JUDGMENT U.S. Tripathi, J.
1. This appeal was preferred by Dwarka, Indrajeet, Parbhoo, Shyam Sunder, Gauri Shanker and Asha Ram against the judgment and order dated 26-2-1981 passed by IV Additional Sessions Judge, Hamirpur in S.T. No. 88 of 1980 convicting Dwarka Indrajeet, Parbhoo and Shyam Sunder under Sections 148, 302 read with Sections 149, I.P.C. and 201, I.P.C. and sentencing them to undergo imprisonment for life under Section 302/149, two years R.I. under Section 148 and two years R.I. under Section 201, I.P.C. The appellant Gauri Shanker and Asha Ram were acquitted by the trial Court, but they were wrongly arrayed as appellants in the memo of appeal.
2. During pendency of the appeal, appellants Dwarka and Parbhoo died and the appeal preferred by them stood abated, vide order of this Court dated 2-12-2002.
3. The appeal now remains preferred by Indrajeet and Shyam Sunder,
4. The prosecution, story, briefly stated, was as under :--
Appellants Indrajeet, Shyam Sunder, Dwarka and Parbhoo as well as Gauri Shanker (acquitted by the trial Court) and Kashi Prasad (P.W. 1) were residents of the village Pahara, P.S. Jaria, district Hamirpur, Dwarka and Indrajeet were real brothers, Parbhoo and Shyam Sunder were also real brothers. Gauri Shanker was son of Parbhoo and Asha Ram was Parbhu's sister's son and was resident of village Chhibauli. Manta alias Maheswari (30) deceased was elder son of Kashi Prasad (P.W. 1). Bhanwa was second son of Kashi Prasad (P.W. 1).
5. Prior to 8-9 years of the occurrence of this case, Indrajeet, Parbhoo, Shyam Sunder and others had caused injuries to Bhanwa. A case Was registered regarding above incident, in which Indrajeet, Parbhoo and Shyam Sunder were convicted and sentenced to undergo R.I. for a period one year. On account of it, the above appellants were having enmity with Kashi Prasad (P.W. 1) and his sons. Prior to 5-6 days of the occurrence, altercation had taken place between Indrajeet appellant and Manta deceased. The enmity between the parties was thus aggravated.
6. On the morning of 4-2-1980 at about 11.30 a.m. Kashi Prasad (P.W. 1) along with his son Manta deceased, wife Radha Rani and other son Bhanwa and wife of Manta was sitting in front of his door and was talking with them. In the meantime, Indrajeet, Parbhoo, Shyam Sunder, Dwarka, Gauri Shanker all armed with guns and Asha Ram armed with spear along with two other unknown persons of village Chhibauli armed with kulhari and pharasa came to the door of Kashi Prasad (P.W. 1) from northern side. Parbhoo exhorted to Kill Manta. On his ex-hortation, Dwarka fired on him, but Manta did not sustain any injury. Manta stood up and started running towards east. The above persons chased him. To save his life Manta deceased entered into the house of Swamideen (P.W. 2). Dwarika, Parbhoo, Indrajeet and Shyam Sunder with their guns also entered into said house. Gauri Shanker, Asha Ram and two other persons were standing on the door. Kashi Prasad and ladies of family also came near the house of Swamideen (P.W. 2) . The persons standing on the door were threatening others not to come inside. Manta deceased went to the roof of the second floor. Dwarka, Shyam Sunder, Parbhoo and Indrajeet all went to the said roof and fired on Manta. Thereafter, they threw the dead body of deceased on the ground towards southern corner of house of Swamideen (P.W. 2). Arjuh (P.W. 3), Raghubar and Ram Swaroop had also come near the spot and had seen the occurrence. Thereafter, Indrajeet, Parbhoo, a Gauri Shanker and Shyam Sunder dragged the dead body of the deceased outside the village abadi, where Dwarka brought his bullock cart, kept the dead body into it and took the same towards south. Kashi Prasad (P.W. 1) and others followed the bullock cart up to "Talab" outside the village abadi but they were threatened, therefore, they could not proceed further.
