JUDGMENT M.C. Jain, J.
1. The accused-appellant Harendra Singh has been convicted under Section 302 I.P.C. and sentenced to life imprisonment by judgement dated 17.3.1982 rendered by the Sessions Judge, Kanpur in S.T. No. 364-M of 1981. Aggrieved, he has preferred this appeal.
2. The incident occurred in between Block Nos. 4 and 5 in F.M. Colony within Police Station Gwaltoli, Kanpur on 15.5.1981 at about 1.45 P.M. and the F.I.R. was lodged at 2.45 P.M. by Sheo Pyare Rai PW 1(eyewitness)-son of the deceased. The distance of the police station from the place of occurrence was about of occurrence was about 3 ½ furlongs.
3. The facts may be stated briefly insofar as they are necessary for the vision of the appeal. The deceased Keshav Prasad Rai, resident of Quarter No. 8/1 F.M. Colony, Kanpur was Incharge, Shift B of Weaving Department in New Victoria Mills, Kanpur. Harendra Singh was a weaver working under him. There were two other accused Sheo Dayal Singh and his brother Sheo Dahan Singh. They were also workmen in that shift in the Mills. On 12.6.1981 Harendra Singh was marked absent in the Mills on the report of the deceased-Keshav Prasad Rai. He felt annoyed thereby. In the night of 13.6.1981, he (Harendra Singh) assaulted Keshav Prasad Rai in the Mills and there was verbal altercation between them. Keshav Prasad Rai reported the matter to the Mi]] Authorities. He was also medically examined. Inquiry was set up against the accused Harendra Singh and he was placed under suspension under the orders of the Mill Authorities dated 15.6.1981. He (Harendra Singh) felt increasingly incensed.
4. On 15.6.1981 at about 1.45 P.M., Keshav Prasad Rai was on his way from his residence after taking meals to the New Victoria Mills-place of his working on cycle. His sons Sheo Pyare Rai and Anil Kumar Rai were also on their way to join their duties after lunch hours. Sheo Pyare Rai was employed in Elgin Mills No. 1 as Assistant Labour Officer while Anil Kumar Rai was an employee in the New Victoria Mills. The accused Harendra Singh and other two accused Sheo Dayal Singh and Sheo Dahan Singh lay in ambush close to Quarter No. 4/1 F.M. Colony. The road was north-south. As Keshav Prasad Rai came [Quarter No. 4/3, the accused emerged from the place of their hiding. On the exhortation of Sheo Dayal Singh and his brother Sheo Dahan Singh, Harendra Singh fired shot from close range on the deceased-Keshav Prasad Rai, who fell down on the ground. The accused took to their heels towards eastern side. The victim was picked up by his two sons named above and Triloki Nath Rai PW 2. He was taken to his residence about 75 paces to the north. There from, he was taken to the U.H.M. Hospital, where he was examined and admitted at 2.10 P.M. He, however, expired soon after at about 2.15 P.M. Written F.I.R. was lodged by Sheo Pyare Rai PW 1 at 2.45 P.M. at the concerned police station. The investigation was taken up as usual. The accused Sheo Dahan Singh died before trial.
5. It was Dr Ajit Kumar PW 7 who had initially examined Keshav Prasad Rai in U.H.M. Hospital, Kanpur on 15.6.1981 at 2.10 P.M. He found on the person of the deceased lacerated wound 5 cm x 3 cm on right side chest, 2 cm below nipple with blackening, tattoing and fresh bleeding. His general condition was extremely low and he was gasping for breath. In his opinion, the injury could be caused at about 1.45 P.M.
6. After his death, autopsy on his dead body was conducted by Dr. S.N. Pandey PW 3 on 16.6.1981 at 1.45 P.M. He was aged about 55 years and nearly one day had passed since he died. The ante mortem injury found by him was firearm wound of entry 6 cm x 4 cm on the front of the right chest and chest cavity deep 3A cm below the right nipple with margins of the wound lacerated and inverted. There was blackening, tattooing and charring present and 6th, 7th and 8th ribs were fractured underneath. On internal examination, right lung was found punctured and congested. Pleura was punctured and congested. Pieces of wadding were found on the chest wall and underneath the lung. Six big pellets were recovered from the back and the mid of the right side chest. The abdomen contained six ounces of semi-digested food. Liver was punctured and congested. In the opinion of the Doctor, the death had occurred due to shock and haemorrhage as a result of ante mortem firearm injury which was sufficient in ordinary course of nature to be fatal.
