JUDGMENT S.K. Jain, J.
1. Arjun, son of Ram Ratan, aged. about 17 years, Lal Diwan, aged about 25 years, Ram Ratan,. aged 40 years and Shyam Sunder, aged 40 years, sons of Pancham, residents of village Bamhauri, P. S. Ata, District Jalaun were charged and tried by the learned Sessions Judge, Oral under various sections of I.P.C. Arjun accused was convicted under Section 302, I.P.C. whereas Lal Diwan, Ram Ratan and Shyam Sunder were convicted under Section 302 read with Section 34, I.P.C. vide judgment of conviction dated 24th July, 1980. Each one of them was sentenced to life imprisonment vide order of the same date.
2. Feeling aggrieved against their conviction and sentence, Arjun convict has filed; Criminal Appeal No. 1732 of 1980 whereas the contvicts Lal Diwan, Ram Ratan and Shyam Sunder have preferred Criminal Appeal No. 1606 of 1980. Since both the appeals have arisen out of the same occurrence and one judgment of conviction and order of sentence dated 24-7-1980, they are being disposed of by this single judgment.
3. The case of prosecution as unfolded in the , testimony of its witnesses is that one Achelal son of Mari Lodhi, resident of village Karmer was married to Smt. Phula Rani, PW 3. He was issueless. He had four sisters including Smt. Ram Kali and Smt. Jai Bai, Chandrabhan, PW 2 is the son of Smt. Ram Kali, whereas Ram Ratan, Lal Diwan and Shyam Sunder are the sons of Smt. Jai Bai who was married to Pancham of village Bamhauri, P. S. Ata, district Jalaun, Arjun accused is the son of Ram Ratan. Achche Lal had developed liking for Chandrabhan and about 5 years back he had transferred 14 acres of his land in his favour. Chandrabhan along with his family was residing at village Karmer. Achche Lal also intended to transfer his house property in favour of Chandrabhan and his two brothers Jawahar and Sheo Singh. The accused party was very much aggrieved against Achche Lal and Chandrabhan on this count. On 21-7-1978 at about noon Ram Ratan, Lal Diwan, Shyam Sunder and Arjun accused armed with lathi, rifle, spear and gun respectively, arrived at the house of Achche Lal and at the exhortation of Ram Ratan and Shyam Sunder, Arjun fired a shot with his gun killing Achche Lal on the spot. Lal Diwan also fired a shot with his firearm aiming at Chandrabhan, who missed his target. Sheo Ram and Mangal Singh are stated to have seen the occurrence. After the accused left the place of occurrence along with their, respective weapons, Chandrabhan having been very much frightened, summoned his uncle from his village Rampura and lodged a report Ext. Ka-3 in the Police Station Ata which was at a distance of 10 km. from village Karmer, at 3.30 p.m. on that very day. On the basis of said written report the F.I.R. Ext. Ka-1 was recorded by constable Balram Singh PW 1.
4. Ram Kumar Singh, PW 5 who was posted as Station House Officer, P. S. Ata on the relevant date, on receipt of information of the occurrence, reached the scene of occurrence at 6 p.m. on 21-7-1978, inspected the spot, collected blood stained earth, took sample of the Baan of the cot on which Achche Lal deceased was allegedly sleeping at the time of occurrence, recovered pellets from the spot and prepared various recovery memos. He also prepared site plan Ext. Ka-11 of the place of occurrence. Then he prepared the inquest report and caused the dead body of Achche Lal to be sent for post mortem examination under the guard of Constable Har Dayal, PW 6. Dr. K. N. Goel, P.W. 4 conducted the post mortem examination on the dead body of Achche Lal at 5.15 p.m. on 22-7-1978 in the district hospital, Orai vide Ext. Ka-4 and found the following injuries :-
(1) Three gun shot wounds of entry of front aspect of the chest right side lower part 2 cm. apart size of each 1 cm. x 1 muscle deep. Three shots were removed from the muscle of chest wall of right side.
(2) One gun shot of entry over back left side lumbar region near mid line size 1.5" x 3/4" through and through."
5. On internal examination of the dead body he found that one lumbar vertebrae was fractured into a number of pieces. Spinal cord was torned across. Under injury No. 2 he found that peritoneum was torn. Peritoneum cavity was full of fluid blood, about 3 ozs. Stomach was full of digested food material, weighing 4 ozs. The large intestine was full of faecal matter. Liver was torn. One cork piece which was lodged in the liver tissue was removed and spleen was also torn and lacerated. One bone piece of fractured vertibra was lodged in the spleen.
6. The autopsy surgeon opined that the death was caused due to haemorrhage and shock which resulted from the above mentioned ante mortem injuries. The time that elapsed between the injuries and death was about 1 to 1 1/2 hours.
