JUDGMENT Imtiyaz Murtaza, J.
1. All these appeals are filed against the judgment and order dated 22.9.2004 passed by Special Judge, S.C.S.T. Act, Pilibhit. Crl. Appeal No. 5169 of 2004 and 5170 of 2004 are filed against the conviction of the appellants under Section 147 I.P.C. and sentence to undergo R.I. for one year, under Section 148 I.P.C and sentence to undergo R.I. for two years, under Section 364 I.P.C. and sentence to undergo R.I. for 7 years and a fine of Rs. 5000/- and in default of payment of fine further imprisonment for six months, under Section 307/149 I.P.C. and sentence to R.I. for 7 years and fine of Rs. 5000/- and in default of payment of fine further imprisonment for six months, under Section 302/149 I.P.C. and sentence to imprisonment for life and fine of Rs. 15,000/- and in default of payment of fine further one year R.I., under Section 201/149 I.P.C. and sentence to two years R.I. and a fine of Rs. 2000/- and in default of payment of fine further imprisonment for three months. Crl. Appeal No. 1394 of 2005 filed by Nirmal Singh alias Nimma is against the conviction under Section 25 Arms Act and sentence of imprisonment for two years and a fine of Rs. 2000/- and in default of payment of fine further imprisonment for three months. Crl. Appeal No. 1395 of 2005 filed by Rakshpal Singh is against the conviction under Section 25 Arms Act and sentence to imprisonment for two years and a fine of Rs. 5000/- and in default of payment of fine further imprisonment for three months.
2. Since all the above appeals are filed against the common judgment, therefore, they are disposed of together by this judgment.
3. The brief facts of the case, mentioned in the report lodged by Balihar Singh on 5.2.2001 at 6.45 p.m., are that his father Dheer Singh was returning to his village from market of Bisanda Kasba on his Rajdoot motorcycle. His brother Darshan Singh and Jagveer Singh had come to the market for the repairing of Tractor and they were also returning to their house. When his father Dheer Singh reached near southern culvert of Shanker Temple, Rakshpal Singh, Narbail Singh, Jarnail Singh, Vikram Singh, Nirmal Singh alias Nimma and Surendra Singh who were coming in a commandar Jeep No. UP 27-B 4050 armed with Rifle and Guns collided their Jeep with the motorcycle whereby his father fell on the ground. He was shot, lifted and dumped in the commandar Jeep and taken towards Banda. He and his brother Darshan Singh raised alarm. Ranjeet Singh was coming on a motorcycle, he started chasing the commandar Jeep but failed. It is further alleged that there was dispute of land with the accused and the incident took place at about 4.30 p.m. The report was lodged on 5.4.2001 at about 6.45 P.M. The distance of police station is one and half Km. from the place of occurrence. The report was prepared by Head Moharrir Ram Vilas Singh and S.I. Anil Kumar Sharma commenced the investigation. He recorded the statement of Ram Vilas Singh and Balihar Singh and reached at the place of occurrence alongwith the informant and prepared site plan which is Ext. Ka-44. During the inspection he recovered a Rexene shoe and one tail light of a motorcycle and prepared the recovery memo Ext. Ka-2. He also recovered one number plate of Commandar Jeep No. U.P. 27-B 4050, about 50 steps away from the plage of the occurrence and prepared its recovery memo, Ext. Ka-3. He also prepared the recovery memo o motorcycle Rajdoot No. U.P. 26 6772, which is Ext. Ka-13. An application was recovered from the dickey of motorcycle of Dheer Singh and its recovery memo is Ext. Ka-1. He recorded the statements of Jagveer Singh, Darshan Singh, Ranjeet Singh, Sardool Singh, Avtar Singh, Satya Prakash, Basant Lal, Ram Naresh and others. On 9.4.2001 head of Dheer Singh was recovered, inquest of the head was prepared by S.I. Kali Charan Sharma and thereafter the case was converted under Section 147, 148, 149, 302, 201 I.P.C. On 10.4.2001 he arrested accused Rakshpal Singh, Nirmal Singh, Vikram Singh alias Vikka,Narbail Singh and Surendra Singh. From the possession of Rakshpal Singh a 12 bore country made pistol and three cartridges were recovered, from the possession of Nirmal a 315 bore pistol and two live