JUDGMENT M.C. Jain, J.
1. The appeal has been filed by the accused appellant Chingi alias Siya Ram against the judgment and order dated 20th April 1981, passed by Sri T.P. Gupta, the then V Additional Sessions Judge, Kanpur in Sessions Trial No. 543 of 1980. He has been convicted under Section 302 I.P.C. and under Section 323 read with Section 34 I.P.C. For the former offence, life imprisonment has been awarded to him and for the latter, the sentence passed is rigorous imprisonment for two months. Both the sentences have been ordered to run concurrently.
2. Filtering out unnecessary details, the relevant facts may be stated shortly. The incident took place on 30.9.1980 at about 10.30 P.M. at the cluster of shanties at the brick kiln of one Sadhu Ram in village Bhausi Pratappur, P.S. Sachendi , District Kanpur. One Garibey was murdered in the incident and hurt was caused to Smt. Shiv Raje, Pappi and Gaya Deen. Garibey deceased alongwith his sons PW1 Pappi, PW 2 Gilli, Sri Chand, his own wife and wife of iris son Gilli was living in the cluster of shanties situated at the brick kiln aforesaid. There were three shanties adjoining one another. In one of them, Srichand with his wife was living. The other one was occupied by PW 2 Gilli with his wife and in the third one Garibey with his wife and other sons used to live. There was open space in front of these shanties, adjoining Bhimsen Road. These persons were Patheras (specialised labourers for preparing bricks at the brick kiln). The office of the brick kiln of Sadhu Ram was also there in a double storeyed building consisting of one room on each floor. On the top of it, there was electric pole on which an electric bulb was glowing illuminating the vicinity. When the persons aforesaid were sleeping outside their shanties, the accused appellant along with his two companions came there. He woke up PW 7 Ram Kanya-wife of PW 2 Gilli. Garibey, who was also sleeping nearby, woke up and surprisingly asked Chingi as to why he was there at that moment.
3. The accused appellant Chingi had a countrymade pistol while his two companions had Danda and lathi. Other persons sleeping; nearby also got up. Garibey wanted to catch hold of Chingi but he fired on him by countrymade pistol causing injuries to him. Sustaining the injuries, Garibey ran towards roadside after Chingi but the latter took a turn towards grove of guava and thereafter Garibey went a little ahead and fell down near the shanty of Putti Lal across the road. The other people, namely, PW 1 Pappi son of Garibey, PW 5 Gayadin (sleeping nearby) and Smt. Sheoraje wife of Garibey also got up and tried to apprehend the miscreants, but they were assaulted by the companions of the accused appellant Chingi and were caused injuries. Chingi was well recognised in the light of electric bulb glowing at the top of the office of brick kiln of Sadhu Ram. Chingi and his companions managed to escape from the spot. Garibey was brought thereafter by PW 2 Gilli and other persons who took him to the hospital in a tractor but by the time he reached there, he succumbed to his injuries. Gilli thereafter came to the village and got a report scribed by Shiv Sagar Misra which he lodged at the Police Station. A case was registered at 0045 A.M. on 1.10.1980. The investigation followed as usual at the hands of PW 10 S.O. Mohd. Zahurul Hasan.
4. Smt. Sheoraje was medically examined the same night by PW 6 Dr. P.P. Gupta in U.H.M. Hospital, Kanpur. The following injuries were found on her person:
1. Contusion 4 cm x 3 cm on the lateral side of the left forehead.
2. Contusion 5 cm x 3 cm on the left side of left cheek.
3. Contusion 4 cm x 2 cm on the left elbow joint on the outer aspect.
5. The injuries were simple. Their duration was fresh and they were caused by blunt weapon.
6. The injuries of Pappi were examined on 1.10.1980 at 11.55 AM by PW 4 Dr. S.K. Luthra. The following injuries were found on his person."
1. Abrasion 3 1/2 cm x 1/2 cm on forehead, 1 cm above the base of nose.
2. Multiple abrasions over an area of 3 cm x 4 cm x medial side of right forearm, 7 cm below the right elbow ranging from 1/2 cm x 1/2 cm to 1 cm x 1/2 cm.