7. After the close of prosecution case the statement of accused under Section 313, Cr.P.C. were recorded. They denied all the incriminating material appearing in prosecution evidence which were put to them. When called upon to lead defence evidence, the accused had examined D.W. 1 Rafiq Mohammad who deposed that the special report was received at the residence of the District Magistrate on 22-7-1978.
8. Believing the ocular account given by the two eye witnesses and corroborated, by the medical evidence the learned trial court convicted and sentenced the accused as mentioned above. Aggrieved from the judgment of their conviction and order of sentence, Arjun accused preferred Criminal Appeal No. 1732 of 1980 whereas remaining three accused have preferred criminal appeal No. 1606 of 1980 before this Court.
9. We have heard the learned counsel for the parties and with their help have gone through the record of the case.
10. Both the eye-witnesses, namely Chandrabhan, P.W. 2 and Smt. Phoola Rani, P.W. 3 have consistently stated that on 21-7-1978 at 12 noon accused Arjun armed with a gun, Lal Diwan with a rifle, Ram Ratan with a lathi and Shyam Sunder carrying a spear, all of a sudden came in front of the house of Achche Lal and on exhortation of Ram Ratan and Shyam Sunder, Arjun accused fired a shot with his gun which hit Achche Lal. Lal Diwan fired a shot with his rifle aiming towards Chandrabhan but it had missed the target. Acheche Lal had died on the spot. Both these eye witnesses were thoroughly cross examined but their evidence could not be shattered. They stuck to their guns on all material points. The ocular account given by these two eye witnesses was corroborated by the medical evidence comprised of the testimony of the autopsy surgeon Dr. M.K. Goel which has been discussed in very many details hereinbefore.
11. Learned counsel for the appellants have vahemently argued that the medical evidence contradicts the account given by the eye witnesses in so far as the autopsy surgeon has found the stomach full of digested food material weighing 4 ozs and the large intestine with faecal matter which goes a long way to show that the occurrence had not taken place at 12 noon as the deceased was not expected to have taken his meals at about 6 a.m. He has pointed out that the eye witnesses have stated that only one shot fired by Arjun had hit the deceased. But the autopsy surgeon had found three gun shot wounds of entry on the front aspect of the chest right side lower part. This argument attractive at first sight is, in our opinion, not tenable on the sound appreciation of evidence on record and the law on the points. The two eye-witnesses must be describing only the movement of the accused with their weapons. They could not obviously give evidence as to whether a particular shot had hit the body for that would depend not only the manner in which the shots were fired but also the individual characteristics of the barrels of the firearms. Photographic picturization was not expected from the witnesses who are not tutored. As- the witnesses could not see the flying projectiles ejected from the muzzles of the two firearms, they could only describe what they had seen and that is what they have done. They have stated that the accused Arjun had aimed the muzzle of his gun towards Achche Lal whereas Lal Diwan had aimed his gun towards Chandrabhan. They could not possibly say as to whether the bullet ejected from the rifled gun of Lal Diwan had actually hit the wall or the body of Achche Lal. The fact that two shots had fired, these two eye witnesses had felt that one was aimed at Achche Lal and the other at Chandrabhan. But actually both the shots had hit the deceased. Both of them had seen the deceased dying on the spot after having been hit by the shots. Chandrabhan, PW 1 had felt that Lal Diwan had aimed his firearm towards and had fired at Chandrabhan and that is what he had stated at the trial. The plea of improbability can be pressed into service in many criminal cases. The veracity of the prosecution case is to be judged by reliability of witnesses who have deposed about the occurrence. Herein Smt. Phoola Rani, PW 3 was none else but the widow of the deceased. She was naturally present in the house with her deceased husband at the relevant date, time and place. She had seen the accused committing murder of her husband.
12. It has been revealed in the testimony of the two eye witnesses that Chandrabhan was the son of Smt. Ram Kali, wife of Lachman Prasad and sister of Achche Lal. The couple, i.e. Achche Lal and his wife Smt. Phula Rani were issueless. They had developed love and affection for their 'Bhanja' Chandrabhan. Achche Lal given 14 acres of land and three houses to him vide a sale deed. Chandrabhan has testified that his children and brother were present in the baithak on the first floor of the house of the deceased whereas he was coming out of the room with a basket of chaf. Thus it is evident that both these eye-witnesses were naturally present on the date, time and place occurrence. They had given a consistent, straight forward and unbiased account of what they had seen. Their evidence cannot be discarded only on the ground that according to them the shot fired by Arjun had hit Achche Lal whereas the autopsy surgeon has found three firearm wounds of entry on his chest. There are various ways in which the Court can assure itself that the case presented by the prosecution is concocted or substantially embellished. The prosecution story has not to be subjected to critical and meticulous test of rationalism. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny, while it is necessary that the proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not a fatish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. In our considered opinion the shots fired by Arjun and Lal Diwan by their respective firearms had hit and killed the deceased.
