JUDGMENT J.P. Semwal, J.
1. This criminal appeal is directed against the judgment and order dated 24-11-1978 passed by the Sessions Judge, Kanpur, in Sessions Trial No. 199 of 1977, whereby he recorded conviction of the appellants 1 and 2 under Section 302, I.P.C. and appellant 3, under Section 302 read with Section 34, I.P.C, for committing murder of Budhai and his wife Smt. Bhanumati, and sentenced each of them to life imprisonment on each count. The sentences were ordered to run concurrently.
2. The gravamen of the charge is that on 7th April 1977, at about noon in village Neoraj, P.S. Kakwan, district Kanpur, in furtherance of common intention of all, the appellants Kunwar and Lajjaram committed murder of Budhai and his wife Smt. Bhanumati. The appellant 3 Chhidda had exhorted the other two appellants to commit the said murder.
3. The aforesaid double murder took place in village Neoraj within the limits of P.S. Kakwan, district Kanpur. This tiny village is situate at a distance of 8 miles towards west from P.S. Kakwan. The appellants 1 and 2 i.e. Kunwar and Lajjaram, are sons of the appellant 3 Chhidda who also describes himself by alias name Chhedilal. They are residents of village Neoraj. The deceased Budhai and his wife Bhanumati were also residents of the said village. The accused and the deceased are kith and kin and belong to one family.
4. According to the prosecution case, there was a dispute between the accused and the deceased Budhai over some land and an incident of Marpeet had taken place between them about one and half years prior to the occurrence. Banwari P. W. 1 is also resident of village Neoraj and is blacksmith by profession. He has his kotha and chhappar at the out-skirt of the aforesaid village Neoraj in the south of the village Abadi, at a distance of 150 yards. His Kotha and Chappar open towards the east and Banwari runs his blacksmith's shop there. In the north of Banwari's shop is Bachchan Lal 's field and in the further north there exist fields of Budhai, Subedar and Chhidda. In the north of these fields there is a field of Bachchan Lal and a path-way (Dagar) runs in between these fields connecting the village Abadi and the Banwari's shop. In further north, there exists the Abadi of the village. The distance of the field of Budhai and Bachchan Lal is 100 yards from the Banwari's Kotha and 50 yards from the village Abadi. This has been shown in the site plan (Ex.Ka-9) prepared by the Investigation Officer S.I. Diwan Singh, which he has deposed to be correct according to the spot position.
5. In the forenoon of 7-4-1977, Banwari (P. W. 1) was working at his shop. Raghunath (P.W. 3), who is resident of adjoining village Chhitarpurwa and Manni Lal (P.W. 4) and Siya Ram (P.W. 5), residents of village Neoraj, had come at the shop of Banwari with their Khurpi and Hansiya (agricultural implements) for being beaten and sharpened. At about 12 noon, deceased Budhai accompanied with his daughter Pappi alias Kunti (P.W. 2), aged about 6-7 years, came at Banwari's shop with his Hansiya and Khurpi for the said purpose. Just when Budhai was sharpening his Hansiya after it was beaten in the shop, accused Chhidda came there and after seeing Budhai went away quietly. Shortly thereafter, accused Lajja Ram armed with Lathi and accused Kunwar armed with Kulhari, emerged on the scene and they swooped on Budhai and sta, ted assaulting him. In the meantime, accused Chhidda on his arrival exhorted his sons "MUSHKIL SE DAON LAGA HAL MAR DO SALE KO JAN SE". Thereupon, accused Lajja Ram who was attacking Budhai with Lathi, picked up Banwari's Basoola from the shop and I attacked Budhai with the said weapon. Both Lajja Ram and Kunwar hacked Budhai to death with their respective weapons. Banwari (PW 1) and other persons, who were sitting there, made protest and raised alarm but the accused scolded them to keep quiet. Smt. Bhanumati, wife of Budhai, on hearing the hue and cry, came running towards the shop of Banwari. Accused persons on seeing her rushed towards her, accused Lajja Ram left Bansoola at the shop and picked up his Lathi. Accused Lajja Ram and Kunwar attacked Srnt. Bhanumati with their respective weapons, namely Lathi and Kulhari, when she had reached the path-way (Dagar) near the field of Bachchan-Lal, which is in the north of Banwari's shop. Accused Chhidda exhorted his sons Lajja Ram and Kunwar" ISE BHI MAR DO." Thereupon, both Lajja Ram and Kunwar inflicted number of injuries on Smt. Bhanumati and killed her on the spot. The accused thereafter ran away towards the village'.
6. Banwari (P.W. 1) got the report of the occurrence (Ex. Ka-1) scribed at his shop by one Gyan Babu of village Majhpurwa, police station Kakwan, and lodged the same at 22 hours, in the presence of S.I. Diwan Singh (P.W. 7) on the same day at police station Kakwan. Head Constable Bhagwati Singh (P.W. 6) prepared the chick report (Ex.Ka-2) and registered the case at serial number 26 in the general diury (vide extract Ex. Ka-3). S.I. Diwan Singh (P.W. 7), who was Incharge of the Police Station, took up the investigation of the case and he along with S.I. Har Swaroop Sharma (P.W. 8) reached the place of occurrence at about 5.30 a.m. on 8-4-1977. S.I. Har Swaroop Sharma under the directions of S.I. Diwan Singh started the inquest - proceeding. The dead bodies of Budhai and Smt. Bhanumati were found kept inside the Kotha of Banwari's shop and, therefore, the dead bodies were taken out from the said Kotha. The inquest proceeding of Budhai started at 6 a.m. and was concluded at 8 a.m., while the inquest proceeding of Smt. Bhanumati started at 8.10 a.m. and was concluded at 10.15 a.m. S.I. Har Swaroop Sharma (P.W. 8) prepared the inquest reports of deceased Budhai and Smt. Bhanumati (Ex. Ka-11) and (Ex. Ka-16) and connected papers. The dead bodies were sealed and then handed over to Constables Man Singh and Ganga Ram along with inquest papers and other relevant papers for being escorted to mortuary for postmortem S.I. Diwan Singh (P.W. 7) conducted the rest part of the investigation. He took into his possession blood-stained Basoola (Ex. I), blood-stained and plain earth (Ex. IV and Ex. VII) two Hansiyas (Ex. II and Ex. Ill) from the shop of Banwari and' prepared the recovery memos in respect thereof (Ex. Ka-5) and (Ex. Ka 6). The Investigating Officer then visited the place of occurrence in the Dagar (Path-way) between the fields of Bachchan Lal and Budhai and from their he took into possession blood-stained and plain earth (Ex. VI and Ex. VIII), and broken bangles (Ex. V) and prepared the recovery memo in respect thereof (Ex. Ka-8). The Investigating Officer, thereafter interrogated Banwari, Manni Lal , Siya Ram, Raghunath and Kunti. He then inspected both the places of occurrence and prepared site plan (Ex. Ka. 9) containing index.
7. Dr. R. S. Pundeer (P.W. 9) was the Medical Officer Incharge of the State Dispensary Krishna Nagar (Kanpur). On 9-4-1977, he performed the autopsy on the dead bodies of Smt. Bhanumati and Budhai which were brought and indentified by Constables Man Singh and Ganga Ram. Dr. Pundeer performed autopsy on the dead body of Smt. Bhanumati, aged about 45 years, on 9-4-1977 at 2.30 p.m. Two days had elapsed since her death, Rigor mortis had passed off from upper and lower limbs.
Dr. Pundeer (P.W. 9) found the following antemortem injuries on the person of Smt. Bhanumati: --
1. Inside wound 3 cm x 1 cm bone deep on left side face, just in front of left ear oblique.
2. Lacerated wound 4 cm x 2.5 cm x bone deep on left side 1 cm above left eye brow frontal bone, underneath fractured oblique.
3. Contusion 7 cm x 4 cm on right side j forehead and adjoining area of right eye-lids.
4. Lacerated wound 4 cm x 2 cm x bone deep on left side head which is behind left ear horizontal.
5. Lacerated wound on left side head 3 cm x 1 cm x bone deep, 5 cm behind left ear oblique.
6. Lacerated wound 3 cm x 1 cm bone deep on left side back of head, 5.5 cm behind the left ear, 3 cm below injury No. 5.
7. Lacerated wound 3 cm x 1 cm x bone deep on back of head 5 cm behind injury No. 5 oblique.
8. Abrasion 4 cm x 2 cm on left cheek, 2 cm on front.
9. Abrasion 4 cm x 2 cm on left side cheek, 2 cm in front of injury No. 1.
10. Contusion in an area of 4 cm x 1 cm on right side abdomen 15 cm out to naval.
On internal examination he found inter alia: left frontal bone fractured under injury No. 2, Brain matter coming out; left anterior cranial fossa fractured, scalp congested underneath injuries, membranes of the brain congested; brain conjected and liquification started.
In the opinion of the doctor, death of Smt. Bhanumati was due to coma as a result of head injury No. 2.
8. Dr. R. S. Pundeer (P.W. 9) performed autopsy on the dead- body of Budhai aged about 50 years on the same day at 3.30 p.m. Two days had elapsed since his death; Rigor mortis had passed over upper and lower limbs.
9. Dr. Pundeer (P.W. 9) found the following ante-mortem injuries on the person of Budhai :
1. Incised wound 8 cm x 2 cm x crainial cavity deep on left side of head, 8 cm, above left ear. Bone underneath cut (left parietal) and brain matter visible from outside.
2. Incised wound 4 cm x 1.5 cm cranial deep cavity on left side head and forehead 1 cm in front of injury No. 1 bone underneath cut, brain matter visible.
3. Lacerated wound 2 cm x 1 cm x bone deep on top of head.
4. Incised wound 8 cm x 2 cm x bone deep on left side head bone underneath cut 2 cm behind left ear.
5. Incised wound 1 cm x 5 cm on right side head, 6.5 cm above right eye brow.
6. Incised wound 9 cm x 2 cm x bone deep on front of nose tip and right side face, 2 cm below right eye nose ~"t.
7. Incised wound 13 cm x 6 cm bone deep on back on right forearm ulna and radious bones cut underneath 7 cm below right elbow.
8. Incised wound 6 cm x 3 cm x bone deep on back of right forearm, 4 cm below injury No. 7, ulna underneath cut.
9. Incised wound 4 cm x 2 cm x muscle deep on front of right wrist (outer).
10. Incised wound 4 cm x 1 cm x muscle deep palm inner side on right little finger.
11. Incised wound 7 cm x 2 cm x muscle deep on back of left forearm, 6 cm below elbow (back).
12. Incised wound 6 cm x 2 cm x bone deep on middle head of left forearm (inner) ulna underneath cut.
13. Incised wound 11 cm x 5 cm x muscle deep on back of left forearm, 3 cm below injury No. 11.
14. Incised wound 6 cm x 3 cm x muscle deep on front of left forearm on middle 3rd 1 cm below injury No. 12.
15. Incised wound 1.5 cm x 0.5 cm x bone deep on front of middle third of right leg.
On internal examination he found inter alia:
Left parietal, frontal, temporal, right parietal and left ulna and right radious cut and fractured. Scalp congested. Brain and its membranes congested. Liquification of brain started. Right and left anterior cranial fossa fractured, Decomposition in both the lungs.
In the opinion of the doctor, Budhai died due to coma as a result of head injuries Nos. 1, 2 and 4.
10. Both Smt. Bhanumati and Budhai, in the opinion of Dr. Pundeer (P.W. 9) could have received injuries on 7-4-1977 shortly after 12 noon.
11. Dr. Pundeer prepared the reports of postmortem of Smt. Bhanumati and Budhai (vide Ex. No. Ka-23 and Ex. Ka-24 respectively). According to him injuries Nos. 1,2,4, 6., 8, 9, 10, 11, 12, 13, and 14 of Budhai could have been caused by the Basoola (Ex. 1) and injuries Nos. 5,7 and 15 of Budhai could have been caused by a small Kulhari and rest of the wounds of Budhai could have been caused by Lathi. In regard to injuries of Smt. Bhanumati, the doctor opined that injury No. 1 of Smt. Bhanumati could have been caused by a small Kulhari and that injuries Nos. 5,6 and 7 could have been caused by the blunt side of the Kulhari and the rest lacerated wounds could have been caused by Lathi.
