JUDGMENT M.C. Jain, J.
1. Eight persons were tried before the III Additional Sessions Judge, Ghaziabad in Sessions Trial No. 529 of 1986. They were (1) Budhi Ram, (2) Ramesh, (3) Jagdish, (4) Rama Kant, (5) Jagat Singh, (6) Lakhpat, (7) Ran Singh and (8) Veerpal. By judgment dated 1.4.1994, all of them were convicted and sentenced to life imprisonment under Section 302 read with Section 149 I.P.C. Three of them, namely, Budhi Ram, Rama Kant and Veerpal were also convicted under Section 147 I.P.C. with rigorous imprisonment awarded to each of them for two years. The remaining five were convicted for the offence of rioting under Section 148 I.P.C. with sentence of three years awarded to each of them. The sentences awarded on two counts were ordered to run concurrently. All the eight accused have preferred this appeal.
2. During the pendency of appeal, the appellants Jagdish and Veerpal have died and the appeal has abated so far as they are concerned. Presently, this appellate court is concerned with the remaining six accused appellants.
3. In all, there were eleven accused i.e., present eight appellants and three others, namely, Hari Kishan, Hari Bhajan and Jeet Singh. Hari Kishan and Har Bhajan expired and Jeet Singh continued to be an absconder. He was so declared under Section 299 of Cr.P.C. The orders regarding absconder had been passed on 15.9.1993 and the other relevant order was passed on 17.3.1994. It was in this way that only eight accused appellants named above were put to trial.
4. Coming to the point, the incident occurred in between the night of 5/6.10.1986 at about 1 O' clock in the jungle of village Udaipur at a distance of about 12 kms from the concerned Police Station Babugarh, District Ghaziabad and the F.I.R. was lodged on 6.12.1986 at 8.30 A.M. by Sher Singh PW 1 (eyewitness). The broad essentials of the case, as emerging from the F.I.R. and the evidence adduced before the court, may be set forth. In between the fateful night the complainant Sher Singh PW 1 and his brother Om Prakash PW 3 were present on their fields and the tube-well, situated at the outskirts of village Udaipur. They were irrigating their fields, looking after the irrigation of water to their paddy crop. Nand Ram-father of the complainant, Mahipal and Veerpal (sons of the complainant Sher Singh) and Dharam Pal son of Udai Veer (nephew of the complainant Sher Singh) were also present on the tube-well where the flour mill (Chakki) was also running. The last mentioned four persons were running the Hour mill (Chakki) and tube-well and were present there. At about 10' clock in the night, the accused Ran Singh, Jeet Singh, Hari Kishan, Ramesh and Jagdish armed with countrymade pistols; Lakhpat and Jagat Singh armed with Farsas; accused Veerpal armed with hockey; Rama Kant, Budhiram and Harbhajan armed with lathisreached the spot. There was enmity with Budhiram over some land. These persons assaulted Nand Ram, Mahipal, Veerpal and Dharam Pal. The complainant and his brother Om Prakash who were irrigating the field, rushed to the spot and found the accused persons firing and assaulting the above named Nand Ram, Mahipal, Veerpal and Dharam Pal. On spotting the complainant Sher Singh and Om Prakash, the assailants tried to pounce upon them also and gave them a chase. Both of them fled-away to the village and fetched other persons therefrom. Reaching the tube-well, "they found that all the four persons named above i.e., Nand Ram, Mahipal, Veerpal and Dharam Pal were lying dead on cots. Owing to fear, the complainant could not dare going to the police station in the night. On day break, he went to the police station with a written report which was scribed by Richhpal Singh and presented it there. A case was registered and investigation followed as usual.
5. The post mortem over the dead bodies of the four deceased was conducted by Dr R.L. Saraswat PW 4.
6. The post mortem over the dead body of Nand Ram was conducted by the said Doctor on 7.10.1986 at 2.30 P.M. He was aged about 65 years and about 1 1/2 to 2 days had passed since he died. The following ante mortem injuries were found on his person:
1. Gunshot wound with black and inverted margins 4 cm x 5 cm in epigastric going transversely piercing liver and stomach and small intestine.
