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3. On August 10, 1991, Ram Sewak, announced while sitting on Chabutra of Ram Sewak that, at all costs, the girl Sontara should come back. Otherwise, no one would be kept alive even for the name sake. Sontara did not come back to the village. In the midnight of August 10/11, 1991, at about 12 hours, the respondent No.1, i.e., Shrikrishna, the respondent No.2 Ram Sewak and the respondent No.3 Kishori carrying country made pistols in their hands entered the house of Guljarilal by jumping the southern wall of the house. After entering into the house of Guljari, the respondents started firing shots indiscriminately. Because of the gun shots, Guljari, Ramwati, wife of Guljari, Rakesh, Umesh and Dharmendra sons of Guljarilal, were injured. PW2 (Madan Lal) who was sleeping at the place of incident, got up after hearing gun shots and hid himself under the cot. He witnessed the whole incident from there. First Informant Jhabbulal and his wife Lilawati, on seeing this ghastly incident, left their house and while making hue and cry entered the house of Khemkaran. The respondents after killing Guljari and his family made search for the complainant and his family members but they did not find them present in the house. At that very time, Baburam, brother of the first informant, who had entered his shop out of fear, was also dragged out by the respondents from the shop and shot dead. After resorting to indiscriminate firing, the respondents left the village and went towards the south by making two fires in the air.

10. This Court finds that the abovestated reasons are the only reasons specified by the High Court to disbelieve the eye- witness account given by PW1, Jhabbulal. In order to find out whether the reasons assigned by the High Court to disbelieve the episode of five murders narrated by witness Jhabbulal, are sound, this Court has undertaken the exercise of going through the entire testimony of witness Jhabbulal recorded before the Trial Court. As far as the incident which had taken place in the house of Guljari is concerned, it was mentioned therein that at about 12 O'clock, in the night, Master Shri Krishna holding ponia gun and Ram Sewak as well as Kishori holding country-made pistols tresspassed into the house of Guljari after jumping over southern side wall of the house of Gulzari and committed murder of Guljari, his wife Ramwati and son Rakesh by firing gun shots. He also mentioned in his testimony that because of the firing of gun-shots Umesh and Dharmendra who were sons of Gulzari were injured. According to him, on witnessing the said incident, he with his wife Leelawati left his home and went into the house of Khemkaran rasing hue and cry. It was further mentioned by the witness that the respondents had tried to trace his family and they had gone inside the shop of his brother Baburam and gunned him down after dragging him out of the shop. What was claimed by this witness was that the incident was also witnessed by Sarla Devi, daughter of Guljari, Rakesh and Madan Lal, sons of Guljari and his brothers Mohanlal, Rajaram and Kailash who were sons of Jiwan. It was asserted by him that he had witnessed the incident in the light of electric bulb. It was frankly admitted by him that no one had dared to go near to the respondents because they were carrying with fire arms.

It was further asserted by him that after the respondents had left the place opposite the shop of his brother, he had gone near his injured brother who was alive and had tried to learn from Baburam as to who had assaulted him and thereupon his brother had informed him that Shrikrishna (respondent No.1), Ram Sewak (Respondent No.2) and Kishori (Respondent No. 3) had assaulted him with fire arms. It is also mentioned by him that at his instance, FIR was reduced into writing by Radhey Shyam as dictated by him and that he had filed the same at the police station. The record of the case shows that this witness was cross-examined at great length. He was subjected to grueling cross-examination which runs into 31 pages. The first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness. A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness. When the respondents were firing from their respective fire arms, the High Court should not have expected PW1 Jhabbulal to mention description of the whole episode which had happened in a few minutes. The rustic witnesses cannot be expected to have an exact sense of time and so cannot be expected to lay down with precision the chain of events. In the instant case, this Court is of the firm opinion that the High Court gravely erred in not accepting evidence of PW1, Jhabbulal. Jhabbulal being a rustic witness is not expected to always have an alert mind and so have an idea of direction, area and distance with precision from which he had witnessed the incident. It is well to notice that in his examination in chief, Jhabbulal never claimed that he was standing by the side of the wall of courtyard nor it was claimed by him that he had witnessed the incident through mokhana, i.e. holes in the intervening walls. Though the witness was cross-examined for days together, he was never confronted with his statement recorded under Section 161 of the Code of Criminal Procedure wherein he had allegedly stated before the Police Officer that he had witnessed the incident through holes in the intervening wall. The witness having not