12. Dr. Pundeer had returned all the papers, which constables had brought, after making endorsement thereon. These papers included copies of F.I.R. of the case (vide Ex. Kha-2 and Ex. Ka-25) which he signed after making endorsement note regarding 12 enclosures.
13. Investigating Officer, S.I. Diwan Singh (P.W. 7) made starch of the accused persons in the village but they were not found. The accused, persons surrendered in Court and then the Investigating Officer interrogated them in the lock-up of the Court. After completing investigation, he submitted charge-sheet (vide Ex.Ka-10) against accused persons under Section 302, I.P.C.
14. In support of its case, the prosecution examined nine witnesses in all, Banwari (P.W. 1), Pappi/Kunti (P.W. 2), Raghunath (P.W. 3), Manni Lal (P.W. 4) and Siya Ram (P.W. 5) are witnesses of fact. Head Constable Bhagwati Singh (P.W. 6) was Constable Moharrir at Police Station Kakwan on 7-4-1977 and he prepared chik report (Ex. Ka-2) on the basis of First Information Report (Ex. Ka-1) lodged by informant Banwari at Police Station Kakwan on 7-4-1977 at 22 hours. He registered the case at serial No. 26 in the general diary and proved its extract (Ex. Ka-3). He also made entry at serial No. 15 of the general diary through which seven sealed bundles of the case property were deposited at police station at 12 hours on 8-4-1977 by Constable Man Singh and proved extract of general diary (Ex. Ka-4). S.I. Diwan Singh (P.W. 2) is the Investigating Officer in the case. S.I.HarSwaroopSharma(P.W.8)held inquest on the dead bodies of Budhai and Smt. Bhanumati and prepared the inquest reports in respect thereof and other papers as already mentioned above. Dr. R. S. Pundeer (P.W. 9) performed autopsy on the dead bodies of Budhai and Smt. Bhanumati and prepared the postmortem reports as already mentioned above.
15. Besides examining the aforesmentioned witnesses, the prosecution tendered in evidence the affidavit of Head Constable Bhagwan Singh, who was Head Constable at Police out-post Bisdhan and had escorted seven bundles of case property, which were handed over to him by S. I. Diwan Singh, to the police Station and deposited the same on 8-4-1977 at 14 hours at Police Station Kakwan, and the affidavit of Constable Ganga Ram who was constable at police outpost Bisdhan and he was handed over the dead-bodies of Budhai and Smt. Bhanumati in sealed condition by S.I. Har Swaroop Sharma along with other connected papers for post-mortem at Kanpur and who deposited the dead-bodies in sealed condition at mortuary Kanpur and also brought back the papers relating to deceased persons and deposited the same at the police station.
16. The accused denied the charges and pleaded not guilty. All the accused pleaded innocence and stated that they had been falsely implicated in the case by Fateh Bahadur etc. They also stated that the witnesses gave evidence due to village enmity and the pressure of police. No witness was produced by the accused in defence though they took time for the same as mentioned by the trial court in its judgment. The accused filed four documents as per list 33-B. This documentary evidence consists of copies of two First Information Reports, copy of charge-sheet and copy of extract of register No. 9, Ex. Kha-3 is the copy of F.I.R. dated 28-9-1976, which accused Lajja Ram had lodged against Lalai, Babu and Siya Ram and another under Section 506, I.P.C. Ex. Kha-4 is an extract of register No. 9 showing that a criminal case under Section 395, I.P.C. was started by Chhedi Lal on 4-8-1955 against Fatech Bahadur and other. Exs. Kha-5 and Kha-6- are copies of F.I.R. dated 18-7-1976 and charge-sheet in respect of Criminal Case under Sections 141/148/323/324, I.P.C. lodged by accused Kunwar against Lalai, Babu Ram, Siya Ram and others. Two documents, namely General Diary extract dated 8-4-1977, Police Station Kakwan and copy of FIR dated 7-4-77 lodged by Banwari were also got exhibited as Ex. Kha-1 and Exhibit Kha-2 by the defence during the cross-examination of H. C. Bhagwarti Singh (P.W. 6).
17. The learned Sessions Judge after close scrutiny and appraisal of the evidence, came to the conclusion that the prosecution has successfully proved its case beyond any shadow of doubt , and found the aforementioned accused guilty for committing murder of Budhai and Smt. Bhanumati and convicted and sentenced them as indicated above.
18. Aggireved by this order of conviction and sentence, the appellants came up in this appeal challenging the findings of the Trial Court on facts and law both.
19. We have heard Shri P. N. Mishra, learned counsel for the appellants and the learned A.G.A. at length, and have carefully considered the submissions made at the bar.
20. The occurrence is alleged to have taken place on 7-4-1977 at about 12 noon in village Neoraj. On that fateful day two murders were committed in broad day light. The occurrence took place in two parts. First part of occurrence took place at the black smith shop of Banwari P.W. 1 and second part of the occurrence took place on the Dagar (path way) near the field of Bachan Lal in the north of Banwari's shop. The accused were indicted for the said offence and after trial they have been found guilty of the said offence. The accused had pleaded innocence and have stated that they have ben falsely implicated. The crucial point is whether the accused persons have their involvement in the offence or not ?
21. The prosecution case hinges on direct evidence of prosecution witnesses. The factum of occurrence in which lives of Budhai and Smt. Bhanumati were lost is not challenged, The date, time and occurrence itself are not challenged. It is a settled principle of the Criminal Jurisprudence that the prosecution has to prove its case. The standard of proof is proof beyond reasonable doubt, and not conclusive proof and that the court's insistence should not be on implicit proof See State of Kerala v. Bahuleyan, 1986 Cri SCC (Cri) 361 : (1986 Cri LJ 1579) and State of U.P. v. Ranjhan Ram, 1986 SCC (Cri) 374 : (1986 Cri LJ 1906).
22. The place of occurrence though has not been seriously disputed but it was canvassed before us that the prosecution case suffers from infirmities regarding the place of occurrence on two grounds. Firstly, the dead-bodies of Budhai and Smt. Bhanumati were found inside the Kotha of Banwari's shop when the Investigation Officer Diwan Singh (P.W. 7) came there on 8-4-1977 in the morning. Secondly, the blood stained earth was not sent for chemical examination.
23. As regards the first ground, it is the case of the prosecution that the occurrence had taken place at the shop of Banwari where Budhai was hacked to death and thereafter, Smt. Bhanumati was also hacked to death near the field of Bachchan Lal towards the north of the Banwari's "shop. Banwari had gone to give information about the murders at police outpost Bishdhan and two police constables of police outpost had come to the place of occurrence on this information, Banwari had gone to lodge the report in the evening and returned on the next morning. Admittedly, in the morning the dead-bodies were found kept inside the Kotha of Banwari's shop. No cross-examination has been directed on the point as to the dead bodies were placed inside the Kotha. Learned Additional Govt. Advocate brought to our notice that for safety purpose during night the dead-bodies were kept inside the Kotha of Banwari's shop and he supported his contention with reference to the Inquest report Ex. Ka-11 and case diary which has made mention about the said fact. We find force in the contention of the learned Addl. Govt. Advocate, Merely, because the dead-bodies were kept inside the Kotha of Banwari's shop does not weaken the prosecution case. The prosecution was not to gam anything by Shifting the place of occurrence. It is proved by the positive evidence of the witnesses and the recovery of blood stained earth blood stained Basoola and two Hansiyas by the Investigating Officer S. K. Diwan Singh from below the Chhappar of Banwari's shop and the blood stained earth and broken bangles from the Dagar (pathway) in between the plots of Bachchan Lal and Budhai. Situs of occurrence in the aforesaid two palces had been satisfactorily fixed by the testimony of eye-witnesses and it is further strengthened by the recovery of the aforesaid articles by the Investigating Officer. It is not the case of defence that the occurrence had taken place at some other place, The mere fact that bodies were kept inside the house during night is not suggestive of the incident taking place inside the house (See 1988 SCC (Cri) 552 : (AIR 1988 SC 1028) State of U.P. v. Ram Swarup) or at a place other than the place alleged by the prosecution. Thus, the mere fact that the dead bodies were removed from the place of occurrence and were kept inside the Kotha of Banwari's shop for the purpose of safety will not go against the prosecution.
24. As regards the second ground, no doubt, blood stained earth was not sent for chemical examination but that by itself is not a ground to disbelieve the prosecution case; Learned A.G. A. has cited the Supreme Court case of Ramesh Chandar v. State (Delhi Administration) 1992 (4) JT 405 :(1992 Cri LJ 3584) wherein the case of Laxmi Singh v. State of Bihar, (1976) 4 SCC 394 : (1976 Cri LJ 1736) has been considered and it has been held that the failure of the prosecution to send the blood stained recovered material for chemical examination by itself is not ground to doubt the scene of occurrence. There is clinching evidence oral as well as documentary establishing the scene of occurrence and the mere fact that the blood stained earth was not sent for chemical examination by itself is no ground to doubt the scene of accurrence and to reject the prosecution story.
25. From the evidence on record, there is no room for doubt that occurrence had taken place on 7-4-1977 at about noon in village Neoraj first at the shop of Banwari (P.W. 1) and immediately thereafter near the field of Bachchan Lal on the Dagar (pathway) in the north of Banwari's shop.
26. Shri P. N. Misra, learned counsel appearing for the appellants presented Ms persuasive submissions eloquently and argued that the first information report in this case was belated, ante-timed and the result of fabrication and on this basis itself, the entire prosecution case would collapse. No doubt, the first information report of this case was lodged on 7-4-1977 at 10-00 p.m. at P. S. Kakwan by the informant Banwari (P.W. 1) regarding the occurrence which took place at noon, but that by itself is not sufficient ground to reject the prosecution case. The learned A.G.A. cited 1991 Cr LJ 56 : (AIR 1991 SC 40) Zahoor v. State of U.P. wherein it had been held in para 3 that at any rate mere delay by itself is not enough to reject the prosecution case, unless there are clear indications of fabrication.
27. No doubt, if the first information report is held to be fabricated then the entire prosecution case would collapse. However, it is a matter of evidence to examine whether the first information report was the result of fabrication as canvassed by the learned counsel for the appellants.
28. The learned counsel for the appellants relied upon the case of Marudanal Augusti v. State of Kerala, 1980 SCC (Cri) 985 : (1980 Cri LJ 446) in support of his contention. In that case, the first information report contained graphic details of the entire occurrence and care was taken not to omit even the minutest detail. The names of P.Ws. 4, 5 and 6 as having witnessed the assault were not mentioned at all in the first information report. Though P.Ws. 2 and 3 had given first aid to the deceased along with tiie informant but it was nowhere mentioned that there two witnesses were also present when the deceased were actually assaulted. In that case, the first information was lodged on the midnight of June 23/24, 197'1 and it mentions that the informant received injuries on his fingers, and despite this fact he went to the doctor not on June 24, 1971, but on the next day i.e. June 25, 1971, although the informant claimed to have gone to the doctor on June 24,1971. The Supreme Court has on these facts observed that the High Court seems t6 have over-looked the fact that the entire prosecution case would collapse if the first information report is held to be fabricated and brought into existence long after the occurrence and any number of witnesses would be added without there being anything to check the authenticity of their evidence. The proposition of law laid down by the Supreme Court cannot be disputed but the same does not apply to the facts of the present case. Regarding the precedents, Supreme Court has held that the legal principles are not magic in-carnations and their importance lies more in their application to a given set of facts than in their recital in the judgment (See Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765 : (1981 Cr LJ 325).