cartridges were recovered, from the possession of Vikram alias Vikka a sword was recovered, from the possession of Narbail Singh and Surendra Singh oneKripan each was recovered. The recovery memos were prepared by S.I. Rajendra Prasad. The Commandar Jeep was taken into possession and recovery memo was prepared, which is Ext. Ka-9. He also recovered a blood stained piece of foam of seat of jeep, recovery memo is Ext. Ka-17 and Raj Kumar and Sompal have also singed the recovery memo as witnesses. Case crime no. 158 of 2001 under Section 25 Arms Act was registered against Rakshpal Singh, case crime no. 159 of 2001 under Section 25 Arms Act was registered against Nirmal Singh, case crime no. 160 of 2001 under Section 4/25 Arms Act was registered against Vikkar Singh, case crime no. 161 of 2001 under Section 4/25 Arms Act was registered against Narbail Singh and case crime no. 162 of 2001 under Section 4/25 Arms Act was registered against Surendra Singh. All the five accused had confessed to get the dead body of Dheer Singh recovered. They were taken out from the polic station and reached at Gahluiya Nehar. On the pointing out of the accused headless body was recovered and recovery memo was prepared by S.I. Rajendra Prasad. The dead body was identified by Manjeet and Ravindra Singh, recovery memo is Ext. Ka-18. A Kurta of the deceased was also recovered. Its recovery memo was prepared by Rajendra Prasad, Ext. Ka-19. All the accused got recovered one Kripan and S.I. Rajendra Prasad prepared the recovery memo, Ext. Ka-20. The inquest report was also prepared. He also prepared the site plan of the recovery of head and dead body of the deceased which is Ext Ka-47 and 48. He submitted charge sheet, Ext. Ka-49 against Rakshpal Singh, Nirmal Singh Narbail Singh, Vikram Singh and Surendra Singh. A charge sheet (Ext. Ka-50) was filed against Jarnail Singh. He also forwarded the blood stained and plain earth and other articles for the chemical examination.
4. The post mortem on the head of the deceased Dheer Singh was conducted by Dr. N.K. Mishra on 10.4.2001 at about 3.30 p.m. and he noted the following ante mortem injuries:
1. Firearm wound of entry 2.0 cm. x 2.0 cm. on right side of face at root of right ear at the end of (middle of ear), margins are inverted.
2. Firearm wound of exit of 3.0 cm. x 3.0 cm. on left side of post scalp 4.0 cm. behind and below to ear, margins are "everted
3. Incised wound of 13.0 cm. x 3.0 cm. on right side of upper neck 1.0 cm. below right ear. Margins are clean cut.
4. Abraded contusion of 4.0 cm. x 3.0 cm. on right side of face 3.0 cm. below right ear.
5. Abraded contusion of 7.0 cm. x 5.0 cm. on right side of face head 1.0 cm. above right orbit.
6. Incised wound of 10.0 cm. 1.0 cm. on left side of post scalp 5.0 cm. below left ear.
7. Incised wound of 41.0 cm. circumference on upper neck (lacerated wound 15.0 cm. x 12.0 cm.) at the level of C 2 vertebrae.
8. Incised wound of 14.0 cm. x 1.5 cm. on left upper neck, 2.0 cm. below left ear.
5. In the opinion of the doctor cause of death of deceased was shock and haemorrhage as a result of ante mortem injuries.
6. The post mortem on the headless body of the deceased Dheer Singh was conducted by Dr. Rakesh Dube on 11.4.2001 at about 3.30 p.m. and he noted the following ante mortem injuries:
1. Contusion 21 x 18 cm. on the back of chest 5 cm. from midline on left side of body.
2. Penetrating wound 3 x 4 cm. x cavity deep (abdominal) on the back right side, 6 cm. from midline at the level of lumber-2 vertebra.
3. Penetrating wound 2.5 cm. x 1 c. x abraded, cavity deep on the left side 2 cm. above the iliac crest.
4. Incised wound 12 x 5 cm. x muscle deep on the left shoulder.
5. Incised wound 4 x 2 cm. on the front of right shoulder.
6. Incised wound 6 x 4 cm. x 2 cm. medial to injury no. 5.
7. Incised wound 23 x 21 cm. on the front of abdomen with intestines coming out, they are mud soaked.
8.. Penetrating wound 2 x .1.5 cm. x abraded cavity deep 2 cm. below injury no. 7
9. Incised wound 10x9 cm. on the front of lower part of thigh 5 cm. above the knee.
10. Neck circumcised at the level of C 2-3 vertebra with neck circumference 39 cm. and antero. Posterior diameter 15 cm. & lateral diameter 10 cm.