7. Kashi Prasad called Ram Swaroop and got prepared report (Ext. Ka-1). He came to police station Jaria on a bullock cart, where he lodged report at 2.30 pm. Chick F.I.R. (Ext. Ka-10) was prepared by Constable Moharir Udai Pratap Singh, who made an endorsement of the same at G.D. report (Ext. Ka-11) and registered a case against Dwarka Indrajeet, Parbhoo, Shyam Sunder, Gauri Shanker Asha Ram and two unknown persons under Sections 147, 148, 149, 302, 201, I.P.C.
8. Investigation of the case was taken up by Sri Lal Bahadur Verma (P.W. 4). He interrogated complainant Kashi Prasad (P.W. 1) at the police station and thereafter reached the place of occurrence, where he interrogated Swamideen (P.W. 2), Arjun (P.W. 3) and other witnesses. He inspected place of occurrence and prepared site plan (Ext. Ka-2). He visited the roof of Swamideen (P.W. 2), where he found blood. He took into possession the blood stained plaster and plain plaster, sealed them and prepared recovery memo (Ext. Ka-3). He also took into the possession blood stained and simple earth from the place, where dead body was thrown from the roof, sealed it and prepared recovery memo (Ext. Ka-4). The I.O. recovered blood stained muffler of deceased and prepared recovery memo (Ext. Ka-5). He also took into the possession blood stained and simple earth from the place, where dead body was kept in bullock cart and prepared recovery memo (Ext. Ka-6). He also recovered blood stained and simple earth from the rasta proceeding towards village Chilli near well of Shiv Dayal and prepared recovery memo (Ext. Ka-7). The I.O. searched the accused persons, but they were not traceable.
9. On 7-2-1980. at about 6.l5 pm. one Dhani Ram resident of village Itara, P.S. Majhgawa gave information at the police station Rath, district Hamirpur that a dead body was lying in Rai Masoor field near Tooka hillock. The above information was endorsed at G.D. report (Ext. Ka-12). On the above information Sri Rafat Kamal, sub Inspector, P.S. Rath, along with other constables proceeded towards said place. At the bus station, Kashi Prasad and Some other persons of village Pahara met him and told that they were searching dead body of Maheshwari. Taking above persons with him Sri Rafat Kamal reached Tooka hillock where he observed in the light of torch dead body lying in Rai Masoor field. Kashi Prasad (P.W. 1) identified above dead body as that of his son Manta alias Maheswari, who was murdered on 4-2-1980. Sri Rafat Kamal did not inspect dead body due to paucity of light. On the morning of 8-2-1980 at about 8 a.m. he appointed Panches and conducted inquest of the dead body and prepared inquest report (Ext. Ka-13) and other relevant papers. He also took into possession the clothes on the dead body and prepared recovery memo (Ext. Ka-14). He sealed the dead body and sent the same for post mortem through Constables Mulayam Singh and Sarvapal Singh.
10. The autopsy on the dead body of the deceased was conducted on 8-2-1980 by Dr. A. K. Srivastava (C.W. 1), who found following ante mortem injuries on the person of the deceased.
1. Gun shot entry wound 6 cm x 4 cm x bone deep on right side face and 2 cm from right angle of mouth, clots present.
2. Five Gun shot entry wound on right side back one of them having size 2 cm x 1 cm x skin deep and rest four having size 1 cm x 1 cm x cavity. All wounds present in area of 12 cm x 9 cm and 11.5 cm below right adhronium process and 5.5 cm from post auxiliary line of right axilla, clots present.
3. Four Gun shot wound palpable in left side of back in an area of 9 cm x 6 cm, 9 cm below root of neck and 2.5 cm from mid line back, clots present, pea size pellet removed and sealed. Injury (2) communicating with Injury No. (3).
4. Abrasion 3 cm x 2 cm on right side forehead, just above right eye brow. Congestion present on cutting.
5. Abrasion on left side face 1 cm from outer angle of left eye. Congestion present on cutting.
6. Abrasion 7 cm x 3 cm on right side, of abdomen and 1.5 from umbilicus. Congestion present on cutting.
7. Abrasion 2 cm x 4 cm on left side of chest and 1.5 cm below left nipple. Congestion present on cutting and in straight line of left nipple.