29. The Supreme Court in the case of Guru Charan Singh v. State of Punjab, AIR 1956 SC 460 : (1956 Cri LJ 827) has observed that the reference to reported case is only by way of illustration and not by way of an appeal to precedent because on the facts no two cases can be/similar. Each case has its own peculiar facts and it is, therefore, risky to appeal to precedents on question of facts. It will be relevant to refer to the observation made by Justice Vivian Bose of the Supreme Court that there is no such thing as judicial precedent on facts though counsel and even judges are sometimes prone to argue and to act as if they were See (1955) 2 SCR 1140 (12956 Cri LJ 291) at page 1169 Willie (William Slaney) v. The State of Madhya Pradesh).
30. The learned counsel for the appellants, challenges this First Information Report on two grounds. Firstly that it was brought into existence long after the occurrence as a result of, fabrication. Secondly, that the manner in which the First Information Report has been written, indicates that it was scribed at the police station and was the result of fabrication. Let us now examine the twin contentions of the learned counsel for the appellants. The prosecution case is disclosed in the First Information Report Ex. Ka-2, and has been narrated by the informant Banwari P.W. 1. As already stated above, the occurrence took place in two parts in sequence. Deceased Budhai had come to the shop of Banwari (P.W. 1) at about 12 noon along with his daughter Pappi (P.W. 2) with his Hansiya and Khurpi for being beaten and sharpened. When Budhai was sharpening his Hansiya accused Chhidda came there and after seeing Budhai he returned quietly. Shortly thereafter, the accused Lajja Ram and Kunwar armed with Lathi and Kulhari respectively reached there and swooped on Budhai who was sitting and started attacking him. Accused Chhidda also reached there and exhorted his sons to kill Budhai; The accused -~ Lajja Ram then, leaving his lathi, picked up Basoola. Both Lajja Ram and Kunwar hacked Budhai to death. In the meatime, Smt. Bhanumati wife of Budhai came running towards the shop of Banwari on hearing hue and cry. The accused persons rushed towards her. The accused Lajja Ram left Bansoola and picked up his Lathi. Chhidda again exhorted his sons to kill Smt. Bhanumati. Both Lajja Ram and Kunwar attacked Smt. Bhanumati with their respective weapons when she reached Dagar (path way) near the field of Bachchan Lal. Thereafter the accused left towards village. Banwari (P.W. 1) has deposed categorically that he got the report (Ex. Ka-1) ascribed by one Gyan Babu at this shop after the occurrence, and asserted that whatever he dictated was written in the report and it was read over to him then and there. He deposed that it was Ex. Ka-1 report which he got scribed by Gyan Babu at his shop after occurrence. Banwari (P.W. 1) is not literate and he has thumb marked his deposition in the trial court and on the report Ex. Ka-1 also there is dim thumb mark above the name of Banwari. The defence has not challenged the existence of the First Information Report, but has challenged its veracity. A suggestion was put to Banwari (P.W. 1) that the accused were not the assailants of Budhai and his wife and that he had falsely implicated them in order to save himself.
31. Let us now examine the facts and circumstances of the case in order to find out whether the first information report was belated, ante-timed and result of fabrication. As already stated the report was lodged at police station on 17-4-1977 at 10 p.m. The facts and circumstances have to be carefully scrutinised to come to the conclusion as to whether the delay was deliberate and the report was facricated, Banwari P.W. 1 has been cross-examined at length regarding lodging of the First Information Report. In his cross-examination, he has deposed that after the occurrence, he had gone to nearby police outpost Bishdhan to call the police at about 2-2-30 p.m. The Sub-Inspector of Police and Head Constable were not available at the police outpost and he had to wait there for about one hour and thereafter he returned after informing constables regarding murders having taken place. It is obvious that no First Information Report was and could be lodged at police outpost Bishdhan and Banwari (P.W. 1) had left a cryptic message at the police out-post. He further deposed in his cross-examination that he got the report scribed at 4-5 p.m. It is evident from the testimony of Banwari P.W. 1 that he had gone to police outpost Bishdhan and then came to his shop and got the report scribed at about 4-5 p.m. The scribe of the report Gyan Babu is the resident of another village Majhpurwa which is at a distance of 20 paces from his village. He admitted there are literate persons in his village but when they were asked to scribe the report they declined and asked him to get the report scribed by Gyan Babu. He denied the suggestion that the literate persons of the village had stated that they would not write the...............false report and asked him to get it scribed from some one else. He further deposed that Siya Ram Manni Lal and Lalai are nephews of Budhai deceased and they reside in his village and that they were also present at the place of occurrence but none of them went to lodge the report. It has come in his cross-examination that Manni Lal (P.W. 4) and Siya Ram (P.W. 5) were asked by the villagers to lodge the report as the occurrence had taken place in their presence but they refused and asked him (Banwari) to lodge the report himself. It has further been deposed by Banwari that he went on foot to the police station at about 5-30 p.m. in the evening and it took about 1-1.30 hours to reach there. The police station Kakwan where the first information was lodged, is at a distance of about 8 miles from the village Neoraj, the place of occurrence. It thus appears to be correct that it must have taken about 1-1.30 hours for the witness to reach the police station. He further deposed that he remained at the police station for about 1-1.30 hours and then returned. He was alone and he reached his village the next day i.e. 8-4-77, at about sun-rise. He further deposed that the Station Officer reached the village thereafter at about 5-6 a.m. and that during night he had stayed in village Malpur. He also deposed that the copy of the chik report was given to him. There is nothing in his cross-examination to cast doubt on his testimony. The occurrence had taken place at his shop and in his anxiety he had even gone to the police outpost Bisdhan to inform the police but neither the Sub-Inspector of Police, nor the Head Constable met him there. He, therefore, came back after informing the police constables available at the police outpost Bisdhan about the murder of Budhai and Smt. Bhanumati. It is nobody's case that outpost Bisdhan was a reporting police outpost. Banwari had no animus against the accused persons, nor relationship or affection with the deceased persons. He had no concern with the occurrence except that it took place at the time when Budhai had come at his shop to get his agricultural implements beaten and sharpened. He had a blacksmith's shop in the village and it was quite natural for the deceased Budhai and the witnesses to have come there for the purpose of getting their agricultural implements beaten and sharpened at his shop. He had even asked Manni Lal (P.W. 4) and Siya Ram (P.W. 5) and even other villagers to lodge the report but they did not do so, probably on account of the fact that the occurrence took place at the shop of Banwari (P.W. 1) and, therefore, it was he who should lodge the report. In these circumstances. Banwari had to go to police station Kakwan to lodge the report after getting it scribed by Gyan Babu at his shop. Since none of the villagers came forward to scribe the report and they asked Banwari to get it scribed by Gyan Babu and, therefore, a person was sent to call Gyan Babu from his village to village Majhpurwa. The First Information Report was thus lodged by Banwari after getting the same scribed by Gyan Babu. There is no evidence to the contrary on the record to discard the testimony of Banwari (P.W. 1). It was also come in the statement of Banwari that the son of Budhai is 20-21 years of age. The name of the said son is Balwant, which has been disclosed by Raghunath (P.W. 3). The said Balwant on the date of occurrence was not present in the village. Raghunath (P.W. 3) had deposed in his cross-examination that Balwant had not reached the place of occurrence and that he had gone to his maternal uncle's place. When none of the relations and villagers were coming for-ward to lodge the report, it was natural for Banwari (P.W. 1) to have lodged the report after getting it scribed at his shop by Gyan Babu at about 4-5 p.m. He went to police station Kakwan alone and lodged the said report at about 10 p.m. on the same day. Bhagwati Singh (P.W. 6), who was Head Constable at the said police station at that time deposed that Banwari had lodged the written report (Ex. Ka-1) at the police station on 7-4-77 at 10 p.m. and on the basis of the said written report, he prepared the chik report (Ex. Ka-2) and registered the case at serial (Rapat) No. 26 of the General Diary on the same day (Ex. Ka-3). He also deposed that the Sub-Inspector was present at the police station at that time. S.I. Deewan Singh (P.W. 7) has deposed that on 7-4-77 at 10 p.m. the report of this occurrence was lodged at the police station Kakwan in his presence; that he was the in charge of the police station; that after the case was registered he took up the investigation of this case and reached the place of occurrence on 8-4-77 at 5.30 a.m. There is nothing in the cross-examination of H.C. Bhagwati Singh (P.W. 6) and S. I. Diwan Singh (P.W. 7) to discredit their testimony which is consistent with the testimony of Banwari (P.W. 1) and other surrounding circumstances of the case. It was put to H. C. Bhagwati Singh (P.W. 6) that in column T of the report (Ex. Ka-2), there is over-writing on the second figure 2 and that there is also over-writing after '22' on '00'. This has been denied by him. It has further come in his cross-examination that on 7-4-77 the only case that was registered before the F.I.R. of the present case was at serial No. 26 at 10.30 a.m. and thereafter no other cognizable case was registered. He admitted that in the original chick report (Ex. Ka-2) 11-4-77 is mentioned below the signature of Circle Officer. He categorically deposed that the chik report was despatched to the Circle Officer on 8-4-77 (Ex. Ka-4) through a pairokar at 6.5 in the morning, vide General Diary (Ex. Kha-1). This extract of General Diary (Ex. Kha-1) goes to show that a special report regarding Case Crime No. 48, under Section 302, I.P.C. was despatched through Constable No. 836 Ranveer Singh. He also deposed that the Sub-Inspector had taken the copy of the chik report along with inquest papers. He denied the suggestion that the F.I.R. was ante-timed. He also denied the suggestion that the chik report had not been prepared and, therefore, a copy (Ex. Ka-2) was sent along with inquest papers. S. I. Diwan Singh, who investigated the case was also cross-examined on this point and he deposed affirmatively that he had brought the copy of the chik report from the police station and had sent the same along with inquest papers to the doctor. He denied the suggestion that in the inquest report (Ex. Ka-11) he had made figure '8' after over-writing on the date. A suggestion was also put to him that a false case has been concocted in collusion with Fateh Bahadur which he has categorically denied. S.I. Har Swarup Sharma (P.W. 8), who had accompanied S. I. Diwan Singh (P.W. 7) to the place of occurrence, had deposed that he conducted the inquest on the dead bodies of Budhai and Smt. Bhanumati and Ex. Ka-11 and Ex. Ka-16 are the inquest reports of deceased Budhai and Smt. Bhanumati. Both the inquest reports have been signed by S. I. Diwan Singh as deposed to by him. There is no over-writing on the date 8-4-77 under the signature of S. I. Diwan Singh in Ex. Ka-16, which is the inquest report of deceased Smt. Bhanumati S.I. Har Swaruoop (P.W. 8) also deposed that he reached the place of occurrence on 8-4-77 at 5-30 a.m. along with the Investigation Officer and that the inquest of deceased Smt. Bhanumati was conducted subsequent to the inquest of deceased Budhai. It does not thus stand to reasons as to way the police would make over-writting with oblique motive. The mere fact that these prosecution witnesses are police officers is not enough to discard their evidence in the absence of evidence of their hostility to the accused persons See 1973 SC 2783 : (1974 Cri LJ 11), Nathu Singh v. State of U.P.. The inquest of deceased Budhai commenced at 6 a.m. on 8-4-77 and was completed at 8 a.m. on the same day (Ex. Ka-11). As already mentioned Ex. Ka-11 the inquest report of Budhai and other connected papers (Ex. Ka-12, Ex. Ka-13, Ex. Ka-14 and Ex. Ka-15) were prepared in that connection by S. I. Harswaroop (P.W. 8). thereafter the inquest of deceased Smt. Bahnumati commenced at 8.10 a.m. on 8-4-1977 and was completed at 10-15 a.m. on the same day. S. I. Har Swaroop had prepared Inquest Report (Ex. Ka-16) of deceased Smt. Bhanumati and other connected papers Ex. Ka-17, Ex. Ka-18, Ex. Ka-19 and Ex. Ka-20 in that connection. In the inquest report, there is a specific mention of the date and time of the filing of the F.I.R. at the police station and the name of the reporter, which is consistent with the prosecution case. S. 1. Har Swaroop (P.W. 8) further deposed that the dead-body of deceased Budhai was handed over to constables Man Singh and Ganga Ram in sealed condition at 8 a.m. and the dead body of Smt. Bhanumati was handed over to the aforesaid constables in sealed condition at 10.15 a.m. The time of despatch of dead bodies is mentioned in column No. 1 of both the challans Ex. Ka-13 and Ex. Ka-18, which are regarding dead bodies of Budhai and Smt. Bhanumati. The date and time; 8-4-77, 8 a.m. is mentioned in Ex. Ka-13 and 8-4-77, 10 a.m. is mentioned in Ex. Ka-18. It was put to S. I. Har Swaroop Sharma (P.W. 8) that there was over writing over figure' 10' in Ex. Ka-18 in first column but he denied that it was written after scoring any figure. The prosecution has satisfactorily explained the circumstances in which F.I.R. was lodged by Banwari P.W. 1 at 10 p.m. regarding occurrence which had taken place at about 12 noon. It cannot thus be said that delay was deliberate and F.I.R. came into existence after inquest report. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good ground therefor as has been held in 1956 Cri LJ 426 : (AIR 1956 SC 217), Aher Raja Khima v. State of Saurashtra. To our mind the Kakwan police had no axe to grind against the accused and it cannot be believed that the police falsely implicated the accused by fabricating the papers. It was further argued by the learned counsel for the appellants in support of his contention of the first information report coming into existence after the inquest reports, that in the latter the name of the accused persons have not been written in the order in which they have been written in the chik report. The emphasis was laid on the second column of the chik report which contains the names and residence of the accused and on the reverse whereof report is written. In column No. 2 of Ex. 2 of Ex. Ka-2, the names of the accused persons in seriatim are written Chhidda, Lajja Ram and Kunwar but in the inquest report Ex. Ka-11 and Ex. Ka-16, the names of the assailants have not been written in the same order. It was thus argued by the learned counsel for the appellants that it shows that the first information report was not in existence at that time. In support of his contention, he cited the case of Bandi Malliah v. State of Andhra Pradesh, 1980 SCC (Cri) 672 : (1980 Cri LJ 914) and referred to para 3 of the said report. In that case P.W. 11, admitted to have made statement before the 1st Class Magistrate in the Hospital. "I had stated before the Magistrate at the Hospital that at about 5.30 in the evening Golla Gopaiah, Exam Papiah, Magili Ramaiah and some others had come." They were accused Nos. 3, 17 and 13 respectively. According to the Supreme Court, the importance of the statement was that P.W. 11 did not mention accused No. 1 and accused No. 2, who according to that case of the prosecution led the attack but mentioned three other names as the persons who led the attack. It was observed by the Supreme Court that if the accused Nos. 1 and 2 were present surely their names would have been the first to be mentioned. It has also been observed that the injured persons who reached the police station at 10 p.m. were sent to the Yellandu Hospital through requisitions Exs. P. 11, P. 12, P. 14 and P. 15. But in each one of the said requisitions the sub-inspector had mentioned that the several injured persons were beaten by Golla Gopiah and others with sticks. The Supreme Court has further observed that if there was already a first information report in existence in which Bandi Malliah had been named as the first accused and as a person who led the attack surely the assailants would have been mentioned in the requisitions as Bandi Mallaiah and others and not Golla Gopaiah and others. The attention of the S.I. P.W. 18, was expressly drawn in cross-examination to the statement in the requisitions that the assailants were Golla Gopaiah and others. He offered no explanation as to why the assailants were described as Golla Gopaiah and others instead of Bandi Malliah and others. In , addition to these significant circumstances, it was elicited in the cross-examination of some of the prosecution witnesses that they had not mentioned about the attack on the deceased by accused Nos. 1 to 3 in their statements to the police under Section 161 Cr.P.C, though they gave full details of the alleged attack in the first information report. Another circumstance in that case was that the part attributed to the accused No. 2 in the attack on the deceased was not mentioned in the F.I.R. or in the statement of P.W. 9 under Section 161 Cr.P.C. It was in these circumstances that the Supreme Court doubted the existence of the F.I.R. at the time when it was claimed to have been given. The Supreme Court was of the opinion that at the earliest point of time the names of accused Nos. 1 and 2 did not figure as assailants of the deceased and that they were introduced as such a later stage and it was at that point of time that the F.I.R. was brought into existence. The facts of that case do not tally with the facts of the instant case in as much as the names of the three accused persons and the place of the occurrence are mentioned in the F.I.R. as well as in the inquest reports in the instant case. No doubt, in column No. 2 of Ex. Ka-2 the names of the accused are written in seriatim as Chhidda. Lajja Ram and Kunwar while in Ex. Ka-11 (inquest report) the names of the assailants are mentioned as Kunwar, Lajja Ram and Chhidda and in Ex. Ka 16 (inquest report) the names of assailants are mentioned as Lajja Ram, Kunwar and Chhidda. Thus, all the three names of the accused and the place of the occurrence find place in the F.I.R. It also gives the details of the role played by them in the said occurrence. Merely, because the names of the accused persons are written in column 2 of Ex. Ka-2 (F.I.R.) as Chhidda, Lajja Ram and Kunwar does not create doubt on the authenticity of the F.I.R. and the inquest reports. The aforesaid ruling of the Supreme Court does not lay down a general rule and inexorable rule that where the serial order of the names of the accused in the F.I.R. and the inquest report differ, it would invariably cast doubt on the existence of the F.I.R. which has to be discarded. In the aforementioned case, there was omission of the names of the accused persons along with other circumstances which led, the Supreme Court to come to the conclusion that the FIR was not in existence at that point of time as alleged by the prosecution. It is relevant to note that in the calendar sent by the Chief Judicial Magistrate, Kanpur, on committal the names of the accused persons in column No. 3 are mentioned as Kunwar, Chhidda and Lajja Ram and the same serial order of the names of the accused finds place in the judgment of the trial court. In the memo of appeal before this Court, the names of appellants are in different order e.g. Kunwar, Lajja Ram and Chhidda. Thus, mere change of serial order in writing the names of the accused persons is of no consequence and it does not create doubt on the existence of the F.I.R. at the time alleged by the prosecution.
32. The next challenge thrown by the learned counsel for the appellants was the manner in which the First Information Report had been written. It was pointed out by the learned counsel that the words "ITALA KO AYA HOON. MERI RAPAT LIKHKAR UCHIT KARYAWAHI KEE JAWE" are relevant in the first information report (Ex.Ka-2), which indicate that it is not the manner in which any one would scribe the report, unless he is familiar with the police methods. It was thus argued that the written report was not written at the shop of Banwari as alleged but it was written down at the police station in the presence of the police. Learned counsel cited the case of Bhusai v. State of U.P., (1970) 3 SCC 460, in support of his contention and referred to para 9 of the said report. We have carefully perused the aforesaid case and have considered the contention raised but we are not persuaded to accept the said contention of the learned counsel. In Bhasai's case, the Sessions Judge had doubted the prosecution case because the report which the report (Mohd. Akhtar) had written at the police station was longer than the report written out by him in court and it was thus noticed by the Sessions Judge that it appeared to have been written out much more carefully and not fast like the report written out by Mohd. Akhtar in court. The report written at the police station, therefore, must have taken much more than half an hour. This aspect of the matter was completely ignored by the High Court, according to the Supreme Court. The Supreme Court accordingly observed that the report written by Mohd. Akhtar contained sentences which could not have been introduced unless he was guided by some police officer. The last few sentences of the report, observes Supreme Court, are particularly significant. In the report he stated that he went to Beli Hospital taking his father, but his father died after reaching there. Leaving the dead-body of his father at that very place, he had come for lodging the report. The knife which was recovered from the assailant was being deposited by him necessary action may be taken. In that case, Mohd. Akhtar was a young student and was not expert in writing the reports of incident. The Supreme Court, therefore, observed "a person making a report for the first time would hardly say in the report that he had come to lodge it after leaving the dead body of his father at the hospital. The sentence that the knife which was recovered from the assailants is being deposited by him clearly means that "the report was being written at the police station." It was in these circumstances the Supreme Court opined that a look at the first information report, therefore, makes it clear that he was writing down the report in the presence of the police. The aforesaid observation of the Supreme Court is not intended to lay down a general rule and inexorable rule that when it is written in the first information report that the reporter had come to lodge the report and necessary action may be taken after writing his report, it would lead to inference that the said report was written at the police station. The aforesaid ruling has no application to the facts of the present case. In the present case, none of the relations of the deceased, nor the villagers came forward to lodge the report and ultimately Banwari (PW 1) got the report scribed by Gyan Babu at his shop at about 4-5 p.m. who after writing it handed over the same to him (Ex.Ka-1). As seen above, Banwari (PW 1) has satisfactorily explained as to why Gyan Babu was made to write the report instead of by any literate villager or relation of the deceased. There is nothing in his cross-examination to render his testimony untrustworthy. He had no grudge against the accused persons. He would have also not lodged the report like other villagers, had the occurrence not taken place at his shop. Banwari (PW 1) must have taken time in making up his mind to lodge the report. His evidence that he went to the police station Kakwan, where he lodged the report at 10 p.m. on 7-4-1977 finds corroboration from the testimony of Bhagwati Singh (PW 8). It is established by the evidence as discussed above that the first information report was scribed by Gyan Babu at Banwari's shop on 7-4-1977 and it was lodged at police station Kakwan on the same day at 10 p.m. Bhagwati Singh (PW 6) supported his testimony and deposed that Banwari had lodged written report (Ex.Ka-1) at the police station at 22 hours on 7-4-1977 and he prepared the chik report (Ex.Ka-2) on the basis of the written report and entered the case in the genera! diary at serial No. 26 at the same time, vide (F.x.Ka-3) copy. He deposed during his cross-examination that the Investigating Officer had taken the copy of chik report along with inquest papers. S.I. Har Swaroop (PW 8) corroborates him and he emphatically denied the suggestion that the chik report was not in existence at the time of the inquest report and the same was prepared on the spot. There is nothing in the cross-examination of these witnesses to cast doubt on their testimony. It also finds support from the testimony of Dr. R. S. Pundir (PW 9), who had performed the autopsy on the dead bodies of Budhai and Smt. Bhanumati. He deposed that (Ex.Ka-2), copy of the first information report, was received by him, which he had returned after making endorsement. There is thus no material on record on the basis of which it may be inferred that the first information report was written down at the police station in the presence of police and was not. in existence at the time of inquest reports. Kakwan police had no grudge against the accused persons, nor the reporter Banwari had any enmity or ill will against the accused persons. No material has been pointed out by the learned counsel for the appellants on the basis of which the first information report, may be taken to be ante-timed and a result of fabrication. The defence plea under S. 313, Cr.P.C. statements is that Fateh Bahadur, Ganga, Bhagat and Chhote Lal were: enimical to the accused and due to enmity they have been falsely implicated. It has been seen above that the report was lodged by Banwari (PW 1) after getting it scribed by Gyan Babu. The accused have not uttered a single word against Banwari or Gyan Babu, though a suggestion was put to Banwari that the accused were not the assailants and that they have been falsely implicated to save himself. Banwari (PW 1) emphatically denied the suggestion, A suggestion was also put to Manni Lal (PW 4) that Gyan Babu and Fateh Bahadur etc. after collusion got a false case concocted against the accused persons and that he was giving false evidence under their influence. This suggestion was also denied by him. A suggestion was also put to S. K. Diwan Singh (PW 7) that at the instance of Fateh Bahadur the case was fabricated. This suggestion was also denied. Similar suggestion was also put to S.I. Har Swaroop Sharma which was denied by him. It would thus appear that the grievance of the accused is against Fateh Bahadur and not against Banwari who lodged the report. The suggestions thrown by the defence at a later stage of the case, has been considered as an afterthought by the lower court as no such suggestion was thrown to the complainant at the time of his cross-examination. The suggestion of the defence that Fateh Bahadur set up his man to prepare the reports like the last straw on a camel's back, observes the learned Sessions Judge. The lower court held that Fateh Bahadur appeared as witness in the inquest along with others in normal course and that he had no part to play in the implication of the accused persons. The opinion which Fateh Bahadur indorsed in the inquest report was inadmissible. It was further observed by the trial court that if any importance can be attached to such statement, it must be assumed that the murders committed by the accused persons were so widely known to the persons and, therefore, the persons responsible for the murders, were noted in the inquest report. Nothing has been pointed out or urged by the learned counsel for the appellants on this aspect. It cannot be denied that names of the assailants, who had committed broad day light murders in the village, might have been ringing ears of Fateh Bahadur and other villagers and occupying a dominating position in mind which impelled Fateh Bahadur making note of the names of the assailants in the inquest report. This however, by itself, does not militate against the prosecution case, which is established by the positive evidence of the eye-witnesses and facts and circumstances of the case. We are, therefore, of the opinion that there is no force in the contention of the learned counsel for the appellants that the first information report was ante-timed and was a result of fabrication. The first information report was lodged on 7-4-1977 at 10 p.m. If the police was out to falsely implicate the accused persons there was no difficulty for the police to have ante-timed the first information report because on 7-4-1977, a case was registered at serial No. 12 at 10.30 a.m. and thereafter no other case had been registered on that day, This direct and positive evidence about the occurrence at noon of 7-4-1977 and the lodging of the report at 10 p.m. at police station Kanwan in this case cannot be ignored merely on the basis of chimerical speculations and the time of lodging of F.I.R. cannot be rejected merely on the basis of conjectural alternative suggested by the defence. Taking conspectus of all the facts and circumstances of the case, we have no hesitation in repelling the contention of the learned counsel for the appellants, that the first information report of the occurrence came into existence after the preparation of inquest report and that it was ante-timed and was a result of fabrication.