7. Sheo Dahan Singh accused having died before trial, it were Harendra Singh accused-appellant and Sheo Dayal Singh who faced trial. Out of them, Sheo Dayal Singh (who was assigned the role of exhortation) came to be acquitted, having been afforded benefit of doubt.
8. The defence was of denial. According to Harendra Singh-accused-appellant, Keshav Prasad Rai was Incharge, Shift B, Weaving Section, He contended that he was not working under him. According to him, on 12.6.1981 he did not attend because he was indisposed. It was refuted that he had abused or assaulted Keshav Prasad Rai. He denied to have shot, in the present alleged incident. He claimed false implication owing to jealousy. It is not necessary to relate the defence of the other accused.
9. At the trial, the prosecution in all examined 8 witnesses. Out to them, Sheo Pyare Rai PW 1 (informant and son of the deceased) and Triloki Nath Rai PW 2 were eyewitnesses. Mohini Shanker Pandey PW 4 was the Senior Industrial Relations Officer and Factory Manager, New Victoria Mills, Kanpur. He brought the record relating to the inquiry made against the accused Harendra Singh on the report of Keshav Prasad Rai and proved the same. Mohd. Ismail PW 6 was Pharmacist at the New Victoria Mills who had examined Keshav Prasad Rai on 13.6.1981 at 3.27 A.M. He had found two contused wounds on the left hand palm of the size of 1/8" x 1/9" x 1/12" and 1/8" x 1/10" x 1/16" respectively. The victim was given first aid also. He proved the related entry in the patient's register Ext. Ka-19. Other witnesses were two Doctors and police personnel including the Investigating Officer Mohd. Zahirul Husain, Inspector Incharge of Police Station Gwaltoli, Kanpur.
10. One Ram Chandra Singh was examined as DW 1. He deposed that he was resident of Quarter No. 7/8 F.M. Colony. He was getting ready to go to the Elgin Mills No. 2 where he was employed as a mechanic. He heard the shot and came out and saw that Keshav Prasad Rai injured lay at his door. His wife and daughter-in-law were weeping, who brought a Kathri from inside the house and laid him on the same. He claimed that he went to inform Anil Kumar Rai and having left a word with the Watch and Ward Staff, he reached his duty place at about 1.40 P.M.
11. The evidence of the prosecution found favour with the trial judge who convicted and sentenced the accused-appellant Harendra Singh who was found to have shot dead the deceased.
12. We have heard Sri V.P. Srivastava assisted by Sri Manoj Kumar Srivastava for the accused-appellant and Miss N.A. Moonis, learned A.G.A. for the State. The record has been carefully perused by us. We propose to deal below the arguments advanced at the bar in the light of evidence and other material.
13. It has first been argued by the learned Counsel for the appellant that he had no motive whatsoever to commit the crime. The motive as put forth by the prosecution, urged the learned Counsel, was fabricated. It has been submitted that as per the own case of the prosecution, the deceased was Incharge of Shift-B (2.30 P.M. to 10.30 P.M.). Further, he was Incharge of Weaving Section whereas the accused was working in loom shed. Therefore, there could be no question of the accused working under the deceased. Support was sought for this argument from the evidence of Mohni Shanker Pandey PW 4, Senior Industrial Relation Officer/Factory Manager of New Victoria Mills, Kanpur who stated that there used to be a different Incharge of the loom shed. The learned Counsel for the accused-appellant reasoned that the deceased being Incharge of Shift B (2.30 P.M. to 10.30 P.M.), there could also be no reason for his presence in the Factory in between the night of 12/13.6.1981 to be assaulted by the accused. It has also been pointed out that the complaint allegedly made by the deceased to the General Manager of the Mills against the accused (Ext. Ka-5) was dated 13.6.1981 whereas Mohni Shanker Pandey PW 4 stated that the complaint in question had been presented before him at about 4-4.30 A.M. on 14.6.1981.
