JUDGMENT M.C. Jain, J.
1. Eight appellants have filed this appeal. They are Jawahar. Hukma, Ghansoo, Pampa, Hariya, Bhadai, Karan Singh and Bhagwan Singh. Out of them, appellant No. 4 Pampa and appellant no.7 Karan Singh have died and the appeal has abated so far as they are concerned as per order dated 11.2.2004. Presently the court is concerned only with the remaining six accused appellants.
2. Judgment assailed is one dated 3.11.1981 passed by Sri J.N. Bansal, the then Sessions Judge, Lalitpur in Sessions Trial No. 8 of 1981. The appellants Bhadai and Karan Singh have been convicted under Section 148 I.P.C. and remaining six under Section 147 I.P.C. Bhadai has also been convicted under Section 302 I.P.C. and remaining seven under Section 302 I.P.C. read with Section 149 I.P.C. All of them have further been convicted under Section 323 I.P.C. read with Section 149 I.P.C. The sentence of life imprisonment has been awarded to Bhadai under Section 302 I.P.C. and to the remaining seven under Section 302 I.P.C. read with Section 149 I.P.C. All the eight accused appellants have sentenced to six months' rigorous imprisonment under Section 323 I.P.C. read with Section 149 I.P.C. The sentence of two years' rigorous imprisonment has been awarded to Bhadai and Karan Singh under Section 148 I.P.C. and of one year's rigorous imprisonment to the remaining six under Section 147 I.P.C.
3. The incident had taken place in between the night of 25/26.10.1980 at about 12.30 O' clock in village Phulwara. PS. Bar, District Lalitpur and the report was lodged at 11 A.M. the same night by the injured Pyare Lal PW 2 by oral narration
4. The prosecution case was that Pyare Lal informant had strained relations with his uncle accused appellant Jawahar and the latter's family members including his son accused Hukma in connection with a dispute regarding the family agricultural land, though the two branches of Hirau (father of accused Jawahar) and Lachhoo (father of complainant Pyare Lal) had been occupying different portions of the family agricultural land through some private arrangement, Jawahar and his family members were under the impression that Pyare Lal had been in possession of the family land in excess of his half share. In the background of such inimical relations with Pyare Lal complainant, the accused Jawahar along with his son accused Hukma and his supporters-remaining six accused, appeared at the house of the complainant in the fateful night at about 12.30 O' clock. The accused Karan Singh carried a gun with him and accused Bhadai possessed an axe whereas the remaining six accused carried lathis. Pyare Lal was sleeping in the courtyard of his house along with his brother Shiboo deceased and relatives Basante and Parsadi. The women-folk had slept in the Osara. When the accused approached, complainant Pyare Lal, Parsadi and Basante awoke but Shiboo remained sleeping. Bhadai started assaulting Shiboo. The complainant and his relatives named above raised alarm. The ladies of the house were also attracted to the spot. Jawahar exhorted the accused Bhadai to kill Shiboo and not to spare him alive. When the complainant and other witnesses further raised alarm, the accused Karan Singh warned them that they would ; be shot dead if they dared to shout. The accused finally left the scene, but they were recognized by the said witnesses in the then prevailing moonlight. The male witnesses also gave a chase to the assailants for some distance till the latter started throwing stones towards them in order to dissuade them from continuing the chase with the result Pyare Lal was hit by some of the stones and sustained injuries. The witnesses then returned back and found Shiboo to be already dead. Pyare Lal then went to the concerned police station and lodged the F.I.R. by oral narration on the basis of which a case was registered and investigation started by S.I. Randhir Singh PW 5. He visited the spot, prepared the inquest report of the dead body of the deceased and did other acts related to the investigation. The dead body was sealed and sent for post-mortem which was conducted on 27.10.1980 at 1.15 P.M. by Dr. C.N. Shukla PW 6. The deceased was aged about 23 years and about 1 1/2 days had passed since he died. The following ante-mortem injuries were found on his person:
1. Incised wound 11 cm x 4 cm x 6 cm deep placed over right side back of head, mastoid region, reaching up to angle of the mandible, cutting pinna on posterior upper part and lower part, placed obliquely with lower end anterior directed downwards medially and posteriorly, margins bruised, no tailing under this injury, soft tissues with angle of mandible and 1/3 part of 3rd vertebra cut.