8. Abrasion 4 cm x 2 cm around right elbow joint. Congestion present on cutting.
9. Abrasion on dorsum aspect of right hand and in web space between middle and right finger. Congestion present on cutting.
10. Abrasion 2 cm x 1 cm around left elbow joint. Congestion present on cutting.
11. Abrasion 2.5 cm x 1.5 cm on left buttock 18 cm from left anterior supra iliac spine. Congestion present on cutting.
11. The internal examination showed fracture on right and left parietal and right temporal bone. Membranees were congested and lacerated. Brain was lacerated and puipy, clots were present. There were fracture on anterior middle on both side of post on left side of skull. 13 small round pellet were found in brain matter. Second and third ribs on right side and fourth rib on left side back aspect also fractured. Pleura was congested and lacerated on both sides. Both lungs were congested and lacerated. 11/2 pound blood with clots was found in both side of chest cavity. Right maxilla bone and right large jaw bone were fractured. Stomach contained two ounce semi digested food. In the opinion of the, doctor cause of death was due to haemorrhage. The doctor prepared post mortem report (Ext. Ka-19).
12. Accused Asha Ram and Gauri Shanker surrendered in the Court on 11-2-1980 while Shyam Sunder, Parbhoo and Dwarka surrendered in the Court on 13-2: 1980. Subsequently, Indrajeet also surrendered in the Court. On completion of investigation, the I.O. submitted charge-sheet (Ext. Ka-9) against above accused persons.
13. The cognizance of the case was taken by the Magistrate, who Committed it to the Court of Sessions.
14. In order to prove its case before the trial Court, the prosecution examined Kashi Prasad (P.W. 1), Swamideen (P.W. 2), Arjun (P.W. 3) as witnesses of fact besides Lal Bahadur Verma I.O. (P.W. 4), Udai Pratap Singh Constable Moharrir (P.W. 5) and Rafat Kamal, Sub Inspector (P.W. 6) . Dr. A. K. Srivastava was examined by Court as C.W. 1, The accused did not adduce any evidence in their defence.
15. On consideration of the evidence of the prosecution, the learned Sessions Judge was of the view that presence of Gauri Shanker and Asha Ram on the spot with gun and spear was not proved beyond doubts. But prosecution had successfully proved the guilt of Dwarka, Indrajeet, . Parbhoo and Shyam Sunder for the offences punishable under Sections 148, 302 read with 149 and 201, I.P.C. Accordingly, he convicted above persons under said Sections and sentenced as mentioned above.
16. As mentioned above, Gauri Shanker and Asha Ram were already acquitted by the Trial Court and were not required to file appeal.
17. Appellants Dwarka and Parbhoo died during pendency of this appeal and appeal preferred by them has abated. The appeal, therefore, remains against Indrajeet and Shyam Sunder only.
18. We have heard Dr. R.S. Dwivedi, Senior Advocate assisted by Sri V.S. Dwivedi and learned A.G.A. and have perused the evidence on record.
19. The identity, death and cause of death of Manta deceased are not disputed . According to prosecution, fire arm injuries were caused on the deceased, which resulted into his death. The dead body of deceased was recovered from Rai Masoor field of village Tooka near hillock. The evidence of Sub Inspector Rafat Kamal (P.W. 6) shows that he got information about the presence of dead body of an unknown person in the Rai Masoor field near Tooka Pahari. He proceeded to above place and at the bus station he met Kashi Prasad (P.W. 1) and other persons of village Pahara, who told him that they were searching dead body of Manta. Taking them he reached near Tooka Pahari and saw the dead body in the field, Kashi Prasad (P.W. 1) and other persons identified the above dead body as that of Manta alias Maheshwari deceased. Kashi Prasad (P.W. 1) also stated in his evidence that dead body of his son was recovered by police of P.S. Rath. He was also searching the dead body. At the Dhoopkali Talab, he was informed that a dead body was lying in the field of village Tooka Purwa. On the above information, he along with his brother, Raghubar, Kilaiya, Jai Ram, Babbu and others reached there and saw dead body of his son. No cross examination was made from the witness on the said point. Thus, the recovery of dead body is proved from the evidence of Rafat Kamal (P.W. 6), and its identity had been established by the evidence of Kashi Prasad (P.W. 1) . Rafat Kamal (P.W. 6) further stated that he conducted inquest of the dead body, sealed it and sent for postmortem. The autopsy on the dead body was conducted by Dr. A. K. Srivastava (C.W. 1). The ante mortem injuries referred to above indicated that deceased had sustained gun shot wounds as well as abrasions. It has also come in the evidence of Kashi Prasad (P.W. 1) and other witnesses that after causing death of the deceased, dead body was thrown on the ground and was dragged and taken on bullock cart. Thus, the presence of abrasions, (injuries numbers four to eleven) have been explained. Dr. Srivastava further stated that cause of death was due to shock and haemorrhage. He also stated that fracture of ribs and skull bone was not possible due to fall, but due to injury No. 2. It is not disputed that deceased had sustained the gun shot injuries. Thus, the prosecution has successfully proved the identity, death and cause of death of Manta alias Maheshwari deceased.