7. The injuries were simple and about half day old. They were caused by friction against blunt hard object.
8. The injuries of Gayadin were examined by the same Doctor on 1.10.1980 at 12.30 P.M. who found the following injuries on his person:
1. Abrasion 1 cm x 1/2 cm present 5 cms above and anterior to right ear.
2. Abrasion 1 cm x 1/2 cm, 2 cm lateral to right eye.
9. The injuries were simple and caused by friction against some hard object. They were about half day old.
10. Post mortem over the dead body of the deceased Garibey was conducted by PW 8 Dr. Gulab Chandra on 1.10.1980 at 3.30 P.M. He was aged about 55 years and about 1/2 day had passed since he died. The following ante mortem injuries were found on his person:
12. As has come in the evidence of the prosecution, the motive for the commission of the crime was that about 5 days before the occurrence, the accused appellant had come and lived with Sri Chand-elder son of Garibey. He remained at his place for three days and during this period, he developed intimacy with Smt. Ram Kanya PW 7 (wife of Gilli). On the day of his departure he had asked Ram Kanya to accompany him to be kept as his wife because he had deserted his own wife. Ram Kanya advised him to ask her father in that behalf.
13. The defence was of denial. According to the accused appellant, the witnesses were under the pressure of the pro(sic).
14. The prosecution in all examined 11 witnesses in support of its case including medical evidence and that related to the investigation of the case as also of formal nature. The material witnesses were PW 1 Pappi, PW 2 Gilli, PW 3 Putti, PW 5 Gayadin and PW 7 Ram Kanya. No witness was examined by the accused in defence, though he filed two documents.
15. Believing the prosecution evidence, the trial Judge recorded the impugned judgment.
16. We have heard Sri Devendra Swarup, learned counsel for the appellant and Sri S.S. Yadav, AGA from the side of the State in opposition of the appeal.
17. The judgment is assailed from the side of the appellant on the grounds that the F.I.R. was lodged after consultation; that the eyewitnesses are wholly unreliable; that there was no light at the spot; that it was a hit and run case in which none of the witnesses could recognise the assailant(s); that actually it was a case of dacoity given a twist by the prosecution; and that the conduct of PW 7 Ram Kanya was wholly unnatural of having informed other members of the family, giving indication of her intimacy with Chingi and her tacit willingness to elope with him. We shall examine the worth of these submissions one by one.
18. We, however, wish to say before proceeding further that it is amply proved by the post mortem report of the deceased that he died of gunshot injuries and further that the injured of this felony did receive blunt weapon injuries capable of being caused by Danda/lathi which are said to have been used by the two unknown companions of the accused appellant.
19. As mentioned earlier, PW 1 Pappi, PW 2 Gilli-informant, PW 3 Putti, PW 5 Gayadin and PW 7 Ram Kanya-wife of Gilli were examined as eyewitnesses. Out of them PW 1 Pappi and PW 5 Gayadin are injured also of this incident whose injuries of blunt weapon have been related earlier. PW 1 Pappi is the brother of PW 2 Gilli (both being sons of deceased Garibey). The gist of testimony of these witnesses may be set forth for appreciation of the succeeding discussion. PW 1 Pappi was sleeping in front of his shanty and woke up on hearing noise. This too was stated by him that Chingi accused appellant was waking up his sister-in-law Ram Kanya. In the meantime, his father also woke up and asked Chingi as to why was he there at that moment. Then Chingi fired at his father causing injury to him. Receiving the injury, his father ran for a few paces and fell down. He also stated that two other persons were also there with Chingi and when he along-with Gayadin chased them, he and others were assaulted by those two. The testimony of PW 2 Gilli, PW 3 Putti and that of PW 7 Ram Kanya is corroborative of what has been deposed by PW 1 Pappi. They, too, stated that in the night of the occurrence they were sleeping outside their shanties where Garibey, Pappi, Sri Chand, Sri Chand's wife, another son of Garibey and Garibey's mother were also sleeping. At some distance their neighbour PW 5 Gayadin was also sleeping. Across the road, PW 3 Putti was sleeping. At the nearby office of Sadhu Ram, a bulb was glowing at the top of the building. It is specifically there in the testimony of PW 7 Ram-Kanya wife of Gilli that the accused Chingi came to her and woke up her. She woke up and saw him. Her father-in-law also woke up including other inmates of the family sleeping nearby. Her father-in-law Garibey accosted Chingi as to why he had come there at that moment. Chingi then fired at him causing injuries to him. On sustaining injuries, Garibey ran and fell near the shanty of Putti Lal. It is there in the testimony of all of them that there were two other persons also with Chingi, who assaulted Sheoraje (wife of Garibey), Pappi and Gayadin who had run to apprehend them. Along with them, Gilli had also rushed.
20. It is also on record through the evidence of eyewitnesses that Garibey was being taken to the hospital on tractor but he died by the time he reached there. Leaving the dead body at the hospital, PW 2 Gilli came back to the village, got the report written by Shiv Sagar Misra which he lodged at the Police Station. The witnesses have stated that five days before the incident, Chingi had come and stayed at the house of Sri Chand (elder brother of Gilli). When Gilli had returned from the hospital, he was immediately told by his wife PW 7 Ram Kanya that before departing from the house of Sri Chand two days before the incident, Chingi had asked her to accompany him and to live with him as he had left his own wife, but PW 7 Ram Kanya had told him to talk about it to her father.