2. Incised wound 12 cm x 4 cm x muscle deep over right upper scapular region, placed horizontally and directed upwards and medially, margins bruised; no tailing.
3. Incised wound 5 cm x 1 1/2 cm x muscle deep placed 31/2 cm above injury No. 2 and communicated with it.
4. Abrasion 4 cm x 1 1/2 cm over right scapular region just below injury no. 2.
5. Incised wound 12 cm x 4 cm x 7 cm deep, placed horizontally on the right lateral side and back of neck, directed medially and posteriorly. Under this injury, major vessels muscles, nerves of right side of neck were cut, 4" cervical vertebra with spinal cord also cut.
5. Injuries No. 2 and 3 communicated with each other. Abrasion (injury No. 4) being just below injury No. 2, could have been sustained in the process of infliction of injury No. 2. The point is that the death had occurred due to incised wounds sustained by the deceased.
6. Pyare Lal was also sent for medical examination which was conducted on 26.10.1980 at 9.15 A.M. by Dr. B.P. Bansal PW 1. He had sustained two swellings, one contusion and two abrasions. The injuries were simple, caused by blunt object and about six hours old.
7. The defence was of denial and of false implication. The accused also filed a joint written statement, the gist of which was that Shiboo deceased suspected illicit relations of his wife with his father Lachhoo. He had then turned her out of his house, with the result that she had gone to reside at the house of her parents in village Kadesra. Pyare Lal complainant had then attributed illicit relations of Shiboo deceased with his own wife. There had been a Panchayat in the village in this regard in which accused Pampa; Ghansoo, Hariya and Bhadai had participated as Panches and held Lachhoo and Shiboo to be. guilty in connection with the said quarrels. Later on, Lachhoo went away from the village to reside with the wife of Shiboo deceased in village Kadesra whereas Shiboo migrated to Jhansi, returning back to his village only a few days before his murder. On such return of Shiboo to his village, there had been a quarrel in between him on the one hand and Pyare Lal on the other, the former demanding his share in the agricultural land and Pyare Lal and Parsadi being not agreeable thereto. Under such circumstances, there had been a quarrel between Shiboo and Pyare Lal even in the evening preceding the night of the murder of Shiboo. Shiboo had then beaten up Pyare Lal. When Shiboo was murdered during the night, Pyare Lal had named the accused as his assailants baselessly and in an attempt to grab the land of the accused Jawahar and his son Hukma. Accused Bhadai in his capacity as an employee of P.W.D. had earlier got caught red handed Pyare Lal and Parsadi when they were cutting a Shisham tree of the forest department with the result that Pyare Lal had to pay a penalty of Rs. 800/- and he was, therefore, inimical with this accused Bhadai. It was rumoured that it was Pyare Lal and Parsadi who had got Shiboo murdered by administering him some injurious substance and then through assault by axes.
8. We have heard Sri P.N. Mishra, learned Senior Advocate on behalf of the accused appellants and Sri A.K. Dwivedi, learned A.G.A. in opposition of the appeal from the side of the State.
9. The submission of Sri Mishra is that the deceased having sustained only injuries of sharp edged weapon, the implication of all the remaining accused allegedly armed with lathis and gun was false.