20. The prosecution in order to prove its case has relied on the ocular testimony of Kashi Prasad (P.W. 1) , Swamideen (P.W. 2) and Arjun (P.W. 3). The above witnesses claimed to have seen the occurrence.
21. Kashi Prasad (P.W. 1) stated that prior to 8-9 years of the occurrence accused Parbhoo, Shyam Sunder and others had beaten his son Bhanwa. A criminal case was initiated regarding said marpit and above accused persons were sentenced to 1 year R.I. each. Before 5-6 days of the occurrence altercation had taken place between Indrajeet and Manta deceased. Enmity started on account of it. He further stated that on the day of occurrence, he was sitting in front of his door along with his Son Manta deceased, his wife Radha Rani, another son Bhanwa and wives of Manta and Bhanwa and was talking with them. At about just before mid day Shyam Sunder, Indrajeet, Parbhoo, Gauri Shanker and Dwarka all armed with gun Asha Ram armed with spear and two unknown persons of village Chhibauli armed with kulhari and pharasa came to his house. On the exhortation of Parbhoo "Manta should not be spared" Dwarka fired, but the above fire did not hit him. Thereafter, Manta started ruhning towards east. The above persons chased him. Manta deceased entered into the house of Swamideen, which was at a distance of 10-12 paces. Dwarka, Parbhoo, Indrajeet and Shyam Sunder also entered into the said house. Gauri Shanker, Asha Ram and two unknown persons were standing outside. Manta deceased reached on the roof of second floor, where above accused also went and fired on him. Gauri Shanker was firing in the air and Asha Ram and two persons were threatening. The dead body of deceased was thrown into the lane towards southern corner. Thereafter, Indrajeet, Prarbhoo, Gauri Shanker and Shyam Sunder came down, dragged the. dead body upto Talab outside the abadi and there Dwarka brought his bullock cart and keeping the dead body into it, they took away it towards village Chilli.
22. The next witness of the occurrence is Swamideen (P.W. 2). He stated that on the date of occurrence at about 11 a.m. he was sitting at his shop, which was situate in his house. Manta deceased came running from northern side and entered into his house. Behind him Dwarka, Indrajeet, Parbhoo and Shyam Sunder also entered into the house. All the above four persons were having guns.
They went on the roof through stair case chasing Manta. He also entered into his house behind them and objected as to what were they doing. He also climbed few steps on the stair case to stop the above four accused and came back into 'Angan' where he heard sound of fire. Hearing sound of fire he was frightened and ran away towards north. 2-3 other persons were standing at his door, but he could not recognise them. He took shelter in the temple towards south of his house and remained there for about 11/2 hours. When he returned to his house, dead body was taken away. He had not seen who took away the dead body.