13. Learned counsel for the appellants has then taken us through the site plan prepared by the investigating officer and has vehemently argued that the paur wherein the deceased is said to be sleeping on a cot at point No. I and Smt. Phoola Rani, wife of the deceased at point No. 3 had only one door. Chandrabhan is said to be present at the door of the room opening in the paur. The submission is that the two eye-witnesses could not possibly see the accused who were standing outside the paur. This argument also does not carry conviction with us. The paur is an open verandah. It has been so observed by the trial Court also in para 2 of its judgment and, therefore, the two eye-witnesses could easily see the accused from the place where they were present. Smt. Phoola Rani when cross-examined, has stated in unambiguous terms that at the relevant time she was sitting on a Takhat and was reciting Bhajan and was not counting prayers on Rosary. There was no statue or photo of any God in her front. She was facing Achche Lal and her eyes were open. Therefore, it is natural that she had witnessed the occurrence. Our attention has also been drawn towards a portion of her statement in cross-examination to the effect that she had seen the barrel of the gun by the side of the door before the first shot was fired. It has been argued that it is thus evident that the paur was a closed verandah and had only one door. We do not find any force in this argument also. A reading of the statement of the two eye witnesses goes a long way to show that the paur was an open verandah. As mentioned hereinbefore, the trial Court has also applied his mind to this aspect of the matter and had found that the paur was an open verandah.
14. The next argument of the learned counsel for the appellants is that it has come in the testimony of Chandrabhan, PW 2 that Jawahar, Laxmi, his wife, Mangal and Sheoram had also seen the occurrence, but none of them has been examined and, therefore, it leads to presumption that they were not prepared to support the prosecution case. This submission of the learned counsel for the appellants does not cut any ice with us because the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant mutiplication of witnesses. Moreover the larger perspective of a criminal trial cannot be possibly lost sight of. Usually, if not invariably, the conviction in a criminal trial rests on the direct testimony and credibility and acceptability thereof. As in the present case it is primarily the unimpeachability of the evidence of PW 2 Chandrabhan and PW 3 Smt. Phula Rani, the two eye witnesses coupled with the medical evidence comprised of the statement of Dr. M. K. Goel, autopsy surgeon, along with the post mortem report which forms the core of the prosecution case. The said direct testimony is credible and unimpeachable and in our view is sufficient to establish charge and consequent conviction. It cannot be said that it would lose all its value by mere fact that the eye witnesses had stated that the accused Lal Diwan had aimed his firearm towards Chandrabhan and had fired the shot. The trial of offences and their punishment is a matter of substance which turns on the weight and credibility of direct evidence and not merely on the immaterial contradictions between the ocular account and the medical evidence.
15. Lastly, it has been argued by the learned counsel for the appellant that there was no motive whatsoever for the accused to have committed the murder of Achche Lal who was none else but their Mama. This argument also has no force. Often times, the motive is locked up in the heart of the offender and the prosecution is not bound to prove the motive of any offence in a criminal case, inasmuch as the motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by the prosecution, the Court has to consider it and see whether it is adequate. All the same we have closely examined the evidence of Chandrabhan and Smt, Phula Rani on this aspect of the case and we find that the prosecution has successfully established on record that the accused had motive to commit the crime. As mentioned in the beginning of this judgment it is noticed that the accused Lal Diwan, Ram Ratan and Shyam Sunder were the sons of Smt. Jai Rani, sister of Achche Lal whereas Arjun accused was the son of Ram Ratan. On the other hand, Chandrabhan and Jawahar were the sons of Smt Ram Kali, another sister of Achche Lal. Achche Lal was issueless although he was married to PW 2 Smt. Phula Rani. He had developed love and affection and great liking for Chandrabhan and Jawahar. He had transferred 14 acres of agricultural land in favour of Chandrabhan in the year 1973 through an ostensible sale. Not only this, he had subsequently transferred three houses by the same contrivance in his favour. Chandrabhan along with his family had started living with Achche Lal six years prior to the occurrence. It is natural human desire that the sons of the second sister of Achche Lal would also expect him to transfer some of his property to them. But he did not bother about them. It is thus clear that the accused party was aggrieved against Achche Lal as also against Chandrabhan.