7. In the opinion of the doctor cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries.
8. After the conclusion of the investigation charge sheet was submitted against the appellants and the case was committed to the Court of Session.
9. During the trial prosecution examined 12 witnesses in all. The case of the defence was of denial and false implication and D.W. 1 Balvir Singh was examined in their defence. The court examined Kamal Kumar Mittal as C.A. 1.
10. P.W. 1 Jagvir Singh deposed that at about 2 years and 2 months back his father Dheer Singh was returning from Bilsanda Kasba on his Rajdoot motorcycle No. UP26 6772. He was returning on his Tractor. Darshan Singh and Balihar Singh were also sitting on the Tractor. The motorcycle of Dheer Singh was ahead of him and when he reached on the southern culvert of Gauri Shanker Temple a Commandar Jeep No. UP 27-B 4050 hit motorcycle of Dheer Singh. His father fell on the ground. Surendra Singh was driving the Jeep, Rakshpal Singh, Narbail Singh, Jamail Singh, Vikram Singh and Nirmal Singh were sitting in the Jeep. Narbail Singh, Rakshpal Singh, Vikram Singh and Nirmal Sinbgh got down from the Jeep and fired at his father. Surendra Singh turned the Jeep and Jarnail Singh kept sitting in the Jeep. After firing four accused persons kept his father inside the Jeep and went away towards Banda. He alongwith Darshan Singh and Balihar Singh witnessed the occurrence. The accused were carrying Rifle and Guns and they were empty handed. Immediately after the occurrence Ranjeet Singh reached there and followed them on a motorcycle but could not apprehend them and returned. Balihar Singh had gone to lodge the report. It is further state that they had taken3.65 acres land of Bhagwat Saran and they were in possession of the said land. The land was mutated in their name. The accused persons had obtained a forged will from Prem Raj father of Bhagwat Saran and they claimed their ownership on the ground of that will. The case was pending in the court. A day prior to the date of the occurrence at about 9.30 p.m., his father was at his field, Surendra Singh, Rakshpal Singh, Narbail Singh and Vikram Singh armed with weapons fired at his father who ran away. His father gave an application at police station Bilsanda. A copy of the said application is paper No. Kha. 25/1. He further deposed that the blood stained and plain earth was collected from the place of the occurrence, the recovery memo is Ext. Ka-1, a pair of shoe of black colour of his father, a broken glass of the motorcycle were recovered and recovery memo was prepared which is Ext. Ka-2. A number plate of Jeep No. UP 27-B 4050 was also recovered from the place of occurrence and the recovery memo is Ext. Ka-3. The head of his father was recovered on 10.4.2001. The inquest memo was prepared in his presence, which is Ext. Ka-4.
11. P.W. 2 Darshan Singh deposed that at about 2 years back his father Dheer Singh was murdered while he was returning from Bilsanda on his motorcycle. He alongwith Jagvir Singh and Balihar Singh were returning on a Tractor. At about 4.30 p.m. when they reached near the temple of Gauri Shanker, his father was ahead on a motorcycle, a Jeep came from behind which was driven by Surendra Singh and he dashed his Jeep against the motorcycle of his father and his father fell on the ground. Rakshpal Singh, Narbail Singh, Vikram Singh and Nirmal Singh got down from the Jeep and fired at his father. The Jeep was turned by Surendra Singh but Jarnail Singh kept on sitting in the Jeep. The accused had lifted his father and kept him in the Jeep and went away towards Banda. The occurrence was witnessed by him, Balihar and Jagvir Singh. The accused were armed with country made pistols and Guns and they were also carrying Rifles. After the accused had left the place, Ranjeet Singh reached there on a motorcycle, they were followed but could not be apprehended. The report was prepared by Balihar Singh. He also stated that 3.36 acres of land of Bhagwat Saran had been purchased by him and Balihar Singh through a sale deed and they were in possession of the land. The land was also mutated in their names. After the death of Prem Raj a forged will was obtained by Rakshpal and they were claiming the land on the basis of this forged will The litigation of the land is pending in the court. He further stated that a day prior to the occurrence at about 9.30 p.m. when his father was in the field, Rakshpal Singh, Vikram Singh and Narbail Singh reached there carrying weapons and fired at his father.
