JUDGMENT Imtiyaz Murtaza, J.
1. Both the above appeals have been filed against the judgment and order dated 31.3.1977 passed by Sri K.N. Endlly Additional Sessions Judge, Kanpur Nagar in Sessions trial No. A-473 of 1975 convicting the appellants under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life.
2. The brief facts of the case, as mentioned in the F.I.R. lodged by Sharfuddin alias Munna, are that on 13.9.1975, he was sitting in his Bakery in Mohalla Nazirbagh, Kanpur, Firoz Alam and Mohammad Rafique were also present at the Bakery. His father Kamruddin and Abdul Latif had gone for the repairing of the Sewai machine at the residence of mechanic Panni and they were returning at about 12 O'clock and when they reached in front of the house of Riyasat Ali and Kafeel Ahmad, Habib Ahmad, Niyaz Ahmad, Mehar Ali armed with Iron Rod and Patiya and Sattar, Kalloo and Mahmood also came out and Sattar, Kalloo and Mahmood exhorted, Habib Ahmad, Niyaz Ahmad, Mehar Ali started assaulting his father with Iron rod and Patiya. His father and Latif raised alarm, he alongwith Firoz Alam, Mohammad Rafique and several other persons alongwith Inspector Tevatiya and two constable Ram Ujagar and Gajadhar of police out post Bekanganj reached there. Habib Ahmad was arrested on the spot alongwith Sariya and other accused ran away. His father had received injuries on head and on various parts of body and he was admitted in a Hospital in serious condition.
3. G.P. Tripathi, Incharge Statiohn Office P.S. Karnailganj started investigation, Sharfuddin, informant took his father Kamruddiri to UHM Hospital, Kanpur. Dr. S.K. Rastogi on 13.9.1975 at about 12.45 p.m. medically examined him and noted following injuries:
1. Lacerated wound 7 cm. x 11 cm. bone on the upper part of head with fracture of the bone under the injury.
2. Lacerated wound ( semi circular) 21 cm. x 4 cm. x bone deep on the left fronto parietal and occipital region on the left side with commuted fracture of bone. 'Brain matter was coming out.
3. Abrasion 2 cm. x 1 cm. on the right forehead above eye brow.
4. Contusion 3 cm. x 2 cm. on the middle of forehead above medial part of right eye-brow with right black eye/
5. Bleeding from ear, nose and mouth.
6. Contusion 31/2 cm. x 2 cm. on the left frontal region.
7. Two abraded contusions 23 cm. x 1.5 cm and 22 cm. x 1.5 cm, and 6 cm. apart on the right side back lower part.
8. Contusion 4 cm. x 2 cm. on the right side of back of infra scapular region.
4. In the opinion of the Doctor the patient was unconscious and gasping. His pulse and blood pressure were not recordable. All the injuries were kept under observation and the patient was admitted. The injuries appeared to have been caused by some blunt object. They were fresh. Smell of alcohol was present in the breath.
5. Kamruddin succumbed to his injuries on 13.9.1975 at 1.45 p.m. at UHM Hospital, Kanpur. Information about the death of Kamruddin was sent to the Police station Kotwali and was recorded at the police station vide G.D. No. 41 at 2.30 p.m. On the basis of information case was converted under Section 302 I.P.C. vide G.D. No. 30 Ex. Ka-16. SI. K.L. Magan prepared inquest memo Ext. Ka-5, sketch of the dead body Ex, Ka-6. The dead body was handed over to constables Sharda Prasad and Ram Ujagar Singh for taking the same to the mortuary for the post mortem examination The post mortem examinatipn on the dead body of Kamruddin was performed by Dr. R.P. Verma, Superintendent Police Hospital Kanpur on 14.9.1975 at 2 p.m. and he found the following ante mortem injuries:
1. Lacerated wound 14 cm. x 2 cm. x brain deep on the left side of head, oblique on the parietal and temporal bone going up to 4 cm. below the left ear.
2. Lacerated wound 8 cm. x 3 cm. x brain deep on the occipital and left temporal bone overlapping injury no. 1 Brain matter was coming out of this injury.
3. Multiple abrasions in an area of 9 era x 8 cm. on right side of the face varying from 5 cm. x 2 cm. to 1/2 cm. x 1/2 cm.
