JUDGMENT Imtiyaz Murtaza, J.
1. The above appeals have been preferred against the Judgment and order dated 16.11.2002 passed by the Additional Sessions Judge, Hamirpur in S.T. No. 44/97 whereby both the appellants have been convicted under Section 302/34 I.P.C. for the murder of Loknath and sentenced to undergo imprisonment for life and a fine of Rs. 20,000/-: Appellant Govind Das has been sentenced to death under Section 302/34 I.P.C. for committing the murder of Naval Kishore.
2. Brief fact of the case as mentioned in the first information report is that the informant Mannu is resident of Village Alra, P.S. Muskara. His family lives in Village Natarra, District Mahoba where his in-laws are residing. He and his wife Shail Kumari and younger son Naval Kishore occasionally come and stay in village Alra and they cultivate the land of their share. About eight days ago his cousin Govind Das @ Gudda and his son Jai Kishan had encroached the land on the back side of his house by a Bandhi. On 11.8.96 his son Lok Nath @ Lukkhi whose wife was expecting to deliver a child came to take his mother alongwith him. His wife had informed Lok Nath about the encroachment of their land . In the afternoon, verbal alteration had started between Lok Nath and Govind Das and his son Jai Kishan. In the evening, Lok Nath and his mother were going to Natarra and as they reached in front of the field of Ram Gopal Lodhi near Gahroli Nahariya Nalla, Govind Das @ Gudda came armed with Kulhari and his son Jai Kishan armed with Bhalla started assaulting Lok Nath. His son fell in the field near Nalla Nakar and thereafter they killed him. His wife came running to the house and he and his younger son Naval Kishore were going near the dead body of his son and as they came out of the village and reached near the pond, Govind Das @ Gudda and Jai Kishan met them. They were armed with Kulhari and Bhalla and his younger son was also killed by them. Thereafter they ran away. He left his wife near the dead body of his younger son and came for giving information.
3. The report was registered at the Police Station Muskara by the Head Constable Clerk Ghanshyam Sharma at 11.30 p.m. He prepared chik report (Ex.Ka.5) and also prepared G.D. entry No. 26 at 11.30 p.m. (Ex.Ka.6). After the registration of the case Sri P.K. Singh, Station House officer, Sumperpur started investigation. He could not prepare the inquest report in the night. In the morning he prepared the inquest memo of Naval Kishore, and dispatched the dead body through. Constables Narain Singh and Ram Singh for the post mortem. The inquest report of Naval Kishore is Ex.Ka.7. He also prepared challan lash, photo lash and letter to C.M.O. (Ex.Ka. 8 to Ex.Ka.10). He also collected blood stained and plain earth and prepared the recovery memo (Ex.Ka.11). Thereafter he prepared the inquest memo of Lok Nath (Ex.Ka.12). He also prepared challan lash, photo lash and letter to C.M.O. (Ex.Ka.13 to Ex.Ka.15). The dead body was dispatched through Constables Narain Singh and Ram Singh for the post mortem examination. He prepared the site plan (Ex.Ka.17), recorded the statements of witnesses and after conclusion of the investigation submitted the charge sheet (Ext. Ka.....).
4. Post mortem of Lok Nath was conducted by Dr. M. Rajput, Medical Officer, P.S., Rath, District Hamirpur. In the external examination he noted the condition of body as average muscular adult male corpse. Eyes closed. Mouth disfigured & cut. Blood stained discharge coming from both cars. Rigor Mortis absent in Neck and upper limb present in lower limbs. Mild abd. Distension. No sign of putrefaction . Mud staining present all over body.
5. He also noted the following ante mortem injuries:
1. Puncture wound 2-1/2 x 1/2 cm on outer aspect of left eye Brow, just below the orbital bone. Lat orbital margined 2 cm thin bone.
2. Puncture wound 1/2 x 1/4 cm, 1/4cm above injury No. 1.
3. Contusion 2x2 cm below and lateral to right eye ball.
4. Vertically placed puncture wound 1/2 cm left to root of nose 1/2 c 1/2 cm x 3-1/2/cm.
5. 1-1/2 x 1/2 cm x 2 cm deep punctured wound on left cheek 1 cm x 1/2 cm above lat end of left moustache.
6. Cut wound 6-1/2 x 2 cm 5 cm deep Jaw cut and on left side of lower law and neck, from midline upto 6-1/2 cm Mandible in 3 pieces.