23. Arjun (P.W. 3) the other eye witness of the occurrence stated that on the date of occurrence at about 11.30 am. when he was in front of house of Indrajeet he heard sound of fire. The above sound of fire was coming from the house of Kashi Prasad. He proceeded further and when reached near well heard alarm. He stopped near the Well and saw that Manta was running and Dwarka, Parbhoo. Indrajeet, Shyam Sunder, Gauri Shanker and Asha Ram and two unknown persons were chasing him. Parbhoo, Dwarka, Indrajeet, Shyam Sunder and Gauri Shanker were having guns, Asha Ram was having spear and two unknown persons were having pharasa and kulhari. Manta entered into the house of Swamideen (P.W.2). Parbhoo, Shyam Sunder, Dwarka and Indrajeet also entered into the house of Swamideen. Gauri Shanker and Asha Ram and two unknown persons were standing on the door of Swamideen. Four shots were fired on Manta on the roof of Swamideen (P.W. 2) and he (Manta) was thrown into the way on southern corner of Swamideen's house on which direction he was standing. Kashi Prasad, his wife and daughters in law were standing near house of Mahangoo. The above four accused persons got down of the roof and took away dead body of the deceased towards west. Near the "peepal" tree a bullock cart was brought and dead body was taken in the said bullock cart.
24. This was the gist of evidence of ocular witnesses relied on by the prosecution.
25. Regarding motive Kashi Prasad (P.W. 1) stated that about 8 years before the occurrence Indrajeet', Parbhoo and Shyam Sunder had caused injuries to his son Bhanwa. A criminal case was initiated, in which the above persons were convicted and sentenced for one year R.I. each. Prior to 5-6 days of the occurrence altercation had taken place between Indrajeet and Manta. On account of it, appellants and other accused were having enmity. Though, the appellants have denied this fact in their statement under Section 313, Cr. P.C. but the above evidence of Kashi Prasad (P.W. 1) has not been challenged. Thus, Indrajeet, Parbhoo and Shyam Sunder were convicted in the case initiated by Kashi Prasad and his son. Dwarka is the real brother of Indrajeet and Gauri Shankar is the son of Parbhoo. Therefore, the appellants and other accused naturally had enmity with the complainant. Altercation had taken place between them and the deceased only 5-6 days before the occurrence. It was contended that the above motive was weak. But the weakness of motive is not material, as different persons react differently and what reaction took place in the mind of appellants cannot be assessed, as this fact was in their knowledge. Moreover, in this case prosecution relied on evidence of eye witnesses and therefore, weakness of motive is not material. Thus, the prosecution has established motive.
26. The occurrence initiated at the house of Kashi Prasad and Manta deceased. All the appellants and another accused, out of which 5 persons were having guns came to the house of Kashi Prasad and observing Manta, Parbhoo exhorted and on his exhortation Dwarka fired. However, Manta did not sustain any injury. There may be several factors for not receiving injury by Manta. The appellants and other accused persons came to the house of Manta at about 11.30 am. in broad day light and according to evidence of Kashi Prasad they were seen when they crossed northern door. Manta could have also seen them and their weapons. Since, he had enmity with them, he would have started running on the exhortation by Parbhoo and therefore he did not sustain injury. It is also true that no pellet or wad were found on the door of Kashi Prasad (P.W. 1), but absence of pellet or wad does not show that no shot was fired at the door of the deceased.
27. The prosecution alleged that the occurrence took place on the roof of Swamideen (P.W. 2). The ocular witnesses named above have stated that Manta deceased in order to save his life entered into the house of Swamideen and climbed the roof of second floor of said house. The accused Dwarka, Indrajeet, Prabhoo and Shyam Sunder also went to said roof and there they caused gun shot injuries on the deceased and thereafter threw his dead body in the rasta towards south. The I.O. visited the spot on the day of occurrence and he found blood on the roof of Swamideen (P.W. 2). Swamideen (P.W. 2) has also stated that Manta deceased entered into his house and climbed the roof of second floor. Dwarka, Prabhoo, Indrajeet and Shyam Sunder haying guns went to the said roof and caused injuries on the deceased. That he heard sound of fire from his 'Angan'. The above evidence of Kashi Prasad (P.W. 1) and Swamideen (P.W. 2) as well as presence of blood on the spot proved the place of occurrence. It was suggested to Swamideen on behalf of accused that since the occurrence allegedly' took place on his roof, he was deposing falsely. The appellants and another accused had not challenged the, place of occurrence and had not suggested any counter place of occurrence. Thus, the place of occurrence has also been established by the prosecution.