4. Contusion 16 cm. x 3/4 cm. on the right side of back lower half
5. Contusion 3 cm. x 1 cm. on the right side of back 4 cm. below injury no. 4.
6. Contusion 18 cm. x 1 cm. on the right side back 1 cm. below injury no. 5.
6. On internal examination, the doctor found commuted fracture of the left parietal, right parietal, left temporal and occipital bones and right base of skull. Membranes of the brain had rupture under injuries Nos. 1 and 2. Brain was lacerated and clotted blood weighing 6 oz. Was found, Base of skull was fractured on the right side. Both the chambers of the heart was empty which weighed 51/2 oz. 4 oz. Of semi digested food was found in the stomach. Small intestines were empty but were full of gases. Large intestines contained faecal matter. It was half full. Gall bladder was half full.
7. The investigating officer of the case G.P. Tripathi prepared the, site plan (Ext. Ka 13) and prepared note of inspection (Ext. Ka 14). He took sample of blood stained and plain earth (Ext. Ka-2 and 3) and prepared its recovery memo (Ext. Ka-12). After the conclusion of the investigation he submitted charge sheet against the accused persons. The Sessions Judge framed charges against the accused persons under Section 147 and 302 read with Section 149 I.P.C. the prosecution in order to prove its case examined 11 witnesses.
8. P.W. 1 Sharfuddin deposed that his father Kamruddin was doing business of bakery and preparation of Sewai. His shop was situated in a house No. 98/53 Bekanganj, Kanpur. He also used to work alongwith his father in the Bakery, Haji Rajjaq's Bakery was adjacent to his Bakery. Firoz alam is son in law of Haji Rajjaq and he also sits at the Bakery of Haji Rajjaq. Sharif is brother of accused Habeeb and his bakery was situated about 50 - 60 steps from his Bakery. Mehar Ali alias Babu's Bakery is also in front of his bakery. Kalloo was Servant of Sharif ahmad. Mahmood is also servant of Habib. The Bakery of accused Sattar is at a distance of 20 - 22 steps from his Bakery. There was enmity of these four accused with his father because of business of Bakery. On the date of the occurrence his father Kamruddin had gone for repairing of the machine of Sewai to the mechanic at Kalloo's Chatta alongwith Abdul Latif. At about 12 O'clock they were returning from Kalloo Chatta and as they reached in front of the house of Riyasat Ali in Mohalla Bekanganj in front of the tap of Nagar Maha Palika accused Habib Mehar Ali, Niyaz, Sattar, Mehbood and Sattar came but. Habib, Niyaz Ahmad and Mehar Ali were armed with Iron Patiya and accused Sattar Kalloo and Mehbood were armed with Bamboo Pattey. He heard the cries and saw that Habib, Niyaz Ahmad and Mehar Ali alias Babu were assaulting his father with their respective weapons. Inspector Tevatiya alongwith two constable Gajadhar and Ram Ujagar also reached there and accused persons tried to run away but Habib was arrested alongwith Iron Patiya on the spot. Other accused persons managed to escape from the spot. His father had received injuries and fell on the ground and he took his father on rickshaw to Ursala Hospital. He prepared the F.I.R. at the Hospital and lodged at the police station. The report is Ext. Ka-1.
9. P.W. 2 Abdul Latif stated that he alongwith Kamruddin deceased had gone to Kalloo's Chatta for repairing of machine of Sewai and they were returning at about 12 O'clock. He stated that when he reached in front of tin shade of Nagar Maha Palika Habib Ahmad, Mehar Ali all Babu, Niyaz Ahmad, Kalloo, Mahboob and Sattar came out. Habib Ahmad, Niyaz Ahmad and Mehar Ali alias Babu were armed with Iron Sariya and they assaulted Kamruddin. Kalloo, Mehboob and armed with bamboo Pattey and they were exhorting other accused. They raised alarm and Sharfuddin, Firoz Ahmad and Mohammad Rafiq reached there. One Inspector Tevatiya alongwith two constables also reached there. Habib Ahmad was arrested on the spot and other accused persons ran away. Habib was armed with a Iron Sariya. Sharfuddin took Kamruddin to Hospital.
10. P.W. 3 Dr. S.K. Rastogi medically examined Kamruddin on 13.9.1975 at 12: 45 p.m.
11. P.W. 4 Dr. R.P. Verma, Superintendent Police Hospital had conducted the autopsy on the dead body of deceased Kamruddin.