been confronted with his earlier police statement wherein he had reportedly stated that he had seen the incident through the holes in the intervening wall, this Court fails to understand as to how the said statement allegedly made before the police during the investigation could have been pressed into service by the High Court to reject the substantive evidence of this witness tendered before the Court wherein it was specifically asserted that while in his house, he had witnessed the incident of killing of five members of Guljari's family by the respondents by firing gun shots. The prosecution has satisfactorily established that Baburam who was brother of Jhabbulal, PW1, had lost his life because of gun shots fired at him. The suggestion made by the defence to the witness that he was making a false claim that Baburam was alive and that on enquiry by him, Baburam had told him that the respondents had assaulted him with fire arms, as he was tutored by the police outside the court room was emphatically denied by him. It is interesting to note that to confuse this witness he was cross-examined for days together on the point as to where and in which direction houses of Kailash, Rajaram Subedar, Darbari etc. were situated. Such an attempt by defence lawyer can hardly be approved. On re-appreciation of evidence of Jhabbulal, this Court finds that he has not made major improvements in his testimony before the Court and the so-called discrepancies which are blown out of proportion by the High Court are minor in nature and do not relate to the substratum of the prosecution story. To say the least, this Court finds that the approach of the High Court in appreciating evidence of PW1 Jhabbulal who was a rustic witness is not only contrary to the well settled principles governing appreciation of evidence of a rustic witness but is perverse. At this stage, it would be well to recall to the memory the weighty observations made by this Court as early as in the year 1988 relating to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed as under :

Cumulative effect of the above discussion is that the High Court was not justified in brushing aside testimony of PW2, Madan Lal while considering case of the prosecution against the respondents.

Yet another ground assigned by the High Court for disbelieving the testimony of first informant Jhabbulal and that of PW2 Madan Lal is that there was no electricity light in the village and, therefore, the claim made by both the witnesses that they had witnessed the incident in the light of electricity is untrustworthy. To begin with, this Court proposes to refer to the First Information Report lodged by witness Jhabbulal. The said report was brought on the record as Exhibit Ka-1. In the report, it is clearly mentioned that at the time of occurrence of the incident, there was electricity light at the place of incident and with the help of the said light, the first informant was able to witness the incident wherein five members of deceased Guljari's family came to be murdered by the respondents. The witness Jhabbulal has further stated that his brother Babu Ram, who was sleeping in his shop was dragged out from the shop by the respondents by breaking open the door of the shop and thereafter was murdered by them by firing gun shots. Regarding murder of Babu Ram also, it is mentioned in the First Information Report that electric bulb was burning at his house at the time of occurrence of the incident and, therefore, he was able to witness the murder of his brother Babu Ram. PW2, Madan Lal has stated that his father, mother and three real brothers were murdered by the respondents by firing gun shots and had asserted that at the time of the incident one bulb was burning on the main gate of his house whereas another bulb was burning on the thatched roof, i.e., near the place where the deceased had slept during the night of the incident. Though both the witnesses were cross-examined at great length by the learned counsel for the defence, nothing significant could be brought on record from which one can, with certainty deduce that there was no light of electricity bulbs at the place of the incident. Apart from what is mentioned by the two eye-witnesses regarding sufficiency of electricity light in which they had witnessed the incident, the sketch of the spot prepared by the Investigating Officer on August 11, 1991 in the presence of independent witnesses and produced as Exhibit Ka-14 shows that point `L' mentioned in the panchnama of place of occurrence, a bulb has been shown burning at the main gate of the house of PW2 Madan Lal whereas another bulb is shown burning at the place mentioned as `AL'. Thus, assertion made by the two eye- witnesses that they were able to witness the incident because of availability of sufficient electricity light gets corroboration from contemporaneous document, namely, Exhibit Ka-14. According to the High Court, the place pointed by PW2, Madan Lal where an electric bulb was hanging has not been shown in the site plan and on the contrary it has been shown at a different place. Even if it is assumed that the place mentioned by PW2, Madan Lal where an electric bulb was hanging is different from the place shown in the site plan, the fact remains that an electric bulb was hanging at the place of incident which is completely ignored by the High Court. It is relevant to notice that PW2, during the course of recording of his statement