12. P.W. 3 Balihar Singh stated that Dheer Singh was his father who was murdered about 2 years and two months back. He was returning alongwith Jagvir and Darshan Singh on a Tractor from Bilsanda. His father was ahead of them on a motorcycle. At about 4.30 p.m. a Jeep came behind and accused were sitting in that Jeep. They were carrying Rifle and Guns. They dashed the Jeep with the motorcycle of his father and his father fell down. Rakshpal Singh, Vikram Singh, Narbail Singh and Nirmal Singh got down from the Jeep and fired at his father. Surendra Singh and Jarnail Singh were sitting in the Jeep. They turned the Jeep and kept his father in the Jeep and went away. They raised alarm. Ranjeet Singh also reached there and unsuccessfully chased the assailants. He had prepared the first information report which was in the writing of Ravindra Singh, which is Ext Ka-5. He also stated that there was enmity with regard to land with the accused persons,
13. P.W. 4 Dr. N.K. Mishra proved the post mortem report of the head of the deceased Dheer Singh.
14. P.W. 5 is Head Constable Ram Vilas Singh. He stated that on 5.4.2001 he was posted as Head Moharrir at police station Bilsanda. At 6,45 p.m. Balihar Singh had lodged a first information report, Ext. Ka-5 at the police station. He prepared the chik F.I.R. Ext. Ka-7. He had also prepared the G.D. entry which was prepared on the basis of F.I.R., copy of the G.D. entry is Ext. Ka-8. On 10.4.2001 Anil Kumar Sharma, S.O. had filed a recovery memo which is Ext. Ka-9 on the basis of this recovery memo F.I.R. of Case crime no. 158/01, 159/01, 160/01,161/01 and 162/01 was prepared. A copy of the recovery memo is Ext Ka-9. Anil Kumar Sharma had also lodged five accused persons alongwith five sealed packets. A copy of the G.D. entry was also prepared, which is Ext. Ka-11.
15. P.W. 6 Dr. Rakesh Dube proved the post mortem report of the headless body of the deceased Dheer Singh.
16. P.W. 7 S.I. Rajendra Prasad stated that on 5.4.2001 on the application of Balihar Singh chik F.I.R. Ext. Ka-7 was prepared which was entered in G.D. No. 33 at case crime no. 157 of 2001 under Section 364, 307 I.P.C. The investigation was handed over to S.O. Shri Anil Kumar Sharma. He had also gone to the place of occurrence alongwith S.O. Anil Kumar Sharma. He had inspected the place of occurrence and prepared the recovery memo of shoe, tail light of motorcycle. He had prepared the recovery memo on the direction of S.O. A.K. Sharma, which Ext. Ka-2. A number plate of Jeep bearing No. U.P. 27-B 4050 was recovered from 50 yards away from the culvert, recovery memo, Ext. Ka-3 was prepared. A Rajdoot motorcycle U.P. UP 26 6772 of Dheer Singh was also recovered and recovery memo Ext. Ka-13 was also prepared. Blood stained and plain Bajari was also lifted from the place of the occurrence and sealed, its recovery memo is Ext. Ka-1. On 9.4.2001 information was received at police station Banda that head of the deceased Dheer was recovered from a canal. On 10.4.2001 he alongwith S.O. and other police constables arrested accused persons who were coming on Commandar Jeep No. UP 27-B 4050. They were arrested and disclosed their names. From the possession of Rakshpal Singh a 12 bore country made pistol and three cartridges were recovered, from the possession of Nirmal a 315 bore pistol and two live cartridges were recovered, from the possession of Vikram alias Vikka a sword was recovered, from the possession of Narbail Singh and Surendra Singh one Kripan each was recovered. The commandar Jeep No. UP 27-B 4050 was also recovered, there were blood stained on the back seat. The foam of the seat was taken into possession, Ext. Ka-17. On the pointing out of the accused headless body of the deceased was recovered, Ext.Ka-18. A Kurta and Kripan of the deceased was also recovered and the recovery memo is Ext Ka-19 and 20. the inquest memo of the headless body of the deceased was prepared by Kali Charan Sharma and the dead body was dispatched for the post mortem examination.