7. Three small punctured wound 1 cm 1 cm 1/2 cm-on 1-1/2 to 2 cm deep. No. 1 is piercing peritoneal cavity.
8. On back there are seven small wounds three on left side and four on right side 1/2 cm size except one C is 2 x 1-1/2 cm .
9. Abrasion 1-1/2 x 1-1/2 cm, 7-1/2 cm above left elbow on outer aspect of left forearm.
6. In the Buccal cavity he found cut and mandible. In the internal examination he found fracture of middle cranial fossa both sides. Brain stem and cerebella haemorrhage present. Bone of skull was found fractured. Stomach and its contents were found empty. Small intestine and its contents and large intestine and its contents were found empty.
7. In the opinion of doctor death was caused due to coma as a result of brain stem haemorrhage due to injury No. 6.
8. Post mortem of Naval Kishore was also conducted by Dr. M. Rajput, Medical Officer, P.S., Rath, District Hamirpur. In the external examination he noted the condition of the body as Lean and thin adolescent male body mud stained head disarticulated only by a top of left side of neck 1/2 cm size thread thin maggots present. Eyes closed mouths open blood stained discharge coming from both ears. Nail firm. Rigor Mortis present in lower limbs. Mild abd. Distension.
9. He noted the following ante mortem injuries:
1. Cut wound, disanticulating the neck and head from rest of Trunk at C5/C6 vertebrae, all structures of Neck seen.
2. Cut wound on right side upper chest 11 -1/2 x 4 cm, Parallel & 2 cm below injury No. 1.
10. In the internal examination he found stomach and its contents empty and large intestine and its contents and small intestine and its contents were also found empty.
11. In the opinion of doctor death was caused due to injuries sustained by him.
12. The case was committed to the Court of Sessions and the Sessions Judge framed the charges against the appellants and one Km. Sushila under Section 302/34 I.P.C. for the murder of Naval Ki shore and they were charged under Section 302 I.P.C. for the murder of Naval Kishore.
13. In order to prove its case prosecution examined P.W.1 Mannu, P.W.2 Smt. Shail Kumari, P.W.3 Ram Swaroop, P.W.4 Dr. M. Rajput, P.W.5 constable Ghanshyam Sharma, who prepared the chik F.I.R. & P.W.6 P.K. Singh, Investigating office of the case.
14. P.W.1 Mannu deposed that accused Jai Kishan is son of Govind Das and Sushila is his daughter. The accused are resident of Alra. His family and in-laws live in village Natarra. He alongwith his wife Shail Kumari and younger son lives in Alra and they cultivate their land. About 8 days prior to the occurrence accused had erected a bandhi (Mendh) in his land. On the date of occurrence his son Lok Nath had come to the village from Natarra. He came to take his mother alongwith him because his wife was going to deliver a child. His wife Shail Kumari had told her son Lok Nath that the accused had erected bandhi (Mendh) and some altercation had taken place between his son and the accused. His son Lok Nath alongwith his mother were going to the village Atarra and when they reached near the field of Ram Das and Ram Gopal in Mauza Gahroli, Govind Das, Jai Kishan and Shaila met them. Govind Das was armed with a Kulhari, Jai Kishan carried a Bhalla and Sushila had a Barchhi. All the three chased his son Lok Nath and he ran away after crossing the Nalla. Lok Nath reached in the field of Deoki Nandan and all the three persons assaulted him with Kulhari, Bhalla and Barchhi. Lok Nath fell on the ground and died. His wife Shail Kumari returned back and informed him about the murder of Lok Nath and when they reached near the pond his son Naval Kishore was 25 steps ahead of them. All the three accused assaulted him also. Govind Das and Jai Kishan had caught hold of the hand of his son Naval Kishore and got him fell down on the ground. Jai Kishan sat on the chest. Suhsila pressed the legs and Govind Das cut the neck by Kulhari.
15. He further stated that Lok Nath was murdered at 4.00 p.m. and Naval Kishore was murdered at 5 p.m. After the occurrence he went to Muskara, prepared the first information report (Ex.Ka.5) and lodged the report at the police station. In the cross examination he stated that in the report and in his statement to the investigating officer he had mentioned that Suhila was armed with Barchi. He could not tell the reason why it is not mentioned in his report and in his statement.