2. Incised wound 4 cm x 1/2 cm vertical in shape on forehead and skin deep tapering downwards.
3. Incised wound 4 cm x 1/2 cm x skin deep on the back side of head on the occipital region transversely tapering towards left side.
7. On internal examination, two wadding pieces and two pellets were recovered from the stomach and small intestine. The death had been caused by injuries sustained. The injuries could be caused by firearm and Farsa.
8. The post mortem over the dead body of Veerpal was conducted by the same Doctor on 7.10.1986 at 3 P.M. He was aged about 14 years and about 1 1/2 to 2 days had passed since he died. The following ante mortem injury was found on his person:
1. Traumatic swelling with contused marks on the right side face, scalp and right ear with bleeding from right ear.
9. On internal examination, the right side of mandible was found fractured. Right side temporal and parietal bones were fractured with crush of membranes. Brain was lacerated on right side with bleeding. The death had occurred due to shock and haemorrhage resulting from ante mortem injury.
10. The autopsy on the body of Mahipal was conducted on 7.10.1986 at 4 P.M. He was aged about 18 years and about 1 1/2 to 2 days had passed since he died. The following ante mortem injuries were found on his person:
1. Gunshot wound of entry with black margins inverted 5 cm x 3 cm on the left side of chest piercing up to lungs.
2. Lacerated wound 10 cm x 8 cm x muscle deep on the left upper arm inner side of axilla and muscle deep.
3. Contusion 5 cm x 3 cm on the middle and back of left forearm.
4. Incised wound 3 cm x 1/2 cm x skin deep on the left side scalp above left ear.
11. On internal examination, pleura and ribs were found to be pierced by injury No. 1. Left lung was punctured with about 1/2 litre blood in the lung cavity. Heart was found to be punctured on the left side. One wadding piece and 23 pellets were recovered from left lung and heart. The injuries were caused by firearm, blunt weapon and sharp edged weapon such as Farsa.
12. The post mortem over the dead body of Dharam Pal was conducted by the Dr R.L. Saraswat PW 4 on 7.10.1986 at 4.15 P.M. He was aged about 14 years and about 11/2 to 2 days had passed since he died. The following ante mortem injuries were found on his person:
1. Gunshot wound of entry with black and inverted margins 5 cm x 4 cm on the right side of abdomen. It was abdomen cavity deep with the intestine coming out.
2. Gunshot wound of entry 5 cm x 4 cm on the left thigh lower third part going above and vertically, piercing the left femur corresponding to injury No. 3 which was a wound of exit.
3. Wound of exit 5 cm x 4 cm on the left thigh middle anteriorly.
4. Incised wound 3 cm x 1/2 cm x skin deep on the left side of forehead.
5. Incised wound 3 cm x 1/2 cm x skin deep on the left side forehead 4 cm below injury No. 4 posteriorly.
13. On internal examination, one wadding piece and 16 small pellets were recovered from the abdomen. The injuries could be caused by firearms as also by Farsa.
14. So, taking cumulatively, four deceased sustained injuries of firearms, sharp edged weapons as well as blunt weapons.
15. The defence was of denial and false implication.
16. The prosecution in all examined nine witnesses. Out of them, Sher Singh PW 1 and Om Prakash PW 3 (sons of the deceased Nand Ram) were the eyewitnesses of fact. Head Constable Ram Autar Singh PW 2 had scribed the chik F.I.R. and made entry in G.D. Dr. R.L. Saraswat PW 4 had conducted post mortem over the dead bodies of four deceased. S.I. Udal Singh PW 5 and S.I. Yashbir Singh PW 8 had prepared inquest reports. S.H.O. Pitam Singh PW 6 and S.I. Raj Pal Singh PW 9 were Investigating Officers of the case. Constable Suresh Chanel PW 7 had taken the dead bodies for post mortem.
17. The evidence adduced by the prosecution having commended itself to the trial judge, he convicted the accused appellants as recorded earlier. The matter is now in appeal before this Court.
18. We have heard Sri P.N. Misra, learned Senior Advocate assisted by Sri S.A. Jilani for the accused appellants and Sri Karunanand Bajpai, learned A.G.A. for the State. The record is before us which we have carefully perused.
