JUDGMENT M.C. Jain, J.
1. The accused appellants, namely, Dukhi, Ram Achal, Ram Kumar and Jagdamba have preferred this appeal against the judgment and order dated 17.2.1982 passed by the Sessions Judge, Basti in Sessions Trial No. 133 of 1981, convicting them under Sections 302 read with Section 34 I.P.C. and 323 read with Section 34 I.P.C. Life imprisonment has been awarded to each of them for the former offence and one year's and 'six months' rigorous imprisonment for the latter on two counts. All the sentences were ordered to run concurrently. The accused appellants Dukhi and Ram Achal are real brothers being sons of Bire. Accused appellant No. 3--Ram Kumar is the son of Dukhi. During the pendency of the appeal, the appellant Ram Achal died and the same abated on his behalf under order dated 15.7.2005.
2. A brief reference to the facts of the case would suffice. The incident took place on 17.2.1981 at about 2 PM in village Gaura of P.S. Walterganj, District Basti and the F.I.R. was lodged the same day at 6.45 PM. by an eyewitness Ram Tilak PW 1. The deceased was Ramdeo Yadav and Jagmohan and Rampher PW 3 sustained simple injuries in the incident. The informant Ram Tilak, the deceased Ramdeo Yadav and the accused Dukhi, Ram Achal and Ram Kumar were residents of village Gaura where the incident occurred. Fourth accused appellant Jagdamba was resident of village Gangapur. He often used to visit village Gaura and was, therefore, known to witnesses. The deceased Ramdeo Yadav was driving bullocks at the Kolhu of Surya Mani Tripathi PW 5 as his own sugarcane was being crushed there. Rampher was inserting sugarcane sticks into the Kolhu (crusher), Khellu, Hari Ram, Ram Tilak, Jagmohan and Parmanand were also present there. Jagmohan was the father of Ramdeo Yadav deceased while Parmanand was his son.
3. Accused Ram Achal and Dukhi came from the east, while the accused Jagdamba and Ram Kumar appeared there from the western side. Ram Achal and Dukhi were armed with lathis whereas Jagdamba and Ram Kumar were aimed with guns. As soon as the four accused reached near the Kolhu, Ram Achal and Dukhi assaulted Ramdeo Yadav with lathis. He fell down at the spot and when he tried to get up, the accused Jagdamba and Ram Kumar fired on him from their guns. As a result, Ramdeo Yadav died at the spot. When accused Dukhi and Ram Achal were assaulting Ramdeo Yadav, the witnesses Ram Pher and Jagmohan rushed to his rescue but Ram Achal and Ram Kumar both assaulted them with Lathi and butt-end of the gun respectively, Rampher and Jagmohan both received injuries.
4. Ram Tilak got scribed the F.I.R. by Suryamani Tripathi there itself and took it to the police station where he lodged it.
5. There was said to be old enmity relating to the land and litigation between Jagmohan and accused Ram Achal and that was the reason of the murder of the Ramdeo Yadav by the four accused.
6. The investigation was conducted by S.I. Rajdeo Rai PW 7. He with other police personnel reached the spot. Because of night having set in, the inquest on the dead body was done the next morning with the preparation of other necessary papers. The dead body was sent for post mortem. The injuries of Jagmohan and Rampher were also subjected to medical examination. It was Dr R.U. Pandey PW 8 who conducted autopsy on the dead body on 18.2.1981 at 2 PM. The deceased was aged about 50 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:
1. Gunshot wound of entrance 2.5 cm x 2.5 cm x brain cavity deep right side head, 3 cm behind right ear. Margins inverted. Blackening, tattooing and charring around wound margins present.
2. Lacerated wound 3 cm x 1 cm x bone deep on back of right side head, 11 cm behind right ear.
3. Lacerated wound 5 cm x 1 cm x bone deep on back of right side head, 4 cm below injury No. 2.
4. Contusion 30 cm x 2 cm on back of right side chest, extending below right scapular region.
5. Contusion 5 cm x 2 cm on outer aspect right side chest, 10 cm below right arm pit.
6. Abraded contusion 3 cm x 2 cm on upper part of right buttock.
7. Contusion 6 cm x 2 cm on back of right knee.
8. Contusion 8 cm x 2 cm on back of right leg, 6 cm below right knee.
9. Contusion 8 cm x 2 cm on back of left leg, 10 cm below left knee.
10. Lacerated wound 1 cm x 0.3 cm x skin deep on medial aspect left leg, 9 cm above left ankle.
11. Gunshot wound 12 cm x 7 cm x through and through on the outer part of left forearm just above left wrist. Skin, tissues, muscles, vessels and bones badly lacerated. Blackening, tattooing and charring around the wound margins present. Only a tag of muscle and skin left in place.
