JUDGMENT K.N. Ojha, J.
1. This appeal has been preferred against judgment and order dated 9-12-1978, passed by IIIrd Addl. Sessions Judge, Budaun, in S.T. No. 179 of 1978, by which the appellant has been convicted under Section 302 read with Section 34, I.P.C. and sentenced to undergo life imprisonment and has further been convicted under Section 307 read with Section 34, I.P.C. and sentenced to undergo rigorous imprisonment of five years and it has been directed that both the sentences shall run concurrently.
2. The accused-appellant is absconding.
3. We have heard Mr. Rajul Bhargava, learned amicus curiae for the appellant and Mr. A. K. Varma, learned A.G.A. and have gone through the record. The judgment is being delivered on merit.
4. According to the prosecution, murder of Chandra Sen, aged about 50 years was committed by the appellant in the midnight of 14/15-12-1977, when he was sleeping inside his house, situate in village Dhaknagla, police station Islamnagar, district Budaun and injuries were caused by the appellant to his daughter Km. Mahendri, aged about 14 year's F.I.R. was lodged by Than Singh, brother of the deceased; on 15-12-1977 at 6.30 a.m. under Sections 452/307/302, I.P.C. bearing Crime No. 244 of 1977 at P.S. Islamnagar district Budaun. The place of occurrence is about 3 miles from the police station. It is alleged that dacoity had taken place at the residence of complainant. Than Singh in village Dhakanagla about two years before, in which the appellant was accused/Therefore, he and his family members were nursing grievance against the family of the complainant and his brother deceased-Chandra Sen. In the night of 14/15-12-1977 Chandra Sen and his daughter Km. Mahendri were sleeping in their Kotha. There was light glowing earthenware. In the midnight some sound was heard. Complainant, who is the brother of the deceased, came out of his room flashing torch and found the appellant and his brother Vijai armed with gun, forcibly entered by breaking open the gate of Chandra Sen, inside his room and caused firearm injuries. His brother Raja Ram, Udaivir and others ran to the spot making defiance. In the meantime appellant-Krishna and Vijai, his brother, ran towards south side, who were seen in the light of torches and glowing earthenware. When these persons went in the Kotha of Chandra Sen, he was found dead and Km. Mahendri also was lying in injured condition. The complainant called for Chaukidar of the village, went to the police station and lodged F.I.R. against Krishna and his brother Vijai.
5. Post-mortem examination on the body of Chandra Sen was done and the following ante-mortem injuries were found on his body :--
1. Gun shot wound of entrance on the middle part of the right palm 11/2 cm. x 11/2 cm. in size. Blackening around the wound in an area of 7 cm. x 7 cm. direction pf wound downward and medially and upward connecting to injury No. 2.
2. Gun shot wound of exit on, the back of right wrist 8 cm. x 7 cm. Fracture of lateral metacarpal bone and the bone of wrist joint.
3. Gun shot wound of entrance 11/2 cm. x 2 cm. on the right side of the chest 41/2 cm. above nipple. Blackening around the wound in an area of 1 cm. and maniple gun . shot around the wound in an area of 18 cm. x 18 cm. size of each gun shot is about 1/2 cm. x 1/2 cm.
4. Gun shot wound of entrance 11/2 cm. x 2 cm/on the left-side joint below the mid dle part, of the left mandible bone, between chin and mandibular angle.
5. The blood was present in the right ear.
6. 30 Pellets were recovered from the brain material, which was torn. There was fracture of 3rd and 4th ribs. In the opinion of the Doctor, the death of Chandra Sen was caused due to ante-mortem injuries.
7. Besides these ante-mortem injuries Of Chandra Sen, Km. Mahendri aged about 14 years, was also medically examined and the following injuries were found :--
1. One firearm lacerated wound 4 cm. x 4 cm. x 3 cm. on the lateral side and upper part of right thigh. Margins were irregular and greyish black.
2. Six firearm lacerated wound 25 cm. x 25 cm. x skin deep on the upper part of right thigh around the injury No. 1. Margins were irregular and greyish black.
8. Prosecution examined P.W. 1 Dr. C. P. Singhal, who prepared the injury report of Km. Mahendri, eye-witnesses P.W. 2. Than Singh P.W. 3 Raja Ram and P.W. 4 Km. Mahendri, P.W. 5 Dr. P. C. Pandey, who performed autopsy on the dead body of Chandra Sen, P.W. 6 Police Sub-Inspector Surendra Nath Singh, who is the Investigating Officer. He recorded the statements of the witnesses under Section 161, Cr. P.C., prepared inquest report, site plan, recovery memo of bloodstained and plain earth, recovery memo of catridges and wads, glowing earthenware etc. He also visited Moradabad on 10-1-1978 and found that accused-Vijai was confined in the district jail, Moradabad, on the date of occurrence and he recorded the statement to this effect of Asstt. Jailor, District Jail, Moradabad.
9. The accused has denied his participation in the crime and it is alleged that due to enmity he has been falsely implicated in the case.