19. The first argument of the learned Counsel for the accused appellants is that the F.I.R. was ante timed. This argument was sought to be supported by the fact that in the challan of the dead body of Dharmpal deceased (Ext.Ka-6), the time of incident was shown as 10 P.M. Similarly in the challan of the dead body of the deceased Veerpal (Ext.Ka-14), the same time (10 P.M.)"was shown. It is to be noted that as per the F.I.R. containing the first version of the incident, the occurrence took place at about 10' clock in between the night of 5/6.10.19S6. To the same effect was the testimony of the two eyewitnesses, namely, Sher Singh PW 1 informant and Om Prakash PW 3. It is important to note that the F.I.R. was lodged on 6.10.1986 at 8.30 A.M. by Sher Singh PW 1. The distance of the police station from the place of occurrence was about 12 kms. So, in this case, the defence could also advance the argument of the F.I.R. being belated. It goes without saying that ante timing of the F.I.R. is an act of manipulation. If someone applies his manipulating skill to ante time the F.I.R., he would not do in such a way as to provide a foot board to the defence to dub the F.I.R. to be belated also. To say in simple words, while ante timing the F.I.R., such time would be shown as would sound to be reasonable having regard to the facts and circumstances of the case as also the distance of the police station from the place of occurrence. The consistent case of the prosecution was perfectly believable that the F.I.R. was lodged at 8.30 A.M. by Sher Singh PW 1, an eyewitness. Four members of his family had been murdered in this incident whose dead bodies were lying at the spot. He could not be expected to rush to the police station at the dead of the night to lodge the F.I.R. It was mentioned in the F.I.R. itself that due to fear he could not dare to reach the police station in the night. The explanation was very plausible.
20. The F.I.R. could not be deemed to be ante timed on the basis of two challans of the dead bodies (Ext. Ka-6 and Ext.Ka-14) in which the time of incident was written as 10 P.M. In all other relevant papers (including challans of the dead bodies of Mahipal and Nand Ram Ext. Ka-23 and Ka-28 respectively) the time of incident was mentioned as 1 A.M. We note that S.I. Udal Singh PW 5 had prepared the Panchayatnamas and related papers of the dead bodies of Dharmpal and Veerpal whereas the other S.I. Yashveer Singh PW 8 had prepared the Panchayatnamas and related papers of the dead bodies of Nand Ram and Mahipal. Both of them had accompanied the Investigating Officer Rajpal Singh PW 9 to the place of incident after the lodging of the F.I.R. The time of incident as 10 P.M. could have been written by S.I. Udal Singh PW 5 in the challans of the dead bodies of the deceased Dharmpal and Veerpal by inadvertence. To err is human. The F.I.R. could not be termed to be ante timed simply because he happened to commit such mistake in writing the time of incident in the challans of the dead bodies of Dharmpal and Veerpal, regard being had to the fact that the time of incident is recorded as 1 0' clock in the night in all other relevant papers and the same is also consistent right from the lodging of the F.I.R. till the furnishing of evidence in the court. Actually, the incident took place on 5/6.10.1986 at about 10 clock. We, therefore, reject the argument of the F.I.R. being ante timed.
21. The learned Counsel for the accused appellants then argued that no source of light was mentioned in the F.I.R. Really speaking, this argument belies and runs counter to the first argument of the F.I.R. being ante timed (which we have rejected above with requisite discussion). Anyway, since it has been raised at the Bar, we would say a few words about it. We should point out that the F.I.R. is not an encyclopaedia of every minute detail The non-mention of the light specifically in the F.I.R. rather manifests its genuineness and spontaneity. Further, the main substratum of the prosecution case was given in the F.I.R. i.e., the time and place of incident; manner in which it happened; the names of assailants with their weapons; persons who witnessed the incident etc. It is also significant to note that the F.I.R. clearly stated that at the time of incident, the tube-well was running and flour mill was also operating. The Hour mill was being run by four deceased persons while the informant Sher Singh PW 1 and another eyewitness Om Prakash PW 3 were looking after the fields which were being irrigated. Neither the tube-well nor the Hour mill could be run without electricity. We should say in passing that the accused appellants could also not target their objects in pitched darkness. Both the eyewitnesses empathetically spoke about the lighted bulbs at the spot. In the site plan also, the Investigating Officer showed existence of two bulbs, one on the electric pole in southern side and other at the Osaraof the tube-well. So, the presence of the light could not at all be doubted. The irrigation activity and operation of flour mill could not at all be possible without electricity being there. The F.I.R. version was impregnant of the factum of light being there in the shape of lighted bulbs at the spot. The argument falls through.
