JUDGMENT D.V. Sharma, J.
1. Both the criminal appeals arise out of the same judgment and order dated 26-4-2004 passed by Additional Sessions Judge, Hardoi, in Sessions Trial No. 476 of 2002, convicting the appellants under Section 302/34 I.P.C. and sentencing them to imprisonment for life and to pay a fine of Rs. 3000/- each and on non-payment of fine to undergo six month's simple imprisonment.
2. Factual matrix is as under:
According to the prosecution case, there was enmity between the parties on account of election rivalry for the post of Gram Pradhan to which wife of the deceased won and earlier Avadhesh and Jang Bahadur, collaterals of the deceased were murdered by the accused. In (his background, on 13-04-2001 at about 5:30 p.m. while the deceased Promod Kumar and Arvind son of Barrister Singh were purchasing some domestic articles from the general store of Rajput of Harpalpur, in presence of the complainant Dinesh Kumar, Arvind Kumar and Mahavir were also purchasing articles from another adjoining shop of Chhotey Yadav, accused Rajni Kant Pathak having double barrel gun and Ram Pratap and Ashok having 12 bore country-made pistols fired at Promod Kumar, which hit him and caused instantaneous death on the spot. On exhortation accused Girind Singh fired from his rifle of 315 bore, but in spite of this, accused Ram Pratap along with his country-made pistol was apprehended by the witnesses and rest accused succeeded in fleeing away. The complainant Dinesh Kumar (since dead) lodged the F.I.R. about the occurrence on 13-4-2001 at 6:45 p.m.
3. The matter was investigated by the police, who after due investigation submitted the charge-sheet against the accused-persons under Section 302/341.P.C. They were charged accordingly by the trial court, to which they pleaded not guilty and claimed to be tried.
4. The prosecution, in support of its case examined Arvind son of Barrister Singh as P.W. I, Mahavtr as P.W. 2, Arvind Kumar son of Samar Singh as P.W. 3, Dr. V.V. Tripathi, who condtacted the autopsy on the dead body of the deceased as P.W. 4, Hari Narayan Singh Tewatiya (S.I.), who conducted the investigation as P.W. 5 and Vijav Kumar as P.W. 6. Out of them P.W. 1 Arvind, P.W. 2 Mahavir, P.W. 3 Arvind Kumar and P.W. 6 Vijay Kumar are the witnesses of fact and rest are formal ones.
5. After considering the entire evidence on record and hearing the parties counsel, the trial court came to the conclusion that the prosecution has been successful in bringing home the guilt of the accused persons under Section 302 read with Section 34 I.P.C. and convicted and sentenced them accordingly as mentioned above.
6. Feeling aggrieved of the aforesaid conviction and sentences the appellants preferred these appeals on the following grounds:
A. The impugned conviction order is wholly illegal-arbitrary and against the evidence on record.
B. The learned trial court failed to consider that P.W. 1 Arvind Kumar became hostile and P.W. 2 Mahavir has said that the gun-shot of Rajni Kant hit the deceased and P.W. 6 Vijay Kumar has stated that he has seen running and heard the fires voice and not seen that who has fired.
C. The appellant No.2 Ram Pratap has been acquitted in Crime No. 54/2001 under Arms Act.
D. The medical report does not support the prosecution story.
E. There is major contradiction in the prosecution witnesses.
F. The learned trial court failed to consider that the occurrence took place on 13-4-2001 at 9.10 p.m. and panchayatnama took place on 14-4-2001 at 7.00 a.m. which creates doubt on the prosecution story.
G. The investigation officer recorded statement of P.W. 2 under Section 161 Cr.P.C. after one month which has become baseless.
H. Rifle of the appellant No. 1 Girind Singh was already deposited in the Arms shop prior to two months of the said occurrence.