33. Next contention of the learned counsel for the appellants was, regarding motive. It was argued that the accused could have no motive to commit the murder of Budhai and Smt. Bhanumati during day time. The learned counsel put emphasis on the words "MUSKIL SE DAON LAG A HAI. MAR DO SALE KO JAN SE" and argued that such alleged exhortation is superficial and that the accused persons could have accomplished their object at another place if they were out to commit the murder of the deceased persons and would have certainly not gone to the shop, a public place, for committing such murders. Our attention was drawn to the cross-examination of Banwari (PW 1) in first paragraph that Budhai used to stay at his Khalihan during night and it was argued that if the accused had any intention to commit the murder they could have easily eliminated Budhai during night.
34. It was thus urged by the learned counsel for the appellants that the prosecution has failed to prove any motive for the crime. The learned A.G.A., repelled this contention on two grounds; firstly that where there is direct and positive evidence against the accused, the question of motive is not important. Secondly, that even if motive is required the prosecution has succeeded in an ample measure in showing that the motive for the crime was dispute over land between Budhai and the accused. We have carefully considered this aspect of the case and we accept the submissions of the learned A.G.A. appearing for the State. Learned A.G.A. cited AIR 1989 SC 733 : (1989 Cri LJ 923), Subedar Tiwari v. State of U.P., to the effect, that it is well known that the evidence regarding existence of motive which operates in the mind of an assassin, is very often not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and to none else.
35. So far the motive is concerned, the prosecution may prove; but is not bound to prove the notice for a crime, and even in cases where innocence of intention is a defence and innocent or praise-worthy motive, if the necessary intent is proved, is irrelevant and affords no defence (see Stephen's History of Criminal Law 110 and Halsbury's Laws of England, 3rd Edition, Volume X,. page 283).
36. The fact that motive appears to be inadequate is never by itself a circumstance against the prosecution in as much as the real motive may be invisible to all except the person influenced by it. Experience shows that some of the gravest and most atrocious crimes have been committed from some of the flimsiest and most frivolous considerations, Human nature being what it is, a man's passion may be aroused at times by some very trifling circumstances. Motive of men are often so deep seated as to be almost unfathomable. It has been remarked by a Mediaeval Jurist "the devil himself knoweth not the thoughts of men".
37. Wigmore in his Treatise on the Anglo-American System of Evidence, Volume I, S. 118, page 559 has observed that it is some times popularly supposed that in order to establish a charge of crime the prosecution must show a possible motive. But this notion is without foundation.
38. Wills in his Monumental Work Principles of Criminal and Circumstantial Evidence, 7th Edition at pages 67-68 writes : -
"It occasionally happens that actions of great enormity are committed for which no apparent motive is discoverable. The actor is held to be legally accountable for his actions."
39. There may be plan to do the act but there may be no evidence of the preparation, yet the remaining facts may furnish ample proof and the failure to prove evidence of some appropriate motive may result in failure of justice. Failure to discover a motive or exciting. motion does not signify its non-existence.
40. It is well settled from a long catena of decisions, of the Supreme Court that there the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance (see AIR 1956 SC 460 : (1956 Cri LJ 827), Gur Charan Singh v. State of Punjab; AIR 1971 SC 1656, N.N. Naik v. State of Maharashtra; 1986 A Cr R 490 : (1986 Cri LJ 1903) (SC), State of A.P. v. Bagam Chandraith).
41. Motiveless murders are not necessarily acts of man and unhigned people. Prosecution is often unable to collect satisfactory evidence on the motive behind crime (see 1975 (2) U.P. Cri C (SC) 239 : (1975 Cri LJ 1212). The inadequacy of motive is not relevant nor the presence of motive is conclusive and the guilt has to be established by pressure of direct probabilities and direct evidence as has been held in the case of Bishan Das v. State of Punjab, 1975 SCC (Cri) 145 : (1975 Cri LJ 461).
42. In the present case, murders were committed in broad day light and the eyewitnesses have given direct evidence which is of an acceptable nature regarding commission of the said offence; hence the question of motive cannot loom large in the mind of the court (sec 1986 A Cr R 490 : (1986 Cri LJ 1903) (SO (supra) also see AIR 1987 SC 1268 : (1987 Cri LJ 1119), Babu Lodhi v. State of U.P. However, the prosecution, even if motive is required, has succeeded in an ample measure in showing what motive accused could have for the commission of the crime. Banwari (PW 1) has categorically deposed that there was a dispute over land between deceased Budhai and Chhidda(accused) and that an incident of 'MAEPEE'T' has taken place l-l-l/2 years prior to the occurrence, The witness has not been cross-examined at all on this point. Where a particular material assertion is made in examination-in-chief and the witness is not examined in respect of that assertion then it will be taken that the parties affected admit the truth of that assertion (see Bal Kishan v. State, 1977 Cri LJ 410). The Supreme Court has held that no adverse inference can be drawn regarding the point not at all raised in the cross-examination of the witness (see Ram Prakash Arora v. State of Punjab, 1972 SCC (Cri) 696 : (1972 Cri LJ 1293). It has also been held that where a witness is not specifically cross-examined on a particular matter, the court cannot presume something adverse to the witness unless his attention is specifically drawn to it (see 1988 A Cr R 62, State v. Amit Singh (sic). It has -come in the evidence of Munnilal (PW 4) that accused Lajja Ram and Kunwar killed Smt. Bhanumati with lathi and Kulhari blows after retorting "Khet Logi". This also corroborates the motive for the crime.
43. Let us now examine the evidence of the prosecution regarding involvement of the accused persons. As already stated, the prosecution case hinges on direct evidence. It consists of the evidence of five eye-witnesses namely, Banwari (PW 1), Pappi alias Kunti (PW 2), Raghunath (PW 3), Manilal (PW 4) and Siya Ram (PW 5).
44. Pappi alias Kunti (PW 2) is a child witness aged about 6-7 years and her testimony has been discarded by the trial court.
45. Manilal (PW 4) and Siya Ram (PW 5) were declared hostile as they did not, support the prosecution regarding the role of accused Chhidda, though, they were present at the time of occurrence and corroborated the prosecution story in all material particulars about the occurrence, against the accused Lajja Ram and Kunwar. Their evidence will be discussed a bit later.
46. The principal witness of the prosecution is Banwari (PW 1). The occurrence had taken place at his shop and he had lodged the report of the occurrence as stated above. He has unfolded the prosecution story. His testimony has been criticised on the ground that he is an interested and partisan witness and his post occurrence a conduct indicates that he is not truthful witness.
47. We do not find any substance in the criticism levelled against this witness. It is not denied that he is the resident of village Neoraj and had a blacksmith's shop in the said village. Merely because, the occurrence had taken place at his shop, is not enough to dub him as an interested and partisan witness. He is an independent witness who had no motive to falsely implicate the accused persons. He is not shown to have any ill will against the accused persons nor any affinity or relationship with the deceased. He, being owner of the shop, where the occurrence had taken place, as well as other witnesses who were present at his blacksmith's shop at that moment are natural witnesses (see AIR 1986 SC 1769 : (1986 Cri LJ 1732), State of U.P. v. Brahma Das).
48. Even evidence of partisan and interested witness can be relied upon if it is truthful and acceptable. The Supreme Court in case of Srawan Singh v. State of Punjab reported in AIR 1976 SC 2304 : (1976 Cri LJ 1757) has held that it is not law that the evidence of in interested witness should be equated with that of tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness, does not suffer from any infirmity as such, but the courts require as a rule of prudence not as rule of law that the evidence of such witness should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witness have a ring of truth such evidence could be relied upon even without corroboration.
49. In the case of Tameshwar v. State of U.P. reported in 1976 ACC 36 : (1976 Cri LJ 6), the Supreme Court has held that the evidence of partisan witness may be good foundation for conviction if his presence at the scene cannot be doubted and more so if the same assurance for it is available from the medical evidence.
50. Banwari (PW 1) has deposed on oath occular description of the occurrence. He has stated that he knew Budhai and Smt. Bhanumati who were murdered 11/2 years ago. He knew the accused persons whom he identified in the court also. He deposed that on the date of occurrence he was in his shop. Witnesses, Mani Lal, Siya Ram and Raghunath were present at his shop and they had come for getting their Hansiya and Khurpi (agricultural implements) beaten and sharpened. He further deposed that at about 12 noon, Budhai accompanied with his daughter Pappi alias Kunti came at his shop with his Hansiya and Khurpi for being beaten and sharpened. He identified Pappi alias Kunti, aged about 6-7 years, in court. He proceeded to state that when Budhai was sharpening his Hansiya after being beaten, accused Chhidda came there and after seeing Budhai went away. Shortly thereafter, accused Lajja Ram and Kunwar came along with Chhidda. Kunwar was armed with Kulhari and Lajja Ram was armed with lathi. Both these accused swooped on Budhai at the shop and started attacking him (VAHI DUKAN PAR BUDHAI KO DAB LIYA). He further deposed that Chhidda exhorted "MUSKIL SE DAON LAGA HAI, MAR DO SALE KO JAN SE".
51. He further deposed that Kunwar and Lajja Ram attacked Budhai with Kulhari and Lathi and then Lajja Ram picked up a Vasoola from his shop and both the accused hacked Budhai to death with Bansoola and Kulhari. Chhidda went on exhorting them.
52. Budhai died on the spot. This witness and others, present there, made protest and raised alarm, but the accused scolded them. He further deposed that on hearing hue and cry, Budhai's wife (Smt. Bhanumati) came running towards shop. The accused leaving Bansoola, rushed towards Budhai's wife (Bhanumati) and she was attacked by Lajja Ram and Kunwar with Lathi and Kulhari in the field of Bachchan Lal.
53. Chhidda again exhorted to kill her and they also killed her. Thereafter they fled towards the village. This witness has been cross-examined at length. Nothing material was elicited in his cross-examination to render his testimony untrustworthy. In his cross-examination, Banwari (PW 1) deposed that Budhai used to visit his shop. He again affirmed that on the day of occurrence Chhidda had come first and after seeing Budhai went to his house. Thereafter, his sons Lajja Ram and Kunwar came and 5-10 minutes thereafter, Chhidda came. He further deposed that on reaching his shop, Lajja Ram and Kunwar immediately swooped on Budhai (MERI DUKAN PAR ATE HI BUDHAI KO DAB LIYA). According to him when these two accused were attacking Budhai, then Chhidda came. He deposed that Chhidda had not attacked but only made exhortations "MAR DO SALE KO, MUSKIL SE DAON LAGA HAI". At his exhortations, Lajja Ram kept his Lathi and picked up Basoola from his shop. He categorically deposed that Lajja Ram and Kunwar, hacked Budhai to death by Basoola and Kulhari. Thereafter placing Basoola there and picking up Kulhari, the accused rushed towards village.
