JUDGMENT M.C. Jain, J.
1. Four appellants in this appeal are (1) Pahalwan Singh (2) Shiv Pal Singh (3) Cyan Singh and (4) Mahendra Singh alias Middi Singh. who have preferred this appeal against the judgment and order dated 31-1-1981 passed by Sri L.S.P. Singh, I Additional Judge, Kanpur in Sessions Trial No. 264 of 1979. All of them have been convicted under Section 302, I.P.C. read with Section 34, I.P.C. and sentenced to life imprisonment.
2. A brief resume of the facts is necessary. The appellants Shiv Pal Singh and Gyan Singh are real brothers and they are first cousins of the appellant Pahalwan Singh. The fourth appellant Mahendra Singh alias Middi Singh was an eyewitness in the case of the murder of Ram Prasad, father of the appellant Pahalwan Singh. The deceased of the present incident was Jai Ram whose son PW 2 Ram Autar -- informant is. For the murder of Ram Prasad (father of the appellant Pahalawan Singh); the deceased Jai Ram, his son informant -- PW 2 Ram Autar, nephew Shambhu and two others, namely, Babu Lal and Balwan Singh were prosecuted. All of them were convicted and sentenced. They had preferred an appeal before the High Court and had been enlarged on bail. At the time of the present occurrence, the deceased Jai Ram and PW 2 Ram Autar were enjoying their liberty, being on bail.
3. The present incident took place in the midnight of 6/7th August, 1979 in village Bamhrauli Ghat, PS. Moosanagar, district Kanpur. The deceased as well as the appellant resided in the said village. The report of the incident was lodged by PW 2 Ram Autar at 4 a.m. In the fateful night, the deceased Jai Ram was sleeping on a cot in front of his house. His two nephews-Jaswant Singh and Jantar Singh were sleeping on another cot nearby. Babuji, brother of the deceased Jai Ram was sleeping in front of his house at a little distance from the cot of deceased Jai Ram. PW 2 Ram Autar, informant, son of the deceased was sleeping inside the house, but the cot on which the deceased Jai Ram was sleeping was visible from inside the house as there was no intervening door to block the view. At about midnight, Pahalwan Singh and Gyan Singh armed with Bankas and accused Mahendra Singh alias Middi Singh and Shiv Pal Singh armed with Pharsas appeared there and surrounded the cot of the deceased Jai Ram. Pahalwan Singh and Gyan Singh started assailing Jai Ram with their Bankas while the remaining two Shiv Pal Singh and Mahendra Singh alias Middi Singh kept standing with Pharsas nearby. The cries of Jai Ram awaken Jaswant Singh, Jantar Singh, Babuji, Ram Autar and others. Ram Autar rushed out to save his father, but Pahelwan Singh pointed his Banka towards him and threatened to kill him if he dared to proceed further. He also stated aloud that he had taken the revenge of the murder of his father and if he wanted, he, too, could settle his scores. After murdering Jai Ram, the appellants took to their heels.
4. On the lodging of the F.I.R. by PW 2 Ram Autar, the police swung into action and the investigation followed as usual. The post mortem over the dead body of the deceased was conducted by PW 5 Dr. S.C. Sharma on 8-8-1979 at 1.15 p.m. The outcome of the post mortem may be related here for the sake of facility to arrive at the right conclusion. The deceased was aged about 63 years and was of average built. About 1 1/2 days had passed since he died. The following ante mortem injuries were found on his person :
1. Incised wound 17 cm x 5 cm x bone deep in the upper part of left side Of obliquely placed, 6.5 cm above the left nipple. Trailing from middle. On opening the wound, left side of collar bone was found cut in the middle and 1st, 2nd 3rd ribs also found cut. Pleura was also found cut in the upper part and left lung. Upper lobe found cut in 3 cm x 2 cm x 1.5 cm in area.
2. Incised wound 12 cm 2 cm x bone deep on right side of back of the neck, 3rd vertebra was found cut through and through. Margins clean cut.