I. The case under Section 302/34 I.P.C. has not been proved against the appellants beyond reasonable doubt.
J. The learned court below fails to consider that no any independent witnesses have been cited in the F.I.R.
7. Heard the learned Counsel for the appellants and the learned A.G.A. and perused the entire record carefully.
8. On perusal of evidence on record, it transpires that the occurrence took place on 13-4-2001 at about 5.30 p.m. at the shop of Rajput of Harpalpur and the F.I.R. was lodged on the same day at 6.45 p.m. at police station Harpalpur situated at a distance of about 2 furlongs from the place of occurrence. Thus, the F.I.R. was promptly lodged without any delay and there was remote chance for any deliberation or consultation. It has come in evidence of P.W. 3 Arvind that the complainant Dinesh Kumar has died after lodging the report. He has stated that he had scribed the written report on which complainant Dinesh Kumar had put his signatures. Thus, being scribe of the written report, he proved the F.I.R. Ext. Ka-1. Since the complainant Dinesh Kumar is no more and the F.I.R. has been proved by PW-2 Mahavir, its genuineness cannot be challenged; rather it is presumed to be a genuine document.
9. Panchayatnarna of the dead body of Promod Kumar was conducted on 14-4-2001 at 7.00 a.m., which is on record as Ext.Ka-2. Thereafter the Investigating Officer sealed the dead body and sent the same for post-mortem examination along with necessary papers. On the post-mortem examination, conducted by Dr. V.V. Tripathi, following ante-mortem injuries were found:
1. Firearm wound of entry 3 cm x 3 cm x chest cavity deep on the left side of back 4 cm below the scapula underneath 10th Rib found fractured, Margins are lacerated and Inverted.
2. Firearm wound of entry 3 cm x 3 cm x chest cavity deep on the left side of back 5 cm below the Rt. Scapular underneath 11th rib found fractured margins are lacerated and inverted.
10. In the opinion of the doctor, death was caused due to excess bleeding from the injuries and shock. Both the injuries were passible to have been caused with country-made pistol and gun.
11. Thus, date time and place of the occurrence are established from the oral, medical as well as documentary evidence on record, which have also not been seriously challenged by the defence, but the participation of the appellants has been disputed.
12. In this case, P.W. I Arvind son of Barristar Singh and P.W. 3 Arvind Kumar son of Samar Singh appear to have been won over by the accused and they have been declared hostile by the prosecution. P.W.I Arvind has stated that having come to know that Promod sustained firearm injuries, he reached the general store of Rajput and saw Promod lying dead. Accused Ram Pratap was not apprehended in his presence. Similarly P.W.3 Arvind Kumar son of Samar Singh stated that when he reached the shop of Rajput, Promod was lying dead. He had scribed the written report and the complainant Dinesh Kumar had appended his signatures on the written report scribed by him. Fard of country-made pistol and two cartridges of 12 bore was prepared in his presence bearing his signatures.
13. PW-2 Mahavir is the star witness in this case. He has fully supported the prosecution case by stating that he was also purchasing domestic articles from the shop of Yadav, which was adjacent to the shop of Rajput from where Promod was purchasing articles along with Dinesh and Arvind. He saw Rajnikant firing with his gun at Promod and on sustaining gun shot injury, he fell down, thereafter Ashok fired with his country-made pistol at Promod. Promod Kumar died on the spot. On exhortation, Girind Singh fired at him, which could not hit him and Ram Pratap was about to fire but he apprehended him along with his country-made pistol with the help of others.
14. The witness Mahavir PW-2 admitted that he is resident of Jagdishpur, P.S. Kamalganj, district-Farukkhabad. On the date of occurrence he had gone to Shekhapur at the house of his relation Ram Tirath and in the evening he went to purchase articles from the shop of Chhotey Yadav, adjacent to Rajput's shop. Learned trial court has satisfactorily dealt with his testimony and found his presence established on the spot. He has been cross-examined at length but nothing material could be detected to discredit his testimony barring minor contradictions which may not affect the merit of the case. In this connection Hon'ble Apex Court in State of Rajasthan v. Kalki , observed that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be.