28. Date and time of occurrence is also not disputed. According to prosecution, occurrence took place on 4-2-1980 at about 11.30 am. The ocular witnesses named above have given above date and time of occurrence. The report of the occurrence was lodged at 2.30 pm. The distance of police station was 12 Km. It has come in the evidence of Kashi Prasad (P.W. 1) that just after causing death of the deceased, the appellants and another accused threw dead body of deceased into the rasta. They dragged and took the dead body upto to peepal tree where a bullock cart was brought by Dwarka and dead body was taken in it to an unknown destination. That he and other villagers followed the bullock cart upto some distance, but did not proceed further as threats was being given by the appellants and another accused. Thereafter, he came to his house, got prepared report and went to police station to lodge the report. Taking into consideration the above facts and circumstances of the case as well as distance of police station from the place of occurrence it cannot be said that there was any delay in lodging the report. The copy of general diary report (Ext.Ka-11) also indicated time of occurrence as 11.30 a.m. Dr. A.K. Srivastava (C.W. 1) stated that death of deceased would have occurred on 4-2-1980 at 11.30 a.m. The above date and time of occurrence have also not been challenged. Thus, the prosecution has established date and time of occurrence.
29. On the manner of occurrence and complicity of appellants as mentioned above, there is ocular testimony of Kashi Prasad (P.W. 1), Swamideen (P.W. 2) and Arjun (P.W. 3).
30. Learned counsel for the appellants challenged the veracity of Kashi Prasad (P.W. 1) and he contended that according to F.I.R. one shot was fired by Dwarka at his door, but it did not hit any person present there. That he had not offered any explanation for absence of injury at his door, but in his examination in chief he volunteered that there was some obstruction and in his cross examination he offered another explanation that Dawarka fired in the air and he jumped and stood in front of him and therefore, the above' shot could not hit Manta deceased. That the above subsequent development regarding absence of injury indicates that witness was not present at his door. Having gone through the entire evidence of the witness we find no force in the above contention. As mentioned above there might be several factors for not hitting the above shot to deceased. The deceased started running to save his life the moment Parbhoo exhorted and it appears that shot was fired when he was running and therefore it did not hit him. Kashi Prasad (P.W. 1) might have exaggerated in his evidence by giving explanation for absence of injury to the persons present at his door, but even if above exaggerated part of his evidence is ignored, it does not affect his entire statement as it is general tendency of the witnesses to exaggerate their evidence and duty of the Court is to find out substance of truth from the statements of the witnesses.
31. It was further contended that as many as 5 persons were having guns and if they had to commit murder of the deceased, they would have murdered him in front of his house and would have not given opportunity to the deceased to run away. This argument has no force, as it is clear from the evidence of Kashi Prasad (P.W. 1) that all the accused persons came in front of his door from northern door of his Sahan and the witness and other members of his family observed them while they came at the door. It is also clear that as many as 5 persons were having guns, one person was having spear and two persons were having kulhari and pharasa. Observing weapons and presence of above persons it was but natural for the deceased to apprehend danger and to run away to save his life. This aspect of the prosecution story shows that the accused persons did not get opportunity to surround the deceased in front of his house and kill him there.
32. Kashi Prasad (P.W. 1} had also stated that when Manta deceased entered into the house of Swamideen (P.W. 2) he could not enter into the house, as two of the accused were standing on the door and were threatening. That he along with ladies of his family stood near house of Mahngoo in the rasta and saw the occurrence from there.