14. It should be pointed out that in a case of direct evidence like the present one, motive is not at all important. Motive is not evidence in a case. It only heightens the probability of a particular accused being the author of the crime. In our view, the prosecution successfully proved a very strong motive on the part of the accused to do away with the deceased. The argument to the contrary is based on superficial reading of the evidence of Mohni Shanker Pandey PW 4. The accused simply made desperate attempt to dislodge the I motive on the basis of half baked suggestions given to Mohni Shanker Pandey PW 4. The truth of the matter as flowing from the testimony of Mohni Shanker Pandey PW 4 considered in conjunction with documentary evidence brought on record is that the deceased was Incharge of Weaving Department of the Mills and the accused was working under him (as emphatically stated by Mohni Shanker Pandey PW 4). The said witness proved with the help of record that on the report of the deceased, the accused was marked absent on 12.6.1981. He proved the report (Ext. Ka-3) made by the deceased as also attendance register (Ext. Ka-4). The entry relating to the absence of the accused was made therein. The defence could not dare to suggest to Mohni Shanker Pandey as to who else was the Incharge of loom shed in which the accused was a workman. On 13.6.1981, Keshav Prasad Rai-deceased had submitted detailed report (Ext. Ka-5) about the incident which happened in the night of 13.6.1981 when the accused hit him (deceased) with a rod, hurling abuses for getting him marked absent on 12.6.1981. He had inflicted injury on his (deceased's) person. It was corroborated by medical examination of Keshav Prasad made at 3.27 A.M. by Mohd. Ismail PW 6, Pharmacist of New Victoria Mills. He had found two contused wounds on his person made mention of '. earlier. The said witness spoke about the injuries which he had noted in-patient's register (Ext.-19). He also gave first aid to Keshav Prasad Rai.
15. It appears that the deceased made report Ext.Ka-5 regarding the incident of the night on 13.6.1981 itself, but action thereon was taken on 15.6.1981 as can be gathered from the note (of Weaving Superintendent) dated 15.6.1981 and order of the same date for preliminary inquiry. On the report of Keshav Prasad Rai dated 13.6.1981, the preliminary enquiry was entrusted by Mohani Shanker Pandey PW 4 to R.K. Verma, Assistant Industrial Relations Officer. On 15.6.1981 itself, the report was given by the Enquiry Officer. Mohani Shanker Pandey PW 4 suspended the accused Harendra Singh on 15.6.1931 on the report of Enquiry Officer. All this incensed the accused in extremity. Actually, the accused was all determined to pursue the ruffian methodology of drawing salary without doing any work and to armtwist his way through he assaulted his superior (deceased) in the night of 13.6.1981, demostrating his bullying propensity and ultimately shot him dead on 15.6.1981. Tie statement of Mohni Shanker Pandey was seemingly slip of tongue that the report regarding the incident of 13.6.1981 was brought before him Keshav Prasad Rai at 4.00-4.30 A.M. on 14.6.1981. He made a report immediately after the incident on 13.6.1981 and he was medically examined also at 3.27 A.M. on 13.6.1981, though action was taken on 15.6.1981 as is clear from the no tings and order appended on the report (Ext. Ka-5). True, tie deceased was Incharge of Shift-B (2.30 P.M. to 10.30 P.M.) but the reason of his presence in the night Shift of 12/13.6.1981 could be of his holding charge of that shift also. The defence conveniently did not probe this aspect of the matter in the cross-examination of Mohni Shanker Pandey PW 4. It should be stated at the risk of repetition that it was also not suggested to this witness as to who else was actually the person under whom the accused used to work. To come to the point, the accused had a very strong motive to liquidate the deceased who had tried to check his self-styled rule of drawing salary without work.
