self defence, should be accepted. The trial Court has gone totally wrong in assuming that this is the legal position.
17. The Supreme Court has laid down in a number of pronouncements regarding non-explaining by prosecution witnesses, about the injuries on the person of the accused that each case presents its own features. In every case entire prosecution case cannot be thrown over board simply because prosecution witnesses do not explain injuries of the accused persons. It depends on the facts of each case as to what is effect of non-explanation of the injuries of the accused. The fact is to be taken into account in judging the veracity of the prosecution witnesses and the Court will scrutinise their evidence with care. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story,. while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the pleas of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted and injuries of accused remain unexplained by prosecution, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party. AIR 1974 SC 1550 : 1974 Cri LJ 1015 titled Omkarnath Singh v. The State of U.P. may be cited with advantage for these observation of the Supreme Court. In this case three accused were injured. One of their injuries was grievous. These injuries were not explained by prosecution. The Court said that the fact of grappling explained simple injuries of two accused. It was observed regarding unexplained fracture on head of a third accused Paras Nath along with another injury that "presence of these injuries coupled with failure of prosecution to explain them, was far from sufficient to establish a reasonable possibility of the injuries to the deceased and his companions, having been caused in repelling attack on Paras Nath." Further the Court said that the whole evidence of prosecution as well as of defence can be considered to reach a proper conclusion. Held in the instant case, the totality of evidence on record neither establishes even with reasonable possibility a right of private defence in favour of appellants nor throws a cloud of doubt on the prosecution case.
18. In 1994 Suppl (2) SCC 344 : 1995 Cri LJ 2654 Bhagwan Singh v. State of Punjab, the Supreme Court considered the circum-. stances were large number of injuries were suffered by complainant party as against injuries suffered by the accused, establishing the accused party to be aggressor. It was found that the deceased and complainant party had received (19+16+14) 49 injuries while 4 accused had suffered (4 + 3 + 2 + 2) 11 injuries including incised wounds. It was observed by the Supreme Court that belabour of complainant party by accused was apparent. So the accused acted as aggressors. The Court held that even if complainant used a Gandasa, it makes no difference and the mere fact that some of the accused received incised wounds would not be material to find the accused party acted in self defendant, or that accused were not agressors.
19. In view of what we have discussed about the circumstances of the case, the injuries on the persons of the three deceased, the sequence in which the witnesses reached the spot of crime, minor nature of the injuries on the persons of the accused except one injury on the head of Bhagwan Singh and the background and also the sequence in which the deceased were attacked, rules out any possibility of the accused having attacked the three deceased in exercise of self defendant of any of them. It is clear that the accused persons were the agressors.
20. So the facts and circumstances of the present case have to be kept in mind to assess the effect of non-explanation of injuries of the accused by PW-7, PW-12 and PW-22.
21. It is doubtless to say that PW. 7, PW. 12 and PW. 22 have supported the prosecution case that these accused armed with various weapons had attacked Surendra and when Hariram and Amarnath went to intervene, they were also attacked and all of them died. There was injury to Mukesh also. So his presence on the scene of crime should have been accepted. Jagish had lodged the FIR within 3 hours of the incident. So it was a prompt FIR and could not be called with deliberation as his own father and uncle and cousin had been murdered and he must have been in extremely nervous and apprehensive State of mind about his own safety as he too was rushed at and his house was stoned. So in a prompt FIR all the accused were named as assailants which is supported by him and other witnesses on oath in the Court. There is hardly anything to detract from their reliability.
22. The argument of the counsel for the accused is that the statement of Kiran was recorded about 10 days after the incident Under Section 161 Cr. P.C. and this delay should be sufficient to discard her testimony as her presence was not mentioned even in Dehati Nalishi Ex. P. 77. The witness had stated about the stone pelting on Jagdish who rushed away to his house when he was chased. Some of the stones were seized by the police and also a broken tile (Kabalu) of roof was seized. The fact that statements of PW. 7 Kiran and PW. 12 Mukesh were recorded after 7 days of the incident and so their testimony was unreliable found favour with the trial court and the same has been pressed now in this appeal.
