Allahabad High Court
Chandrika Mishra And Ors. vs State Of U.P. on 20 December, 1991
Equivalent citations: 1992CRILJ1777
Author: G.P. Mathur
Bench: G.P. Mathur
JUDGMENT G.P. Mathur, J.
1. Criminal Appeal No. 801 of 1984 has been filed by Chandrika Misra, Jawahar Misra, Rajendra Misra, Rajesh Mishra, Ramjee Misra, Ram Surat Misra and Mahadeo Misra against the judgment and order dated 14-3-1984 of Ist Additional Sessions Judge, Ghazipur in S.T. No. 55 of 1981 by which, they were convicted Under Sections 147/302/149 and 302/149, IPC and were sentenced to 2 years R.I., imprisonment for life and imprisonment for life respectively. Criminal Appeal No. 802 of 1984 has been filed by Dina Nath Misra against the same judgment and order by which, he was convicted Under Sections 148/302 and 302, IPC and has been sentenced to 3 years' R.I., imprisonment for life and imprisonment for life respectively under the three counts. Since both the appeals arise out of the same judgment and order and have been connected, they are being disposed of by a common order.
2. The case of prosecution, in brief, is that all the accused are residents of village Misraulia and belong to one family. The first informant Janardan Singh is resident of village Kanhi alias Prithvipur. At a distance of about 1 or 1 1/2 bigha towards East of the village Kanhi, there exists a plot bearing No. 96/2 area 2 bighas which lies in village Nasirpur-Gairabad. This plot was in unauthorised possession of Janardan Singh but he was evicted in proceeding under Rule 115-C of U.P.Z.A. & L.R. Rules. Later on Gaon Sabha executed a "Patta" (lease deed) of the said plot in favour of Sahdeo and his 5 brothers who are Musahar (SC). The appellant Dina Nath Mishra, who was member of Armed Forces, applied for allotment of the said plot in his name and it is alleged that a lease deed was also executed in his favour. On account of dispute regarding possession, proceedings Under Section 145, Cr. P.C. were initiated between Sahdeo and others on one hand and Dina Nath Mishra on the other hand, but were decided in favour of former. Chandrika Mishra-appellant started proceedings under Section 198 U.P.Z.A. & L.R. Act and lease granted in favour of Sahdeo and others was cancelled by the Assistant Collector. A revision against the said order was filed before the Commissioner, Varanasi in which operation of the order passed by the Assistant Collector was stayed prior to the occurrence. Sahdeo and his brothers, therefore, continued to remain in possession over plot No. 96/2. It is alleged that Sahdeo and his brother Buddhu were Ploughmen of first informant Janardan Singh and therefore, the first informant and his family members were doing pairvi of the cases on behalf of Sahdeo and his brothers. Due to this reason, there was enmity between the accused appellants on one hand and the informant Janardan Singh and his family members on the other hand. Two persons lost life in the incident out of whom Virendra Singh was son of Chandra Deep Singh was the brother of informant Janardan Singh.
3. The case of prosecution further is that at about 7-00 a.m. on 22-10-1980 P.W. 3 Sahdeo and his brother Buddhu were ploughing Southern portion of vacant land of plot No. 96/2 from the plough and bullocks of their master Janardan Singh. At about 8 a.m. accused Dina Nath Misra armed with gun and the remaining 7 accused armed with lathis came to the aforesaid plot and stopped Sahdeo from ploughing the field on the point of gun. Sahdeo and his brother raised alarm, on which informant Janardan Singh, the deceased Chandra Deep Singh and Virendra Singh and others came on the spot and tried to pacify the accused and requested that dispute be settled by Panchayat. On this, all the 7 accused of Criminal Appeal No. 801/84 exhorted and accused Dina Nath Misra fired twice causing gun shot injuries to Chandra Deep Singh and Virendra Singh who fell down on the spot. The witnesses present tried to intervene, but the accused ran away giving threats. Both the injured were then rushed to police station Birno on cots. Chandra Deep Singh succumbed to his injuries on the way. As the condition of Virendra Singh was serious, he was taken to District Hospital, Ghazipur on taxi. The informant Janardan Singh got a F.I.R. scribed and lodged the same at Police Station Birno which is 1 1/2 Kms. from the place of occurrence, at 9-05 a.m. Virendra Singh was medically examined at 8-50 a.m. on 22-10-80 in the district hospital, but he died at 11-40 a.m. On the same day. The post mortem examination was conducted on the bodies of deceased Virendra Singh and Chandra Deep Singh on 23-10-80. After investigation, the police submitted charge sheet against all the 8 accused.