12. P.W. 5 Firoz Alam stated that on the date of occurrence at about 12 O'clock he was sitting at the shop of his father-in-law Hazi Rajjaq. He heard some cries and he alongwith Mohammad Rafiq and Sharfuddin reached there. They saw Habib Ahmad, Niyaz ahmad and Mehar Alia alias Babu were assaulting Kamruddin. Habib was armed with Iron Sariya, Niyaz ahmad was armed with Sariya and Mehar Ali alias Babu was armed with Iron Patiya and accused Mahmood, Sattar and Kalloo were armed with Bamboo Patiya. In the meantime Inspector Teyajiya alongwith two constables also reached there and attested Habib on the spot but other accused ran away. Kamruddin fallen on the ground result of injuries suffered by him. Sharfuddin took his father for medical aid.
13. P.W. 6 Indrajeet Singh Tewariya stated that from December, to November, 1975 he was post posted at police out post Bekanganj. On 13.9.1975 at about 11.30 a.m. he alongwith Ram Ujagar Singh Gajadhar were on petrol duty. He heard some cries in front of Riyasat Ali and saw that Habib and others well Kamruddin. He reached at the place of occurrence. Mehar Ali and Niyaz Ahmad were assaulting Kamruddin with Iron Sariya and Iron Patiya, Kalloo, Sattar and Mehmood were armed with Bamboo Patiya and there were exhorting other accused persons. He arrested Habib alongwith Iron Sariya, other accused ran away. He prepared the recovery memo of the Iron Sariya ( Ext. Ka-4). Habib was sent to police out post, Bekanganj through constables, Ram Ujagar Singh and Gajadhar.
14. P.W. 7 Sub Inspector, K.L. Magan stated that on 13.9.1975 he was posted at police station Karnailganj, Kanpur. He prepared the inquest memo of Kamruddin (Ext. Ka-5). He also prepared sketch of the dead body (Ext. Ka-6), challan lash (Ext. Ka-7) and letter for the post mortem examination (Ext. Ka-&) and the dead body was handed over to constables Ram Ujagar Singh and Sharda Prasad Singh.
15. P.W. 8 S.C. Rai stated that on 10.9.1975 he was posted as constable clerk at police station Karnailganj. Accused Niyaz Ahmad had lodged an oral report (Ext. Ka-9) at 1.45 p.m.
16. P.W. 9 G.P. Tripathi, Station Officer police station Karnailganj, Kanpur stated that Head constable Gulab Khan had prepared the F.I.R. (Ext, Ka-10) and he also prepared G.D. No. 26 on the basis of first information report ( Ext. Ka-11). After the registration of the case he started investigation and recorded the statement of first informant Sharfuddin. He prepared the recovery memo of blood stained and plain earth (Ext. Ka -2 and 3). He also recorded the statement of Firoz Alam, P.W. 5 he prepared the site plan (Ext. Ka -13) and inspection memo (Ext. Ka-14). He also recorded the statement of S.I. Indrajeet Singh Tewariya and Abdul Latif and submitted charge sheet on 30.10.1975.
17. P.W. 10 Gulab Khan, Head constable stated that he prepared the chik F.I.R. and G.D. entry Ex. Ka 10 and 11 under Section 307 I.P.C. On the basis of the report of doctor and head constable Sarvar Hussain, "he prepared G.D. No. 30 at 3 p.m. and converted the case under Section 302 I.P.C. (Ext. Ka-16). On 13.9.1975 constables Anjani Kumar and Tejdhar Mishra had deposited three sealed bundles, Iron Rod, blood stained and plain earth alongwith accused and prepared G.D. No. 31 (Ext. Ka-17). All the sealed bundles deposited in the malkhana and they remained intact.
18. P.W. 11 Anjani Kumar stated that on 13.9.1975 he was posted as constable police out post Bekanganj. He had taken the accused Habib Ahmad from police out post Bekan Ganj to police station Karnailganj. He also deposited sealed bundles at the police station.
19. The defence has examined 6 defence witnesses in the trial court.
20. D.W. 1 Shanishuddin, advocate stated that he is practicing in Kanpur from 1977 and he is junior of Shri Khalilullah. He had given an application in the court of C.J.M. on behalf of Mehar Ali alias Babu (Ext. Kha-10).