10. A perusal of the record show that the parties belong to the same clan; from one branch there is Bhoop Singh and Chandra Sen was his son and another branch belongs to the appellant. Appellant-Krishna has also been involved in dacoity and other cases but the deceased and his father Bhoop Singh did not take interest in release of the appellant in these cases. Therefore, he started to nurse bad blood against the deceased-Chandra Sen. Due to this reason, Krishna armed with firearm, reached the residence of Chandra Sen in midnight of 14/15-12-1977, when Chandra Sen was sleeping in his Kotha on one cot and his daughter Mahendri was sleeping in the same room on another cot. There, was light of earthenware, which was glowing there, one gate was broken by the appellant, who, entered inside the room and caused firearm injuries to Chandra Sen and thereafter to Mahendri. He was seen in the light of glowing earthenware by Mahendri and on hearing the sound of firearm, P. W. 3 Raja Ram and Udaivir ran to the spot. They also saw the appellant. P.W. 4 Mahendri, who is daughter of Chandra Sen, was sleeping near him.
11. She was injured by the appellant. Ante-mortem injuries shows that blackening around the wound was present, which shows that the firearm injuries were caused from near place and thus, Mahendri, daughter of deceased had full occasion to see the person who caused firearm injuries to her father. If there would have been only one fire, it could be that the appellant fired and ran away and could not be seen by the witnesses sleeping in another room in a nearby house, but the post-mortem report shows that there were three gun shot wounds of entry to the deceased-Chandra Sen and two wounds to Km. Mahendri. It means fire was repeated and the witnesses P.W. 2 Than Singh and P.W. 3 Raja Ram had full occasion to reach the spot and see the appellant, firing and running. Though another witness Udaivir has not been examined but we find no reason to disbelieve Km. Mahendri, daughter of the deceased, whose presence on the spot is quite natural, moreso when she was seriously injured. Her injuries confirm her presence on the spot where injuries were caused to her father Chandra Sen resulting into his death. P.W. 3 Raja Ram is an independent witness, who lives in a nearby house. Hearing the sound of firearm in solitary hour of the night, his arrival on the scene of occurrence is quite natural and the same is with P.W. 2 Than Singh, brother of the deceased, who was sleeping in another room of the house, There is consistent and natural evidence of three eyewitnesses also, who confirm the presence of the appellants inside the house of the deceased, and the injury being caused to Chandra Sen and Km. Mahendri. Learned amicus curiae has laid emphasis that there is no independent witness to support the prosecution story. Raja Ram (P.W. 3) is an independent witness. Than Singh and Km. Mahendri are family members of the deceased, but their statements cannot be discarded merely on the ground of their being family members of the deceased, of course greater scrutiny is required while appreciating the evidence of these two witnesses. A perusal of the statements of these witnesses shows that there is no material contradiction in their statements and the consistent statements support the injury report and post-mortem examination report which confirm the involvement of the appellant in the crime and the injuries being caused by him to Chandra Sen and Km. Mahendri.
12. The witnesses could not pick up courage to go in the night to the police station which is at about 3 miles from the scene of the occurrence. It was winter season and still the complainant rushed to the police station and lodged F.I.R. at 6.30 a.m. on 15-12-1977 which shows that there is no delay in lodging the F.I.R. nor does it have deliberation and consultation.
13. All the witnesses have stated that the appellant was seen in the light of glowing earthenware and torches and the fact has been corroborated by P.W. 6 Surendra Nath Singh, Investigating Officer, who has stated that he reached the spot, prepared site plan, took dust which was blood stained, one piece of the cloth on which the deceased was sleeping and blood stained shirt of the deceased, was sealed. He also recovered four cartridges, two was from the place of occurrence and scaled them. He found broken gate on the spot and also recovered earthenware. Thus, these facts confirm the offence being committed by the appellant on the spot. Much emphasis has been given that Rajai in which deceased had wrapped himself while sleeping, was not found on the spot by the Investigating Officer. One of the persons has stated that it was taken away by the accused. But a perusal of the statement shows that when the fire was made, the deceased had his face open, injuries were caused from such a nearby place that blackening was present and in such circumstance, the presence of the accused-appellant at the place of the occurrence and commission of crime by him cannot be doubted, on the basis that Rajai was not recovered by the Investigating Officer on the, spot.
14. The learned amicus curiae has further submitted that during investigation it was found that Vijai, co-accused was confined in jail of Moradabad and, therefore, investigation was stopped against him and he was not charge-sheeted. Krishna, accused only has faced the trial and has filed this appeal. It is submitted that when part of the story was not correct, the case against the appellant-Krishna also became doubtful. It is clear that the F.I.R. was lodged so early in the morning, the appellant was seen in the light of glowing earthenware and torch causing so many injuries to Chandra Sen and his daughter Km. Mahendri and three witnesses make consistent statement against him, it is not unnatural that the real culprit was seen and one another person, accompanying him could not be correctly recognised and he has been named in the F.I.R. If during investigation the case was found correct against one accused only and not against another one, it does not mean that the whole prosecution story is false. There appears no circumstance for falsely implicating the accused. In this case not only murder of one person has been committed but the life of his daughter Km. Mahendri has also been ruined as has been deposed in her statement.
15. In view of above discussion, we subscribe to the view which has been expressed by the learned Additional Sessions Judge in judgment dated 9-12-1978.
16. Therefore', instant appeal does not yield any fruitful result. The appeal is dismissed. Bail of appellant-Krishna is cancelled. He shall be taken into custody and sent to jail to serve out the sentences.
17. Sri Rajul Bhargava advocate who argued the appeal as amicus curiae for appellant shall get Rs. 1000 (one thousand) as his fee.
18. Let the copy of this order be sent down to the trial Court along with the record for compliance and report to this Court within two months.