33. It was further contended that in his F.I.R. Kashi Prasad (P.W. 1) has mentioned that Parbhoo and others entered into the house of Swamideen and killed his son by climbing the roof of the house of Swamideen, but in his evidence he stated that only four persons namely Parbhoo, Dwarka, Indrajeet and Shyam Sunder climbed the roof and that Gauri Shahker and Asha Ram and two other unknown persons were standing on the door and threatening the witnesses, which shows that he had made subsequent development in his evidence to make his evidence in consonance with medical evidence. It is true that in the F.I.R. the witnesses had mentioned that Parbhoo and others entered into the house of Swamideen, went on the roof of second floor of his house and murdered his son Mantea by causing fire arm injuries. The witness clarified in his cross-examination that in case names of Shyam Sunder, Dwarka, Indrajeet, who also entered into the house of Swamideen along with Parbhoo was not mentioned in the F.I.R., it was mistake of the scribe Ram Swaroop. Assuming that the witness had not mentioned names of persons, who actually entered into the house, it does not mean that he had made any subsequent development because F.I.R. is not the exhaustive piece of evidence and the informant is not expected to give each and every minute details of the prosecution story in it. If the evidence of witness is considered as a whole in the light of versions given in the F.I.R., there appears no variation from the case of the prosecution given in the F.I.R. Therefore, on above aspect, the testimony of Kashi Prasad (P.W. 1) cannot be discarded.
34. No doubt, Kashi Prasad (P.W. 1) is the real father of the deceased and he was also having enmity with the accused per sons, but it is no ground to discard his tes timony, as the occurrence initiated at his door in broad day light and he was present , at his door, therefore, he was most natural witness. His son was running to save his life and it was but natural for him to follow his son and when his entry was objected by the accused by force he stood near the house of Mahngoo and saw the incident. No doubt roof of the house of Swamideen (P.W. 2) where incident of firing took place was on higher level but the witness has clarified that person standing on roof was visible from the place where he was standing. The persons firing on the roof were of his village and he could easily recognise them and their act in broad day light. Therefore, we find no ground to disbelieve the testimony of Kashi Prasad (P.W. 1).
35. The next witness of the occurrence is Swamideen (P.W. 2). The occurrence had taken place in the house of Swamideen (P.W. 2), the witness stated that he had his shop in his house. This fact is not disputed. The I.O. had shown shop in eastern portion of the house of the witness. There is also a door towards east of his house. The persons entering into his house from the eastern door were thus easily visible from his shop. Some contradictions were pointed out in his evidence. But these contradictions are not material, as he had stated before the I.O. that he was selling articles (sauda), but in his evidence he stated that he was sitting on the shop and no customer was there. The witness had no doubt stated that there were two other doors towards north and west of his house and above doors were open at the time of occurrence.
36. It was also argued that Swamideen had named only four accused persons and had not recognised other persons. But the witness had stated that four persons namely Parbhoo, Indrajeet, Shyam Sunder and Dwarka armed with guns entered into his house and went to roof chasing Manta and 2-3 persons were standing on his door, but he did not recognise them. It is clear from the evidence of the witness that when Manta and four persons behind him all armed with guns entered into his house, he followed them and objected them as to what were they doing. That he came to his 'Angan' and on hearing sound of fire, he was frightened and ran away from northern door of his house. The other persons were standing on the eastern door of the house of witness and if he directly ran away from his 'Angan' through northern door on hearing sound of fire he could have not seen other persons standing on the eastern door. Therefore, his above evidence does not affect his testimony. No enmity, ill-will or grudge of the accused had been shown with the witness nor the witness had any occasion to depose falsely against the accused persons. The occurrence had taken place on the roof of the witness and it was but natural for him to have seen the accused persons entering into his house and climbing the roof and firing at the roof. Thus, he is natural and reliable witness.
37. The last eye-witness of the occurrence is Arjun (P.W. 3). It was contended by the learned counsel for the appellants that the witness had his house inside the village abadi and his presence at the place from where he allegedly saw the occurrence was not possible and he was also a chance witness. That he stated in his cross-examination that he was coming to house of Mahngoo carpenter for preparing handle of sickle, but he had not told this fact before the I.O. and was also not having sickle and that he had no other occasion to reach in front of the house of Indrajeet, where he allegedly heard sound of firing. It is true that the witness had not told before the I.O. the facts that he was going towards house of Mahngoo, but this aspect does not falsify his evidence. It is not disputed that house of Indrajeet and the well from where the witness heard sound of fire and saw the occurrence lie in between the houses of Mahngoo and the witness and, therefore, witness had occasion to reach in front of house of Indrajeet. The absence of sickle with the witness also does not falsify his presence as handle of sickle could be got prepared without it. It was further contended that the witness had not stated before the I.O. that he had seen four accused entering into the house of Swamideen. The witness stated that hearing sound of fire, which came from the house of Kashi Prasad, he came to the well and from there he saw four accused entering into the house of Swamindeen. The well is at place 'P' shown in the site plan and is in the way which passes from north to south and in front of house of Swamindeen. Thus a person standing near the above well at place 'P' could easily see the persons entering into the house of Swamindeen from his eastern door. The omission pointed out above is not very much material.