10. As regards accused appellant Bhadai who was allegedly armed with an axe and wielded the same over the deceased, his argument is that he had no motive to participate in the crime. Rather, according to him, Pyare Lal PW 2 had a reason to falsely implicate him, because he (Bhadai) while working in P.W.D. had got him (Pyare Lal) and his brother Parsadi (husband of Prem Bai PW 3) apprehended while cutting a Shisham tree and Pyare Lal had to pay Rs. 800/- as fine on that account. On the other hand, learned A.G.A. has contended that it was proved to the hilt by the trustworthy evidence of the three eyewitnesses that all the accused appellants including two who have died had formed an unlawful assembly with the common object of committing this crime and as members of the unlawful assembly they have rightly been convicted and sentenced for the offences committed by them, irrespective of the fact whether or not all of them wielded weapons with which they were armed.
11. We propose to test the evidence adduced by the prosecution on the anvil of probabilities and ordinary human conduct. It was a night incident committed at the house of the victim and the eyewitnesses and, therefore, the presence of other independent witnesses could not be expected. But regard has to be had to the revelations made by the eyewitnesses in their testimonial assertions. As per the prosecution case, Karan Singh accused appellant (now dead) was armed with a gun and Bhadai had an axe whereas the remaining six were armed with lathis. It is an admitted position that the lathis and gun were not used in the assault. The consistent testimony of three eyewitnesses, namely, Pyare Lal PW 2-bother of the deceased, Prem Bai PW 3 wife of Parsadi-brother of the deceased and Tulsa PW 4--sister of the deceased is that only Bhadai had used axe in inflicting injuries on the deceased Shiboo. It is borne out from the post-mortem report also, the details of which have been given earlier, that the deceased received four fatal incised wounds responsible for his death. The only abrasion just below incised wound (ante-mortem injury No. 2) over the right upper scapular region could possibly be sustained from the wooden part of the axe during the course of infliction of axe blows on the deceased. The source of light was said to be natural of moon. We have consulted the calendar (Patra) and find that the Tithi was Kartik Krishna Paksha Tritiya. Therefore, sufficient moonlight must have been there, it being the month of October (not rainy season). Pyare Lal PW 2 was sleeping near the deceased at point 'B' in the courtyard as depicted in the site plan by the Investigating Officer. Prem Bai PW 3 and Tulsa PW 4 were sleeping in the Osara in the eastern side as depicted by letter 'E' in the site plan and the distance of point 'A' therefrom was only five paces. The Victim was sleeping and murdered at point 'A'. Therefore, it was quite possible for Prem Bai PW 3 and Tulsa PW 4 to have reached the spot on the raising alarm by Pyare Lal, Parsadi and Basante who were sleeping in the courtyard near the deceased. Several blows of axe having been inflicted on the deceased, Prem Bai PW 3 and Tulsa PW 4 could possibly see the infliction of axe blows on the deceased by Bhadai, having reached at the scene instantaneously on the raising of alarm by Pyare Lal, Parsadi and Basante.
12. However, we note from the testimony of Pyare Lal PW 2 that the dispute was with Jawahar accused appellant (uncle of the deceased as well as Pyare Lal). It also comes out from the testimony of Pyare Lal PW 2 that his branch was in possession of a little more land as a result of private partition. Though there was no litigation, but Jawahar used to complaint about the excess land being there with him (Pyare Lal's branch). Then the grouse, if any, could be on the part of Jawahar and his son Hukma. This being so, it is not digestible that they would simply keep standing with lathis without any overt act in the incident. Though Karan Singh (now dead) was allegedly armed with gun but it was also not used by him. It was undisputably a superior weapon. It does not answer the test of probabilities that in this and gun wielding culprits would not participate in committing the murder of the deceased and Jawahar would only be contented by exhorting Bhadai not to leave Shiboo alive. It is categorically there in the statement of Pyare Lal PW 2 that they (he, Parsadi and Basante) were raising alarm. Despite that, neither Karan Singh used his gun nor the accused armed with lathis wielded the same. The other two witnesses also do not say that the gun or lathis wielding accused used the same. Consistent testimony of three eyewitnesses is. that after infliction of axe blows on the deceased by Bhadai, all of them ran away, though they were chased for some distance. It is