16. Lastly learned counsel for the appellants submitted that in view of the fact that both the eye witnesses were the close relatives of the deceased, their testimony was not trustworthy they being highly interested witnesses. This argument is also without any force. In a murder case, it is an error to reject the evidence of witnesses on the ground that they are related to the deceased. Close relatives of the deceased would normally be themselves reluctant to spare the real assailant and falsely mention the name of other persons. The fact that the two eye witnesses were close relatives of the deceased is all the more no ground for believing their statements. It is not expected of Smt. Phula Rani who is none else but the widow of the deceased and of Chandrabhan who was the Bhanja of the deceased that they would leave the real accused and implicate the innocent persons.
17. Now on to the question of offence each of the accused has committed.
RAM RATAN AND SHYAM SUNDER Ram Ratan and Shyam Sunder carried lathi and spear respectively. Only Lalkara has been attributed to them. They did not take part in the occurrence except Lalkara. They did not weild their weapon and had not caused any injury either to the deceased or to either of the two witnesses. It was Lal Diwan and Arjun who had taken to their heads to commit murder of Achche Lal and had therefore, opened fire thereby hitting the deceased. There is nothing on record to show that they had shared common intention with their co-accused Lal Diwan and Arjun to commit murder of Achche Lal or to attempt to commit murder of Chandrabhan. Hence they are acquitted of the offence with which they are charged.
ARJUN AND LAL DIWAN Arjun and Lal Diwan had aimed their firearms towards the deceased and had fired shots. The pellets/ bellets ejected from the muzzle of their respective fire arms travelled on the thought of murder and had hit the target, namely, Achche Lal who died on the spot and, therefore, each one of them was guilty of offence punishable under Section 302,.I.P.C.
18. Learned counsel for the appellants has drawn our attention towards the copy of birth register Ext. Kha-6 and Kutumbh Register Ext. Kha-7 and has argued that the date of birth of Arjun being 15-8-1963, he was 15 years of age on 21-7-1978, the date of occurrence and, therefore, he was a child as defined under Section 2(4) of the U.P. Children Act, 1951 (hereinafter referred to as the Act). Pressing into service the provisions of Section 27 of the Act he has argued that even if his convictions is upheld, he could not be awarded sentence of death or transportation or imprisonment for any term. In support of his argument he has cited at the Bar the following judgments:
(i) Bhoopram v. State of U.P., AIR 1989 SC 1329.
(ii) Gopinath Ghosh v. State of West Bengal, AIR 1984 SC 237 : 1984 Cri LJ 168.
(iii) Jayendra v. State of U.P., AIR 1982 SC 685 : 1982 Cri LJ 1000.
19. We have carefully examined the provisions of Section 27 of the Act, including its proviso, and the above said judgments. We can possibly have no quarrel with the proposition of law laid down in the above said judgments. Section 27 of the Act provides as under:
"27. Sentences that may not be passed on child:
Notwithstanding anything to the contrary contained in any law, no Court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine:
Provided that a child who is twelve years of age or upwards may be committed to prison when the Court certifies that he is of so unruly, or of so depraved a character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable."
20. An analytical examination of Section 27 of the Act shows that this section abolishes the punishment of death or transportation so far as a child is concerned. He is instead, to be sent to an approved school, except in cases where he is 12 years of age or upwards and the Court certifies that he is of so unruly or of so depraved a character that he is fit to be sent to an approved school, he may be sent to prison.
21. Section 29 provides, in so far as it is material herein that if a child is found to have committed an offence punishable with transportation or imprisonment, the Court may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years, A combined reading of Sections 27 and 29 of the Act would certainly mean that when a child is found to have committed an offence punishable with imprisonment, and the Court certifies that such child was 12 years of age or upward and that he was of so unruly or of so depraved a character that he was not fit to be sent to an approved school, and that none of other methods in which the accused may legally be dealt with is suitable, he may be committed to prison instead of being sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years. In the normal course we would have directed that the appellant Arjun to be sent to jail, but in view of the above legal position coupled with the fact that now he is nearly 31 1/2 years of age, we cannot do so.
22. For these reasons though the conviction of the appellant Arjun is being upheld, we quash the sentence imposed upon him and direct that he be set at liberty forthwith. In so far as the other appellant, Lal Diwan, is concerned, his appeal is dismissed.
23. In the result, Criminal Appeal No. 1606 of 1980 (Lal Diwan v. State of U.P. is partly allowed, i.e. Ram Ratan and Shyam Sunder, appellants are acquitted, but the conviction and sentence of Lal Diwan, appellant is upheld. He is on bail. His bail bonds are cancelled. He be taken into custody forthwith and committed to prison to serve the sentence.
24. Criminal Appeal No. 1732 of 1980 is also partly allowed, inasmuch as the conviction of Arjun is upheld, but the sentence imposed upon him is quashed.