21. Though PW 5 Gayadin is an injured of the incident, but in his cross-examination he stated that he had not seen Chingi firing at Garibey. He, however, admitted that he had seen him at the time of the incident. He was declared hostile by the prosecution. It was stated by him in his examination-in-chief that a few days earlier to the incident, Chingi had come and stayed with Sri Chand for three days. The incident occurred after a day of his leaving. In his examination-in-chief, his statement was also to the effect that he had seen Chingi firing on Garibey. He chose to resile from this part of his statement in his cross-examination.
22. It would now be proper to consider the arguments of the learned counsel for the appellant. The contention that the F.I.R. was written subsequently after consultation has no foundation. There is no material on record to support it. PW 2 Gilli has emphatically asserted that after leaving the dead body of his father in hospital, he got the report scribed and then lodged the same at the Police Station. The statement of the Investigating Officer PW 10 Mohd. Zahurul Hasan is there that the report had been lodged at the Police Station in his presence and thereafter he had proceeded to the spot where he reached at about 1.30'0 clock in the night. To our mind, it is simply a stock argument that the F.I.R. was written subsequently after consultation.
23. Secondly, the challenge to the availability of light at the spot can also not be sustained which is the second argument from the side of the accused-appellant. The prosecution has proved by abundant evidence coming through the statements of eyewitnesses that there was electric light of the bulb at the top of office of Sadhu Ram by the side of hutment where the incident occurred. It was illuminating the scene of occurrence. The office was double-storied. It was not a big one but only consisted of one room on each floor. PW 1 Pappi, PW 2 Gilli, PW 3 Putti, PW 7 Ram Kanya and even PW 5 Gayadin (hostile witness) spoke about the light of electric bulb glowing over the top of Sadhu Ram's office. The statement of PW 10 Mohd. Zahurul Hasan (Investigating Officer) was also there that when he had reached the spot in the night, he had found electric bulb glowing at the top of the office of Sadhu Ram and owing to that, there was sufficient light in the neighbourhood. Therefore, we reject the second argument of the learned counsel for the appellant.
24. The third argument of the learned counsel for the appellant of the incident being a hit and run case with no opportunity to the witnesses to see the assailants, does not stand scrutiny. There is not the slightest doubt in this regard either that five days before the incident, Chingi had come to stay with Sri Chand (son of Garibey and brother of PW 2 Gilli) as he was the maternal uncle of Sri Ghand's wife. He had left two days before the incident. Therefore, all the eyewitnesses knew him from before. All the persons living in close hutments could very well know him during his stay at Sri Chand's hut or shanty. All the members of the family of Garibey including his wife, sons and their wives were sleeping in the open outside their hutment, when the incident occurred. The statement of PW 7 Ram Kanya is that she was sleeping behind by the side of a wall about 1 1/2' high and on the other side of the wall her father-in-law Garibey was sleeping. When the accused Chingi tried to wake her up, her father-in-law also woke up and accosted Chingi as to why he was there at that moment. It was natural that all others sleeping nearby also woke up. They could very well see him in the available light. They have emphatically asserted that they saw Chingi firing on Garibey. It is to be taken note of that the shot was fired by Chingi at Garibey instantly when the latter accosted him by name. As a natural instinct, Garibey could chase him for a few paces to apprehend him, even after receiving injury. It was definitely a close range fire because blackening around the wounds had been found as reported in the post mortem report. According to the Doctor, firearm injury was caused to Garibey from within a distance of about 6 ft. and it is corroborative of the statements of eyewitnesses who, too, stated that the shot had been fired by Chingi on Garibey from within a distance of 2-2 1/2 paces. (vide statements of PW 2 Gilli and PW 3 Putti). After running for a few paces, Garibey fell down near the hutment of Putti Lal across the road at a distance of 20-30 paces. Learned counsel for the appellant urged that according to the Doctor, Garibey could not run beyond 10 paces after receiving the injury, but as per the prosecution evidence he had fallen down at a distance of about 30 paces from the place where he had sustained injuries. According to him, it creates doubt about the place where Garibey sustained injuries. PW 10 Mohd. Zahurul Hasan (Investigating Officer) has stated that the distance of the place where the deceased had fallen down was about 25-30 paces from the place of his receiving the gunshot.