12. Ten gunshot wounds of entrance in an area of 12 cm x 8 cm over front part of left upper arm. Largest wound measuring 0.3 cm x 0.3 cm x muscle deep. Smallest measuring 0.2 cm x 0.2 cm x skin deep, directed from front to back. Blackening, tattooing, charring around wound margins present. Margins inverted.
13. Thirty gunshot wounds in an area of 14 cm x 10 cm on front part left side chest, 2 cm below left nipple. Largest measuring 0.3 cm x 0.3 cm x skin deep. Smallest measuring 0.2 cm x 0.2 cm x skin deep. Blackening, tattooing and charring around wound margins present.
14. Three gunshot wounds in an area of 18 cm x 8 cm on front and upper part right side abdomen. Largest measuring 0.3 cm x 0.3 cm x skin deep. Smallest measuring 0.1 cm x 0.2 cm x skin deep. Blackening, tattooing and charring around wound margins present.
7. On internal examination, the skull was fractured in multiple pieces in an area of 20 cm x 18 cm under injury No. 1, There was a hole measuring 2.5 cm x 2.5 cm under injury No. 1 in the skull and the same hole was also found in the membranes of the brain under injury No. 1 with the same dimensions. The brain was badly lacerated under injury No. 1. Two Tiklies and one wadding piece as also 19 small pellets were recovered from beneath injury No. 1. The pellets were deformed. The Doctor also recovered five small pellets from the upper arm under injury No. 12. In his opinion, the cause of death was coma resulting from injuries No. 1, 2 and 3 which were found to be fatal capable of causing instantaneous death.
8. The injuries of Jagmohan and Rampher were examined by Dr. D.P. Mishra PW 6 on 18.2.1981 at 12.30 PM and 12.40 PM respectively. The following injuries were found on the person of Jagmohan:
1. Lacerated wound 4 cm x 0.5 cm x scalp deep on right side head, 11 cm above right ear.
2. Abraded contusion 5 cm x 3, cm on upper part of left scapular region.
3. Contusion 4.5 cm x 3.5 cm on top of left shoulder. Colour was red.
4. Contusion 4 cm x 3 cm on outer aspect of left gluteal region lower part. Colour was red.
9. All the injuries were simple caused by some blunt hard object. They were about one day old.
10. Rampher had received the following injury:
1. Lacerated wound 4 cm x 0.5 cm x scalp deep on right side head, 11 cm above right ear.
11. It was simple caused by some blunt and hard object and about one day old.
12. The defence was of denial and false implication due to enmity.
13. The prosecution in all examined eight witnesses. Out of them, the informant Ram Tilak PW 1, Parmanand PW 2 and Rampher PW 3 were the eyewitnesses. Rest were the scribe of the F.I.R. (Suryamani Tripathi PW 5), Doctors and police personnel including Investigating Officer. The accused also examined two witnesses Parmatma Prasad DW 1 and Asan Kumar Upadhyaya DW 2 in defence.
14. Believing the prosecution case and evidence, the trial judge convicted and sentenced the accused as stated earlier. Aggrieved, they have preferred this appeal.
15. We have heard Sri G.S. Chaturvedi, learned Senior Advocate for the accused appellants and Sri M.C. Joshi, learned A.G.A. for the State. The record has been summoned which we have perused. In the first instance, the learned Counsel for the accused appellants assailed the testimony of the eyewitnesses to be unbelievable. Secondly, he alternatively urged that Dukhi who was allegedly armed with Lathi could not be vicariously liable for the murder of Ramdeo Yadav as fatal injury sustained by the deceased was of firearm allegedly wielded by Ram Kumar and Jagdamba. Thirdly, he urged that Jagdamba could not at all be convicted on the strength of the evidence adduced on record by the prosecution.
16. On the other hand, the learned A.G.A. has supported the findings of the trial judge convicting all the accused appellants who, according to him, were established to be guilty by clinching and convincing evidence of eye-witnesses inclusive of the injured himself. Their testimony, the learned A.G.A. argued, was also in conformity with the medical evidence. We propose to deal with the arguments advanced at the bar in the light of evidence on record in subsequent discussion.