16. P.W.2 Smt. Shail Kumari deposed that her family lives in village Natarra. She alongwith her husband and younger son lives in village Alra. Lok Nath lives in Natarra. About 8 days prior to the occurrence her nephew Govind Das @ Gudda and her son Jai Kishan had erected a bandhi (Mendh) in her field. On the date of occurrence when Lok Nath came from Natarra she had told about the erection of bandhi in her field. Thereafter some altercation had taken placed between Lok Nath on one hand and Govind Das and Jai Kishan on the other. She alongwith her son Lok Nath was going to Natarra. When they reached near Gahroli canal at about 4 p.m. (sic) front of the field of Ram Gopal, Govind Das, Jai Kishan and Sushila met them. Govind Das was armed with a kulhari, Jai Kishan was armed with a Bhalla and Sushila was armed with a pointed sariya. The accused persons with their respective weapons started assaulting her son Lok Nath until he died. He was murdered in the field of Deoki Nandan. She returned back to her house and informed her husband Mannu and also her son Naval Kishore. When they were coming to the place of occurence and when they reached near the pond at about 5.30 p.m. the accused again met them. The accused caught hold of her son and got him fell down on the ground. Sushila caught hold the legs of Naval Kishore, Govind Das cut the neck of Naval Kishore with kulhari. Jai Kishan was sitting on the chest of Naval Kishore. Naval Kishore died on the spot. Her husband lodged the report at the police station.
17. P.W.3 Om Prakash deposed that on 11.9.96 police brought Govind Das @ Gudda and his son Jai Kishan to the village in presence of him and one Bhagwati of the village. The accused were taken to a small room inside the house of Govind Das, which was filled with clothes. Govind Das took out a kulhari and Jai Kishan took out a Bhalla and they handed over the same to the police. Both kulhari and bhalla were smeared with blood. He further stated that first kulhari was got recovered by the police from Govind Das and thereafter bhalla was got recovered from Jai Kishan. The recovery memo was prepared which is Ex.Ka.42.
18. P.W.4 Dr. Bhrigendra Rajput conducted the autopsy on the dead bodies of Lok Nath and Naval Kishor.
19. P.W.5 Ghanshyam Shaima deposed that on 11.8.96 he was posted at police station Muskara as constable clerk. F.I.R. of the case was lodged by Mannu at 23.30 p.m. and he prepared chik No. 61/96. Copy of the chik F.I.R. is Ex.Ka.5. He also prepared the G.D. and copy of the G.D. is Ex.Ka.6.
20. P.W.6 P.K. Singh is S.H.O. He deposed that on the basis of written report lodged by Mannu case was registered in his presence. He started the investigation. After the registration of the case, he reached at the place of occurrence. Due to night he could not prepare the inquest report. In the morning he prepared the inquest report of Naval Kishore and handed over the dead body to constable Narain Singh and Ram Singh for the post mortem. Inquest report of Nal Kishore is Ex.Ka.7. He also prepared challan lash, photo lash (Ext.Ka.8 and Ext.Ka.9). He also prepared letter to Medical Officer, Incharge, P.H.C. Rath (Ex.Ka.10). He also prepared the recovery memo of blood stained and plain earth (Ex.Ka.11). Thereafter he prepared the inquest memo of Lok Nath (Ex.Ka.l2). He also prepared challan lash and photo lash (Ex.Ka.l3 and Ex.Ka.14). Letter to Medical Officer for post mortem (Ex.Ka.l5). He also prepared the recovery memo of blood stained and plain earth (Ex.Ka.l6). After the preparation of inquest report he recorded the statement of informant Mannu. He also prepared site plan (Ex.Ka. 17). Thereafter he recorded the statement of Shail Kumari.
21. Accused had surrendered in Court on 2.9.96 and thereafter on 11.9.96 accused got recovered a kulhari and a bhalla (Ex.Ka. 18).
22. After the conclusion of the investigation he submitted the charge sheet against the accused persons and Sushila.
23. The case of the defence is of denial.
24. The Sessions Judge considering the evidence on record convicted the appellants Govind Das for the murders of Lok Nath and Naval Kishore and sentenced him as aforesaid, Jai Kishan was convicted and sentenced as foresaid for the murder of Lok Nath. Sushila was acquitted of the charges and Jai Kishan was acquitted for the murder of Naval Kishore.