21. D.W. 2 Abdul Hameed stated that Sharfuddin-P.W. 1 had taken him to the police station Karnailganj and he stated that he prepared the F.I.R on the dictation of Inspector.
22. D.W. 3 Mohd. Haneef stated that he was going to press from his house and saw that at the house of Habib Ahmad some constables were standing and Habib Ahmad was arrested from his house.
23. D.W. 4 Mushtaq Ali stated that accused Niyaz Ahmad is son of i his cousin. He further stated that Ramjan is a witness in the charge sheet and he used to work in the Bakery of Kamruddin. He had filed a case against Noor Mohammad. He stated that on account of litigation there was enmity between Ramjan and Niyaz Ahmad.
24. D.W. 5 Bhagwati Prasad stated that he is a clerk in Muir Mill, Kanpur, He produced attendance register of the Mill and he stated that Kalloo son of Babu was present between 3 p.m. to 6 p.m.
25. D.W. 6 Dr. R.P. Saxena stated that on 30.9.1975 he was posted as Senior Surgeon UHM. Hospital Kanpur and he examined accused Sattar who had cataract in both the eyes. The medical Examination report is Ext. Kha-13.
26. The Sessions Judge finding that only three persons namely, Habib Ahmad, Niyaz and Mehair Ali alias Babu, appellants have been assigned the special role of assault on the deceased convicted them, as aforesaid. However, Sattar, Kalloo and Mahmood have been acquitted by the Sessions Judge as no specific role of assault has been assigned to them.
27. Heard learned counsel for the Appellants and the learned A.G.A. for the State.
28. That first submission of learned counsel for the appellants is that there was no motive for the appellants to assault the deceased. In the F.I.R. P.W. 1 Sharfuddin had not "specified any motive. It was only alleged that on account of enmity, Habib, Niyaz and Mehair Ali alias Babu had assaulted the deceased on the exhortation of Sattar, Kalloo and Mahmood. It is not disputed that Habib's brother Sharif Ahmad had a Bakery shop. Appellant Mehair Ali alias had a biscuit shop in front of the shop of Kamruddin deceased. Mehair Ali alias Babu had a Bakery. Appellant Sattar had also a Bakery shop which was situated 20 - 22 steps from the shop of Sharfuddin. Mahmood appellant is servant of Habib, Kalloo appellant is servant of Habib Ahmad's brother Sharif Ahmad. Niyaz is friend of appellant Habib, Mehair and Sattar. It is also not disputed that on 10.9.1975 the deceased Kamruddin and his sons are alleged to have given a beating to appellant Niyaz Ahmad and a report was lodged by Niyaz (Ext. Ka-9). The lodging of the report is also not denied by Niyaz ahmad. Thus this submission of learned counsel for the appellant that there was no motive for the appellant to commit the crime has no substance. It is well settled by large number of the decisions of the Apex Court that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit worthy and is believed by the court which has placed implicit reliance on them the question whether there is no motive or not becomes wholly irrelevant.
29. Learned counsel for the appellant next submitted that the presence of P.W, 1 at the time of alleged of occurrence is very doubtful. It is pointed out that there is variation in the statement of witnesses with regard to weapons assigned in the hands of the accused. It is submitted that in the first information report it is alleged that the accused had assaulted the deceased with Iron Patiya and Iron Sariya. In our opinion any conflict with regard to the weapons hardly makes any difference. The witnesses have described the weapons as Iron Sariya and Iron Patiya, These are not the regular weapons and any minor inconsistency in the manner of description of the weapons does not prove that the witnesses had not seen the occurrence. This submission of learned counsel for the appellant that there is inconsistency in the testimony of the witnesses with regard to the description of weapons in the hands of the accused has no substance.