17. P.W. 8 S.I. Kali Charan Sharma deposed that on 9.4.2001 and 10.4.2001 he was posted as S.I. at police station Banda, Shahjahanpur. He had prepared the inquest memo of the head of the deceased and the investigating officer A.K. Sharma and other S.I. of police station Bilsanda were present. The head was dispatched, in a sealed condition for the post mortem examination on 10.4.2001 through Constable Jagat Singh. A headless body of Dheer Singh was recovered and information was received at the police station for the preparation of inquest memo. He had prepared the inquest memo and photo nash, challan nash, letter to C.M.O. and other papers were prepared and the dead body was given to Keshav Singh and constable N.C. Saini for carrying it to mortuary, Shahjahanpur. The inquest memo of the head is Ext. Ka-4 and headless body is Ext. Ka-21. Photo nash, Ext. Ka-22, Sample Seal, Ext. Ka-23, Challan nash, Ext. Ka-24, letter to C.M.O., Ext. Ka-25. The inquest of headless body is Ext. Ka-26, letter to C.M.O. is Ext. Ka-27, Photo nash is Ext. Ka-28, Sample Seal is Ext. Ka-29, G.D. entries of the inquest reports are Ext. Ka-30 and 31. The police of Bilsanda had collected blood stained earth, Kurta, Kripan of the deceased.
18. P.W. 9 Israr Ali deposed that on 10.4.2001 he was posted as Head constable at police station Bilsanda. At 12.05 case crime no. 158, 159,160,161,162 of 2001 were registered against the accused on the basis of recovery memo Ext. Ka-9. He had prepared the G.D., ext. Ka-11. He had initially started the investigation, thereafter investigation was handed over to Shri G.L. Pawar. He had recorded the statement of accused and statement of S.O. A.K. Sharma.
19. P.W. 10 Shri G.L. Pawar had investigated the case crime no. 158 to 162 of 2001. He had started the investigation on 19.4.2001. He had recorded the statement of S.I. Rajendra Prasad, S.I. S.K. Tyagi, police constables and witnesses Raj Kumar and Som Pal. He deposed that from the possession of Rakshpal Singh a country made pistol 12 bore and three live cartridges were recovered and he had no licence for the same. He had prepared the site plan which is Ext. Ka 32. From the possession of Nirmal one country made pistol 315 bore and two cartridges of 315 bore were recovered and he had no licence for the same. He had prepared the site plan which is Ext. Ka-33. From the possession of Jarnail Singh a Kripan was recovered and he prepared the site plan, Ext. Ka-34. From the possession of Vikram Singh a sword was recovered. He had prepared the site plan, which is Ext. Ka-35. From the possession of Surendra Singh a Khukhari was recovered and he prepared the site plan, which is Ext. Ka-36. The country made pistols and cartridges were sent in a sealed condition to the District Magistrate alongwith the case diary for obtaining the sanction. The sanction for the prosecution of Rakshpal is Ext. Ka-37 and Ext. Ka-38 is the sanction for the prosecution of accused Nirmal. He had submitted the charge sheet against five accused persons, Ext. Ka-39 to 43.
20. P.W. 11 is the investigating officer of the case and after the conclusion of the investigation he submitted charge sheet against the accused persons.
21. P.W. 12 Raj Kumar is a witness of recovery of weapons from the possession of accused after their arrest on 10.4.2001.
22. D.W. 1 is Balbir Singh. He stated that he was doing repairing work of the Tractor for the last 10 years. He knew accused Rakshpal Singh and Narbail. He did not know Dheer Singh. He recognised Darshan, Balihar and Jagvir Singh by their faces. He deposed that on 10.4.2001 they did not come to his shop for the service or repairing of their Tractor.