16. The learned Counsel for the appellant then assailed the testimony of Sheo Pyare Rai PW 1 and Triloki Nath Rai PW 2 on the premise that they Were interested and chance witnesses. According to him, they were not at present at the scene of incident. True, Sheo Pyare Rai PVV I. was blood relation being son of the deceased, but the fact of his relationship would, add to the value of his evidence because he would be interested in getting the real culprit, rather than innocent person, punished. It has been hold by the Apex Court in the case of State v. Suresh alias Chhavan and Ors. AIR 1982 SCC 1076 that the statement of family member of the deceased cannot be rejected on the ground that he is related to the victim. What is required is that the statement h to be scrutinized with care. Sheo Pyare Rat PVV 1 resided with his father and other members of his family in quarter No. 8/1, F.M. Colony, Gwaltoli, Kanpur. He satisfactorily narrated the facts relating to the crime. Triloki Nath Rai PW 7 was also resident of the same locality-Ouarter No. 9/21 and he fully corroborated the statement of Sheo Pyare Rai PW 1 He explained his presence at the spot satisfactorily that he was on leave since June 5. 1981) and at the relevant time, he was on his way to New Victoria Mills to obtain certificate relating to his salary in connection with the house rent allowance which he was to draw. His name found place in the promptly lodged F.I.R. too.
17. The counsel for the appellant pointed out that Sheo Pyare Rai PW I was allottee of another Quarter No. 6/16. It is, however, to be pointed out that he well explained that he had temporarily given that quarter to one Surendra Nath Pandey who also used to work in New Victoria Mills as he had not been able to arrange for his own accommodation. For practical purposes, this witness was residing in quarter No. 8/1, F.M. Colony with his father and other family members. He satisfactorily explained that he was employed as Assistant Labour Oncer at Elgin Mill No. 1 which was 3 ½ /4 furlongs away from his quart. His duty hours were 9.00 A.M. to 5.30 P.M. with lunch break for an hour between 1 and 2 P.M. Me clarified that it was usual for him to come to the house for lunch during this period. His brother Anil Kumar Rai was also employed at the New Victoria Mills and he too, was at the residence for lunch. The New Victorai Mills was situated at about two furlongs only from their quarter. The duty of his father was to start at the Mills at 2.30 P.M. His father- Keshav Prasad Rai was proceeding to join his duly on cycle and his two sons Sheo Pyare Rai PW 1 and Anil Kumar Rai were on foot, having just come out of their residence after taking their lunch. They had moved a few paces ahead on the road running from north to south in F.M. Colony. The distance of the quarter of the deceased shown by letter 'D' in the site plan was only 75 paces from point 'B' where the deceased was fired at by the accused in the southern side. There was no obstacle in between. Sheo Pyare Rai PW 1 was, therefore, very well in a position to witness the incident of shooting of his father by the accused. He could not be characterized as for a chance witness because there was plausible and acceptable reason for his presence at the spot as detailed above. It was a part of his daily routine to come to his residence during the lunch break. It was well probable in view of short distance between his residence and Mills where he was employed. The trial judge dealt with this aspect of the matter in right perspective that a chance witness is a witness who should not be normally where and when he professes to be at a particular time. From that point of view, one may be a chance witness even at his own house, if, for instance, he should be at that hour in his office. It is the reason for the presence of a witness at a particular spot which is material to judge whether he is a chance or natural witness. There being well acceptable reason for the presence of Sheo Pyare Rai PW 1 at the place of the incident, he can not be criticized as being a chance witness. It is noted in the initial injury report of the victim that he was taken to the hospital by his another son Anil Kumar Rai. It was there in the testimony of Sheo Pyare Rai PW 1 that he, his brother Anil Kumar Rai and Triloki Nath PW 2 had immediately taken the victim to their house and then to UMH hospital on cycle Thela where after he immediately lodged the F.I.R. at 2.45 P.M.