22. The third argument of learned Counsel for the accused appellants, is that there was conflict between the ocular testimony and medical evidence. On scrutiny, we do not find any substance in it. The scrutiny of the post mortem reports (details of which has been given above) reveals that taken cumulatively, the four deceased sustained firearm injuries as also of sharp edged weapons and blunt objects. The prosecution case as per the F.I.R. and the evidence adduced in the court was that these three types of weapons had been used by the accused appellants in murdering the four deceased. Therefore, the medical evidence perfectly dovetails with ocular testimony. The argument is accordingly rejected.
23. Lastly, the learned Counsel for the accused appellants criticized the testimony of the two eyewitnesses, namely, Sher Singh PW 1 and Om Prakash PW 3 and persuaded us to disbelieve their presence at the spot. It should be prefaced before proceeding further that enmity between the prosecution side and the accused appellants is an admitted fact. All the accused appellants in their statements under Section 313 of Cr.P.C. spoke about the enmity which, according to them, was the reason of the eyewitnesses deposing against them. The prosecution side also came with a background of enmity. Sher Singh PW 1 stated that his father Nandram deceased had purchased land from Rangroop. Sohan Lal-father of accused Budhiram had instituted a civil suit against Nandram deceased in respect of Rangroop's land purchased by him. Rangroop was the son of Sohan Lal's brother Hare Ram. Another enmity spoken by him was that on 26th January preceding the incident, Ran Singh accused had opened fire on Sher Singh PW l's brother. The accused Ran Singh and Jeet Singh were real brothers and Veerpal accused was said to be the Bhanjaof Ran Singh. Jagdish Singh, Jagat Singh, Ramesh, Hari Kishan and Rama Kant were said to be related or bracketed with Budhiram accused. The accused Har Bhajan was the son of Lakhpat accused. Har Bhajan's grandmother Mohania had allegedly sold some land through a sale deed in favour of Sher Singh PW 1 to which Har Bhajan had objected and litigation was going on. This was the third source of enmity.
24. To come to the point, as stated earlier, enmity between the two sides was an admitted fact.
25. The gist of the testimony of the eyewitnesses Sher Singh PW 1 and Om Prakash PW 3 should profitably be set out here. Sher Singh PW 1 stated that he and his brother Om Prakash were running the tube-well and irrigating their fields. Both of them were actually on the field and irrigating the same. Both of them were at paddy field at the south-west of the tube-well room at some distance. The tube-well was in the name of his father Nandram. The flour mill was also there which was being run on that night by his son Veerpal and Mahipal and his nephew Dharmpal. His father was sitting on a cot in a Chhaper. The Hour mill was being run with the power of electricity. The bulbs were alight. While he and Om Prakash were on the field, they heard the sound of fire and then both of them proceeded running towards the tube-well room. He found that the accused Ran Singh, Jeet Singh, Hari Kishan, Ramesh and Jagdish armed with countrymade pistols; Veerpal armed with hockey; Rama Kant, Budhiram and Har Bhajan armed with lathis; Jagat Singh and Lakhpat armed with Farsaswere there who were assaulting his father, two sons and the nephew. It was also specifically stated by him that Hari Kishan and Ran Singh had fired on his father Nandram. Mahipal was assaulted with Farm by Lakhpat and Jagat Singh. He cried and attracted the attention of assailants who proceeded towards him and his brother Om Prakash. Then they fled away. According to him, he saw the accused opening 5 or 6 shots. It was also stated by him that Jeet Singh had opened shot on Mahipal and Jagdish had opened shot on Dharampal.