4. The case was committed to the court of Session by C. J. M. Ghazipur on 12-1-1981. During trial, the accused pleaded that the prosecution case was absolutely false and they had been implicated on account of enmity. Their defence further was that deceased had received injuries in the night during the course of a dacoity.
5. In order to prove its case, the prosecution has examined in all 5 witnesses out of whom P.W. 1 Janardan Singh, P.W. 3 Sahdeo are eye witnesses. Besides them P.W. 4 Dr. P.C. Basak was examined to prove medical report of Virendra Singh while as P.W. 2 Dr. S.K. Srivastava proved the post mortem reports of two deceased. P.W. 5 G.R. Sharma, I.O. of the case narrated about the various steps taken by him. The accused did not lead any oral evidence, but filed some documentary evidence in their defence which will be referred at the appropriate stage.
6. Since, considerable argument has been advanced on the basis of medical evidence in the case, it will be convenient to reproduce the medical examination report as well as post mortem reports of deceased. Virendra Singh was medically examined at 8-50 a.m. on 22-10-80 by P.W. 4 Dr. P. C. Basak in the district hospital. His injury report (Ex. Ka-6) is as follows :--
(1) Lacerated fire arm wound of entry with blackening of the skin and inverted margins 7 cm x 5 cm x not probed with muscles, tendons and bones exposed on the back of lateral aspect of left hand with bleeding.
Advised X-ray.
(2) Lacerated fire arm wound of entry with bleeding and brain matter exposed and one piece of bone separated out 15 cm x 8 cm x not probed on the middle and back of the head 8 cm behind the left eye brow. Advised X-ray and referred to Surgeon for n.a. The margins of the skin of the wound inverted and blackened. Nature of inj : No. 1 is U.O. and No. 2 is grievious. Nature of weapon -- Some fire arm.
Duration : Fresh.
7. The post mortem on the body of Virendra Singh was performed at 2-00 p.m. on 23-10-80 by P.W. 2 Dr. S.K. Srivastava and relevant extract of the post mortem report (Ex. Ka-3) is being given below :
Ante mortem injuries.
1. Fire arm wound of entry skull with blackening of skin, measuring 17.5 cm x 8.50 cm cranial cavity deep, brain matter exposed from fractured cranial parietal in the substance of mind fractured posterior of left and right temporal parietal bones found. Margins inverted. 17 small while metallic pellets recovered from brain matter. Distance for fire more than 6-12 feet.
2. Fire arm wound of entry left hand (palm) measuring 2.5 cm x 2 cm x b6ne deep, oval in shape. Margins inverted, blackening over skin present in an area of 7 cm x 5 cm around the wound. Wound stratched 2 cm proxmial to metacarp phylanx of 4th and 5th finger. In the substance of wound fractured 4th and 5th metacarpal and carpal bones seen. Lacerated tendons on the wound seen.
3. Fire arm wound of exit on the dorsal side of left hand measuring 5 cm x 4 cm. 3.5 cm above metacarpo phylanxjoint of 4th and 5th finger. Margins overted. Wound communicating with injury No. 2 Distrance of fire 4-6 feet.
8. The same doctor performed the post mortem on the body of deceased Chandra Deep Singh and relevant extract of the post mortem report (Ex. Ka-4) is being given below :
1. Multiple fire arm wound of entry over outer side of arm and fore-arm extending in an area of 30 cm x 10 cm oval in shape no blackening or tatooing seen, margins inverted. Direction from left to right and upwards. On dissection 10 small pellets removed from muscles and foetus, left arm and left forearm.
2. Multiple firearm wound of entry in left side of chest and neck 5 cm above left nipple extending in an area of 15 cm x 20 cm of the size 0.5 cm x 0.5 cm chest cavity deep. On dissection 12 small pellets found in the (1) chest cavity. (2) Heart (2) Lungs (8). Chest cavity contains 1-2 litre of fluid blood. Lungs hurt having fire arm wound of entry. Pellets embeded.
Distance : More than 6 feet.