17. It should be recorded at the risk of repetition that the accused appellant Ram Achal having died during the pendency of appeal, the appellate court has to determine the culpability or otherwise of the remaining three accused appellants, namely, Dukhi, Ram Kumar and Jagdamba. On critically examining the evidence, we find that the wholesome criticism levelled by the learned Counsel for the accused appellants against the testimony of the eyewitnesses cannot be sustained. True, Ram Tilak PW 1 (informant) stated that he was not present at the time of occurrence. He was declared hostile and cross-examined by the prosecution. For good reasons, the trial judge rightly observed that he was a liar and had changed side, He went to the extent of denying the voluntary authorship of the F.I.R. Winning over of the prosecution witness (s) by the accused side by threats or other extraneous reasons is not uncommon. Ram Tilak PW 1 stated that he had passed over information of the incident at the police station orally and had just thumb marked a paper there at the instance of the police personnel. It was a stark lie. It goes without saying that many first information reports are lodged and taken down at the police stations on oral narration of the first informants. There could hardly be any reason for the police personnel to be involved in declining to take down the first information of the incident allegedly given by this witness orally and getting his thumb mark on a blank paper. Further, it is significant to note that Surya Mani PW 5 was the scribe of this F.I.R. He empathetically stated that he had written the said F.I.R. at his house at the instance of Ram Tilak PW 1. He had read it over to him (Ram Tilak). Ram Tilak PW 1 had then given thumb marked it. This witness also honestly stated that he himself was not present at the time of incident. Surya Mani PW 5 was absolutely an independent person. There was hardly any reason for him to make a false statement. There is nothing to indicate that he was thick with the prosecution side. Had it been so, he could pose himself to be an eyewitness, but he did not do anything of the kind. The defence could also not show that Surya Mani had any motive to get the accused falsely implicated.
18. Anyway, for practical purposes it has to be taken that Ram Tilak PW 1 did not witness the incident. But it is beyond the pale of doubt that he was the author of the F.I.R. The F.I.R., as is well known, is not a substantive piece of evidence, The fate of the case would naturally turn on the testimony of the other two eyewitnesses, namely, Parmanand PW 2 and Rampher PW 3. Out of them, Rampher is an injured witness who sustained injury in the same incident. The injury sustained by him was a lacerated wound on right side of the head, 11 cm above right ear. It was a simple injury caused by one of the accused wielding lathi. On careful scrutiny of his testimony and that of Parmanand PW 2, we endorse the view taken by the trial judge that their presence at the spot could not at all be doubted and they did see the incident. Parmanand PW 2 was the son of the deceased Ramdeo Yadav. He was a boy aged about 12 years who narrated the whole occurrence in detail, supporting the prosecution case. At the time of incident, the sugarcane of the family of the deceased and this witness was being crushed at the Kolhar of Surya Mani PW 5, As stated by this witness, his father Ram Deo was driving bullocks at the Kolhu (crusher) and he himself was feeding furnace of dry sugarcane rind to fuel it for sustaining fire. Rampher was inserting sugarcane into Kolhu. His grandfather Jagmohan, Khellu, Hariram and Tilak were also there as per his testimony. According to him, Dukhi and Ram Achal accused came from the eastern side with lathis. The other two accused Rampher and Jagdamba came with their guns from western side. Dukhi and Ram Achal gave lathi blows to his father Ramdeo Yadav and felled him. He tried to get up, but the accused Ram Kumar and Jagdamba opened 3-4 she is from their guns from a distance of 3-4 paces and his father died instantaneously. It was also there in his testimony that when his grandfather Jagmohan and Rampher leapt forward to the rescue of his father Ramdeo, lathi wielding accused gave them lathi blows and the other two having guns hit them with butt of the guns.
19. It is common knowledge that sugarcane crushing operations in rural areas require to be attended by several members of the family and even assistance of outsiders either on payment or otherwise is taken to accomplish the job.
20. It would be recalled that Jagmohan (father of the deceased and grandfather of Parmanand PW 2) also sustained injuries in this incident. The testimony of this witness was supported by Rampher PW 3 (injured) in all material particulars. This injured witness was resident of the same village and stated that he was helping in sugarcane crushing operations by inserting sugarcane in crusher when the incident took place. It also came down from him that he was not working as labourer, but as a part of mutual understanding, he and Ramdeo Yadav used to assist each other in sundry works/operations.