26. Om Prakash PW 3 supported the testimony of. Sher Singh PW 1 in all material particulars, saying that he was present with his brother Sher Singh PW 1 in his field in connection with irrigation; light was there on the tube-well; the tube-well was running and the Hour mill was also running. He heard the sound of fire and then proceeded to the place of incident and saw it. So far as the specific role assigned to the assailants by this witness is concerned, it has come in his testimony that it was Ramesh who had shot Veerpal deceased; Jagdish shot on Dharam Pal; Lakhpat and Jagat Singh assaulted Mahipal with Farsa: Jeet Singh had shot Mahipal.
27. The fact of Veerpal accused being armed with hockey has specifically been stated by Sher Singh PW 1 as well as by Om Prakash PW 3.
28. There is no reason whatsoever to doubt the presence of Sher Singh PW 1 and Om Prakash PW 3 at the spot. Needless to say, in the irrigation operations going on throughout the night a number of family members or persons are required to attend the same. In the present case, there was an additional factor that the flour mill (Chakki) was also being run that night. Therefore, a number of male family members were naturally to be there to attend the irrigation operations and the running of flour mill (Chakki). It has to be observed that four deceased were of the same family. Nandram was the father of Sher Singh and Om Prakash. Nandram and his three grandsons were murdered. Two of them were Veerpal and Mahipal (sons of Sher Singh). The third one was Dharmpal son of Udai singh (another son of Nandram). The presence of Sher Singh PW 1 and Om Prakash PW 3 was natural and most probable having regard to the activities to be carried out there. It is also significant to point out that the dead bodies of Dharmpal, Veerpal and Mahipal were found there on the same cot. The dead body of Nandram was found on another cot. The three deceased having been found on one and the same cot was an indicator that they had been so zeroed in on that they could not even get down from the cot and so was the case with the fourth deceased Nandram whose dead body was found on the other cot. All of them were unarmed. The two eyewitnesses Sher Singh PW 1 and Om Prakash PW 3 being engaged in irrigating paddy field at a short distance in south-west of the tube-well could naturally run towards the tube-well on hearing shooting round and were very well in a position to witness the incident immediately after attack had been launched by the assailants.
29. To repeat, the presence of Sher Singh PW 1 and Om Prakash PW 3 at the spot was very natural. The tube-well being on, certainly some persons must have been in the fields to watch the water going and to convert its flow through Nalisat different places as per requirement. The presence of these persons was most natural under these circumstances Sher Singh PW 1 and Om Prakash PW 3 were, indeed, there on the fields in south-west of the tube-well as they empathetically stated. The whole conduct of these two eyewitnesses was natural that when the assailants chased them, out of fear they ran away and saved their lives. When so many assailants armed with deadly weapons were there, their natural instinct impelled them to run away to save their lives. By the time, they returned a short-while later, the job had been finished by the assailants.
30. The witnesses are the eyes and ears of justice. No doubt, the eyewitnesses' account requires a careful independent assessment and evaluation for its credibility. No particular number of witnesses is necessary. It is the quality of evidence, and not the quantity that matters. The present incident took place at the dead of night at the outskirts of the village on the tube-well of the deceased, when no other persons excepting the family members engaged in irrigation operations and running the flour mill could be there. Where there is no evidence that any person other than those examined saw the incident, the question of examination of any other witnesses could not arise at all.
31. Mere relationship or interestedness is not sufficient to discard the testimony of Sher Singh PW 1 and Om Prakash PW 3. Their presence on the spot cannot at all be doubted. A close relative is to be treated as a normal witness, particularly when his presence at the spot is natural and beyond doubt and none else was there to witness the incident.