9. P. W. 1 Janardan Singh who is the first informant has stated in his statement in court that all the accused belong to one family and are residents of village Misraulia which is situated 100 yards South of his village Kanhi. He and his brother Chandradeep Singh were living jointly. Gaon Sabha executed a patta of plot No. 96/2 area 2 bigha in favour of his Halwaha (Ploughmen) Sahdeo and Buddhu and his brothers 5-6 years before the incident. Sahdeo and his brothers were in possession over the plot in dispute and their names had also been mutated. Proceeding Under Section 145, Cr. P.C. took place between them and accused Dina Nath Misra which was decided in their favour. Dina Nath Misra had obtained a fictitious Patta of the same plot in his favour. Proceedings Under Section 198 U.P.Z.A. & L.R. Act were started in which, the Assistant Collector cancelled the Patta in favour of Sahdeo and others and also the Patta which Dina Nath Misra accused claimed to have been executed in his favour. The operation of the order of Assistant Collector, by which the Patta in favour of Sahdeo and others was cancelled, was stayed in appeal by the Commissioner, Varanasi. The informant Janardan Singh and his family members including his brother used to do pairavi of the case on behalf of Sahdeo and Buddhu due to which Dina Nath Misra and his family members became hostile to them. In the morning of 22-10-80, Sahdeo and Buddhu were ploughing plot No. 96/2 with plough and bullocks of the informant. At about 8-00 a.m. he heard alarm, on which the informant, his sons Virendra Singh and Kripa, his brother Chandra Deep Singh and some other persons went to the field. There they found that Dina Nath Misra armed with gun and remaining accused armed with Lathis were asking Sahdeo not to plough the field. The informant and others tried to pacify them and said that the matter be settled through Panchayat. On this, the accused said that they should be killed from the guns so that they may not be in a position to do pairvi in the case. Dina Nath Misra fired twice causing injuries to Chandra Deep Singh and Virendra Singh. Thereafter the accused ran away after giving threats. He has further stated that both victims had fallen down on the spot. The informant then took them to the police station on cots, but Chandra Deep Singh succumbed to his injuries. As the condition of Virendra Singh was serious, he was sent to district hospital, Ghazipur. Thereafter the informant dictated the report of the incident to one Janardan Singh son of Ram Narain resident of village Ranipur and lodged the same at the police station.
10. Other eye witness P.W. 3 Sahdeo has corroborated the version given by P.W. 1 Janardan Singh, he has stated that he along-with other brother Buddhu were ploughmen of Janardan Singh for the last 10 years. He has also given details of Patta executed in his favour. He has further stated that in spite of litigation, he remained in possession over the plot allotted to him and his brothers. Regarding the main incident, he has stated that at about 8-00 a.m. when he and Buddhu were ploughing the field, accused Dina Nath Misra armed with gun and other accused armed with lathis came on the spot and stopped him from ploughing the field. On his alarm, Janardan Singh and his family members reached there who asked the accused to settle the dispute by Panchayat. Thereafter, on the exhortation of other accused Dina Nath Misra fired twice due to which Chandra Deep Singh and Virendra Singh received injuries and fell down on the spot. P.W. 5 G.R. Sharma, S.O. of P.S. Birno has stated that FIR of the case was lodged in his presence at 9-05 a.m. The body of deceased Chandra Deep Singh was brought to the police station and he held inquest on the same. Thereafter, he proceeded to the spot and took in his possession blood stained and plain earth from two places. He found some portion of the field ploughed, he has also stated that he conducted a search of the house of accused and recovered a letter from Almirah which was inside the house of accused Chandrika Misra and prepared a Fard regarding recovery of the letter. After recording statements of all other witnesses, he submitted chargesheet against all the accused.
11. The learned Sessions Judge after examining the evidence on record held that the prosecution had succeeded in proving its case and accordingly, convicted and sentenced all the 8 accused as indicated in the earlier part of the judgment.
12. We have heard S/Shri D.S. Tiwari and V.P. Srivastava for the appellants and learned State Counsel as well as Sri S.D.N. Singh for the complainant at great length and have also perused the record. Learned counsel for the appellants have contended that the accused had no motive to commit the crime. P.W. 1 Janardan Singh has stated in para 12 of his statement that prior to execution of Patta by Gaon Sabha plot No. 96/2 remained in his possession for 5-6 years and he was evicted in proceedings under Rule 115-C which were initiated by the Pradhan. Pradhan Jhulan Singh was having good relations with the accused Dina Nath Misra. In the aforesaid proceeding under Rule 115-C Dina Nath Misra-accused had done Pairvi against him due to which relations between them had become strained. Ex.Ka-30, is the copy of judgment and order dated 25-9-80 of Assistant Collector, Ghazipur in case No. 114/400 in proceedings Under Section 198 of U.P.Z.A. & L.R. Act. This judgment shows that the accused Chandrika Misra had filed an application for cancellation of Patta granted in favour of Sahdeo and others with regard to plot No. 96/2 and the said application was allowed and patta was cancelled. Ex.Ka-29 is the copy of order dated 1-10-1980 passed by Addl. Commissioner, Varanasi in Revision No. 349/80 which shows that operation of the order dated 25-9-90 of the Assistant Collector was stayed. This shows that though the accused Chandrika Misra has succeeded in obtaining an order for cancellation of Patta executed in favour of Sahdeo and his brother, but the operation of the said order had been stayed in revision. Both P.W. 1 Janardan Singh and P.W. 3 Sahdeo, have stated that Pairavi of the case used to be done by Janardan Singh and his family members. It also appears very natural as Sahdeo and his brothers are Musahar (SC) and do not appear to be in a position to do the pairavi of the cases in various Courts. Being Ploughmen of Janardan Singh, the Pairavi of cases by him or his family members in order to protect his interest appears to be natural. The accused must, therefore, be feeling that Dina Nath Misra was not getting possession of plot No. 96/2 on account of pairavi done by family members of Janardan Singh of the case instituted against Sahdeo and his brothers. Therefore, the accused must be feeling sore and they had motive to commit the murder of Chandra Deep Singh and Virendra Singh.