also there in the testimony that to dissuade the chasers, stones were thrown by Jawahar and Hukma. Pyare Lal PW 2 is specific that he got injured due to such stone throwing. Prem Bai PW 3 and Tulsa PW 4 have also stated that Pyare Lal got injured due to the stone throwning by the accused while running away. As per Pyare Lal PW 2, the chase was given to the accused for about 10 paces. The Investigating Officer has shown the spot by letter 'F where Pyare Lal sustained injuries by stone throwing. Letter 'G' signifies the place wherefrom the stones were allegedly thrown by the accused and distance between two places is marked as 6 paces. A genuine doubt persists as to the participation of the accused appellants other than Bhadai. Their alleged participation, in the form of having been member of unlawful assembly, does not get down the throat having regard to natural human conduct. May be, Bhadai was accompanied by some others, who had not been identified and the accused appellants other than Bhadai were named on the basis of imagination or suspicion. The basis of suspicion or imagination against Jawahar and his son Hukma could be the complaint that Jawahar used to make about excess land being there in the branch of Pyare Lal. The other accused appellants could have been imagined or suspected to be the participants as being party men of Jawahar. But their participation in this crime sounds to be against inherent probabilities of the situation. It is a fit case where benefit of doubt should go to them on the analysis of the testimonial assertions of the eyewitnesses, judged on the touchstone of probabilities and ordinary human conduct.
13. But, there is clinching, convincing and consistent testimony of three eyewitnesses as against Bhadai that it was he who axed the victim to death. He was resident of the same village and was very well known to the eyewitnesses from before. They had seen him from close range in the moonlit night, There could be no question of any mistaken identity so far as he was concerned. The testimony of eyewitnesses does not suffer from any flaw so far as this real assailant is concerned. The prosecution is not supposed to bring forth the evidence regarding motive against him by indulging in any guesswork. It is not at all material that the prosecution has not adduced any evidence as regards direct motive on his part for committing the murder of Shiboo. It could be known to him only as to why did he do so. Moreover, when there is direct evidence against an accused, the motive becomes wholly insignificant. It was an individual act of Bhadai. The evidence is that he wielded the axe (sharp edged weapon) inflicting incised wounds on the deceased and the ocular version is in conformity with the medical evidence in the form of post-mortem report of the deceased,
14. We should also say that it having not been proved that the accused appellants other than Bhadai participated in the crime, it would not make any difference that in the process of stone throwing during the course of fleeing of culprits, Pyarey Lal sustained a few injuries of blunt object. The factum of being an injured witness would not make his testimony to be believable as against the accused appellants other than Bhadai for the reason that the same does not answer the test of probabilities and natural human conduct. Otherwise also, it does not stand to reason that during the course of fleeing, running persons would have the occasion to pick up stones, pebbles or brick bats to throw on the back side on their chasers. Though facing the back of those running, the chasers (witnesses) could also not have the opportunity of seeing the faces of the running persons so allegedly throwing stones/brick bats.
15. It is not possible to accept the defence case that Bhadai was falsely implicated because he had got Pyare Lal and Parsadi apprehended while cutting Shisham tree and for this reason Pyare Lal had to pay a fine of Rs. 800/-. There is no evidence to back this contention. It is also not shown as to when the alleged incident occurred. We are of the opinion that it is simply a ploy, or, we may say, a baseless defence advanced by Bhadai to get away in the consequence of this serious crime committed by bun.
16. In view of the above discussion, we partly allow the appeal. The conviction of the accused appellant Bhadai under Section 302 I.P.C. with a sentence of life imprisonment is "maintained. His conviction and sentence for other offences and conviction and sentences of all the remaining appellants are set aside.
17. The accused appellant Bhadai is on bail. The Chief Judicial Magistrate, Lalitpur shall get him arrested and lodged in jail to serve out the sentence of life imprisonment passed against him. He shall report compliance within two months from the date of the receipt of this order.