23. The trial Court noticed that Mukesh has not been stated by the witness Jagdish to have been present while the assault was going on. Regarding the statement of Kiran the trial Court further observed that there was no mention in her case diary statement as to from which point she had witnessed the assault and that such a point was not shown even in the site plan prepared by the police. So inference was taken that Kiran was a later introduced witness. Similarly, while assessing the testimony of Mukesh it was found by the trial Court that according to him Hariram had fallen in injured condition in front of house of Laxman but in the site plan it was shown that Surendra had fallen in front of the house of Laxman while Hariram fell in front of house of Raghunath. This was taken to be a contradiction and read with the fact that his statement was recorded about. 8 days later, the witness was held not reliable. There is no discussion by the trial Court regarding the injury on Mukesh found on his shoulder as found by PW. 17 Dr. Bhatia. The 3 accused were also examined by this doctor. So the trial Court has totally lost sight of this important fact which suggested the presence of this witness at the scene of crime.
24. While assessing the testimony of Jagdish the trial Court was swayed by the fact that in the seizure memo there was no mention of any broken wall or door of the house of Jagdish. There is mention of only some broken Kabalus and brick-bats on the roof. Some stones were lying near the Chabutara. The trial Court was not convinced that the presence of brick bats or broken Kabalus or broken Pharsi provided support to the testimony of Jagdish. In fact the trial Court sought support from the statement of hostile witness PW. 23 Habib to find that Jagdish was unreliable. The trial Court observed that the spot where Surendra fell was quite at a distance from the spot where Hariram had fallen. But this witness had stated that Hariram fell one or two paces away from Surendra. Reliance was placed on the site plans Exs. P-22 and P-64. It was found that he was a made-up witness and falsely introduced witness. No weight was given to the fact that Jagdish had lodged the FIR in the form of Dehati nalishi on the scene of crime at 2 a.m. in the same night. At the same time trial Court observed that in this FIR there was no mention of names of Kiran and Mukesh. The factum of FIR by Jagdish has not been discussed in any manner. The trial Court has also made certain remarks recording the demeanour of this witness in the Court while being cross-examined to the effect that he was avoiding to answer the questions. We find that this note was given by the trial Court when the witness was being cross-examined on the subject of dispute over mango trees and witness had admitted that there was such a dispute and he was prosecuted for an offence Under Section 324 IPC. It is really difficult to understand how the trial Court took this note as relevant for assessing the testimony of the witness about the persons assaulting and persons assaulted in the present incident. There is no such note about his demeanour while he was cross-examined about the assailants and result of assault.
25. As already noticed the testimony of these 3 eye-witnesses also did not find favour with the trial Court because they were related to the deceased, because there was enmity between the deceased and the accused and the injuries of the 3 accused had not been explained by these witnesses. It was also observed that investigation was not fair as no investigation was made about the injuries to the accused. The trial Court considered it necessary that there should be material corroboration to the testimony of such witness, but the trial Court could not find any such corroboration from the record.
26. The Supreme Court of India has in umpteen number of cases observed that the direct testimony of witness whose evidence is otherwise consistent, should not ordinarily be rejected on ground that they are partisan or interested witnesses unless surrounding circumstances discredit their version. Ordinarily, close relatives of the deceased would not allow the real culprits to escape. The possibility of their implicating others with the real offenders must be kept in mind. The observations of the Supreme Court in Anvaruddin v. Shakoor AIR 1990 SC 1242 : 1990 Cri LJ 1269 are that when testimony of relations is corroborated by medical evidence, such testimony cannot be brushed aside on the plea that they are interested witnesses or related witnesses. (See Gourishankar v. State of U.P. AIR 1990 SC 709).
27. Even regarding testimony of highly interested inimical and partisan witnesses the Supreme Court has observed that their testimony cannot be rejected and it has to be assessed with due care and caution. The testimony has to be appraised on its merits. (See AIR 1981 SC 2073 : 1981 Cri LJ 1701; State of U.P. v. Manohar).