54. No further cross-examination was directed regarding the occurrence. The learned A.G.A. argued that this witness, has not been at all cross-examined regarding the occurrence that took place near the field of Bachchan Lal in which Smt. Bhanumati was killed nor any suggestion worth the name was put to the witness in that regard. He further argued that the major part of the cross-examination was confined regarding lodging of the report and that regarding the occurrence, merely suggestion was put to him that the accused were not assailants and had not committed murders of Budhai and his wife and that he had falsely implicated the accused to save himself.
55. Learned A.G.A. cited (1992) 3 SCC 106 : (1992 Cri LJ 1545), Ganesh Lal v. State of Maharashtra and referred to the observations made at page 113 of the report which reads : "In fact material part of his evidence was not subjected to cross-examination except suggesting that, he was deposing falsely. Under these circumstances, he is a truthful and reliable witness." Reference has been made above of the case of Bal Kishan v. State and Ram Prakash Arora v. State of Punjab regarding non-cross-examination of witness regarding a particular material assertion. Banwari (PW 1) remained consistent in his testimony regarding the occurrence and he was not shaken at all during his cross-examination. There is force in the contention of the learned A.G.A. that the questions regarding the murder of Smt. Bhanumati should have been raised by the defence in the cross-examination of Banwari (PW 1) and that this having not been done, no adverse inference can be drawn against this witness. The learned counsel for the appellants, has referred to the examination-in-chief of Banwari (PW 1) wherein he stated that Chhidda was armed with Lathi and argued this indicates, untruthfulness of this witness. No doubt in his examination-in-chief, this witness made statement that Chhidda was armed with Lathi but this by itself is not of much consequence. It is not the prosecution case that Chhidda had attacked Budhai and Smt. Bhanumati nor there is any mention of Lathi in Chhidda's hand in the First Information Report. In his cross-examination, as already mentioned above, Banwari (PW 1) had deposed that Chhidda had not attacked and had made exhortations only. Hence, it cannot be said that Banwari is untruthful witness. Even if Banwari had made false statement in respect of Chhidda having been armed with Lathi, the evidence of this witness cannot be discarded.
56. The principle "falsus in uno falsus in omnibus" does not apply in India (false in one thing, false in everything). It is not uncommon even for truthful witness to make certain exaggerations or embellishments in his statement. It is the duty of the court to scrutinise the evidence and separate grain from chaff (see AIR 1965 SC 277 : (1965 (1) Cri LJ 256), Ugar Aher v. State of Bihar. There is hardly a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery, embelishment. If the remaining evidence is trustworthy and substratum of the prosecution case remains intact, then the court should uphold the prosecution case, to the extent it is considered safe and trustworthy as has been held by the Supreme Court in a case reported in AIR 1973 SC 1409 ; (1973 Cri LJ 1120), Ranvir v. State of Punjab.
57. In the present case, scrutiny of the evidence of Banwari (PW 1) leaves no room for doubt that he is a trustworthy witness and there no infirmity in his testimony to render it incredible or untrustworthy.
58. As regards, post-occurrence conduct of Banwari (PW 1), it has already been discussed above, that after the occurrence he had even gone to the police out post Bishdhan to inform the police but had to return without lodging the report on account of non-availability of Sub-Inspector of Police and Head Constable.
59. In his cross-examination, he deposed that he had gone to police out post Bishdhan which is at a distance of MV2 Kosh (2-3 miles) from the village. He deposed that he had gone to call the police at about 2-2lh p.m. He got the report scribed by one Gyan Babu at about 4-5 p.m. and proceeded to lodge the report at police station Kakwan at 5-30-6 p.m.
60. Statement of this witness regarding time cannot be taken with reference to the striking of clock. It is well known that the village people have little idea of time and distance. The evidence of the village folk cannot be taken with any exactitude regarding time and distance. It has been held by Supreme Court in 1972 SCC (Cri) 394 : (1971 Cri LJ 1306), Sheo Darshan v. State of U.P. that it is a matter of common experience that the time given by the witnesses and specially in the villages is based by guess and not very accurate.
61. In another case of Shivaji Saheb Rao Bobade v. State of Maharashtra, reported in 1973 CAR 410 : (1973 Cri LJ 1783), the Supreme Court has observed that the sluggish chronometric sense of the country-side community in India is notorious since time is hardly the essence of their slow life, and even urban folk make mistake about them.
62. Banwari (PW 1) is an old man of about 60 years of age and ghastly murder of Budhai was committed in his presence at his shop and immediately in that sequence, murder of Smt. Bhanumati was committed. He must have been stunned and shocked on account of such dastardly occurrence, and after such effect was over, he in his anxiety thought of informing the police and proceeded to the nearby police outpost Bishdhan as stated above. He, however, came back after informing constables about the murders. In the village he had even asked Manilal and Siyaram and other villagers to lodge the report but they did not do so and he had to get the report scribed by Gyan Babu as mentioned above. Thereafter in the evening at 5.30-6 p.m. he went on foot to lodge the report at police station Kakwan at a distance of 8 miles.
63. There is, thus, nothing unnatural in his conduct in view of the facts and circumstances of the case. We have carefully scanned the evidence of this witness and we are in agreement with the lower court in accepting his testimony which contains ring of truth.
64. Next important witness is Raghunath (PW 3), his evidence, has been criticised on two grounds; firstly that he is a chance witness arid his presence at the scene of occurrence was not probable; secondly, that he is not reliable and truthful witness.
65. We have carefully considered the contention of the learned counsel for the appellants but we have not been persuaded to accept the same. No doubt, this witness is a resident of another village Chhittarpurwa which is at a distance of 8 miles from village Neoraj. He had come to Banwari's shop with the purpose of getting his agricultural implements beaten and sharpened. He has given occular evidence about the occurrence which had taken place in his presence about I-IV2 years back. He categorically deposed that he had come at Banwari's shop for the purpose of beating his Hansiya. He further deposed that Budhai came there along with his daughter Kunti for the purpose of getting his Hansiya beaten. Chhidda came there and returned after seeing Budhai and again came along with Kunwar and Lajja Ram. He further deposed that Lajja Ram was wielding Lathi while Kunwar was wielding Kulhari and they both swooped on Budhai (BUDHAI KO DAB LIYA) and started attacking Budhai with their respective weapons. Chhidda was exhorting them to kill. Lajja Ram then picked up Basoola from Banwari's shop and then Lajja Ram and Kunwar hacked Budhai to death. He further deposed that he and others raised hue and cry and then Budhai's wife (Smt. Bhanumati) came from her house and Lajja Ram and Kunwar killed her with Lathi and Kulhari respectively near the field of Bachchan. He also deposed that Chhidda exhorted them to kill her also. Thereafter the accused fled away to their house. The learned counsel for the appellants submitted that there was no occasion for this witness to be there at the relevant time. This witness has been thoroughly cross-examined at length. An attempt was made in his cross-examination to suggest that Babu and Gaya Prasad were black smiths in village Lakutiya which is at a distance of one mile away from his village Chhittarpurwa and that they used to visit the village of this witness weekly for blacksmiths' work. This witness has stated that he did not know these two persons and denied that they visit his village as suggested.
66. Next attempt was made to show that the residents of his village go to village Bishdhan for blacksmith's work. This was also denied by him. It was urged that if this witness had any work in blacksmiths shop he ought to have gone to village Lakutiya or village Bishdhan for the said purpose. Nothing was elicited in the cross-examination of this witness which may cast doubt on his presence at the relevant time in Banwari's shop. In cross-examination, be reaffirmed that he had come to Banwari's shop to get his 5-6 Khurpas and 5-6 Hansiyas beaten. The shop of Banwari is not at much distance from the village of this witness. His presence at the place of occurrence is fully corroborated by the testimony of Banwari (P.W. 1), Manni Lal (P.W. 4), Siya Ram (P.W. 5). This is no material on record to suggest that this witness is a chance witness. Neoraj is not out of way for this witness and he had come to the shop of Banwari in due course for getting his work done by Banwari blacksmith. It has come in his evidence that it was harvesting season and harvest work had stopped for want of Hansiya and that he was in hurry to get his implements sharpened. It was argued by the learned counsel for the appellants that this witness has made statement in reply to question No. 25 that he was sitting when the Hansiya of Siya Ram was being beaten and he waited at the shop of Banwari for about 2 hours. It was thus contended that if this Witness would have actually come there for the purpose of getting his agricultural implements sharpened, he would not have waited for such a long time and thus his presence does not seem probable at all. On scrutiny of evidence, we do not find any substance in this contention. Reghunath (P.W. 3) had purposely come to the Banwari's shop for repairs of his agricultural implements. His presence at Banwari's shop thus cannot be held to be improbable at the relevant time. He and other witnesses who were present at Banwari's shop for getting their agricultural implements repaired are natural witnesses. (See AIR 1986 SC 1769 : (1986 Cri LJ 1732), State of Uttar Pradesh v. Bhrammadas).
67. Mere fact that Banwari had done the work of other customers first does not help the defence in showing that Ragunath had not come there. This point was also raised before the lower court and the lower court has rightly pointed out that the witness had come for repairs of his implements and the noon time during summer season is always leisure time for the village people. There could thus be no great hurry for the witness at that time.
68. The lower court has further opined that it is not known under what circumstances, this witness was kept waiting while implements of others were repaired in the shop of Banwari and that some people are more assertive and get their work to be d one early. It is significant to note that Banwari (P.W. 1) statement regarding of this witness at the time of occurrence remains unchallenged and hence no adverse inference can be drawn regarding presence of this witness at the time of occurrence. There is thus nothing improbable for this witness who is aged about 80 years to have waited at Banwari's shop for about 2 hours during the noon time even if his estimate of time is taken at face value. As already discussed above, the village people have no precise idea of time and distance. The lower court has rightly observed that the estimate given by this witness that he had been waiting for two hours is modest estimate of time.
69. Ragunath (P.W. 3) is not the resident of village Neoraj and he had no animosity against the accused nor any interestedness in the deceased. He is an independent witness, whose presence at the time of occurrence cannot be doubted and is fully established. He is not a chance witness at all. The fact that the occurrence had taken place at Banwari's shop where this witness was present at that moment establishes that he is a natural witness. It is not shown by the defence as to why Regunath (P.W3) would have perjured and falsely implicated the Accused persons. During cross-examination of this witness, an attempt was made to show that Chhidda accused used to sink wells that Buddha, nephew of this witness, had sunk a well through Chidda and that a quarrel had taken place over payment. This witness denied the suggestion. Nothing could be elicited from cross-examination of this witness that he had any motive to falsely implicate the accused.