25. Learned counsel for the appellants has challenged the findings of learned Sessions Judge on several grounds. The first submission of learned counsel for the appellants is that the prosecution failed to prove the motive of the incident. It is submitted that in the first information report it is alleged that the appellants erected a Bandhi in the field of informant Mannu about 8 days prior to the occurrence. The son of the informant, Loknath, when coming from village Natarra on 11.8.1996, was told about the erection of Bandh by the appellants. Thereafter verbal altercation took place between Loknath on the one hand and Govind Das and Jai Kishan on the other. It was the immediate motive for the occurrence. The investigating officer, P.W. 6, P.K. Singh, stated that he had not inspected the Bandhi nor he had shown the Bandhi in the site plan (Ext. Ka. 17). He had not investigated whether the appellants had erected the Bandhhi. We have carefully examined the submission of learned counsel for the appellants and do not find any substance in this submission. In the report, lodged by P.W. 1 Mannu, he had mentioned the erection of Bandhi and this is the immediate motive of the occurrence. Some verbal altercation had taken place between the deceased and appellants. The version of the first information report was also corroborated by the testimony of P.W. 1, Mannu and P.W. 2, Smt. Shail Kumari. If the investigation officer did not mention in the site plan about the Bandhi or he did not investigate the same, that does not lead to the inference that Bandhi was not erected by the appellants. This is a case of direct evidence. The evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. But that would not be so in cases where there are eye witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the Court in its ultimate conclusion. But that does not mean that if a motive is not established, the evidence of an eye witness is rendered untrustworthy.
26. The next submission of learned counsel for the appellants is that the testimony of the eye witnesses cannot be accepted only due to the fact that both the eye witnesses are relative and interested witnesses. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he she was related to or interested in the parties on either side. The evidence in such cases has to be considered from the point of view of trustworthiness and from the angle as to whether it finds confidence in the mind of the court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in the cross examination and the measure of impression created in the mind of the court. If the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding, the circumstances and probabilities of the case to be proved, it can provide a good and sound basis for conviction of the accused. This contention of the counsel for the appellants that the witnesses are relative and interested, therefore, their testimony should be rejected, has no force and is rejected.
27. There is substance, however, in other contentions of learned counsel for the appellants. Learned counsel for the appellant submitted that there is conflict in direct and medical evidence. In support of the submission, learned counsel for the appellants has drawn our attention towards the statement of P.W. 1, Mannu and P.W. 2, Smt. Shail Kumari. According to the first information report lodged by P.W. 1, Mannu, Loknath was assaulted by Govind Das @ Gudda and Jai Kishan, who were armed with axe and Bhala respectively. In the first information report it was also alleged that Naval Kishore was also assaulted by both the persons. Post-mortem examination report of Lok Nath indicates that he received several punctured wounds and one cut wounds. The post mortem examination report of Naval Kishore shows that he received only 2 cut wounds. The punctured wounds which are mentioned in the post mortem examination report of Lok Nath are of very small dimensions and those punctured wounds can not be caused by the weapon alleged to have been recovered on the pointing out of Jai Kishan. The witnesses modulated their statements to overcome this conflict. P.W. 1, Mannu, stated that Lok Nath was assaulted by Govind Das @ Gudda, Jai Kishan and Sushila. Govind Das was armed with an axe, Jai Kishan was armed with Bhala and Sushila was armed with Barachhi and all the 3 had assaulted Lok Nath with their respective weapons. So far as the murder of Naval Kishore is concerned, it is stated that Govind Das and Jai Kishan had caught hold of the hands of Naval Kishore and fell him down. Jai Kishan sat on the chest and Sushila caught hold the legs and Govind Das cut the neck with axe. Similarly P.W. 2, Smt. Shail Kumari stated that Lok Nath was assaulted by Govind Das, Jai Kishan and Sushila. Govind Das was armed with an axe, Jai Kishan was armed with Bhala and Sushila was armed with pointed Sariya (iron rod). It has been held by the Session Judge that Bhala which is alleged to have been recovered on pointing out of Jai Kishan is not the weapon which was used in the crime The prosecution case disclosed by these witnesses in their evidence is different from the version mentioned in the first information report. The prosecution realised that the injuries of Lok Nath cannot be caused by Bhala, therefore, one more accused Sushila is implicated in this