3. Incised wound 14 cm x 3 cm x bone deep in the right side of back of shoulder 13 cm below top of right shoulder obliquely placed. On dissection right scapula was found cut.
4. Lacerated wound 3 cm x 2 cm x scalp deep in the back region of scalp.
5. Contusion and swelling 12 cm x 5 cm in the left parietal occipital bone.
6. Incised wound 11.5 cm x 2.5 cm in the left parietal occipital bone 6 cm below right angle of mandible. On dissection trachea & vertebra found cut.
5. The police booked the four appellants for trial who ultimately came to be convicted and sentenced as stated in the earlier part of the judgment.
6. The defence was of denial and of false implication due to enmity.
7. Apart from the Doctor conducting the post mortem over the dead body of the deceased and formal witnesses, the material witnesses examined were PW 1 Jaswant Singh, PW 2 Ram Autar (both eyewitnesses) and PW 4 Prithvi Singh. The first two were eyewitnesses and the third one claimed to have seen the accused appellants with blood stained weapons, ascribed to them, running from the spot immediately after the incident.
8. We have heard Sri M.C. Chaturvedi, learned Amicus Curiae for the appellants No. 1 to 3 (Pahalwan Singh, Shiv Pal Singh and Gyan Singh) and Sri Prasant Kumar Singh, learned counsel for appellant No. 4 Mahendra Singh alias Middi Singh. We have also heard learned A.G.A. from the side of the respondent in opposition of the appeal. The record of the lower court is before us, which we have carefully scrutinised. We propose to deal with the arguments advanced at the Bar in the succeeding discussion so as to decide the fate of this appeal.
9. Referring to Ex. Ka 5, Challan of the dead body, it has been argued for the accused appellants that the time of the F.I.R. has not been noted therein in the relevant column. It has been urged that the time of lodging of the F.I.R. was omitted by the scribe of this document as he was not certain about the time to be scribed therein, meaning thereby that the F.I.R. had not been lodged by the time this document had been prepared. This argument would not detain us for long. The learned trial Judge has rightly observed that inquest report, sketch of dead body and Challan of dead only are prepared at one and same time. True, the time of F.I.R. had not been noted in the Challan of dead body, but we find it properly mentioned in the inquest report Ex. Ka. 3. It leads us to infer that it was simply owing to the carelessness that the time of lodging of the F.I.R. was omitted from being mentioned in the Challan of the dead body by the scribe thereof (Investigating Officer). It cannot be interpreted to be more than a little carelessness on his part which does not go to the root of the matter. It does not affect the merits of the case. We do* not find any force in the argument that the F.I.R. was ante timed on the ground that the time of F.I.R. was not mentioned in the Challan of the dead body.
10. It has nest been argued for the accused appellants that there was no source of light at the spot and as such it was not possible for the eyewitnesses to have recognised the assailants. On subjecting the argument to judicial scrutiny, we find that this argument, too, is built on straw. It is to be noted that the accused appellants and the eyewitnesses PW 1 Jaswant Singh and PW 2 Ram Autar belonged and resided in the same village. The assailants were known to them from before. It is mentioned in the F.I.R. lodged by eye witnesses PW 2 Ram Autar, which is the earliest version of the prosecution, that it was a moonlit night. To the same effect is the testimony of PW 1 Jawant Singh another eyewitness. Both the eyewitnesses had awaken on the cries of the victim. The accused appellant Pahalwan Singh had also stated at that time that he had avenged the murder of his father. PW 2 Ram Autar had rushed forward to the res-Cue of his father, but he was threatened by the accused appellant Pahalwan Singh with the pointing of Banka that he would also be killed in case he proceeded further. Under such scenario, the eye witnesses PW 1 Jaswant Singh and PW 2 Ram Autar could have very well recognised the assailants in ' a moonlit night whom they knew from before and whom they had seen at the time of the incident from close proximity. Resultantly, the second argument complaining the absence of light at the spot is also lost.