before the Court had mentioned that he had shown to the Investigating Officer the place where the bulb was hanging but he was not in a position to specify the reason as to why the place shown by him to the Investigating Officer was not mentioned in the site plan. It may be mentioned that the Investigating Officer ASI Gajraj Singh, unfortunately, expired before the commencement of the trial and, therefore, another officer was examined who had taken a little part in the investigation. Thus, the contradiction and/or omission in the statement of the witness recorded under Section 161 of the Criminal Procedure Code could not be brought on the record of the case. In such circumstances, there was no reason for the High Court to disbelieve the claim made by PW2 Madan lal that he had shown to the Investigating Officer the place where the bulb was hanging. Jhabbulal had stated in this evidence that Guljari had taken electric line illegally be putting a wire on the main line which proceeded to the tube well of Suresh Chand DW1. The High Court relied upon the testimony of Suresh Chand that no villager had taken electricity from his tube well line and thereafter concluded that there was complete darkness in the whole village on account of Amavasya of rainy season and, therefore, it was not possible for the two eye-witnesses to witness the incident. It becomes absolutely necessary for this Court to scan the evidence of DW1. DW1 in his evidence before the Court stated that he was having a tubewell in village Lakhanpur prior to the date of incident and that tubewell was being operated with the electric power. It was also mentioned by him that the electricity connection was in running condition and that the electricity line passes through the village. What is stated by the witness is that during the night of the incident, he was not present in his village Lakhanpur but had gone to his sister's house situated in another village and that he had come back to his village on the third day of the date of the incident. If this witness was not present on the date of incident, he was least competent to depose before the Court as to whether on the date of incident there was electricity light in the village or not. A specific question as to whether on the fateful night electricity was taken illegally by putting Katiya to his wire was put to this witness. This witness was not able to answer this specific query naturally because he had admitted that on the date of incident he was not present in the village. The Trial Court rightly observed that it was not concerned with the question whether the electric power was being consumed by the villagers legally or illegally and that the Court was only concerned with the question whether there was sufficient light on the date of incident to enable the witnesses to see the incident. The High Court has misread the evidence of DW1 Suresh Chand as well as that of PW2 Madan Lal, wherein it was asserted by him that he had also taken illegal electricity connection and was consuming the same through the bulbs which according to him were burning on the date of incident. Thus the reliable evidence of PW1 and PW2 cannot be brushed aside on the ground that Investigating Officer had not taken into possession the bulbs hanging on the place of incident. Thus, the High Court was not justified in holding that there was no electric power in the whole village and that there was complete darkness on account of Amavasya of rainy season due to which it was impossible for the eye-witnesses to witness the incident. Further, the visibility capacity of urban people is not the standard to be applied to the villagers. PW2 Madan Lal has stated that the respondents had brought with them torches but as light of electricity was available in the house, torches were not put on. Thus, according to PW2 Madan Lal the respondents had in the light of electric bulb recognized the deceased persons and had fired gun shots on them. Further, if light available was sufficient for the accused persons to identify their targets for firing shots, there is no reason why the witnesses would not be able to identify the respondents as the assailants. The statement of PW1 Jhabbulal that Guljari had taken electric line illegally by putting a wire on the main line which proceeded to the tube well was disbelieved by the High Court on the ground that the Investigating Officer had not mentioned either in the site plan or in the inspection note that electric line had been taken in an unauthorized manner from the main line which proceeded to the tube-well of Suresh Chand. It is common experience of one and all that site plan or panchnama of place of incident is being prepared to indicate the state of things found at the place of incident. In site plan, Investigating Officer is not supposed to note whether electric line had been taken in an unauthorized manner or not. That is not the purpose for which site plan is prepared in a criminal case. Thus, without sufficient reason the High Court disbelieved the claim made by PW1 Jhabbulal that deceased Guljari had taken electric line illegally by putting a wire on the main line. On the facts and in the circumstances of the case emerging from the record, this Court is of the opinion that the High Court was not justified in coming to the conclusion that there was complete darkness in the whole village and, therefore, it was not possible for the eye-witnesses to see the incident.