21. The defence sought to assail the presence of Parmanand PW 2 through the testimony of Pramatma Prasad DW 1 who happened to be a teacher in primary section of Sri Hansraj Lal Inter College, Ganeshpur where Parmanand PW 2 was allegedly a student. We note from the testimony of Parmanand PW 2 that it was not even suggested to him that he was a student of this particular educational institution and was not present at the time of incident having gone to school. On being questioned by the defence, Parmanand PW 2 stated in para--11 that in those days he was a student in a school of Ganeshpur. The name of the school was not suggested to him and it was not made certain that he was a student of this particular educational institution of Ganeshpur i.e. primary section of Sri Hansraj Lal Inter College, Ganeshpur. His statement was not challenged in cross-examination that on that day he had not gone to the school because he was to help in crushing operations. Otherwise also, the way in which the presence and absence of the students are marked in the educational institutions is not reliable and authentic on the point of presence or absence of the student concerned. Pramatma Prasad DW 1 stated that on 17.2.1981 Parmanand remained present in Class IV and the time of school was 10 A.M. to 3.30 P.M. There were 150 students in his class and he did not recognize all of them by face. In our opinion, the trial judge rightly discarded the testimony of Pramatma Prasad DW 1 based on the alleged entry in the attendance register to doubt the presence of Parmanand PW 2 on the spot at the time of incident. In our opinion, the defence having already won over Ram Tilak PW 1, the production of Pramatma Prasad DW 1 was there another crude concoction in a desperate attempt to create a dent in the prosecution case by rendering the presence of Parmanand PW 2 on the spot to be doubtful at the time of incident. As we said, the presence of Parmanand PW 2 and Rampher PW 3 injured was beyond the pale of doubt and they did see the incident. The defence did there best to dislodge even the testimony of Rampher - PW 3 by fabricating an affidavit purported to have been given by him (Ext. Kha-3) that he had not recognized any assailant. Rampher PW 3 denied to have sworn any such affidavit. Sri Asan Kumar Upadhyaya DW 2, Advocate-oath commissioner was produced to prove the affidavit. His testimony is of no avail, because he admitted in his cross-examination that he could not recognize the deponent whose affidavit he had verified. He also stated that he had verified the contents of the affidavit Ext. Kha-3 because the deponent (alleged to be Rampher) had been identified by Sri Shiv Shankar Mishra, Advocate, He even admitted that he did not know Sri Shiv Shankar Mishra personally and that he acted on his identification because he was in the dress of an advocate. No reliance could be placed either on the testimony of Pramatma Prasad DW 1 or Asan Kumar Upadhyaya DW 2 to doubt the presence of Parmanand PW 2 and Rampher PW 3. In fact, the defence applied all the tactics to defeat the prosecution but could succeed only in part by winning over Ram Tilak PW 1 (informant). We agree with the trial judge that Parmanand PW 2 and Rampher PW 3 (injured) were the eyewitnesses present at the spot who witnessed the incident. Therefore, the first argument advanced by the learned Counsel for the accused appellants assailing the testimony of these witnesses had lost.
22. Proceeding further and dissecting the testimony of these two eyewitnesses in the light of medical evidence and other attending circumstances, we are of the opinion that this argument is also not acceptable that Jagdamba accused could not be convicted on the strength of the evidence adduced by the prosecution on record. The learned Counsel urged that he had no motive or grouse against the deceased or his family which could have actuated him to join in the commission of this crime. The motive on the part of all the accused joining in the commission of a crime cannot always be fathomed. It has come in the testimony of Parmanand PW 2 that Jagdamba resident of village Gangapur frequently used to come to the house of the other accused and he very well knew him from before. Rampher PW 3 also stated that Gangapur was quite near to village Gaura and he (Jagdamba) used to frequently visit his village and, therefore, he knew him from before.
23. The background was that Lalta (brother of present accused Ram Kumar) had been murdered prior to this incident of which Ram Kumar had lodged the F.I.R. (Ext.Kha-7). Gyan Das, one of the sons of deceased Ramdeo was named as the accused of that case alongwith some others and Jagdamba (present accused) was cited as a witness by Ram Kumar against Gyan Das and others, These facts I have come in the cross-examination of Parmanand PW 2. So, Jagdamba accused was not unconcerned person. Rather he was thick with the family of Ram Kumar and Dukhi.
24. It would be noted from the post mortem report that the deceased sustained as many as five gunshot injuries out of which first one on head was fatal. This fatal head injury was the result of shooting which caused intensive damage underneath. There was blackening, tattooing and charring in all the gunshot injuries sustained by the deceased, meaning thereby that they had been caused from close range. Emphatic testimony of Parmanand PW 2 reconciles with oral testimony that 3 or 4 shots had been fired by Dukhi and Jagdamba on the deceased from a distance of 3-4 paces. It was definite that these two had participated in furtherance of their common intention in shooting deceased. Causing of five gunshot injuries to the deceased was the handiwork of two shooters, namely, Ram Kumar and Jagdamba as was the evidence of two eyewitnesses. Therefore, the accused Jagdamba cannot escape from the consequences of the serious crime committed by him inclusive of the murder of Ramdeo Yadav.