28. A witness related to the deceased does not always fall in the category of interested witness even if there is a prior litigation between the 2 sides. In fact the prior bad feelings and litigation provides a motive also for the accused to commit violence. So to dub such witness as unreliable merely because he was related to the deceased, is an illegal approach on the part of the trial Court in assessing the evidence. (Hardevsingh v. Harbhejsingh AIR 1997 SC 1487 : 1997 Cri LJ 727 may be cited as one of the large number of cases pronounced by the Supreme Court on this subject). Related witnesses whose presence at the scene of crime is natural are to be counted as witnesses naturally present at the spot. The only care and caution required is that their testimony should be scrutinised carefully. It is strange that the trial Court failed to consider the medical testimony as providing corroboration to the testimony of the eye-witnesses. FIR also provides corroboration Under Section 157 Evidence Act. Then injury to a witness who claims to have been present at the scene of crime confirms his presence and ignoring such factor amounts to over look-ing acceptable evidence, which is not permissible.
29. In the present case, the presence of Jagdish is established beyond doubt by the fact that he was in the same house where the deceased were. He was watching T. V. when he heard the shrieks of Surendra, he and the deceased had come out to see what was the matter. He gave the FIR promptly within 7 hours of the incident. It is immaterial that it was given in the form of Dehati Nalishi. The incident has been described by him in FIR and also in the evidence. There are no contradictions in the core of testimony. The evidence is corroborated by medical evidence of the injuries of 3 deceased persons. So his presence is a proved factor in this case. The finding of the trial Court that he is a concocted witness is based on peripheral aspects of where the bodies were lying, ignoring the core of testimony that he lodged the FIR and that he was a natural witness and his house was stoned.
30. Even the presence of Mukesh cannot be doubted. He is an injured witness. Mukesh and Kiran were brother and sister. Kiran was in her house while Mukesh had come from the field. His house is in the immediate neighbourhood of deceased. The fact that their names (of Kiran & Jagdish) are not mentioned in the FIR is explainable by the circumstances that they were not in the house of Jagdish. Kiran had come from her house on hearing shrieks. Jagdish was chased by the accused persons and he ran to his house. It explains that he might have failed to see the persons other than accused persons i.e. these witnesses. The injury on Mukesh at the time of incident is established beyond doubt. He had received a stone throwing injury. The non-mention of his name in the FIR is explainable and is counter balanced by his injury which gives a stamp of truth of his presence at the scene of crime. This factor should not have been ignored by the trial Court. The finding of the trial Court that the witness is a false witness, suffers from perversity. No doubt the statement of this witness was recorded about 7-8 days late but the police knew of his presence on the night of incident. They got him medically examined from a Govt. doctor. If still the investigating officer did not record his statement for 7-8 days it is not for the witness to have his testimony discarded because of this reason. It appears to be lapse of the investigating officer for which the prosecution cannot be thrown out. It is not in every case that if the statement of a witness who was present at the scene of crime is recorded after delay, then the testimony of such witness is described as suspicion.
31. In a number of cases the Supreme Court has assessed effect of delay in recording case diary statement of witnesses. It is apt to refer to two of them, 1997 (1) JLJ 192 : 1997 Cri LJ 1183 (SC) titled Sunil Kumar v. State of M.P. In this case there was delay of l!/2 months in recording the case diary statement of a witness who was mother of the victim and who had reached there at once. The Supreme Court found that there was ample evidence that the mother had reached the spot and regarding delay in case diary statement the Court observed that such delay in every case does not lead to disbelieving such witness. If the witnesses presence is natural, the dereliction of the duties by the police in not recording the case diary statement in time will not adversely affect the reliability of such witness.