25. Suffice it to say to meet the argument of the learned counsel for the accused appellant that if he (Garibey) could run to a distance of 10 paces, he could also run for further few such paces before falling down near the hutment of Putti Lal. It all depended upon his will power and vitality. The distances are not supposed to be measured as if with measuring tape but in a logical manner. There was blood at the place the deceased had fallen down (as shown in the site plan) and there was trail of blood in the way through which he had run as shown in the site plan Exhibit Ka-8.
26. There is no material contradiction in the testimony of the eyewitnesses. Even on ignoring the testimony of PW 5 Gayadin, the testimonial assertions of other eyewitnesses-PW 1 Pappi, PW 2 Gilli, PW 3 Putti and PW 7 Ram Kanya proved to the hilt that the assailant of Garibey was the accused appellant Chingi and none else. As a matter of fact, the time of the incident and the presence of Chingi there could not be denied even by the hostile witness PW 5 Gayadin who himself is an injured person, but seemingly crossed over to the side of the accused appellant by saying that he did not see him firing at Garibey. He admitted in his cross-examination that he and the accused Chingi were of the same caste 'PASI'. For some reason or the other, he developed soft corner for the accused appellant. His testimony apart, the accused appellant is established to be the shooter and murderer ' of Chingi.
27. The main substratum of the testimony of eyewitnesses, namely, PW 1 Pappi, PW 2 Gilli, PW 3 Putti and PW 7 Ram Kanya has remained unshaken. They are illiterate rustics living in hutments and doing work of brick-making. The central core of their testimony proving the guilt of the accused appellant Chingi has remained unshaken, though being rustics, everyone of them could not make use of selective words. It goes without saying that when many persons look at an event, they have their own individual power of narration and natural variations are bound to there in their testimony. Everyone recounts the event in his own way. They cannot be disbelieved on a pedantic approach to find fault with their testimony. Out of them PW 1 Pappi is even injured witness who and few others had been assaulted by lathi and danda by two unknown companions of the accused appellant.
28. The contention that it was a dacoity and none identified Chingi and that he was named on account of enmity, is wholly based on imagination. Chingi could not allege enmity with any of the witnesses. He could not show any reason for his false implication. He simply made a vague statement under Section 313 Cr.P.C. that the witnesses were speaking against him on account of police pressure. He could not show any enmity with the police personnel either who allegedly exercised their pressure on the witnesses to depose falsely against him. No sign of any loot or plunder was found. The F.I.R. also did not say anything about any dacoity/robbery. In fact, the alleged theory of dacoity/robbery is wholly built on straw. The deceased, injured and other persons reisiding at the place of the incident were hutment dwellers Who hardly had any belongings which could be thought of to be looted or plundered by desperadoes. Brick kiln labourers live in shanties who are hardly able to meet their both ends and to keep them just above starvation level. The argument of dacoity/robbery is not worthy of a moment's attention and is rejected.
29. Lastly, learned counsel for the appellant criticised the conduct of PW 7 Ram Kanya. According to him, it was wholly unnatural that she would disclose to her husband that during his few days stay at the hut of Sri Chand (elder brother of her husband), Chingi accused appellant had lured her to go and live with him as his wife since he had left or was about to desert his own wife. Learned counsel argues that such a disclosure by the wife to her husband was illogical. We see no point in this argument, As is clear, she, her husband and other family members did not belong to elite bracket of the society. They were of lowest labour strata. There is nothing unnatural that the accused Chingi made such offer to her whereupon she asked him to contact her father in this behalf. It could be customary with them to terminate matrimonial tie by settlement with the involvement of elderly relations. So, the accused appellant cannot score any point by criticising the conduct of PW 7 Ram Kanya on the basis of disclosure made by her to her husband after he had returned from the hospital, leaving the dead body of his father and before he got the report of the incident scribed in which, too, this fact was mentioned.
30. In view of the above discussion, we do not find any merit in this appeal and it is liable to be dismissed. The accused appellant Chingi has rightly been convicted and sentenced under Section 302 I.P.C. The sentence of life imprisonment awarded to him is lesser out of the two alternative punishments provided for the crime. Though his unknown companions could not be laid hands on, but all the three were acting in concert with previous meeting of minds. Hurt was voluntarily caused by his unknown companions to Pappi, Smt. Sheoraje and Gaya Din which was in furtherance of common intention of all. Therefore, the accused appellant has rightly been convicted under Section 323 read with Section 34 I.P.C. also. To say in a word, the sentence of two month's rigorous imprisonment on the aforesaid count is well justified.
31. The appeal is dismissed. The accused appellant Chingi alias Siya Ram is on bail. He shall be arrested and lodged in jail to serve out the sentences of life imprisonment (sic) two months' rigorous imprisonment which shall run concurrently.
32. Let a copy of this judgment along with record be sent to the court below for compliance. Compliance be reported within two months.