JUDGMENT M. Chaudhary, J.
1. This appeal has been filed by the appellants from judgment and order dated 30th of June 1981 passed by IV Additional Sessions Judge Ghaziabad in Sessions Trial No. 307 of 1980 State v. Hari Singh and Anr. convicting accused Mohar Singh under Section 302 IPC and accused Hari Singh under Section 302 read with Section 34 IPC and sentencing each of them to imprisonment for life thereunder.
2. Brief facts giving rise to this appeal are that on 8th of June 1980 at about 5:40 a.m. Prem Pal son of the deceased lodged an FIR at police station Murad Nagar, District Ghaziabad alleging that Hari Singh was running a brick kiln at the outskirts of the village since long. Subsequently Randhir Singh installed a brick kiln near the brick kiln of Hari Singh about three years ago. However Hari Singh and his brother did not allow Randhir Singh to run his brick kiln effectively and ultimately Randhir Singh sold the brick kiln to Gulab Singh some three months ago. Some fifteen days prior to the alleged occurrence Hari Singh and his brother removed about 1,25,000 bricks of soft clay from his brick kiln and dried them at their brick kiln. On being enquired by Gulab Singh they threatened him alarming that they would not allow him to run that brick kiln. During the night between 7thand 8thof June 1980 Gulab Singh was asleep in the verandah of his house; that at about 1:00 a.m. Hari Singh and his brother Mohar Singh reached there and Mohar Singh fired Gulab Singh. On hearing the sound of shot Prem Pal and Kalu @ Anand Swarup who were sleeping adjacently Hashed torch raising hue and cry attracting thereby Jagdish and Mukhram who reached there and saw Hari Singh armed with a lathi and Mohar Singh with a country made pistol who coming out of the verandah hastened away towards the lane. The police registered a crime against the accused under Section 302 IPC and made entry regarding registration of the crime in the GD.
3. SI Hari Ram Singh, the then station officer took investigation of the case in his hands. He alongwith the police force went to the scene of occurrence and directed SI Pooran Singh to draw inquest proceedings on the dead body of Gulab Singh. He himself recorded statements of the witnesses and then inspected the site and prepared its site plan map (Ext Ka 14). He also picked up blood stained 'Khes' and bed sheet lying on the cot whereon Gulab Singh was sleeping and prepared its memo (Ext Ka 15). SI Pooran Singh drew inquest proceedings on the dead body of Gulab Singh. He prepared inquest report (Ext ka 7) and other necessary papers (Ext ka 10 to ka 13) and entrusted the dead body sealed in the blood stained 'Dulai" lying on the cot alongwith necessary papers to constables Mam Chand and Bhupal Singh for being taken for its post mortem.
4. Autopsy conducted on the dead body of Gulab Singh by Dr M K Goel Medical Officer MMG Hospital Ghaziabad on 8thof June 1980 at 4:30 p.m. revealed an ante mortem firearm wound of entry 3 cm x 2.5 cm on lower part of left side chest 6 cm below left nipple at 7 O'clock position, blackening and tattooing present around the wound and direction backwards. The doctor removed 160 small pellets and three wadding pieces from inside the wound.
5. On an internal examination 5thand 6thribs on left side were found fractured and led lung lacerated and pleural cavity contained 500cc clotted blood. Heart and pericardium were also found lacerated. Stomach contained about 350 gms semi digested food. Small intestine contained gases and semi digested food and large intestine faecal matter and gases. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about half a day ago.
6. Blood stained bed sheet and Khes collected by the investigating officer and the clothes put on by the deceased were sent to Forensic Science Laboratory for the Serologist's opinion if they contained human blood and if so of which blood group. However the Serologist's report is not available on the record.
7. After completing the investigation the police submitted charge sheet against the accused accordingly.
8. After framing of charge against the accused Prem Pal (PW 1), Kalu @ Anand Swarup (PW 5) and Jagdish (PW 6) were examined by the prosecution as eye witnesses of the occurrence. Testimony of the remaining witnesses is more or less of formal nature. PW 2 Dr M K Goel who conducted autopsy on the dead body of Gulab Singh proved the post mortem report (Ext Ka 2) stating that sustaining the ante mortem injuries he might have died instantaneously. PW 3 constable Mam Chand to whom the dead body in a sealed cover alongwith necessary papers was entrusted for being taken for its post mortem has proved the said fact. PW 4 SI Ram Veer Singh, the then Head Moharrir who prepared check report on the basis of the written report handed over at the police station and made entry regarding registration of the crime in GD has proved these papers (Exts ka 3 & ka 4). PW 7 SI Hari Ram Singh who investigated the crime has proved the police papers.