23. C.W. 1 Kamal Kumar Mittal is the owner of Kamal Gun House, Beesalpur since 1973. He deposed that three receipts of the weapons were prepared when they are deposited at his shop. One receipt had been handed over to the depositor, one copy is sent to the District Magistrate under certificate of posting and third copy is kept in the shop. A register for repairing of the gun is kept in the shop. On 30.3.2000 to 31.3.2004 on page no. 37 at serial no. 1171 which was entered by him. According to this register on 3.4.2001 Rakshpal Singh had deposited his Rifle No. AV 098-2660, the licence was valid uptil 18.11.2001. The Rifle was kept in his shop. He filed photo copy of the receipt and register kept for repairing of the weapons was Ext. C-l and C-2. He had also brought the U.P.C. dated 4.4.2001 through which he had sent the receipt to the District Magistrate, which is C-3. In the repairing register dated 2.10.1988 to 28.10.2000, on 27.12.1999 Jarnail Singh had deposited D.B.B.L. Gun No. 2265/98. He filed the photo copy of the register and receipt which are Exts. C-4 and C-5. He had identified the accused Rakshpal and Jarnail Singh. He had also filed the photo copy of the U.P.C. which is Ext. C-6.
24. After considering the evidence on record the Sessions Judge had convicted the appellants as aforesaid. Hence this appeal.
25. We have heard learned counsel for the appellants, learned A.G.A. for the State and Shri Manish Tewari, learned counsel for the complainant.
26. The counsel for the appellants has challenged the findings of the trial court on various grounds. The first submission of the counsel for the appellants is that no independent witness is produced to support the prosecution case. All the witnesses examined by the prosecution are real brothers and sons of the deceased. It is further contended that all of them are chance witnesses. The place of occurrence being Rasta therefore, it could not be said that no independent witness was available.
27. We have considered the submissions and it is correct that all the eye witnesses are real brothers and sons of the deceased but on that ground alone their testimonies which otherwise inspires confidence cannot be rejected. In the case of State of H.P. v. Mast Ram reported in (2004) 8 SCC 660 the Apex Court had observed The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimonies with caution.
28. The witnesses have also explained their presence at the place of occurrence. They deposed that they had come to Bilsanda for the repair of their tractor and thereafter they were returning to their home. It is a matter of common knowledge villager do come to a town for necessary work. There is nothing unnatural about it. A perusal of the F.I.R. would show that it could have been given only by an eye witness. In the report all the details of the occurrence are given. The number of the jeep involved in the crime was mentioned in the report. The investigating officer had found number plate of the jeep about 50 yards away from the place of occurrence. The involvement of the jeep is also confirmed by the fact that the blood stained foam of the seat of the jeep contained blood of 'A' group. The serologist report (Ka. 53) confirmed that blood on the foam of the seat of the jeep, blood on the shirt of the deceased, the blood recovered from the place of occurrence was of group 'A'. In our mind, there is no doubt about the presence of the eye witnesses at the alleged time of the occurrence.
29. The next submission of the counsel for the appellants is that there is conflict in direct and medical evidence. According to the prosecution case Narvail Singh, Rakshpal Singh, Vikram Singh and Nirmal Singh had fired upon the deceased but the post mortem reports of the head and trunk shows that the deceased had suffered only one fire arm injuries. After considering the submission of the counsel for the appellants and perusal of the post mortem reports we are of the opinion that there is no conflict in direct and medical evidence. On the other hand the post mortem report corroborates the ocular testimony. It is not the case of the prosecution that the shots fired by all the four accused persons had hit the deceased. The use of firearm is corroborated by the post mortem examination reports, which show that the deceased had suffered firearm injury also. In an incident of this nature it would be impossible that the shots fired by all the accused must hit the target.
30. The next submission of the counsel for the appellants that the appellants had no motive to commit the offence and on account of enmity they are falsely implicated in this case. According to the allegations of the report there was enmity between the parties with regard to a dispute of land. In the evidence witnesses have stated 3.45 acre land of Bhagwat Saran was purchased by Dheer Singh in the name of Darshan Singh and Dalbeer Singh and also obtained possession after the mutation. The accused were also claiming possession over the land on the basis of a forged will. There were proceedings under Section 107/111 also initiated between the parties.
31. A case relating to the dispute of land was also pending between the parties. It is stated that a case under Section 307 I.P.C. was also pending against Jagveer Singh and others. In our opinion, there was enmity between the parties and it is established position of law that in a case which turns on direct evidence, the motive element does not play such an important role as to caste any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak.