13. It was next contended that oral evidence in the case is inconsistent with the medical evidence which shows that eye witnesses were not present on the spot. Learned Counsel for the appellants have submitted that Specific case of the prosecution as given by both the eye witnesses in their statement in the Court is that accused Dina Nath Misra fired one shot each upon the deceased Chandra Deep Singh and Virendra Singh, but the medical evidence showed that each of the deceased had sustained injuries by more than one shot. So far as the injuries sustained by deceased Chandra Deep Singh are concerned, it may be noted that injury No. 1 is multiple fire arm wound of entry over outer side of arm and fore-arm extending in an area of 30 cm x 10 cm oval in shape. The direction of the injury was from left to right and upwards. Injury No. 2 is multiple fire arm wound of entry in left side of chest and neck 5 cm above left nipple extending in an area of 15 cm x 20 cm of the size 0.5 cm x 0.5 cm chest cavity deep. If the gun shot was fired from left side of the deceased and if the deceased was keeping his left arm close to the chest and fore-arm in a bent position near the chest, both the injuries can be caused by single shot. The injury No. 1 which is on the arm and fore arm is oval in shape which shows that some of the shots went grazing and thereafter penetrated in the chest. No blackening or tattoing was found in either of the injuries. The doctor was not put any question in his cross-examination as to whether the injuries sustained by the deceased Chandra deep Singh could not be caused as a result of a single shot. We have examined the post mortem report of Chandra Deep Singh carefully and we are of the opinion that both the injuries could be caused as a result of single shot. Thus there is no conflict in the eye witness account and medical evidence in so far as the injuries sustained by Chandra Deep Singh are concerned. In so far as deceased Virendra Singh is concerned, P.W. 2 Dr. S.K. Srivastava has stated in his statement in Court that injury No. 1 was a fire arm wound of entry on the skull 17.5 cm x 8.5 cm x cranial cavity deep with brain matter exposed and left and right temporal and parietal bones had fractured and had entered the brain. He has also stated that there was no blackening. Injury No. 2 was afire arm wound of entry on left hand (palm) and injury No. 3 was fire arm wound of exit on the dorsal side of left hand communicating with injury No. 2. In his examination-in-chief, a question was put to Dr. Srivastava that whether injury No. 1 and 2 to Virendra Singh could be caused by single shot if his hand was at little distance and at the level of his head. In reply, the doctor stated that he cannot say so definitely. However, in his cross-examination, he stated that ante mortem injury No. 1, would have been caused from a distance of more than 6 feet, while as injury No. 2 would have been caused from within a distance of 4 feet. He further stated that both the injuries of Virendra Singh would have been caused by two separate shots. On the basis of above noted statements of doctor, it has been strenuously contended by learned counsel for the appellants that injuries sustained by deceased Virendra Singh were as a result of two shots and the eye witness account was not correct and no one saw the occurrence. We have carefully perused the post mortem report and also the injury report of deceased Virendra Singh and it appears to us that P. W. 2 Dr. S.K. Srivastava has given incorrect statement in court. The doctor has stated while describing injury No. 1 that there was no blackening whileas with regard to injury No. 2 he had described that there was blackening all around the wound. In the original post mortem report, injury No. 1 has been described as follows :
Fire arm wound of entry skull with blackening of skin, measuring 17.5 cm x 8.50 cm cranial cavity deep....
The deceased Virendra Singh had also been medically examined at 8-50 a.m. in the district hospital. His injury report which is Ex.Ka-6 on the record shows that injury on his head was noted as follows by P.W. 4 Dr. P.C. Basak :
Lacerated fire arm wound of entry with bleeding and brain matter exposed ... 15 cm x 8 cm x not probed on the middle back of head ....Margin of the skins of the wound inverted and blackened.