32. Another case worth citing is 1998 (3) JT (SC) 18 : 1998 Cri LJ 2520 titled State of U.P. v. SikanderAli. In this case one witness who was father of the victim was examined by police after 24 days of the incident. The investigating officer explained that delay was due to law and order problem. The Supreme Court held that the statement of such witness cannot be discarded on account of such delay. It depends on facts and circumstances of each case to find if testimony of a witness is credible in spite of delay in case diary statement Under Section 161, Cr. P.C., and in spite of his being related to deceased but at the same time proved to be present at scene of crime. In the present case Mukesh and Kiran are proved to have been present at scene of violence. Their testimony is trustworthy and is confirmatory of testimony of Jagdish (PW-9). The negligence of the investigating Officer in recording case diary statements of Kiran or Mukesh after a week, does not create infirmity in their testimony in the facts and circumstances of the case.
33. A striking feature of this case is that one of the accused Sardarsingh lodged a report Ex. D-5 at 11 : 30 p.m. that 4 persons i.e. Amarnath, Jagdish, Surendra and Hariram were assaulting Bhagwansigh and Roopsingh. Even here Jagdish witness was shown present and there was no mention of Ramsingh accused. Then in cross-examination to these three eye-witnesses the suggestions have been that the deceased and the witnesses along with others assaulted the accused at the house of Ramsingh. The trial Court has ignored this trend of cross-examination of behalf of the accused in appreciating whether the witnesses were present at the scene of violence. In the facts and circumstances of a given case, the trend of cross-examination by defence or prosecution witness can provide support to the inference if some accused and witnesses were present at the scene of crime. The most striking feature is the fact that such a report was recorded by the police and they at once proceeded to the scene of crime. There is no mention in Ex. D-5 if any serious injury was given to Sardarsingh or Roopsingh and whether any weapon has been used or only fists blows were being exchanged. Still the police rushed to the scene of crime at the night. This is rare. This indicates that there was some under current working between the police and the accused persons. The police could not but have recorded the Dehati Nalishi on finding one person died and 2 in the process of dying with fatal injuries. This is followed by lapse of the investigating officer in recording statement of Mukesh and Kiran after 7 days. If Kiran had hot witnessed the occurrence there was no need to introduce her as a witness when there were witnesses such as Jagdish and Mukesh whose presence at that spot could hardly be challenged. So, if anything, investigation was unfair towards the complainant party and not against the accused persons.
34. The presence of Kiran being cousin of Surendra whose cries had been heard would be natural. Her house was in the neighbourhood of the crime, therefore, she is natural witness. The trial Court had forgotten the principle that merely because a witness's statement is recorded after some delay, it does not mean that his evidence should be discarded.
35. We are of the confirmed view that if the evidence is properly appreciated in the context of surrounding circumstances of the incident and the locus of the incident and the position set up by the accused and the injury on Mukesh, the FIR by Jagdish, there is no escape from a definite finding that all these 3 witnesses were eye-witnesses to the incident.
36. Now we have to see whether the testimony of these eye-witness can be discarded. Jagdish's testimony is corroborated by the FIR where presence of all accused persons and their participation in attack on the 3 deceased is narrated. He asserted that the accused persons were armed with lathis, Kharaliya and Pati. He narrated these facts on oath in Court also. Neither in the FIR nor in the evidence he stated which of the accused was armed with which of the weapon or hit which of the deceased. The 3 injured had received large number of serious injuries. He saw the accused hitting them. There were large number of injuries which were more than 38 on the 3 victims. It is unacceptable that the accused could have succeeded in causing so large number of grievous hurts to these deceased if the deceased and witnesses had gone to their house to attack, duly armed. In fact these victims were attacked by the accused. The opening of the attack on Surendra was not seen by any witness. No witness claims so. Initially Surendra was the sole victim of assault. Others ran out of the house to intervene. The reasoning of the trial Court that these injured were found lying at great distance from one another is imaginary. The house of the victims