15. PW-6 Vijay Kumar has stated that he was at the roof of his house. On hearing the sound of firing coming from the side of Rajput's general store, he reached there and saw running the accused persons Rajnikant, Ashok and Girind Singh and Promod was lying dead on the counter of Rajput's shop. Accused Ram Pratap was apprehended along with country-made pistol in his presence. Fard of country-made pistol and two live cartridges were prepared in his presence bearing his signatures. He has also been cross-examined at length but could not be shaken. He is brother-in-law (sarhu) of the deceased.
16. Learned counsels for the appellants have vehemently argued that Mahavir being resident of Jagdishpur situated at a distance of 70-80 Kms. from the place of occurrence, is a chance and interested witness so his testimony could not have been believed. Similarly, PW-6 Vijay Kumar being relation of the deceased, is also an interested and partisan witness. He saw the accused persons running, hence his testimony should also have not been believed.
17. Learned trial court has well discussed their evidence and has given cogent reasons for believing them by citing several rulings and distinguishing the cases cited by the learned Counsel for the defence. Presence of P.W. 2 Mahavir is supported by other witnesses including the hostile witnesses. His testimony is corroborated by the medical evidence as well.
18. Regarding hostile witnesses Hon'ble Apex Court in Bhagwan Singh v. State of Haryana has observed as under:
We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
19. In the light of the aforesaid ruling, the evidence of hostile witnesses cannot be brushed aside as the attending and incriminating circumstances against the accused have to be taken into consideration in the light of Section 106 of the Indian Evidence Act.
20. Learned prosecutor had also filed copy of the F.I.R. in the trial court showing murder of Chhotey Yadav after seven months of the occurrence in which accused Rajnikant and Ram Pratap were accused and had argued that complainant Dinesh was also murdered by them while they had already killed Avadhesh and Jung Bahadur. These facts are indicative of the fact that how so strong and daring these accused persons were and due to fear, witnesses Arvind and Arvind Kumar became hostile.
21. Learned Counsel for the appellants have vehemently argued that the prosecution witnesses are closely related to the deceased, they are partisan and interested witnesses, hence their testimony should not have been relied upon. In this context, we may refer the case of Dalip Singh v. State of Punjab , which has been followed in the case of Sucha Singh and Anr. v. State of Punjab wherein their Lordships of the Hon'ble Apex Court observed as under:
26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relations would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
22. They further observed:
Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
23. Thus the ground that witnesses being close relative and consequently being partisan witnesses should not be relied upon, has no substance.
24. On scrutiny of evidence on record, we find that presence of PW-2 Mahavir on the spot is corroborated by the F.I.R. version and even by the statements of hostile-witnesses PW-1 and PW-3. Hence, his presence on the epot cannot be doubted nor he can be said to be a chance witness as rightly held by the trial court.
25. In regard to PW6 Vijay Kumar, it has been argued that he reached the spot when the accused persons were fleeing away, hence he could not see the occurrence and should not have been believed. Since the occurrence took place at 5.30 p.m. in the month of April, there was no question of misidentification of the assailants especially when they were very well known to the witness from before. He went to the Police Station and in his presence Fard of two live cartridges of 12 bore recovered from the possession of appellant Ram Pratap, was prepared, upon which he put his signatures. Thus his presence on the spot also cannot be doubted though he could not see the manner of assault.
26. Now we have to examine as to who actually participated in the crime. It has come in evidence that appellant Rajnikant fired from his gun at the deceased Promod Kumar and when he fell down, appellant Ashok fired from his country-made pistol. The post-mortem report reveals that the deceased sustained two firearm wounds of entry referred to in F.I.R., which could have been caused by gun and country-made pistol as opined by the doctor. Thus, the oral testimony Is fully supported by the medical evidence. Eye-witness account is getting full corroboration from the medical opinion. Accordingly the statement appears to be trustworthy. The ocular evidence adduced before the trial court and medical evidence of Dr. V.V. Tripathi PW-4 leads to an inescapable conclusion that in appreciating the evidence the trial court rightly came to the conclusion that the ante mortem injuries sustained by the deceased were really caused by using the gun and the country made pistol. No perversity has been pointed out or reflected in the findings recorded by the trial court. Thus the conclusion so derived by the trial court does not warrant any interference by this Court. Since appellant Ram Pratap was apprehended on the spot along with his country-made pistol and cartridges, which is proved by the oral and documentary evidence on record, his participation in the crime also cannot be doubted. Hence the oral evidence regarding participation of the three appellants, namely, Rajnikant, Ashok and Ram Pratap is consistent with the medical and documentary evidence on record, beyond all reasonable doubt.