9. Both the accused have pleaded not guilty denying the alleged occurrence altogether and stating that they have been got implicated in the case falsely due to village party faction. They examined DW 1 constable Satya Pal Singh who proved a report lodged by Randhir Singh at police station Murad Nagar on 25thof May 1980 at 1:30 p.m. A perusal of the copy of the report lodged by Randhir Singh at police station Murad Nagar (Ext Kha 1) goes to show that NCR was recorded at the police station at the instance of Randhir Singh against Gulab Singh and one Ramesh under Sections 504 and 506 IPC.
10. On an appraisal of the parties' evidence on record and after hearing the parties' counsel the learned Additional Sessions Judge recorded conviction of the accused sentencing them as stated above.
11. Feeling aggrieved by the impugned judgment and order the appellants preferred this appeal for redress.
12. We have heard the appellants' learned counsel and the learned AGA and gone through the record.
13. The appellants' learned counsel made two fold attack on the reliability of the eye witnesses examined by the prosecution: (i) the incident took place at the dead of night and there was no light to enable any of the witnesses to recognize the assailants and (ii) testimony of PW 1 Prem Pal and PW 5 Kalu @ Anand Swarup should be discarded as being related to the deceased they are partisan witnesses. We are unable to give accord to the said contention of the appellants' learned counsel. Taking up the point of light at the time of occurrence PW 1 Prem Pal, son of the deceased stated that at the time of occurrence it was not pilch dark. Further, the parties are used to living in the midst of nature and accustomed to live without light. Moreover the assailants were known persons residing in that very village. Furthermore, it was the month of June and there must be some light emanating from the glow of stars in the open sky. Over and above the fact remains that after all the assailants fired at Gulab Singh 'hitting him at his chest from close range and that was possible only when there was some light though faint. Regarding the reliability of witnesses. PW 1 Prem Pal son of the deceased stated that the alleged night his father Gulab Singh was sleeping in the verandah of his house , and he and Kalu residing in the house abutting his house at their cots at a distance of some 6-8 paces from him near the neem tree standing infront of the verandah that at about 1:00 a.m. hearing the sound of shot he awoke and Kalu also got awakened and he saw in the light of torch flashed Mohar Singh armed with country made pistol and Hari Singh with lathi coming out of the verandah and running towards the lane and immediately he went near the cot of his father and saw that blood was oozing from the left side of his chest and he was lying dead. This witness was subjected to quarrelling and rambling cross-examination but nothing tangible to discredit his testimony is brought on the record. PW 5 Kalu (a) Anand Swamp is the grand son of Dalip. PW 6 Jagdish son of Khacheru residing in close neighbourhood of the deceased deposed that Dalip grand father of PW 5 Kalu was real uncle of Gulab Singh deceased. Thus PW 5 Kalu happened to be the nephew of Gulab Singh. Both PW 5 Kalu and PW 6 Jagdish corroborated PW 1 Prem Pal stating likewise. Cross-examination of both these witnesses though effected extensively has not yielded any benefit to the appellants. The sworn testimony of these three witnesses stands well corroborated by the FIR of the occurrence lodged promptly at the police station. The alleged occurrence took place during the night between 7thand 8thof June 1980 at about 1:00 a.m. in the mid night and FIR of the occurrence was lodged by son of the deceased at the police station situate at a distance of eleven Kms from the place of occurrence at 5:40 a.m. PW 1 Prem Pal, the first informant deposed that after the incident there was wailing and lamenting in the house and about an hour after the incident he himself scribed report of the occurrence and then taking the report he went to the police station on foot. Thus virtually there was no time to spin out a false story. Sworn testimony of the three witnesses above named stands further corroborated by the medical evidence. All the three witnesses have given honest and true version of the occurrence witnessed by them and their evidence is quite cogent, convincing and trustworthy. Testimony of PW 1 Prem Pal and PW 5 Kalu @ Anand Swarup can not be discarded merely on the ground of their relationship with the deceased. It has also been argued that since the statement of PW 6 Jagdish was recorded by the investigating officer some 22 days after the occurrence no reliance should be placed on his testimony. The mere fact that the investigating officer recorded his statement at belated stage docs not reduce evidentiary Value of his sworn testimony. He has been named in the FIR lodged promptly. His presence at the scene of occurrence cannot be doubted as he deposed that the alleged night he was sleeping in the open in his house situated adjacently to the houses of Prem Pal and Kalu. All the three witnesses have given a truthful and honest account of the occurrence witnessed by them. The said argument advanced by the learned Counsel for the appellants is wholly misconceived and is rejected.