and the house of the witness and house of the accused are in close neighbourhood. The trial Court has ignored the evidence of these witnesses that the houses of the accused are adjacent to the houses of the victims. Even the site plan shows immediate neighbourhood of the house of Jagdish, Raghunath, Laxman and Shakuntala. The trial Court appears to have created an imaginary defence that the witnesses could not be able to see the incident or they have described the incident differently. The testimony of Jagdish who lodged the FIR is clear that these 16 persons assaulted Surendra, Hariram and Amarnath. In the FIR he named all 16 accused and in Court also. In the Court he said that Bhagwansingh, and Ramsingh were armed with Pata, Dhyansingh, Sardarsingh and Roopsingh were armed with Khiraliya and others were armed with Danda and Dhariya. But in the FIR he said that the accused were armed with Lathis, Kharaily, Dhariya and Patas. We will not call it any serious improvement over the FIR. In the FIR he had stated that when his father Amarnath went to intervene, Ramsingh had spoken out that he should be finished. At this Ramsingh, Bhagwanshigh armed with Patas and Sardarsingh, Roopsingh and Dhayansingh armed with Kharaliya started assaulting Amarnath. Even in Court he had stated that Bhagwansingh and Ramsingh were armed with Patas and Dhyansingh, Sardarsingh and Roopsingh were armed with Kharaliya and also that Ramsingh, Dhyansingh, Sardarsingh and Roopsingh assaulted his father with these weapons. So the testimony in Court is fully corroborated by the version in the FIR. We fail to understand how the trial Court reached the conclusion that this witness was not present at the scene of crime. Kabalus of roof of this witness were damaged. Kabalu is a Khapra which is used as upper layer of roof. The presence of stones and brick bats also supports this witness as he said that stones and brick bats were thrown when he escaped into the house. There is complete corroboration to his testimony in Court.
37. When Mukesh (PW. 12) reached, the assault was continuing and part of the assault had already taken place. He saw the accused persons hitting Amarnath and it was within his sight that Hariram fell. The assailants were armed with sticks and Patas. They started pelting stones on this witness, one of which hit his shoulder. This witness said that he did not see Surendra. That establishes his truthfulness. He pointed to the accused in Court. The trial court had dealt with this testimony without appreciating the core of testimony and the surrounding circumstances and has given undue weight to the fact that his statement was recorded 8 days later. So testimony of this witness is confirmatory to the testimony of Jagdish. Kiran has named all the accused persons in her testimony in Court also. She had reached there on hearing the shrieks of Surendra. So the assault on Surendra had already been opened and then Hariram and Amarnath had reached from their house. She had also seen the accused pelting stones on Jagdish and shouting that he be also finished. To discard the testimony of this witness on the ground that the point of her presence is not shown in the site plan or that her statement was recorded later or that her name does not appear in FIR, is totally impermissible mechanical approach. The positive material existing on record in favour of reliability of her testimony, is overpowering and has been wrongly ignored by the trial Court. The trial Court observed that perhaps this witness could not see the incident. The opinion is merely an imagination. In such incident where 3 persons are hit by assailant and large number of injuries were caused and one of them died immediately and two died that very night, it cannot be expected by any person that a discrepancy as to exact spot where one or the other victim fell, amounts to serious contradiction. In fact there is no discrepancy because 3 persons fell in the neighbourhood in a small area. If the houses of A and B are in the neighbourhood and something happens in front of both, some person may describe it as 'in front of A', another can describe it 'in front of B' and third one 'near both of them'. The trial Court lost sight of substratum of evidence of this witness. She specifically stated that she did not see Amarnath falling and Surendra had been already hit. Hariram was hit in her presence. We do not see how the trial Court found contradiction in her statement and found it unnatural. No contradictions or serious omissions have been pointed out in her testimony. The mere fact that her statement was recorded 7 days later is a lapse of investigation and not of this witness.
38. So we find the testimony of these witnesses, trustworthy and also confirmatory to each other. Their presence is established at the scene of crime. Their testimony is corroborated by FIR and by medical evidence.