11. From the side of the accused appellants, wholesome criticism has been levelled against the witnesses, namely, PW 1 Jaswant Singh, PW 2 Ram Autar and PW 4 Prithvi Singh out of whom the first two are the eyewitnesses of the incident. So far as the third witness PW 4 Prithvi Singh is concerned, he claims to have seen the accused appellants in the fateful night running with blood stained weapons (Pharsas and Bankas). We are in agreement that his testimony has rightly been discarded by the learned trial Judge for myriad reasons. He could not be better than a chance witness belonging to another village which was at a distance of 1 1/2 miles from the village of occurrence. The reason assigned by him for coming to the village of occurrence that he had gone to attend Kirtan at the house of Asharfi Lal could not be accepted. He had not been invited in any such religious function. Admittedly, the shortest route for going to his village from the house of Asharfi Lal was a different one and the Way on which he claimed to be going was not the direct route. According to him, he left the Kirtan in the midway and did not stay till its conclusion. His departure for his village at that odd hour by a longer and indirect route was shrouded in doubt.
12. But the statement of PW 4 Prithvi Singh kept apart, there is no reason whatsoever to discard the testimony of PW 1 Jaswant Singh and PW 2 Ram Autar who withstood the test of searching cross examination firmly. There is nothing to doubt their testimony so far as the actual assailants Pahalwan Singh and Gyan Singh are concerned. The incident took place in night at the house of the deceased and these two were the natural witnesses who could be expected to be present there. One of them PW 2 Ram Autar is the own son of the deceased and PW 1 Jaswant Singh is the nephew of the deceased who was sleeping nearby the cot of the deceased. He is the son of Babuji-brother of the deceased. His own house is just adjacent to that of the deceased with main gate opening towards northern side. There is nothing unusual or unnatural if he and his brother Jantar Singh had slept on nearby cot of their uncle Jai Ram in front of his (Jairam's) house. Both the witnesses have given detailed account of the occurrence that it were Pahalwan Singh and Gyan Singh appellants who had given Banka blows to the deceased. We do not see any basis for the criticism of the testimony of these two eye witnesses insofar as the accused appellants Pahalwan Singh and Gyan Singh are concerned.
13. Yet another argument advanced from the side of accused appellants is that as per the post mortem report, the deceased had sustained two injuries of blunt weapon also i.e. injuries No. 4 and 5 (one lacerated wound in the middle of scalp and contusion and swelling in left pariental occipital bone). It has been reasoned that the prosecution could not explain these injuries of the deceased and as such, the medical evidence is in conflict with the ocular version, regard being had to the fact that the accused appellants Pahalwan Singh and Gyan Singh are alleged to have given Banka blows to the deceased. We are not prepared to attach any importance to this argument. It is to be pointed out that the deceased sustained as many as four Incised wounds capable of being by Banka as per the post mortem report referred to earlier. The things have to be viewed logically. While Banka blows were being struck by accused appellants Pahalwan Singh and Gyan Singh, the same could not be expected to fall on the victim in accurately defined manner. Learned Sessions Judge has rightly observed that it very often so happens that in hurry the weapons gets reversed and sometime the wooden portion of the weapon hits the victim. Therefore, it was not unnatural or unusual that the victim sustained two injuries of blunt object also while being struck blows of Banka by the accused appellants Pahalwan Singh and Gyan Singh. On a proper probe of the matter, we do not find any conflict in ocular testimony and medical evidence. The presence of lacerated wound and contusion with swelling sustained by the deceased, amongst four incised wounds, does not at all displace the prosecution case so far as accused appellants Pahalwan Singh and Gyan Singh are concerned.