27. Learned Counsel for the appellants has argued that since appellant Ram Pratap has been acquitted under Section 25 Arms Act, his participation in the crime is not established and he must have been acquitted from the main charge under Section 302/ 34 I.P.C.
It may be pointed out that appellant Ram Pratap has been acquitted by the trial court under Section 25 Arms Act only on technical ground i.e. for want of sanction for prosecution, which was prerequisite to take the cognizance by the trial court. He has not been acquitted on the ground that he was not apprehended on the spot along with country-made pistol and two live cartridges; rather it has been proved by the oral testimony of the witnesses including the investigating officer P.W. 5 and the fards prepared in respect of them. Thus, he cannot claim benefit of acquittal from the charge under Section 25 Arms Act.
28. Regarding appellant Girind Singh, we find that no overt act has been assigned to him nor he caused any injury to the deceased or anyone. PW-2 Mahavir has stated only this much that Girind Singh fired from his rifle which could not hit anyone and while Ram Pratap was about to fire from his country-made pistol, he was apprehended. Girind Singh was a teacher. In his statement under Section 313 Cr.P.C. he stated that his father was a witness in the murder case of Jungbahadur and Avadhesh. He had no axe to grind in the matter. His rifle was already deposited two months prior to the occurrence, receipt of which was given to the investigating officer, PW-5, who admitted the same. The statement of PW-2 Mahavir regarding firing by appellant Girind Singh, is not corroborated by anyone. Had he been armed with rifle and participated in the crime, he had ample opportunity to hit anybody with his rifle, which is a much different weapon than a country-made pistol. This fact negatives his participation, more so his father was a witness against other appellants in the murder case of Jang Bahadur and Avadhesh, hence it is improbable that he could join hands with other appellants in committing the crime of this case. It appears that out of zeal P.W. 2 Mahavir might have given exaggerated statement dragging the appellant Girind Singh unnecessarily into the criminal vortex. Hon'ble Apex Court in Leela Ram v. State of Haryana has observed that witnesses may give exaggerated statement, but it is the duty of the Court to separate grain from the chaff. Therefore, possibility of his false implication in this case cannot be ruled out. However, the Hon'ble Apex Court considered the applicability of the maxim 'falsus in omnibus'. This maxim has no applicability in India.
29. Thus, it is always open for the Court to believe or disbelieve a witness in part. Consequently on reappraisal of evidence, we find that there is no reason to believe that the main part of the deposition of Mahavir as true and the same should not be rejected for other persons. Moreover, we find that the informant after lodging the F.I.R. is no more. In the F.I.R. there is nothing to show that Grind Singh used the rifle for hitting someone, but there is general and vague allegation against him. In these circumstances, the view taken by the trial court that the charge against Girind Singh is also proved in the light of the provision of Section 34 I.P.C., appears to be misconceived.
30. On scrutiny of evidence, we find that the trial court convicted the appellant Girind Singh under Section 302/34 I.P.C. In this context we may point out that. Section 34 is only attracted where the act was done in furtherance of common intention of all the appellants. That is the question of fact depending upon the facts and circumstances of each case. There is no clear and unimpeachable evidence that the common intention developed during the course of fight. There is no direct evidence available to infer even by the circumstantial evidence that there was a plan or meeting of mind of all the assailants and Girind Singh to commit the offence. The essence of liability is to be found in the existence of the common intention emanating from the accused's meeting to the doing of a criminal act in furtherance of such intention. It appears that simply because of the presence it cannot conclusively be said that appellant Girind Singh shared the common intention to commit the murder. There is no overt act. The role assigned to Girind Singh and the view taken by the trial court that he might have used any other rifle, creates a doubt about his complicity because of the fact that in the F.I.R. it is mentioned that he used his own rifle, which was earlier deposited. Thus, the participation of the appellant Girind Singh has become doubtful in the commission of the offence, moreso the evidence adduced before the trial court does not lead to an inference that he had, definite common intention to kill the victim.