70. Next ground of criticism against this witness is that he is not reliable witness and he has made contradictory and inconsistent statements. It was argued that this witness in his examination-in-chief stated about presence of Siya Ram and Kunwar (accused) which is inconsistent with the prosecution story and no reliance should be placed on this witness. This contention, to our mind, has no force. This witness in his cross-examination explained that he had made statement about presence of Manni Ram along with Siya Ram but instead of Manni Ram, Kunwar (accused) might have been written. It thus appears to be a pen mistake or slip of tongue. This inconsistency in examination-in-chief is of no consequence because this witness in his cross-examination categorically deposed that Kunwar and Lajja Ram had attacked and hacked Budhai and his wife to death. The credibility of witness is judged from his entire evidence and not from his piecemeal evidence. It was next argued that there is infirmity in the evidence of this witness, regarding the place of occurrence and number of blows inflicted on Budhai. No doubt, this witness has stated in his cross-examination that Smt. Bhanutnati was murdered at a place about 20 paces from the shop of Banwari. As already stated, village folk have no precise idea of time and distance. In his examination in chiefs this witness, categorically deposed that Budhai's wife (Smt. Bhanumati) was murdered near the field of Bachchan. In his cross-examination, he clarified that Smt, Bhanumati was murdered towards the north of field of Bachchan and that there existed a Bat ha (Path way) and a Babul Tree near the place where Smt. Bhanumati was murdered. The site plan (Ex. Ka-9) prepared by the Investigating Officer shows that there existed two fields of Bachchan and they were separated by village path way. The Investigating Officer found blood and broken bangles as evidence of murder of Smt. Bhanumati in the path way between fields of Bachchan and Budhai. This witness, has categorically deposed that Smt. Bhanumati was murdered, towards the north field of Bachchan which cannot be said to be incorrect. Merely because he has given wrong estimate of distance does not render his testimony unreliable.
71. Slight discrepancies in the statement of eye witnesses are not uncommon in the testimony of most truthful witnesses. There are details which, unless the witnesses are tutored, must vary in minor particulars, and in the normal course of things are found generally to be stated differently by different observers. Such differences or variations are indications of truth rather than falsehood of the version given by the prosecution witnesses. See Yaswant v. State of Maharashtra, 1972 SCC (Cri) 684:(1972 Cri LJ 1254), State of Assam v. Krishna Rao, 1973, SCC (Cri) 222 : (1973 Cri LJ 169).
72. The place of occurrence as already discussed above has been fixed by the prosecution and there is no material contradiction or inconsistency appearing in the testimony of (P.W. 3) Raghunath in that regard.
73. Next it was argued, that this witness has stated in his cross-examination that 20-25 Kulhari blows were inflicted by accused Kunwar upon deceased Budhai while the accused Lajja Ram inflicted 2-4 Lathi blows and after keeping lathi inflicted 5-10 6r 20 Basodla blows. It was contended that this evidence is not consistent with the medical evidence which does not disclose so many injuries on the body of the Budhai (deceased). We have given our careful consideration to this contention but we do not find any substance in this contention also. No capital can be made out of it. The exact manner and sequence in which the incident took place is not expected to be noticed either by the injured or by the eye-witnesses. There may be some minor discrepancies and contradictions regarding minor details of the incident in the evidence of the prosecution witnesses but that does not destroy the broad features and the substratum of the prosecution case. Minor contradictions and slight discrepancies are bound to come in the evidence of the witnesses, particularly when the incident takes place on a spur of moment. There is hardly a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment.
74. It is not expected from a witness of murder that he will count blows inflicted on the victim in the occurrence witnessed by him. Some times a witness claims to have done so with fear that his testimony may not otherwise be believed if he does not give out his own estimate. The Supreme Court, in a case Himachal Pradesh Administration v. Om Prakash reported in 1972 SCC (Cri) 88 : (1972 Cri LJ 606) has made following observations at page 612 (of Cri LJ):
"It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be brone in mind is that the penumbra of uncertainty in the evidence before a Court is generally due to the nature and quality of that evidence. It may be that witnesses as are lying or where they are honest and truthful, they are not certain. It is, therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion."
75. A careful scrutiny of the testimony of Raghunath (P.W. 3) leaves no room for doubt, regarding his presence at the blacksmith shop of Banwari (P.W. 1) at the time of occurrence. It is nowhere suggested by the defence that this witness had enmity with the accused persons or that he was interested in the deceased. A bald suggestion was put to him that he was not present on the spot and that he was given false evidence. He emphatically denied this suggestion. It does not stand to reason as to why this witness will perjure while he was not blood relation of the deceased nor was inimical to the accused persons. He had come to the shop of Banwari P.W. 1 purposely for getting his agricultural implements repaired. There is sufficient corroboration of other witnesses regarding his presence at that time. He was thus natural and probable witness of the occurrence and there are no grounds for rejecting his testimony.
76. Having given careful consideration to the submissions made by the learned counsel for the appellants, we do not find any force in them and we agree with the finding of the court below that he is natural, probable, impartial, independent and reliable witness. Manni Lal and Siya Ram are other eyewitnesses, who were declared hostile by the prosecution as they did not support the prosecution story regarding involvement of Chhidda (accused). Their evidence have been criticised on the ground that they are inimical-to the accused and that their evidence is not at all reliable. Learned A.G.A. rightly argued that mere fact that court gave permission to prosecutor to cross-examine the prosecution witnesses is not sufficient to completely efface their evidence. The submissions made by the learned A.G.A. find support from catena of authorities of the Supreme Court (See 1976 Cri LJ 203 : (AIR 1976 SC 202), Bhagwan Singh v. State of Haryana, 1987 (2) SCC 352: (1987 Cri LJ 1119), Babu Lodi v. State of U.P., 1986 All Cri R 555 : (1986 Cri LJ 1732) (SC), State v. Brahmadas, AIR 1976 SC 294: (1976 Cri LJ 295), Satpal v. Delhi Administration, 1978 SCC (Cri) 219 : (1978 Cri LJ 1089), Keshav Ram Bora v. State of Assam.
77. It is thus settled law that the testimony of witness is not completely effaced merely because he was declared hostile. Such part of testimony of a hostile witness, as inspires confidence can be accepted by the Court. Partly hostile witness can corroborate; Supreme Court has held in Satpal v. Delhi Administration reported in AIR 1976 SC 294 : (1976 Cri LJ 295) at page 309 (of Cri LJ):
"Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thorughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept in the light of the other evidence on the record, that part of his testimony which he finds to be credit-worthy and act upon it."
78. It is thus quite clear from the series of decisions of the Supreme Court that the, evidence of hostile witness is not necessarily to be rejected either in whole or in part and the mere fact that a witness is declared hostile does not make him an unreliable witness so as to exclude his evidence from consideration altogether, (See 1976 SCC (Cri) 566 : (1977 Cri LJ 173), Shri Ravindra Kumar Dey v. State of Orissa.
79. Let us examine the evidence of these two hostile witnesses in the light of the submissions made by the learned counsel for the appellants and to find out whether their testimony can be safely acted upon and whether there was sufficient corroboration in respect of the same.
80. Both these witnesses have given ocular account of the occurrence and have deposed about involvement of the accused Lajja Ram and Kunwar. Both have deposed that occurrence had taken place about 1-1 Vi years ago. They both were present at the shop of Banwari (P.W. 1). They had come there for getting agricultural implements beaten. Both have deposed about the presence of each other and also the presence of Banwari and Raghunath at the relevant time. It was about noon, when Budhai came along with his daughter Pappi, for getting his Hansiya beaten, Mannilal P.W. 4 stated that when Budhai was sharpening Hansiya after being beaten, Chhidda came there and immediately returned. Thereafter, Lajja Ram armed with Lathi and Kunwar armed with Kulhari came there and swooped on Budhai and started attacking. Thereafter Lajja Ram kept lathi and picked up Basoola and then they both hacked Budhai to death with Bansoola and Kulhari. Budhai died on the spot. He also deposed that both the accused persons scolded him and threatened him to kill. On hearing hue and cry Bhanumati came to the field of Bachchan Lal. Lajja Ram leaving Bansoola, picked up Lathi and he along with Kunwar, started attacking Bhanumati with Lathi and Kulhari, retorting 'Khet Logi' Bhanumati died on the spot. The accused ran away towards village. This witness was declared hostile as he had not supported the prosecution regarding exhortations made by Chhidda. In, his cross-examination by the prosecution, he stated that he had not seen Chhidda when Lajja Ram and Kunwar had swooped on Budhai. In his further cross-examination by the prosecution, he also denied about the presence of Chhidda at the place of occurrence where Bhanumati was hacked to death. This witness was confronted with his earlier statements under Section 161, Cr.P.C. made before the Investigating Officer, but at the witness box he resiled from it. In his statement under Section 161, Cr.P.C, this witness stated that Chhidda exhorted them to commit murder. This witness alleged that he did not remember that what he stated before the Investigating Officer. He has also not assigned any reasons in respect of his earlier statement nor has imputed any motive to the Investigating Officer to record his statement wrongly. He is nephew of accused Chhidda as well as deceased Budhai. The trial court has observed that this witness was inclined to extricate his uncle Chhidda from the consequences of murder. He was an eye witness of the occurrence and he could not thus muster courage to deny the prosecution case in respect of ghastly murders committed in his sight by accused Lajja Ram and Kunwar. The trial court has further observed that had this witness not been present and seen the occurrence he could have very well denied his presence.
81. As regards involvement of the accused Lajja Ram and Kunwar, this witness has made categorical statement and has substantially corroborated the prosecution case. In his cross-examination by the defence, he has affirmed the involvement of Lajja Ram and Kunwar. He has emphatically denied the suggestion of the defence' that he was not present on the spot and was giving false evidence under police pressure. The defence has made an attempt to show that this witness was inimical to the accused persons. No doubt this witness has admitted about the proceeding under Section 107/117, Cr.P.C. in which he and deceased Budhai were on one side and Lajja Ram and Kunwar were on other side. The defence has also filed certain documents vide Ex. Kha-3. Kha-4, Kha-5 and K.ha-6, showing criminal case under Section 506, I.P.C. against Lalai Babu and Siya Ram and another, criminal case under Section 395, I.P.C. by Cheedi Lal against Fateh Bahadur and others and the criminal case under Sections 141, 148, 323, 324, I.P.C. by accused Kunwar against Lalai Babu Ram and Siya Ram and others. It was thus argued by the learned counsel for the appellants, that Manni Lal P.W. 4 was well as Siya Ram P.W. 5 are inimical to the accused persons and no implicit reliance can be placed on their testimony.
82. No doubt enmity may some time provide motive to implicate falsely but in the present case neither Mannil Lal nor Siya Ram had lodged the first information report against the accused persons. In fact, they both have tried to favour Chhidda which is obvious from the fact that they have extricated Chhidda with oblique motive. In the cross-examination by the defence, nothing has been elicited to create doubt in the testimony of Manni Lal P.W. 4 who has corroborated the prosecution case in all material particulars so far as complicity of accused Lajja Ram and Kunwar is concerned.
83. The trial court has observed that the statement of Manni Lal (P.W. 3) regarding the part played by Chhidda in occurrence is not truthful and it cannot in any way affect the credibility of the prosecution case in its entirety or in respect of complicity of accused Chhidda. His statement that when Lajja Ram and Kunwar swooped on Budhai he did not see Chhidda at that moment is a lie. It may be possible that he might not have given attention to the exhortations made by Chhidda. It cannot however be inferred from his statement that accused Chhidda was not present there when his sons had killed Budhai and Smt. Bhanumati. The testimony of Manni Lal has not been shaken regarding complicity of Lajja Ram and Kunwar and this part of his testimony finds corroboration from other evidence we agree with the lower court in this respect.