25. However, on dissection of the eyewitness account and role played by the accused Dukhi, who was wielding a lathi, we are of the opinion that he only committed an offence punishable under Section 323 read with Section 34 IPC, We find sufficient force in the argument of learned Counsel for the accused appellants that he (Dukhi accused) could not be convicted under Section 302 read with Section 34 IPC. He has relied on the case of Sukhbir Singh v. Kirtan Singh and Ors. 2005 Supreme Court Cases (Cri) 1624. The Supreme Court has observed in the said case that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person and in most of the cases courts shall infer the intention from the act or actual conduct of a particular person or from other relevant circumstances of the case. In the cited case, one accused had fired oh the deceased. He had received only one more injury which was incised in nature and the same was alleged to have been caused by second accused armed with farsa. In such circumstances, it was found that he only committed offence under Section 324 IPC. In the present case, lathi wielding accused i.e. Dukhi and Ram Achal (now dead) had come from one direction and guns wielding accused, namely, Ram Kumar and Jagdamba from another direction. There was no exhortation by Dukhi who was wielding lathi, though he and the other one lathi wielding accused, namely, Ram Achal (now dead) allegedly first hit the deceased with lathis. It is there in the testimony of Rampher PW 3 in para--17 that they did not hit him with lathis after he had fallen down. After his fall, it, were accused (Ram Kumar and Jagdamba) who had opened shots on him. It is also in the testimony of the witnesses that the accused Ram Kumar and Jagdamba had opened shots on him when he was trying to get up after receiving lathi blows, meaning thereby that after fair owing to lathi blows, he was conscious and attempting to defend himself or get away from the scene to save him.
26. Learned A.G.A. argued that as per the post mortem report, the deceased had received two lacerated wounds on the back of the head (ante-mortem injuries No. 2 and 3) and that as per the testimony of Dr. R.U. Pandey PW 8 who conducted autopsy on the dead body of the deceased, the cause of death was ante-mortem injuries No. 1, 2 and 3. It should be pointed out that it has not been specified as to who had caused lathi injuries on the head of the deceased. The statement of Parmanand PW 2 is that the lathi wielding accused had struck lathis on his father from front side which landed on his head and shoulders. The internal examination beneath the skull revealed that there was fracture of skull in an area of 20 cms x 18 cms multiple pieces. There was a hole 2.5 cms x 2.5 cms under gunshot injury. The brain was badly lacerated. Since the accused was conscious and was trying to get up after lathi blows, it should justifiably be inferred that the death was caused due to the gunshot injury on the head. Therefore, on cumulative consideration the accused Dukhi only committed offence punishable under Section 323 read with Section 34 IPC. The incident occurred more than 24 years back on 17.2.1981. In his statement under Section 313 Cr.P.C., Dukhi had disclosed his age to be 70 years on 3.2.1982. As per observation of the trial judge, he appeared to be about 60 years of age. Presently, he must be about 83 years of age. The conviction was recorded by the trial judge on 17.2.1982, Consequent upon filing of the appeal, the bail order was passed on 3.3.1982. May be that he remained in jail for sometime earlier also before being granted bail during the trial. Therefore, the ends of justice would be met to modify his sentence for the conviction under Section 323 read with Section 34 I.P.C. to a fine of Rs. 1000/-. In default of payment of fine, he shall undergo rigorous imprisonment for three months.
27. Finally, we allow this appeal in part. The appeal has abated in respect of Ram Achal who died during the pendency of appeal. We up-hold the conviction of the accused appellants Ram Kumar and Jagdamba under Sections 302 read with Section 34 IPC and under Section 323 read with Section 34 IPC. Each of them shall undergo life imprisonment under Section 302 read with Section 34 IPC. For the offence of Section 323 read with Section 34 I.P.C. each of them sentenced to pay a fine of Rs. 1000/-. In default of payment of fine, each of them shall undergo further rigorous imprisonment for three months.
28. The conviction of accused appellant Dukhi under Section 302 read with Section 34 IPC is set aside. He stands convicted under Section 323 read with Section 34 IPC. He is sentenced to pay a fine of Rs. 1000/- within two months. In default of payment of fine, he shall undergo rigorous imprisonment for three months.
29. The copy of judgment be sent to the lower court immediately. The Chief Judicial Magistrate, Basti shall cause Ram Kumar and Jagdamba to be arrested and they shall be sent to jail to serve out the sentence passed against them. In case of failure of deposit of fine of Rs. 1000/- by accused Dukhi within two months from today, he shall also be arrested and sent to jail to serve out the rigorous imprisonment of three months in default of payment of fine.
30. Compliance be reported to this Court within two moths.