38. It was contended that Arjun (P.W. 3) was inimical. The witness had denied regarding any marpit between him and Prabhoo and Shyam Sunder and initiation of a case under Section 324, I.P.C. No document of evidence has been filed to prove above alleged enmity.
39. Copy of non-cognizable report dated 2-1-1980 has been relied on from the side of appellants. The above report (Ext. Kha. 4) shows that one Prem Narain S/o Gattu had lodged a report under Sections 323, 504, 506, I.P.O. against Laxmi S/o Arjun (P.W. 3) and Indrajeet S/o Kamlapat was shown as witness in the said case. Assuming that Prem Narain was beaten by Arjun and his son Laxmi, and he lodged report of the said occurrence and cited Indrajeet as witness, it has not been proved that any case was initiated on the said report and Indrajeet had given evidence in the Court. The above report was lodged as non-cognizable under Sections 323, 504 and 506, I.P.C. against Arjun and his son Laxmi. Arjun (P.W. 3) was not expected to know that informant Prem Narain had cited Indrajeet as a witness. Therefore, there was no occasion for the witness to have any animosity with Indrajeet. The witness had explained that he was going to house of Mahngoo to prepare handle of sickle and place from where he saw the occurrence lies in between his house and the house of Mahngoo and occurrence had taken place in broad day light at 11.30. Therefore, the witness had every occasion to see the occurrence. As mentioned above, it could not be shown that the witness had any animosity with the appellants and other accused with the witness and therefore, we have no ground to discard his testimony.
40. The evidence of ocular witnesses is further corroborated with medical evidence narrated above and the evidence of Investigating Officer that he found blood on the roof of Swamindeen (P.W. 2), on the place where dead body was thrown and he also found trail of blood in the way through which the dead body of the deceased was dragged and taken away.
41. The learned counsel for the appellants contended that according to prosecution case the dead body of the deceased was thrown from the roof of Swamindeen in the rasta. That 2nd-3rd ribs on right side and 4th rib on left side of the deceased parietal and temporal bone as well as base of skull were fractured on both sides. But Dr. A. K. Srivastava (C.W. 1) clarified that the fracture of ribs and parietal and temporal bones were not caused due to fall, but due to injury No. 2 and injury on head i.e. injury No. 1 and, therefore, theory of throwing dead body is not supported by medical evidence as there was no injury caused by fall. But it was not clarified from the witnesses as from which posture of the body of the deceased was thrown. The absence of injury by fall does not falsify the prosecution story, ,as all the ocular witnesses have categorically stated that dead body of the deceased was thrown from the roof in the rasta and this fact was not challenged in their cross-examination. Moreover, prosecution was not going to gain any thing by introducing this fact. The presence of blood on the place where dead body was thrown as well as trail of blood in the way supports the above aspect of the prosecution story. Therefore, the medical evidence is also in conformity with the oral evidence.
42. In view of our above discussions and observations we are of the view that the prosecution successfully proved the guilt of the appellants and the appeal having no force and is liable to be dismissed.
43. The appeal is, accordingly, dismissed. The conviction of the appellants-Indrajeet and Shyam Sunder under Sections 148, 302 read with Sections 149 and 201, I.P.C. and their sentence as awarded by the trial Court are confirmed. The above appellants are on bail. They shall surrender before the C.J.M. Hamirpur for serving out the sentence. C.J.M. concerned is also directed to procure arrest of above appellants by issuing on bailable warrant and adopting other means permissible under law and send them to jail. Office is directed to send copy of the judgment to the C.J.M., Hamirpur within a week for compliance and report.