18. As for Triloki Nath PW 2, the defence could not establish his direct relationship with the family of the deceased. He was resident of the same locality of quarter No. 9/21. and gave plausible explanation for his presence at the spot as we discussed above. He could not be termed, as an interested or chance witness. The term 'interested' contemplates that person concerned must have some direct interest in seeing that the accused is somehow or the other convicted either because of some animus against the accused or for some other reason. A witness, to say shortly, may be called to be interested only when he derives some benefit from the result of that litigation. A natural witness cannot be said to be interested. Triloki Nath PW 2 had no axe to grind against the accused and there could be no reason whatsoever for his deposing falsely against the accused-appellant. There was good occasion for his presence at the spot at the given time. It was not disputed that he was an employee in New Victoria Mills and resident of F.M. Colony. He was on leave from June 5, 1981 as mentioned above. He emphatically testified that he had to obtain certificate relating to the salary admissible to him. He had been to the office of the Mills in the forenoon but had been asked to come in the afternoon. The certificate had been asked for by the Inspector at the Labour Commissioner's Office in connection with the sanction of rent allowance. Obviously, this fairly explained the occasion for his being on the way to the Mills at the time when the incident occurred which he witnessed. We are in 'agreement with the trial judge that both the witnesses examined by the prosecution had witnessed the incident of the deceased being shot at by the accused on the given date, time and place.
19. The learned Counsel for the accused-appellant then argued that no trail of blood was found between the place 'B' where the shooting allegedly took place and 'D' in the north-the deceased's Quarter where he was first taken by the witnesses before being removed to the hospital. The argument is factually wrong. The Investigating Officer had found trail blood between these two places as shown in the site-plan.
20. The learned Counsel for the accused-appellant then argued that no blood was taken by the Investigating Officer from point 'B1. We note that the Investigating Officer, Mohd. Zaheerul Hasan PW 8 categorically stated that blood was there at point 'B' but not sufficient to be collected. The quantum of blood being larger at point 'D', he took blood-stained and unstained earth in custody from point 'D'. As we said, the trail of blood was also found from point 'B' to point 'D' the distance being of about 75 paces. Both Sheo Pyare Rai PW 1 and Triloki Nath PW 2 also testified about the presence of blood at both these points. The report of Chemical Examiner also showed that human blood on the collected earth was of the same group (B) as that detected on the cloths of the deceased.
21. The learned Counsel for the accused-appellant then argued that no blood had been found on the cloths of the witnesses-Sheo Pyare Rai PW 1 and Triloki Nath PW 2. The argument does not impress us. It has come in the testimony of Sheo Pyare Rai PW 1 that the victim had been picked up from the sides of head and feet. It would be recalled that he had not instantaneously died at the spot. Naturally, the witnesses picking him up would have taken precaution against the loss of blood as far as it could be possible. Therefore, non-presence of the blood on the cloths of witnesses could not create any dent in the fully proved prosecution case.
22. It was a single shot fired from close range as per the testimony of the two witnesses. It did have all such attributes i.e. blackening, tattooing and charring. Thus, the ocular testimony was in conformity with the medical evidence.
23. We should also point out that negative sort of evidence of Ram Chandra Singh DW 1 was meaningless. He had admitted that he had no talks with the accused or anyone else with regard to what lie claimed to have seen. He did not make any mention to Investigating Officer either. It was improbable in the natural course of things that he would have come up with his version for the first time in Court. It could not be appreciated as to how could the accused pick him up to be a witness. The trial judge rightly did not find his evidence to be convincing. His testimony was worthless and could not at all be believed to overshadow the emphatic testimonial assertions of eye-witnesses examined by the prosecution, finding corroboration from medical evidence also and proving the accused appellant to be guilty clinchingly without any shadow of doubt.
24. Lastly, it has to be pointed out that the accused-appellant could not assign any reason for his false implication. As we pointed out, it was a case of single shot attributed to have been fired by him on the deceased. It cannot be imagined by any stretch of imagination that leaving the real culprit, he would be necked in falsely by the eye-witnesses and that, too, without any apparent cause. He stated in his statement under Section 313 Cr.P.C. that he was falsely implicated due to jealousy. He was simply a workman in a factory. It is not that he had miraculously risen to such dizzy heights that all around could not digest his success.
25. To come to close, the trial judge rightly found the accused-appellant to be guilty of murdering Keshav Prasad Rai. It was a cold blooded murder by shooting in broad day light. We see no merit in this appeal.
26. The criminal appeal is hereby dismissed. The accused-appellant-Harendra Singh is on bail. The Chief Metropolitan Magistrate, Kanpur Nagar is directed to get him arrested and lodged in jail to serve out the sentence of life imprisonment. He shall report compliance within two months.
27. Certify the judgement to the lower court immediately.