P.W. 4 Dr. P.C. Basak has stated in his statement in the Court that skin of the wound, which was on the head, was blackened. Therefore, both earlier injury report as well as the post mortem report of Virendra Singh show that there was blackening around the would which had been caused on the head. The statement of P.W. 2 Dr. S.K. Srivastava in court to the effect that there was no blackening around the wound sustained by Virendra Singh on the head was therefore, incorrect and factually wrong. The doctor has given statement in Court on 28-9-83 and 7-11-83, not on the basis of his memory, but after perusing the post mortem reports prepared by him on 24-10-80. To us, it appears that he himself misread the injury on the head of deceased Virendra Singh when he stated that there was no blackening. Since, there was balckening in both the injury Nos. 1 and 2 sustained by deceased Virendra Singh, we are of the opinion that the same are as a result of one shot. If the deceased was keeping his left palm at the level of his head both the injuries could be caused as a result of a single shot. It is normal human instinct to project the hand outside in order to protect some vital organ like head from being hit by some weapon or projectile. It appears very natural that when shot was aimed on Virendra Singh, he projected his left hand and palm outside almost at the level of head due to which, he received injury on left plam as well as on the skull by same shot.
14. Learned counsel for the appellants further contended that in the post mortem report of Virendra Singh it is mentioned that injury No. 1 had been caused from a distance of more than 6-12 feet while as injury No. 3 had been caused from a distance of 4-6 feet and therefore, they could not be as a result of the same shot. Learned counsel for the complainant has however, submitted that it was very unusual for the doctor who performed the post mortem to have written distance from which the injuries were caused in the post mortem report itself, as normally, this fact is never written. The doctor only writes the nature of injury sustained by deceased and damage suffered by organ of the body which has been injured. He has further submitted that the distance mentioned by the doctor is also incorrect and is not in consonance with nature and type of injury sustained by the deceased. We have already noticed that there was blackening of skin around the wounds both on injury No. 1 and injury No. 2 of deceased Virendra Singh, yet in the post mortem, it is mentioned that injury No. 1 was caused from a distance of 6-12 feet. Whileas injury No. 3 which is exit wound of injury No. 2 was caused from 4-6 feet. In his statement in court the doctor stated that fire arm wound have been at a distance of more than 6 feet from injury No. 1 and would have been at a distance between 4-6 feet from injury No. 3. In our opinion, the distance of injury No. 1 mentioned in post mortem report i.e. 6-12 feet is absolutely incorrect as there was blackening of skin around the wound and such blackening cannot be caused from the distance mentioned by Doctor. P. W. 4 Dr. P.C. Basak who examined deceased Virendra Singh has stated that both the injuries could have been caused from within a distance of 4 feet. He has also stated that two injuries could have been caused as a result of one fire or two fires. In 1989 Edition, Modi's Medical Jurisprudence at page 269, it has been stated as follows :
At a distance of one to three feet small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enters as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unburnt grains of powder. On the other hand, at a distance of six feet the central aperture is surrounded by separate openings in a area of about two inches in the diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent.
15. The learned author has also given a warning on the same pace of his book to the following effect; observing as follows in para 10 of report.
In this nebulous state of evidence of the Ballistic expert, we are of the view that the High Court was wholly wrong in doubting the direct evidence of three eye witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements. We are, therefore, of the opinion that the High Court was wrong in its conclusion based on the vacillating evidence of the ballistic expert.
16. Having given our careful consideration to the evidence on record, we are of the opinion that both the injuries sustained by each of the deceased namely; Chandra Deep Singh and Virendra Singh were as a result of single shot having been fired upon each one of them and therefore there was no inconsistency between the oral evidence and the medical evidence on this point.
17. Another contention advanced by the learned counsel for the appellants in support of his submission that the oral evidence is inconsistent with the medical evidence, is that 3 ounce of paste like food matter in which rice and pulse could be recognised was found in the stomach of deceased Chandra Deep Singh. According to the learned counsel this indicated that incident had taken place in the night after a few hours of taking of dinner by the deceased. It may be noticed at this stage that in the stomach of deceased Virendra only 1/2 ounce yellow fluid was found. P.W. 1 Janardan Singh was cross-examined on this point towards the end of his cross-examination, he had stated that deceased used to take "Dana" (parched rice and gram) alongwith tea, milk and Mattha etc. in his breakfast. The incident tookplace at about 8-00 a.m. and in the normal course, the deceased would have taken his breakfast by that time. Only small quantity food material was found in the stomach of deceased which shows that the murder took place after he had taken his breakfast and not his full dinner. The presence of 3 ounce food material does not render the prosecution case doubtful in any manner.