14. The appellants' learned counsel further contended that the FIR is ante timed. In order to substantiate his contention he argued that name of the accused, weapon etc have not been mentioned in the inquest report. He also contended that PW 4 SI Ram Veer Singh , the then HM stated that special report of the crime was sent through constable Shish Ram to the higher authorities vide GD entry no. 12 at 7: 30 a.m. that very morning (Ext Ka 5) but that constable returned back, to the police Station at 6:35 p.m. From the above the appellants learned counsel wanted to conclude that the FIR was recorded at the police station at about 2 -3 p.m. that day. The said argument advanced by the learned counsel for the appellants holds no water. The requirement of Section 174 of the Code of Criminal Procedure is that the police officer drawing inquest proceedings on the dead body shall record apparent cause of death describing the wounds as may be found on the dead body and also the weapon or instrument by which they appeared to have been inflicted and this has to be done in presence of two or more respectable inhabitants of the vicinity. The section does not contemplate that names of the accused or manner in which incident took place should be mentioned in the inquest report. The police officer mentioned in the relevant columns of the inquest report that injury on chest of the deceased was caused by firearm. Further, a perusal of the inquest report goes to view that inquest proceedings started at 8:00 a.m. and concluded at 10:00 a.m. PW 3 constable Mam Chand deposed that at about 10:00 a.m. on 8thof June 1980 dead body of Gulab Singh in a sealed cover alongwith necessary papers was handed over to him and constable Bhupal Singh for being taken for its post mortem and they taking the dead body in a bullock cart reached Rawli Road at about 11 :00 a.m. and after waiting for about an hour they could get a tempo for taking the dead body to the Police Line Ghaziabad and reached there at about 12:00 noon. IA perusal of Police Form No. 13 usually known as 'chilthi rawangi' goes to show that the police headquarter is situate at a distance of 26 kms from the place of occurrence. It further goes to show that the dead body was sent from the police headquarter to the mortuary at 2:35 p.m. the same noon. PW 2 M.K. Goel Orthopaedic Surgeon MMG Hospital Ghaziabad deposed that he conducted autopsy on the dead body of Gulab Singh on 8thof June 1980 at 4:30 p.m. Further a perusal of GD entry (Ext Ka 5) goes to show that constable Shish Ram was sent from the police station to deliver special report of the crime to the higher authorities at about 7:30 a.m. every very morning. PW 4 SI Ram Veer Singh, the then HM deposed that he prepared check report of the crime on the basis of the written report handed over to him by Prem Pal at the police station and made entry regarding registration of the crime in GO entry No. 5 (Exts Ka 3 & Ka 4). A perusal of these papers goes to show that FIR of the occurrence was lodged by Prem Pal at the police station on 8thof June 1980 at 5:40 a.m. and entry regarding registration of the crime was made in GD entry No. 5. We see no plausible reason to doubt the veracity of these GD entries made by the HM in the discharge of his official duties. In view of these established facts the said contention of the learned counsel for the appellants is indeed a contention wholly lacking any merit.
15. Learned counsel for the appellants also challenged the place of occurrence as no blood was found on the : ground under the cot in the verandah. This argument is not tenable for obvious reasons. The victim was fired at the dead of night at about 1:00 a.m. when he was asleep in the verandah of his house. It has come in evidence that dead body of Gulab Singh was lying on the cot over the 'Dutai' on his cot. The victim was wearing kurta besides undergarments. A perusal of the inquest report goes to show that the dead body was lying straight over 'Dutai' on the cot facing towards ceiling in the verandah. A perusal of the post mortem report goes to show that left pleural cavity contained clotted blood 500 cc. Possibility can not be ruled out that the clothes worn by the victim and the bedding comprised of 'Dutai', 'Khes' etc would have soaked the blood oozed from the wound. Time of murderous assault al Gulab Singh stands supported by medical evidence as semi digested food material was found in the stomach and small intestine contained semi digested food and gases and large intestine faecal matter and gases. In the month of June normally people take their meals at about 8-9 p.m. Normally vegetable diet as usually taken in our State among the villagers does not leave the stomach completely within six to seven hours after its ingestion. Quite naturally Gulab Singh after taking food was sleeping in the verandah of his house the fateful night as it was summer season. In view of these facts and circumstances we are of the view that the murderous assault at Gulab Singh was made at the place as alleged by the prosecution. The said argument advanced by the appellants learned counsel has got no substance and is repelled.