84. The next hostile witness is Siya Ram. He was also present at the scene of occurrence and this is fully established by evidence of other eye-witnesses. He has stated on oath about the occurrence that had taken place about 1-1 1/2 years ago. He has deposed that, it was about noon and he had come to Banwari's shop for getting his Hansiya beaten and that besides Banwari, Manni Lal and Raghnath were present there. He further stated that Budhai came along with his daughter Pappi. When he (Budhai) was sharpening his Hansiya after it was beaten, Lajja Ram and Kunwar armed with Lathi and Kulhair came there and swooped on (Dab Liya) Budhai and started attacking him. After witnessing this scene, this witness ran away. He also stated that Budhai was killed in that incident and on the same day his wife Bhanumati was also murdered on the Batha (path-way) near the field of Bachchan Lal. He did not see as to who and how it was committed as he had run away from the spot. He was, therefore, declared hostile by the prosecution. This witness had supported the prosecution case at the time of investigation and when confronted with this previous statement under Section 161, Cr.P.C. he resiled from it and could not assign any reason for recording the said statement by the Investigating Officer. He admitted that Chhidda was his uncle as also Budhai. The lower court has rightly observed that this witness desired to extricate Chhidda from the occurrence which is quite obvious. He was hostile to the extent of complicity of Chhidda. The lower court has observed that this witness was not truthful as far as the part played by Chhidda, was concerned and to the exit of the part played by other accused persons he was truthful as he has corroborated the prosecution case as far as the accused Kunwar and Lajja Ram were concerned. This witness has totally excluded the involvement of Chhidda from the occurrence but on account of this his evidence cannot be effaced nor it can be used for discrediting the prosecution case. He has categorically supported the prosecution case regarding the involvement of Lajja Ram and Kunwar who had hacked to death Budhai with their respective weapons. Regarding Smt. Bhanumati, he could not see the occurrence as he had already run away from the place of 'occurrence. It is quite natural that in such circumstances it could not have been possible for this witness to have noted the exact manner and sequence in which the incident had taken place. The fact, however, remains that he has supported broad feature and substratum of the prosecution case. Nothing material has been elicited during his cross-examination by the defence. An attempt was made to show that he was inimical to accused. He admitted about a case under Section 147/323 against him to the report of accused Kunwar but denied about any case under Section 107/117 between him and Chhidda and others. He also denied the suggestion that he belonged to faction of Fateh Bahadur and Gangacharan in his village. He had no knowledge about the dacoity case against Fateh Bahadur and others on the report of the Chhidda. He denied the defence suggestion that he was giving false evidence against Lajja Ram and Kunwar on account of enmity. On consideration of testimony of this witness, we agree with the trial court that his testimony cannot be discredited merely because he turned hostile during the trial regarding complicity of Chhidda and that he has corroborated the prosecution case as far as accused Kunwar and Lajja Ram are concerned. We are thus not persuaded to accept the contention of the learned counsel for the appellants that testimony of the P.W. 4 Mani Lal and Siya Ram (P.W. 5) who were declared hostile by the prosecution is not acceptable.
85. The last witness is Kumari Pappi alias Kunti, who is a child witness aged about 6-7 years. Her testimony has been discarded by the trial Court on the basis of her statement, during cross-examination that the news of murder of her parents was sent to Bharampur village and then she along with her maternal-grandfather, maternal-grandmother and maternal uncle came to the village.
86. The trial court has declined to draw an inference and has not accepted the contention of the defence that she was a got up witness. The trial Court has observed that she was a child witness. She obviously faltered in the cross-examination. The trial court declined to draw an inference that entire prosecution story that Kumari Pappi was there with her father when the occurrence took place was concocted. No doubt this witness, gave ocular account of the prosecution story in her examination-in-chief but in view of her cross-examination, the trial court excluded her evidence from consideration. No doubt Kumari Pappi had made statement in cross-examination regarding her visit Neoraj along with her maternal grandfather and maternal-grandmother after the death of her parents, but from this it cannot be inferred that the prosecution case is untrue. In order to judge the credibility of a witness the court should not confine only with the way in which the witness has deposed but should see under what particular circumstance she has deposed so (See Ram Chandra Ram Bux v. Champa Bai, AIR 1965 SC 354. The trial court did not administer oath to Kumari Pappi (P.W. 2). Certain questions were put to this witness by the Court and she stated that her age is six or seven years; that her younger brother is of five years who is three years younger to her. She also stated that her elder brother is of five years who is two years older to her. She also stated that 1, 1/2 months have elapsed since the death of her father. Her statement was recorded on 17-10-1978, while the murder of her father Budhai was committed on 7-4-1977. It is thus quite apparent that the witness had no idea about the time. Further in her examination-in-chief she stated with reference to the time of occurrence that it was summer season and in her cross-examination also she stated that it was summer season when she was making her statement. It was the month of October when her statement was recorded. Obviously, it was not summer season. This witness has faltered only on the point of time sequence. Learned trial court did not record any opinion that this witness was able to understand the nature of questions put to her. No doubt, from the cross-examination it is evident that no reliance can be placed on the testimony of this witness and the benefit would go to the accused persons. But no inference can be drawn that she had not accompanied her father at the time of the occurrence. She is a child of 6 or 7 years only and she faltered on account of her ignorance about the idea of time. No capital can be made out of her defective testimony and no inference can be drawn that the prosecution case is false and fabricated and the testimony of other eye-witnesses, therefore, is also unreliable. As already stated above, the testimony of Banwari (P.W. 1) is cogent, direct and categorical regarding her presence along with her father Budhai at his shop at about 12 noon on the date of occurrence. This is amply corroborated by the testimony of Raghunath (P.W. 3) Manni Lal (P.W. 4) and Siya Ram (P.W. 5). No cross-examination has been directed on this point, nor any suggestion has been put to these witnesses regarding Pappi alias Kunti. Learned A.G.A. argued that the parts of the prosecution evidence regarding the presence of Pappi alias Kunti along with Budhai at the time of occurrence was not subjected to cross-examination, hence the truthfulness and reliability of these witnesses in that regard cannot be doubted and that the prosecution evidence clearly shows that Pappi alias Kunti was present at the time of occurrence along with her father Budhai. Learned A.G.A. cited the case of Ganesh Lal v. State of Maharashatra (1992) 3 SCC 106 : (1992 Cri LJ 1545) and referred to page 113 in that connection as has already been mentioned in preceding paragraphs.
87. The cross-examination was abruptly stopped at the point where this child witness Kumari Pappi faltered. The witness was not re-examined nor the court thought it proper to put question to this witness to clarify about what she had stated in the examination-in-chief and the cross-examination in view of the ignorance about the time and season when the occurrence had taken place and when she had first1 gone to her maternal father's (uncle's) place. A perusal of her testimony clearly goes to show that she had no maturity to understand the questions regarding time and season on which she faltered. No specific question was put to her that she was not present at the time of occurrence. In any way, we also do not rely on the defective and unintelligent testimony of this witness even though she was present at the time of occurrence. She was not a got up witness. The prosecution could not gain any thing by setting up this witness while there were already other adult eye witnesses. We fully agree with the trial court in this regard and in the circumstances, we also exclude her evidence from consideration. It may, however, be made clear that this does not discredit the prosecution case which otherwise has been fully established by the direct, positive, cogent and reliable evidence of the prosecution.
88. Next, it was contended that the conduct of the deceased and the witnesses present on the spot makes the prosecution version incredible. It was argued by the learned counsel for the appellants that neither the deceased Budhai nor the eye-witnesses present there, put up any resistance nor tried two save the deceased. No doubt courts have to rely more on human probabilities than on assertions of the witnesses (See Vidhya Singh v. State of M.P., 1971 CAR296: (1971 Cri LJ 1296) (SC).
89. It has been seen above that the occurrence took place suddenly when deceased Budhai was sharpening his Hansiya. Accused Kunwar, Lajja Ram armed with weapons came there and immediately swooped on Budhai who was sitting and was sharpening his Hansiya. The deceased was about 50 years of age while accused Kunwar was about 24 years of age and accused Lajja Ram about 35 years of old at the time of occurrence. It was thus not difficult for these two young assailants to have over powered Budhai. The witnesses were, no doubt, sitting there but they did not muster courage to resist the attack made by the assailants. Banwari P. W. 1 had categorically deposed that he and the witnesses raised alarm and made protest but the accused scolded them to keep quiet. Other witnesses, namely Raghunath P.W. 3, Manilal P.W. 4 also raised alarm. Manilal P.W. 4 deposed that Lajja Ram Kunwar scolelded him to remain there otherwise he would also be hacked. Siya Ram P.W. 5 stated that when Lajja Ram and Kunwar with their weapons started attacking Budhai he ran away. As already stated above, Mani Lal , P.W.4 and Siya Ram P.W. 5 are related to deceased as well as accused persons and they were declared hostile as they wanted to exclude Chhidda. Raghunath P.W. 3 was resident of another village and was about 79 years of age at the time of occurrence. Similarly, Banwari P.W. 1 at whose shop the occurrence took place, was about 59 years of age. It is. thus quite natural that in the circumstances, these witnesses did not gather up enough courage to put resistance though they raised alarm and made protest. The mere fact that witnesses did not receive any injury or that they did not gather up enough courage to resist the attack and to intervene, does not show that they had not witnessed the occurrence and whole story is imaginary and made up only for falsely implicating the accused persons: See 1973 Cri LJ 185 : (AIR 1973 SC 1), Apren Joseph v. State of Kerala, AIR 1976 SC 2499: (1976 Cri LJ 1895).
90. In the present case, the witnesses raised alarm and made protest but they were scolded by the accused persons and hence they did not muster courage to intervene. There is nothing unnatural or improbable in the conduct of these witnesses.
91. Lastly, it was contended that no independent witness of the locality of the village was produced by the prosecution and, therefore, the prosecution case suffers from serious infirmities. We have not been persuaded to accept this submission. It is not necessary for the prosecution to multiply the witnesses after witnesses on the same point. It is the quality rather than the quantity of the evidence that matters. See Shravan Singh v. State of Punjab, AIR 1976 SC 2345 : (1976 Lab IC 1483). The real question for determination is not as to what is the effect of non-examination of the certain witnesses as the questions whether witnesses examined in the Court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the Court and the Court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses will not affect the credibility of these witnesses: See 1977 Cri LJ 642: (AIR 1977 SC 1066) Para 16, Narpal Singh v. State of Haryana.
92. In the present case, we have already discussed above that Banwari P.W. 1 and Raghunath P.W. 3 are independent and reliable witnesses. Hostile witness Manilal P.W. 4 and Siyararn P.W. 5 have corroborated the prosecution case regarding the complicity of the accused Lajja Ram and Kunwar who were the actual assailants of the deceased persons. As regards the other persons of the locality, it was argued that there were Khalihans of other persons nearby but they were not examined. An attempt was made during the cross-examination of Siya Ram P.W. 5 that there were Khalihans of Chhotelal, Sipahilal and others in that 'Bhag'. Siyaram however, deposed in an answer to question No. 15 that he did not see any person in the said Khalihans. It is not prosecution case nor there is any material on record to show that there were other persons present in the nearby Khalihans. There does not thus arise any question of examining the said witnesses. The defence has also not produced any evidence in that regard. The contention of the learned counsel for the appellants, has thus, no force.
93. On careful scrutiny of the entire evidence and the facts and circumstances of the case, we agree with the finding of the trial Court which had advantage of watching demeanour of the witnesses before it. The evidence of the reporter Banwari P.W. 1 is fully corroborated by the First Information Report lodged by him and the evidence of Raghunath P.W. 3 and to great extent corroborated by the evidence of the hostile witnesses Maniri Lal P.W. 4 and, Siyaram, P.W. 5. There is ring of truth in the statement of Banwari P.W. 1 and Raghunath P,W. 3, which is amply corroborated by the evidence of Siyaram P.W. 5 and Mani Lal P.W. 4. The fact that the Lathi, Basoola, Kulhari were used in committing murder of Budhai and thereafter, Lathi and Kulhari were used in committing murder of Smt. Bhanumati is fully corroborated by the medical evidence as already stated above. According to Dr. Sundeer P.W. 9 Budhai died as result of head injury Nos. 1, 2 and 4 while Smt. Bhanumati died as result of head injury No. 2. Both the accused Lajjaram and Kunwar were instrumental in committing the murder of Budhai and Smt. Bhanumati. Chhidda was present on the spot and he exhorted his sons to commit the aforesaid two murders. It was at the exhortation of Chhidda, Lajja Ram kept his lathi and picked up Basoola from Ban-war's shop in attacking Budhai.
94. No other point was urged.
95. We agree with the trial Court that the accused Lajjaram and Kunwar were guilty for committing the murders of Budhai and Smt. Bhanumati under Section 302, I.P.C. and that the accused Chhidda was guilty for the offence under Section 302 read with Section 34, I.P.C. The accused have been awarded life imprisonment for committing aforesaid murder. The judgment and the order of the lower Court is confirmed.
96. The appeal has no force on merits, thus fails, and is accordingly dismissed. The appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentence awarded to them.