18. It was next contended that it was not established that the incident took place as alleged by the prosecution. Reliance in support of this contention was placed upon the fact that there is some apparent conflict regarding extent of the area of field which had been ploughed on that day. P.W. 1 Janardan Singh has no doubt stated in para 19 of his statement that there was paddy crop in 2-1 biswa area of the disputed plot and in the remaining portion, there was no crop. He has further stated that only 1/4th of southern portion of the western vacant area of the plot had been ploughed when he reached there on hearing alarm. P.W. 3 Sahdeo has stated that he had ploughed only one biswas of land on that day before the murder took place. However, P.W. 5 G. R. Sharma, I.O. of the case has stated in para 4 of his statement that at the time of investigation, he found that some portion of plot over which the incident had taken place, had been ploughed. However in para 13 of his cross-examination, he has stated that when he inspected the plot he found paddy crop on 1/3rd portion of plot of eastern side whileas 2/3rd portion on western side was found in ploughed condition. In our opinion, there is no real inconsistency between the statement of eye witnesses and that of Investigating Officer. It is well known that for sowing Rabi crop, fields are ploughed repeatedly to make the soil soft. It is quite possible that field had been ploughed earlier and the eye witnesses were giving statements regarding ploughing which had been done on the date of occurrence. The Investigating Officer may not have made any distinction between the ploughing done on the date of occurrence or prior thereto. Therefore, this can be no ground for holding that the place of occurrence had not been established by the prosecution.
19. It may be noticed at this stage that P.W. 5 G.R. Sharma, has clearly stated in para 3 of his statement that he found blood at two places in the field and he took in his possession blood stained earth and plain earth separately from two places. He also prepared memo of the same vide Ex. Ka-3 to Ex.Ka-6. The clothes of two deceased as well as blood stained earth taken from the place where their blood had fallen were sent to chemical examiner of U.P. Government. The Chemical Examiner has given report, which is Ex.Ka-28 on the record, to the effect that blood was found on the earth which was sent to him for analysis. This establishes that the incident took place on the field as alleged by the prosecution. It will not be out of place to mention here that defence of the accused is that two deceased were killed in a dacoity which took place in their house in the night. If this was true, the prosecution would not have gained anything in shifting the place of occurrence from the house of deceased to the field, inasmuch as, the presence of the family members and witnesses inside the house is more natural and probable. We are satisfied on the basis of evidence on record that the occurrence took place on the field as alleged by the prosecution.
20. It was next contended that the house of informant P.W. 1 Janardan Singh was at a great distance and he could not have heard alarm raised by Sahdeo and Buddhu and could not have reached the place of incident to witness the occurrence. P.W. 1 Janardan Singh has stated in para 13 of his statement that his house was at a distance of one furlong towards south of main Abady of village Kanhi. He denied the defence suggestion that his house was at a distance of 1 1/2-2 furlongs from the disputed plot but stated that it was only 1 1/2 bighas. He again stated that his house was at a distance of about 175 yards from the disputed field. In para-14, he stated that if the investigating officer had shown his house at a distance of one furlong from the disputed field in the map, the same was incorrect. The witness is a teacher for the last 35 years and was working as a Head Master of the School for the last 15-16 years. He should have correct idea of distances. P.W. 3 Sahdeo has categorically stated on the alarm raised by him, P.W. 1 Janardan Singh, Kripa, Mangroo, Birbal and deceased Virendra Singh and Chandra Deep Singh reached the spot. The statement of P.W. 1 Janardan Singh is also to the same effect we have seen above that both the deceased received injuries in the disputed field. If the two deceased could reach the place of occurrence on hearing the alarm of Sahdeo, there is no reason why P.W. 1 Janardan Singh who lived in the same house would not be in a position to hear the alarm or reach the place of occurrence. Therefore, we are not prepared to accept the contention of learned counsel for the appellants that Janardan Singh P.W. 1 could not have heard the alarm and could not have reached the place of occurrence.