16. The appellants' learned counsel also contended that the appellants had no motive to commit the murder of Gulab Singh. PW 1 Prem Pal, son of the deceased deposed that one Randhir Singh set up his brick kiln near the brick kiln of appellant Hari Singh at the outskirts of village Sutthari some three years prior to the said incident but Hari Singh and his brothers did not permit Randhir Singh to run his brick kiln efficaciously and effectively and ultimately he sold his brick kiln to his father Gulab Singh some three months prior to the said incident. He also deposed that some fifteen days prior to his father's murder Hari Singh and his brothers removed about 1,25000 bricks of swit clay lying at his brick kiln which resulted in an altercation between his father Gulab Singh on the one hand and Hari Singh and his brothers on the other and they threatened his father portending that they would not allow him to run his that brick kiln. Appellant Hari Singh admitted in his statement recorded under Section 313 of the Code of Criminal Procedure that Randhir Singh had set up a brick kiln near his brick kiln some three years prior to the alleged occurrence. A perusal of the copy of report lodged by Randhir Singh against Gulab Singh and another on 25thof May 1980 at police station Murad Nagar goes to show that place of incident has been mentioned as brick kiln of Gulab Singh situate at the outskirts of village Sutthari which was registered as NCR under Sections 504 and 506 IPC (Ext kha 1). Thus it is established that Randhir Singh had sold his brick kiln situate at the outskirts of village Sutthari to Gulab Singh, the deceased. In view of these facts it appears that Hari Singh and his brothers were nursing grudge against Gulab Singh due to business rivalry and that constituted adequate motive for eliminating Gulab Singh. We may add here that in the case of direct evidence motive is not of much significance but it provides a link in the probabilities of the case. Presence of motive may add to the probabilities of commission of the offence by the accused if the assessment of ocular evidence points that way.
17. The appellants' learned counsel also argued that there were several enemies of Gulab Singh in the village and he might have been done to death by any of them. The fact of his having other enemies would not eclipse or over shadow the sworn testimony of the three eye witnesses that he was shot dead on the given date, time and place by the accused appellants. The said argument therefore has got no substance and is repelled.
18. Learned counsel for the appellants also contended that no overt act was imputed to appellant Hari Singh and hence he should have been acquitted. This argument in our view has no merit. The brick kiln was being run mainly by appellant Hari Singh and being the elder one he was much aggrieved against Gulab Singh due to business rivalry. He was in the root of the crime of the murder of Gulab Singh. Both the appellants are real brothers and ran away from the place of occurrence together. Though no overt act has been assigned to appellant Hari Singh but he was armed with lathi at the time of murderous assault at Gulab Singh. In view of the totality of the circumstances we are of the view that he shared common intention with Mohar Singh, the real assailant for murdering Gulab Singh and Gulab Singh was murdered in furtherance of their common intention. And therefore appellant Hari Singh was rightly held guilty for offence punishable under Section 302 read with Section 34 IPC by the Court below.
19. After considering carefully all the arguments advanced on behalf of the appellants in the light of evidence and attending circumstances we do not find any merit in any of them. All the three eye witnesses have given truthful and honest account of the occurrence witnessed by them; and the learned Trial Judge has given cogent and convincing reasons for finding the accused guilty of the charge levelled against them and we are in complete agreement with the findings recorded by the trial Court against the accused. The appeal has no merit and is liable to be dismissed.
20. The appeal is dismissed. Conviction of accused appellant Mohar Singh under Section 302 IPC and that of Hari Singh under Action 302 read with Section 34 IPC and sentence of imprisonment for life awarded to each of them thereunder are affirmed. Both the appellants are on bail. They shall be got arrested and sent to Jail to serve out the sentence awarded to them.
21. Certified copy of the judgment alongwith the record of the lower Court be sent to the Court concerned immediately for compliance under intimation to this Court within three months of its receipt.