14. In view of the above discussion, we do not find any force in this appeal so far as the accused appellants Pahalwan Singh and Gyan Singh are concerned. Pahalwan Singh had a strong motive also to commit this crime to avenge the murder of his father wherefor the deceased had been convicted and had been released on bail on the filing of appeal before this Court. The accused appellant Gyan Singh is his cousin. They therefore, joined hands to do away with Jai Ram who, though convicted by the trial Court for the murder of the father of one of them (Pahalwan Singh), was enjoying his liberty consequent upon the filing of appeal and having been enlarged on bail. Both of them, in our opinion, have rightly been convicted under Section 302 read with Section 34, I.P.C. and sentenced to life imprisonment.
15. However, an element of doubt persists so far as the other two accused appellants Shiv Pal Singh and Mahendra Singh alias Middi Singh are concerned. The testimony of PW 1 Jaswant Singh and PW 2 Ram Autar is that both of them were armed with Pharsas but they did not strike any blow therewith. They allegedly simply kept standing at the spot. It appears to us to be somewhat improbable and unnatural. There could hardly be any point in their remaining present at the spot with Pharsas if they did not intend to do anything. Shiv Pal Singh is the brother of Gyan Singh and Mahendra Singh alias Middi Singh is the person who had appeared as a witness in the case of murder of father of Pahalwan Singh wherefor Jairam deceased had been convicted. The possibility cannot be ruled out that though the murder was committed only by Pahalwan Singh and Gyan Singh, striking Banka blows on the deceased, but Shiv Pal Singh and Mahendra Singh alias Middi Singh had unnecessarily been roped in. We are of the view that these two should be afforded the benefit of doubt.
16. At this stage, a short discussion is necessary to clear the mist as to how testimony of eye witnesses is capable of acceptance as against the accused appellants Pahalwan Singh and Gyan Singh despite its being not worthy of acceptance against the remaining two accused appellants namely Shiv Pal Singh and Mahendra Singh alias Middi Singh. It should be observed that in each case the Court has to sift the evidence to see as to what extent it is worthy of credence. Merely because in one respect the Court considers it insufficient to rely on the. testimony of a witness, it does not necessarily follows as a matter of law that it must be discarded in all respects. The experience shows that there is a tendency on the part of the witnesses to exaggerate the guilt of the opposite party. The broad rule that the witnesses who have been disbelieved in respect of acts assigned to some accused, should not be relied upon for convicting the other accused, cannot be laid down as a sufficient guide for all the cases. The Court has to examine the evidence with care in each case and on full consideration of all relevant material circumstances to come to a decision as to which part of the testimony of the witnesses is to be accepted and which is to be rejected. In the instant case, the fact that the testimony of eyewitnesses is not acceptable as against Shiv Pal Singh and Mahendra Singh alias Middi Singh does not mean that they are lying. In fact, the situation is that having regard to the attending circumstances, their testimony as against them is found to be of doubtful nature and it cannot be accepted as against them. There is a difference between 'doubtful' and 'falsehood'. The eyewitnesses are being disbelieved as against them because their participation in the crime is doubtful. In other words, the witnesses are not disbelieved against them on the ground that their testimony against them is false. The benefit of the fact that testimony of eyewitnesses as against them is found to be doubtful, would go to. them and not to the accused appellants Pahalwan Singh and Gyan Singh against whom the case is convincingly proved by clinching evidence.
17. To come to a close, the appeal succeeds partly. The appeal stands allowed so far as the accused appellants Shiv Pal Singh and Mahendra Singh alias Middi Singh are concerned. They are acquitted. They are on bail. They need not surrender. Their personal and surety bonds are cancelled.
18. We dismiss the appeal in respect of accused appellants Pahelwan Singh and Gyan Singh. Their conviction and sentence of life imprisonment under Section 302 I.P.C. read with Section 34 I.P.C. is affirmed. They are on bail. The Chief Judicial Magistrate, Kanpur Dehat shall cause them to be arrested and sent to jail to serve out the sentence of life imprisonment. He shall submit compliance report within one month.
19. Sri M.C. Chaturvedi who argued the appeal as amicus curiae for accused appellants Pahelwan Singh, Gyan Singh and Shiv Pal Singh, shall get Rs. 1000/- as fee.