21. Learned counsel for the appellants then contended that although in the FIR, names of serveral persons were mentioned as the witnesses of the occurrence, but they were not examined in court and therefore, an adverse inference should be drawn against the prosecution. It is true that in the FIR names of Hari Narain, Birbal, Jagat Deo and Gopal are also mentioned as witnesses of the occurrence, but they have not been examined The trial Court's record shows that an application 76-Kha signed by Janardan Singh was moved before the learned Sessions Judge wherein, it was mentioned that Hari Mohan Singh, Birbal Kahar, Jagar Deo and Mangroo Singh witnesses had been won over by the accused and were under their influence and had turned hostile. It was also stated that the aforesaid witnesses were not prepared to state the truth. It was prayed that all other witnesses be discharged. The learned State Counsel also made a prayer that as prayed by Janardan Singh other witnesses may be discharged. After hearing both the sides. Learned Sessions Judge passed an order that no such direction of the court was needed and the prosecution could select the witnesses which it wanted to examine. The record does not show that the application for discharging other witnesses was opposed by the accused, nor any prayer was made on their behalf for summoning any one who had not been examined as prosecution witnesses. The accused also do not appear to have challenged the fact that Hari Narain Singh, Birbal Kahar, Jagar Deo or Mangroo were under their influence and turned hostile. In this view of the matter, we are of the opinion that no adverse inference can be drawn against the prosecution merely on the ground that some of the persons whose names are mentioned as eye witnesses of the occurrence, have not been examined as witnesses in the Court.
22. Learned counsel for the appellant next contended that the conduct of informant Janardan Singh in not taking Virendra Singh to police station and not getting Chitti-Majroobi before sending him to hospital was highly unnatural, specially when he had reached near the gate of the police station. P.W. 1 Janardan Singh has stated that both the injured were taken on cots to the police station and when the cots were on a Chabutra near the police station, it was discovered that Chandra Deep Singh was dead and Virendra Singh was unconscious. He has further stated that the condition of Virendra Singh was serious and therefore, he was sent to district hospital Ghazipur on a Taxi. In our opinion, the mere fact that Virendra Singh was not taken inside the police station and no Chitthi Majroobi was obtained, can be no ground for casting any doubt on the prosecution case. Virendra Singh had received serious gun shot injuries on his head and obviously anxiety of his father P.W. 1 Janardan Singh at that time would have been to provide him with immediate medical aid. In case, he was taken inside the police station and Chitthi Majroobi was obtained, it was bound to take time. Therefore, he was rushed to the district hospital on a Taxi. The statement of P.W. 4, Dr. P. C. Basak shows that he was medically examined at 8-50 a.m. It is, therefore, obvious that family members of Virendra Singh acted with promptitude and took him to the district hospital at a great speed. The contention raised by learned counsel, is therefore, devoid of any merits.
23. It has been further contended that main enemy of the accused was Sahdeo and his brother Buddhu. They had obtained a Patta of plot No. 96/2, but they were not assaulted. On the contrary, persons who had no connection with the disputed plot had been caused injuries. We have already noticed earlier. The litigation which took place for eviction of informant from the disputed plot in which accused Dina Nath Misra had done pairavi on behalf of Pradhan. In the litigation which subsequently took place between Sahdeo and his brothers on the one hand and accused Dina Nath Misra on the other hand, also the pairavi of the cases was done by family members of Janardan Singh. The accused Dina Nath Misra must have realised that he was being deprived of possession of the disputed plot only on account of pairavi done by informant and his family members. Therefore, in his heart, he must be feeling that his real enemies were informant and his family members and not Sahdeo and his brothers. It was due to this reason that the accused Dina Nath Misra fired upon Virendra Singh and Chandra Deep Singh and did not attempt to cause injuries to Sahdeo and Buddhu.
24. The defence of the accused may also be considered at this stage. The accused Dina Nath Misra has stated in his statement Under Section 313, Cr. P.C. that he had heard that Chandra Deep Singh and Virendra Singh were killed by dacoits in the night. The accused Jawahar Misra has stated Under Section 313, Cr. P.C. that in the night a dacoity took place in the house of informant in which two deceased were killed. Almost similar statements have been given by all the accused the suggestion to P.W. 1 Janardan Singh towards the end of his cross-examination is also to the same effect. In case, the incident had happened in the house of informant, blood would have been found there and not in the field. Secondly, the prosecution was not going to gain anything by shifting the place of occurrence to the field as the presence of the witnesses in the house cannot be easily doubted. Moreover, Virendra Singh did not die immediately and he was taken to the hospital and was medically examined at 8-50 a.m. In case incident had happened in the night the informant who is an educated person would not have wasted time and would have rushed his son to the hospital either in the night itself or early in the morning. There is another circumstance which lends credence to the prosecution case. Two persons had received gun shot injuries on two different parts of their bodies. In case, the informant wanted to falsely implicate some body he could have easily assigned the role of shooting to two different persons. The fact that role of shooting was assigned only to one person shows that there has been no attempt at all to falsely implicate any innocent person.