32. True, the testimonial assertions of the two eyewitnesses reconciled with the medical evidence as we indicated a little earlier, inasmuch as the injuries of firearms, sharp edged weapons and blunt weapons had been sustained by the four deceased. However, on careful and critical scrutiny of testimony of the two eyewitnesses Sher Singh PW 1 and Om Prakash PW 3, we are of the opinion that the benefit of doubt has to be afforded to the two accused, namely, Budhiram and Rama Kant. We shall spell out our reasons for such approach. As we said, enmity between the two sides is an admitted fact in this case. At times, inimical relations between the prosecution and the accused side serve as an inducement to the members of the family of the prosecution side to falsely implicate their enemies. Even when only some members of the rival group are involved in the offence, some innocent persons are also roped in. The court has to be circumspect in the appreciation of the evidence so that over-emphasis on the enmity factor does not cause either the innocent to be wrongly convicted or the guilty to be wrongly acquitted. The only real safeguard against the risk of connecting the innocent with the guilty lies in insisting on acceptable evidence which in some cases implicates such accused and satisfies the conscience of the court. In such cases, no doubt the prosecution witnesses clam to have seen the occurrence involving all the accused but it is safe only to convict those who are stated to have taken active part and about whose identity there is no reasonable doubt. This is the gist of what the Supreme Court held in the case of Bajwa v. State 1973 Criminal Law Journal Page 769.
33. In the present case, cumulatively taken, four deceased sustained only three blunt weapon injuries. One was lacerated wound on the left upper arm inner side of axilla sustained by Mahipal. The other blunt weapon, injury, sustained by him was contusion on the middle and back of left forearm. Third blunt weapon injury was traumatic swelling with contused marks on the right side face, scalp and right ear with bleeding from right ear sustained by Veerpal. It was the sole injury sustained by him. But the prosecution case was. that the four assailants, namely, Veerpal, Rama Kant, Rudhiram and Har Bhajan were armed with blunt weapons. Out of them Veerpal accused, who died during the pendency of the trial, was armed with hockey. Had four, persons armed with blunt weapons taken part in the assault of four deceased, they would have ordinarily received much more blunt weapon injuries than only three as discussed above. Doubtless it is that blunt weapon/weapons, were definitely used, but the identity of blunt weapon assailant, other than that of Veerpal, is somewhat doubtful. It would be recalled that both the eyewitnesses specifically spoke about Veerpal accused being armed with hockey, but as regards other lathi wielding accused, their statement is omnibus in nature. Therefore, so-called lathi wielding accused appellants Budhiram and Rama Kant should be afforded the benefit of doubt. Veerpal accused who wielded hockey as specifically stated by both the eyewitnesses died during the pendency of appeal" and the same on his behalf abated. The specific role and participation of the accused Ramesh, Jagdish, Jagat Singh, Veerpal Lakhpat, Run Singh, Jeet Singh and Har Kishan has come in the testimony of the two eyewitnesses. Out of them, Har Kishan died during the trial itself and Jagdish died during the pendency of the appeal. Jagat Singh and Lakhpat had wielded Farsas and it should be stated at the risk of repetition that the deceased did receive injuries of sharp edged weapons. Others just named by us had used firearms and all the deceased excepting Veerpal deceased had received gunshot injuries.
34. The number of assailants was definitely more than five. There was unlawful assembly and in the prosecution of common object of that assembly merciless murder of four persons was committed by the members of unlawful assembly.
35. Jagdish and Veerpal have died during the pendency of the appeal. The long and short of the above discussion is that benefit of doubt is to be afforded to the other two accused appellants, namely, Budhiram and Rama Kant. The conviction and sentences passed against the other four accused appellants, namely, Ramesh, Jagat Singh, Lakhpat and Ran Singh deserve to be affirmed.
36. Resultantly, we partly allow this appeal. The accused appellants Budhiram and Rama Kant are afforded the benefit of doubt. The conviction and sentences passed by the trial court against them are set aside and they are acquitted. The conviction and sentences passed against the accused appellants Ramesh, Jagat Singh, Lakhpat and Ran Singh under Sections 148 I.P.C. and 302 read with Section 149 I.P.C. are affirmed. Each of them shall undergo life imprisonment under Section 302 read with Section 149 I.P.C. and three years' rigorous imprisonment under Section 148 I.P.C. Both the sentences shall run concurrently. These accused appellants are on bail.
37. The Chief Judicial Magistrate, Ghaziabad is directed to cause the accused appellants Ramesh, Jagat Singh. Lakhpat and Ran Singh to be arrested and lodged in jail to serve out the sentence passed against them. The compliance report shall be submitted within two months from the date of receipt of a copy of this order.
38. Certify the judgment to the lower court within a week for needful action and compliance.