39. The only other factor to be considered is that these witnesses have not explained the injuries on the person of 3 accused i.e., Ramsingh, Roopsingh and Bhagwansingh. We have already discussed the legal position in paras 17 and 18 herein. The injuries of Ramsingh and Roopsingh were superficial in nature. Only one injury on Bhagwansingh was found to be grievous. It was on the front of the head measuring 1 1/2" x 1/3" x 1/4". It certainly resulted in fracture of the frontal bone. But one has to consider what weapon might have been used to cause this injury. It could hardly be a lathi. It is unacceptable that injuries on Bagwansingh were caused by initial attack by the victims at the house of the accused. The non-explanation of these injuries has to be appreciated in the context that attack was first opened on Surendra and his shrieks had attracted the other 2 victims and the witnesses Jagdish and Kiran. Mukesh came later while attack was going on. So there was nobody to narrate in what manner attack was opened on Surendra and whether Surrendar retaliated in any manner at that time. The accused do not say so in their statement Under Section 313 Cr. P.C. The position taken by them, that the victims along with number of persons attacked them in their house, is false. In these circumstances, non-explanation of injuries on Bhagwansingh and others cannot create any dent in the prosecution story nor it raises any presumption of self defence in favour of these accused. One has to imagine that 16 accused armed with weapons were attacking these 3 persons one after the other. They were wielding the weapons, then a chance hit by own companion of accused or exchange hit by victims cannot be ruled out. The witnesses cannot be faulted for knowing nothing how the accused suffered these injuries. As already discussed, it is well established principle that every non-explanation of the injuries of the accused does not throw such doubt, on the prosecution case as to result in its discardence. Every case must be judged on its own facts and circumstances. It is different fact that the victim, who was present from the start, does not explain the grievous hurt on the accused though he must have known about it, in comparison to similar disability of witnesses who reach one after the other and after the attack has already started. How much terrorised must have been these witnesses during attack at their father, uncle and cousin, can be imagined. They are fair to say that they were unable to mark exactly which accused gave which blow, except that Jagdish has narrated about the place where his father was assaulted by 5 of the above accused namely Bhagwan Singh, Roopsingh, Ramsingh, Dhyansingh 6 Sardarsingh. So the theory of self defence applied by the trial Court is without any justification. It is not, in any manner, supported from the nature of evidence and the nature of injuries suffered. It is crystal clear that the accused persons were the aggressors.
40. One more argument raised by the counsel for the respondents was that general statements have been made by the witnesses naming these accused that they were armed with such weapons as have been named, attacked the deceased persons, and on the basis of such statement conviction for murder should not be based. We are unable to accept this assertion. The witnesses have pointed out the accused, they have named them in Court, Jagdish has pointed them in Court and named them in FIR. If they are unable to name which of the accused used which weapon, we cannot discard their testimony. 3 persons died in this assault and more than 30 injuries were caused by 5 weapons of various types and shapes. Merely because the witnesses are not saying which particular accused hit Surendra or which of the accused hit Hariram, we cannot say that nobody hit them. Some of the assailants of Amarnath have been named by Jagdish. The accused persons in their statements Under Section 313, Cr. P.C. have not denied their presence at the scene of this violence. They only deny participation in assault. They say that when Bhagwan Singh, Sardar Singh and Ram Singh were attacked in their house many neighbours gathered and saved them. All the accused have admitted to be in neighbourhood of deceased party and known to PWs. They are named or pointed out in Court by PWs. eye witnesses. It is thus acceptable that all these accused formed an unlawful assembly with a common object to kill the victims. They were the aggressors. Motive was the bad blood between them due to dispute about mango trees which had resulted in litigation between them, but the immediate cause was not the mango trees. So it is established beyond doubt that these accused formed an unlawful assembly armed with deadly weapons and murdered 3 victims. So they committed offence Under Section 148, IPC and they have been wrongly acquitted of the charge. The 3 murders were result of common object of this unlawful assembly. So all of them are liable for these 3 murders under the provisions of Sections 302/149, IPC.
41. We find that the acquittal of these accused was unjustified, arbitrary and perverse, we convict them for offences Under Section 148, IPC and 302/149, IPC. As regards sentences for the offence Under Section 302/149, IPC, life imprisonment is the minimum sentence. We sentence each of the accused respondents to life imprisonment under that section, with fine of Rs. 5000/- each, in default of which they shall suffer further R.I. for 1 year each. For the offence Under Section 148, IPC we sentence them to R.I. for 1 year each. They shall surrender to their bonds to undergo their sentences. Sentences to run concurrently.