case, who is sister of the accused and the learned Sessions Judge had acquitted her. P.W. 1, Mannu, had assigned Barachhi in her hand and P.W. 2, Smt. Snail Kumari had assigned pointed Sariya. We are of the opinion that this modulation in the statement of witnesses is made in order to reconcile the eyewitness account with the post mortem examination report. The manner of assault on Naval Kishore is also chased. In our opinion, the witnesses being relative and interested are modulating their statements to suit the prosecution case, therefore, their testimony does not inspire full confidence. In this case unfortunately there is no independent corroboration of the testimony. The investigation is not such which is found full confidence. Learned counsel for the appellants has drawn our attention towards some infirmities in the investigation. He submitted that the first information report was registered at the police station at 11.30 P.M. The distance of the police station from the place of occurrence is 9 Kms. The occurrence had taken place at 4.00 P.M. The statement of the informant P.W. 1, Mannu, shows that from the place of occurrence he had proceeded to the police station and he took about 7.30 hours in reaching at the police station which is only 9 Kms. In order to explain the delay the prosecution had made constant effort to overcome this infirmity, in the F.I.R it is mentioned that Lok Nath was murdered at 4.00 P.M. and P.W. 2, Smt. Shail Kumari immediately had run to the village and informed him and thereafter they were going towards the dead body of Lok Nath when Naval Kishore was also murdered. P.W. 1, Mannu, stated that Naval Kishore was murdered at 5.00 P.M. and P.W. 2, Smt. Shail Kumari, stated that he was murdered at 5.30 P.M. These variations are made in order to cover the delay in lodging the first information report. The F.I.R. in this case cannot be said to be prompt. It is also not disputed by the investigating officer that in the inquest report there are cuttings and over writings in the time of lodging of the first information report. The inquest report indicates that the time of lodging of the first information report is mentioned as 11.30 (evening). The time 11.30 is a mid night and cannot be described as evening. Another circumstance pointed out by learned counsel for the appellants is infirmity in the recoveries of weapons at the pointing out of the accused. The investigating officer had taken the appellants on remand on 11.9.1996. On the pointing out of Govind Das, blood stained axe and on the pointing out of Jai Kishan blood stained Bhala was recovered. The only witness of these recoveries is P.W. 3, Ram Swaroop. He is the son of the informant and brother of the deceased. The serologist report indicates that the axe was found smeared with blood and the blood on Ballam was disintegrated. Learned Sessions Judge recorded a finding that Ballam which is recovered on the pointing out of Jai Kishan was not used in the crime. It is further held that Jai Kishan got recovered this Ballam in order to mislead the investigation. It is highly surprising that why the accused persons will keep axe and Ballam smeared with blood in their houses. If the Ballam was got recovered for misleading the investigation, then why axe stained with blood was left there Learned Sessions Judge has already held that Ballam is not the weapon of crime and the recovery of Ballam becomes doubtful. P.W. 3, Ram Swaroop, has also admitted that axe and Ballam which were recovered from the place was not in pieces and in court when these articles were opened they were in several pieces. Learned Sessions Judge has also held that even if the recovery of weapons is ignored then there is also eye witness account to support the prosecution case. Learned Sessions Judge alter considering the testimonies of both the eyewitnesses acquitted Smt. Sushila for both murders and Jai Kishan for the murder of Naval Kishore. Merely because Smt. Sushila is acquitted for both murders and Jai Kishan is acquitted for murder of Naval Kishore, the same ipso facto cannot in any manner be a ground for acquittal of Govind Das and Jai Kishan for the murder of Lok Nath.
28. We have carefully scrutinized the evidence on record. In our opinion implicit reliance cannot be placed on the testimonies of both eye witnesses. They have implicated Smt. Sushila in the crime. The involvement of Smt. Sushila was to reconcile the conflict in direct and medical evidence. Since the punctured wound on the body of Lok Nath were of small dimensions, therefore, weapon Barachhi and pointed Sariya was introduced by the witnesses. After the acquittal of Smt. Sushila, punctured wound remains unexplained. Learned Sessions Judge has already held that Ballam which is alleged to be recovered on the pointing out of Jai Kishan is not weapon of crime. There is no corroboration of any other independent testimony or of medical evidence or investigation.
29. In view of the discussions made above, both the appeals are allowed. The conviction and sentences awarded by the trial court are set aside. The appellants are acquitted of the charges. The appellants are in jail. They shall be released forthwith if not wanted in any other case. The reference made by learned Sessions Judge for the confirmation of death sentence is rejected.