25. We may mention that we are fully conscious of the fact that both the eye witnesses examined by the prosecution are enemical witnesses. However, the mere fact that they are enemical is no ground for discarding their evidence altogether. The evidence has to be examined with care and caution in order to exclude possibility of false implications. We have examined the evidence of eye witnesses with extra care and we are inclined to believe the version given them in so far as the role of accused Dina Nath Misra is concerned as it is corroborated with other facts and circumstances of the case including medical evidence and recovery of blood from the place of occurrence.
26. After examining the entire material on record, we have no hesitation in holding that the accused Dina Nath Misra wanted to take possession over plot No. 96/2. The said plot was in possession of informant Janardan Singh for about 5-6 years. Proceedings under Rule 115-C were initiated by Pradhan against him in which Dina Nath Misra accused had also done pairavi against him. After the eviction of Janardan Singh, plot was allotted to his own ploughmen namely Sahdeo and his brothers. Proceedings Under Section 145, Cr. P.C. took place but the same were decided in favour of Sahdeo and his brothers. The accused Dina Nath Misra then filed an application Under Section 198 of U.P.Z.A. & L.R. Act for cancellation of Patta which was allowed by the Assistant Collector on 25-9-80 and Tehsildar was directed to dispossess the allottees. However, accused Dina Nath Misra could not get the fruits of his efforts as the order of Assistant Collector was stayed by Addl. Commissioner, Varanasi, on 1-10-80. The Pairavi in all these cases was done by informant Janardan Singh and his family members. Due to this reason accused Dina Nath Misra felt greatly aggrieved. At about 8.00 A.M. on 22-10-80 Sahdeo and his brother were ploughing the disputed plot which was objected to by the accused Dina Nath Misra as he thought that he had succeeded in the case before the Assistant Collector and he was entitled to possession of the land. On an alarm raised by Sahdeo, both the deceased and their family members rushed to the field and tried to pacify the matter. Thereafter, the accused Dina Nath Misra fired from his gun twice causing injuries to chandra Deep Singh and Virendra Singh. The prosecution case in so far as accused Dina Nath is concerned is true and he is guilty of having committed the murder of two persons aforesaid.
27. Now, we may consider the case of 7 accused of Criminal Appeal No. 801 of 1984. According to the prosecution case all of them were armed with lathis but they did not cause any injury to anybody. The only role assigned to them is that they exhorted and on their exhortation Dina Nath Misra fired from his gun. The accused are closely related interse. Chandrika and Jawahar Misra are real brothers whileas, Mahadeo is their uncle. Dina Nath Misra and Rajendra Misra are sons of Chandrika and Rajesh alias Guddu is the son of Jawahar Misra. Ram Surat Misra and Ram Jeev Misra are sons of Amrit Misra who was another brother of Chandrika Misra. Thus three generations have been arrayed as accused in the case. Mahadeo accused has given his age as 90 years and the learned Sessions Judge has observed that he appears to be 80 years old. There is no corroboration of the rule of exhortation assigned to the aforesaid 7 accused. It is doubtful whether common object of all the 7 accused was to commit the murder of two deceased. It is not safe to rely upon evidence of exhortation. In Jainul Haque v. State of Bihar AIR 1974 SC 45 : 1974 Cri LJ 143, it was observed as follows in para 8 of the report :
The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailent by attributing to that person an exhortation to the assailant to assault the victim unless the evidence in this respect be clear, cogent and reliable, no conviction for abatement can be recorded against the person alleged to have exhorted the actual assailant.
28. In Sherey v. State of U.P. (1991) 4 JT 306 : 1991 Cri LJ 3289 the Hon'ble Supreme Court observed that when there is a general allegation against, a large number of persons the Court naturally hesitates to convict all of them on such vague evidence and it is safe to convict only such of the accused who are consistently mentioned as having participated in the attack from the stage of earliest report.
29. Taking into consideration the entire facts and circumstances of the case, we are of the opinion that it will not be safe to convict these accused and they deserve benefit of doubt.
30. The criminal appeal No. 801/84 is allowed. The conviction of appellants Chandrika Misra, Jawahar Misra, Rajendra Misra, Rajesh Misra, Ramjee Misra, Ram Surat Misra and Mahadeo Misra and the sentences imposed upon them are set aside. They are on bail. They need not surrender. Their bail bonds and surety bonds are discharged. The criminal Appeal No. 802/84 filed by Dina Nath Misra is dismissed with slight modification. His conviction Under Section 148, IPC and sentence imposed thereunder is set aside. However, his conviction Under Sections 302, IPC and 302, IPC and sentence of imprisonment for life imposed under each count by learned Sessions Judge is confirmed. He is on bail. He must surrender forthwith to undergo the sentences. His bail bonds and surety bonds are cancelled.