30. Learned counsel for the appellants have also challenged the lodging of the report by P.W. 1 Sharfuddin at the alleged time. In this regard D.W. 2 Abdul Hameed who is the scribe of the F.I.R. has also been examined. This submission of learned counsel is according to the statement of P.W. 1 Sharfuddin, he had dictated the f.I.R. at the Hospital. D.W. 2 Abdul Hameed had not stated that he had scribed the report at the Hospital. He states that written report was scribed by him at police station Karnailganj on the dictation of the police officer. The statement of P.W. 10 Gulab Khan shows that he had prepared the first information report and prepared the G.D. entry no. 26 at 1.35 a.m. This clearly rules out the possibility of preparation of the report in the evening. The testimony of P.W. 1 Sharfuddin shows that he is an eye witness of the occurrence. At the alleged time of incident he was sitting on the shop which was at a distance of 45 paces from the scene of occurrence. He saw Niyaz Ahmad, Habib Ahmad and Mehair ali were armed with Iron Patiya and Sattar, Kalloo and Mehmood were armed with Bamboos Pattey. Niyaz Ahmad, Habib Ahmad and Mehair Ali were assaulting Kamruddin with the Iron Patiya. Kamruddin fell down as a result of assault. Sub Inspector Tewatiya had also arrived alongwith two constables at the place of occurrence and arrested Habib Ahmad alongwith Iron Patiya, He took his injured father Kamruddin to UHM Hospital He prepared the first information report and handed over the same at police station Karnailganj. The eye witness account is fully supported by the prompt lodging of the report and also the medical examination as well as arrest of Habib Ahmad alongwith the weapon of assault. He was subjected to lengthy cross examination but nothing could be elucidated to discredit his testimony. He described the manner of assault, names of the accused persons, weapons-in the hands of the assailants and names of eye witnesses. The testimony of P.W. 1 Sharfuddin also finds corroboration from the testimony of P.W. 2 Abdul Hameed and Latif who has fully supported the prosecution case. He had gone alongwith the deceased Kamruddin to the Chatta of Kalloo for the repairing of the machine for preparing Sewai He stated that he and Kamruddin were returning from the Chatta when the accused persons met them, Habib, Niyaz and Mehair Ali gave a beating with Iron Rod and others had exhorted. Habib Ahmad was arrested by S.I. Tewatiya. P.W. 5 Firoz Alam has also supported the prosecution case. He stated that at the time of incident he was at the shop of his father-in-law Hazi Rajjaq which was situated towards the north of Sharfuddin's shop. He had gone to his father-in-law at the time of incident. He was attracted towards the cries of Kamruddin and Abdul Latif and reached the scene of occurrence alongwith other witnesses and S.I. Tewatiya. He had also supported the prosecution case regarding the manner of assault and arrest of Habib Ahmad and recovery of weapon of assault from his possession. The sessions Judge also rightly relied upon the testimony of the witnesses. The prosecution case is also supported by the testimony of P.W. 6 S.I. Tewatiya who was posted at the, police out post Bekanganj. He stated that at the time of incident he heard shouts of Kamruddin and he reached near the place of occurrence. He arrested Habib Ahmad alongwith the blood stained Sariya Ext. Ka-1. He prepared the recovery memo Ext. Ka-4. In our opinion the prosecution has fully proved its case beyond reasonable doubt.
31. The last submission of learned counsel for the appellant is that what offence the appellants did commit within the ambit of law. It is submitted that three accused person who were alleged to have been armed with Bamboos but they did not assault the deceased and they had only exhorted the other accused persons to kill the deceased are already acquitted by the Sessions Judge, therefore, the exhortation part cannot be relied upon for convicting the appellants. The prosecution case is that all the accused persons had assaulted the deceased by Iron Patiya or Sariya. The post mortem report indicates that deceased had suffered eight injuries and two injuries were on head and according to the opinion of the doctor head injuries were fatal. The role of assault by Iron Patiya is assigned to all the three persons. Keeping all the facts into consideration the appellants are only to be imputed the knowledge of causing such bodily injuries to the deceased which were likely to cause his death. On cumulative consideration of the entire evidence the appellants have committed the offence punishable under Section 304-I I.P.C and they are sentenced to undergo rigorous imprisonment for ten years.
32. In the result the appeals are partly allowed. The conviction and sentence awarded by the Sessions Judge to the appellants Habeeb Ahmad, Niyaz Ahmad and Mehar Ali alias Babu under Section 302 read with Section 34 I.P.C. is altered to under Section 304-I I.P.C. and they are sentenced to undergo 10 years R.I.
33. The appellants are on bail. They are directed to surrender to serve out the sentence. The C.M.M., Kanpur is also directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by us.