31. Thus, it would be extremely unsafe to rely over the evidence of P.W.2 Mahavir regarding Girind Singh, which is not getting complete corroboration from the F.I.R. and other surrounding circumstances including the defence taken by Girind Singh. In these circumstances, it cannot conclusively be said that the act done by several persons in furtherance of common intention to commit the murder was such that Girind Singh has pre consoled with other accused or he is jointly liable for commission of the murder. To sum up, we hold that on facts there is no clinching sufficient evidence to attract Section 34 I.P.C. to prove that the appellant Girind Singh had the same intention to commit the murder. Even for argument's sake it is presumed that Girind Singh armed with rifle was seen present at the time of occurrence and the F.I.R, is believed to be true, even then the prosecution has failed to establish that Girind Singh accompanying the principal culprits shared his intention in respect of every act eventually committed by them. Thus, the mere presence of Girind Singh at the time of commission of offence, is not itself sufficient to bring his case within the purview of Section 34 I.P.C. Accordingly, in view of the above lime light, he is entitled to secure benefit of doubt under Section, 302/34 I.P.C.
32. On behalf of the appellants nothing has been pointed out to indicate that learned trial court wrongly applied Section 34 in this case or appellants except Girind Singh had no common interest to commit murder. Thus, the trial court rightly took a view that appellants Rajnikant, Ashok and Ram Pratap had the common intention to commit murder of Pramod Kumar. The participation of Ram Pratap is also established because of the fact that he was arrested on the spot along with country-made pistol and there is a constructive liability. It is established that appellant Rajnikant and Ashok armed with gun and country-made pistol, fired and killed the victim and Ram Pratap was also present armed with country-made pistol, shared the common intention with other appellants to cause the death of Pramod Kumar. Hence, each of them is guilty of the offence under Section 302 and read with Section 34 I.P.C. This view gets support from the case of Dashrath v. State of M.P. .
33. At this stage, it would be relevant to refer that the prosecution has successfully proved that all the three appellants Rajnikant, Ashok and Ram Pratap had common intention. Accordingly Section 34 I.P.C. is applicable and on behalf of Ram Pratap it cannot conclusively be said that since he had not caused any injury he should be acquitted because of the fact that he used country-made pistol at the time of occurrence and the commission of murder was done by these appellants in furtherance of their common intention. Liability of all the appellants are born. We further find that it was a case of premeditated attack at the deceased at the instance of the appellants. Thus, Ram Pratap must be deemed to have shared the common intention with the attackers of murder even though the weapon used by him caused no injury.
34. Before parting with the judgment, we would like to observe that in this case informant is no more. Parties were at daggers drawn. The F.I.R. clearly reveals that appellant Rajnikant and Ashok used gun and country-made pistol and caused fatal injuries to the victim. The F.I.R. version is corroborated by the statement of P.W.2 Mahavir, whose presence at the scene of occurrence was not doubted by the trial court. There is no compelling circumstance nor anything has been shown to us by the appellants to take a different view. The trial court was in a position to note the demeanour of the witnesses. The appellants have failed to point out any inconsistency or contradiction to rebut the presumption that P.W. 2 is not an independent witness.
35. Thus, considering the totality of the circumstances and the evidence on record, we come to the conclusion that finding of conviction against appellants Rajnikant, Ashok and Ram Pratap is liable to be maintained, but appellant Girind Singh is liable to be acquitted by giving benefit of doubt. Consequently, Criminal Appeal No. 1090 of 2004 is partly allowed and its connected Criminal Appeal No. 1203 of 2004 is hereby dismissed. The order of conviction and sentence passed by the trial Court against appellants Rajnikant, Ashok and Ram Pratap are maintained. They are in Jail. They shall be detained to serve out the sentences awarded by the trial court. Appellant Girind Singh is given benefit of doubt and is hereby acquitted of the charges levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.