32. It is further contended that witnesses have stated that they were returning after repairing of their tractor and this fact is falsified by the testimony of D.W. 1 who had denied to have repaired the tractor of the witnesses. We have considered the submissions and also perused the reasons given by the Sessions Judge for rejecting the testimony of D.W. 1. In our opinion, the Sessions Judge had rightly rejected his testimony.
33. In the instant case the report was lodged under Section 364 IPC. The deceased was abducted by the accused persons and thereafter his head was recovered and trunk was recovered on the pointing out of Rakshapal Singh. The deceased was proved to have been abducted by the accused and was found murdered.
It is settled position of law that it is for the appellant to satisfy the court as to how else the abducted victim was dealt with by them . In the absence of any such explanation it is open to the court to draw the presumption that the abductors are the murderer also. The case of the defence is of simple denial and they do not offer any explanation. In the case of Sucha Singh v. State of Punjab, reported in (2001) 4 SCC 375, the Apex Court had observed as under:
We only reiterate the legal principle adumbrated in State of W.B. v. Mir Mohd. Omar that when more persons than one have abducted the victim, who is later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e., whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc'.
34. In this case according to the prosecution case occurrence took place at 4.30 p.m. and report was lodged at 6.45 p.m. There was sufficient light to recognise the accused who were well known to the witnesses. After the incident Ranjit had chased the Jeep and thereafter written report was lodged. In our opinion there is no such delay in lodging the report to doubt its authenticity. It is also important to mention that the report was lodged under Section 364, 307 I.P.C. much prior to the recovery of dead body. It is not expected that close relative will falsely implicate innocent persons and spare the actual culprit.
35. We have carefully examine the testimonies of all the witnesses and they inspire full confidence. They were subject to extensive cross examination but nothing could be elicited to doubt the presence at the place occurrence or their credit worthiness.
36. The manner of the assault is corroborated by the post mortem examination reports. The involvement of the accused persons is also confirmed by the fact that the number plate of the jeep of the accused was recovered immediately after lodging of the first information report. The trunk of the deceased was also recovered on the pointing out of Rakshpal Singh. The blood on the seat of the jeep was of the same group of the deceased. The prosecution has fully proved its case beyond reasonable doubt and the Sessions Judge has rightly recorded the finding of conviction and we also concur the same.
37. Lastly, it is contended that the participation of Jarnail Singh in the occurrence is doubtful. The informant in his report did not assign any overt act to him. It is not the case of the prosecution that he was driving the jeep or he had fired upon the deceased. The other eyewitnesses did not name him in their statements under Section 161 Cr.P.C. also. They had disclosed his name first time in court. The counsel for the informant submitted that the police had deliberately omitted his name in order to save him. This submission has no substance because no such suggestion was given to the investigating officer and it is not disputed that the name of Jarnail Singh is not mentioned in their statements under Section 161 Cr.P.C. It is also relevant to point out that even in the first information report no overt act was assigned to him. In our opinion, as an abundant caution we are not inclined to convict Jarnail Singh whose name was mentioned in the report but other eye witnesses did not mention his name in their statements under Section 161 Cr.P.C.
38. In view of the above the appeals are decided as under:
Crl. Appeal No. 5169 of 2004. Appeal of Jamail Singh is allowed. He is acquitted of the charges. He is on bail. He need not surrender. His bail bonds and sureties are discharged. The appeal of Narvail Singh, Vikram Singh alias Vikka and Surendra Singh is dismissed. Their conviction and sentences awarded by the trial court are maintained. They are in jail. They shall be kept there to serve out the sentences awarded by the trial court and affirmed by us.
39. Crl. Appeal No. 5170 of 2004 of Rakshpal Singh, Nirmal Singh alias Nimma is dismissed. The conviction and sentence of appellants Rakshpal Singh and Nirmal Singh alias Nimma awarded by the trial court are maintained. They are in jail. They shall be kept there to serve out the sentences awarded by the trial court and confirmed by us.
40. Crl. Appeal No. 1394 of 2005 of appellant Nirmal alias Nimma against the conviction and sentence under Section 25 Arms Act is dismissed. The conviction and sentence of the appellant awarded by the trial court is maintained. He is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
41. Crl. Appeal No. 1395 of 2005 of appellant Rakshpal Singh against the conviction and sentence under Section 25 Arms Act is dismissed. The conviction and sentence of the appellant awarded by the trial court is maintained. He is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.