JUDGMENT M.C. Jain, J.
1. The accused Rameshwar has preferred this appeal from jail against his conviction and sentence ordered by III Additional Sessions Judge, Court No. 3, Shahjahanpur on 22.10.2002 in Sessions Trial No. l 15 of 2001. He has been convicted under Section 302 I.P.C. and sentenced to life imprisonment together with imposition of fine of Rs. 10,000/-. In default of payment of fine, two years' further rigorous imprisonment has been ordered.
2. Sri Gaurav Kackkar was appointed as amicus curiae to argue out the appeal on behalf of the accused appellant who had no pairokar. We have heard him as also Miss Usha Kiran, AGA from the side of the State.
3. We start with giving of the resume of the essential facts. The incident occurred on 7.8.2000 at about 10.30 P.M. in town Kalan in front of the English wine shop within P.S. Kalan, District Shahjahanpur and the F.I.R. was lodged by an eyewitness Kunwar Pal PW 1, husband of the sister of the deceased. About five days before the incident, he had come to his Sasural in village Kalan as a guest. In the eventful night at about 10.30 P.M., he and his Sala Mohan (deceased) were sitting on a cot in front of the shop of the deceased Mohan. The accused Rameshwar came there on the road in front of the shop and started hurling abuses on Mohan. The background was that there had been some altercation between him and the deceased Mohan in the day, but some persons had intervened. When Rameshwar accused started hurling abuses on Mohan, the latter objected to it. Rameshwar then stabbed him in the abdomen and ran away towards eastern side. At that time, there was a lighted petromex at the shop of Mohan as also on the nearby hotel of Ram Kishore PW 2. Ram Kishore PW 2, Moolchand PW 3 and several others saw the incident. The victim died instantaneously. On the lodging of the F.I.R., a case was registered and investigation was taken up by SI Rajeev Kumar Pathak PW 6 who was then the S.O. of the Police Station concerned. He recorded the statement of the informant at the Police Station itself and then reached the spot busying himself with the activities related to the investigation, i.e. preparation of the inquest report of the dead body of the deceased, site plan etc. The dead body of the deceased after being sealed was sent for post mortem which was conducted on 8.8.2000 at 4.40 P.M. by Dr. Y.K. Singh PW 5. The deceased was aged about 20 years and about one day had passed since he died. The following ante mortem injury was found on his person:
(1) A stab wound 1.0 cm x 0.5 cm x abdominal cavity deep on the left side of abdomen and lateral to umbilicus at 2 O' clock position. Margins clean cut.
4. The death had occurred due to shock and haemorrhage as a result of firearm injury sustained by the deceased.
5. The accused was arrested by the Investigating Officer on 9.8.2000 along with the knife (weapon of offence) in the presence of Manoj PW 4 at about 12 O' clock in the noon near a culvert. After the conclusion of investigation, he was booked for trial and tried.
6. The defence was of denial. The accused appellant stated under Section 313 Cr.P.C. that he had been implicated falsely owing to enmity. He had gone to the fair price shop of Ram Kishore to purchase two litres of kerosene. He was offering control price but Ram Kishore was asking for Rs. 25/- per litre. There was a jerican of 20 litres of a policeman which was being filled up. He objected to it as to why so much kerosene was being provided to him, but it was said that kerosene was going for Daroga. Some exchange of hot words took place. He was then produced before Daroga and was asked to apologise. He did not abide by his command which enraged the Daroga and he got him falsely implicated in this case in collusion with the witnesses.
7. At the trial, the prosecution in all examined six witnesses out of whom Kunwar Pal PW 1 (informant), Ram Kishore PW 2 and Mool Chand PW 3 were examined as eyewitnesses. Manoj PW 4 was the witness of the arrest of the accused by the Investigating Officer with knife on 9.8.2000. Dr. Y.K. Singh PW 5 had conducted autopsy on the dead body of the deceased, whereas SI Rajeev Kumar Pathak PW 6 was the Investigating Officer.
8. Kunwar Pal PW 1 informant narrated the prosecution case from beginning to end as detailed above. A suggestion was given to him in his cross-examination that he had an evil eye on the property of his Sasural and he himself murdered his Sala Mohan. He refuted this suggestion. It also came down from his cross-examination that after the stabbing of Mohan by the accused, he and Ram Kishore had laid Mohan on a cot and had taken him to a nearby doctor Virendra who declared him to be dead. Then they brought back the dead body on the cot to the shop and laid there-scene of the incident. The doctor's shop was at a little distance of about 20 paces from the spot.
9. Ram Kishore PW 2 corroborated the testimony of Kunwar Pal PW 1 in material particulars, saying that at the time of the incident he was present at his shop (hotel). There was a lighted petromex. He saw the trading of abuses between the accused and deceased. He even intervened to inquire the cause for the same, but Rameshwar accused stabbed Mohan and ran away. Mohan died. His statement reconciled with that of Kunwar Pal PW 1 that both of them had taken the victim to Dr. Virendra on a cot but he had died at the spot itself.
10. Mool Chand PW 3 happened to witness the incident as at the relevant time when he was sitting at the hotel of Ram Kishore PW 2. He, too, stated that a lighted petromex was there at the shop of Ram Kishore at that time and one lighted petromex was at the shop of Mohan (victim) also.
11. The first argument of the learned amicus curiae is that the accused had no motive to commit this crime. Motive, as is well known, is not evidence in a case. Further, it pales into insignificance in a case of direct evidence like the present one. The statement of Kunwar Pal PW 1 is there that there had been some altercation between the deceased and the accused in the day. Different persons react in different manner in a given situation depending upon their background, education, temperament etc. Therefore, the altercation which took place between the deceased and the accused in daytime could be the cause of the accused having committed this crime. He cannot gain any point by arguing that there was no motive on his part to commit this crime. This, as we said, is a case of direct evidence in which three witnesses have came to support the prosecution case that it was the accused appellant who stabbed Mohan deceased on the given date, time and place. As is obvious, it is a case of single accused and single stab wound caused by him to the deceased.
12. The second argument of the learned amicus curiae is that the F.I.R. was delayed. He pointed out that as per the prosecution, the incident took place at about 10.30 P.M. whereas the F.I.R. was lodged after midnight at 0030 hours by Kunwar Pal PW 1, though the distance of the Police Station was only 1 1/2 furlongs. However, on scrutiny, we find that the F.I.R. could not be termed to be delayed. The eyewitnesses deposed that after the incident, the victim was taken on a cot to Dr. Virendra who examined him and declared him to be dead. So, nothing was possible to be done to put him back to life. On the victim being declared dead, he was again brought back on cot to the spot where the incident had taken place. Kunwar Pal, a completely illiterate person, then got the report scribed by Ram Kishore PW 2 and then took it to the Police Station where he lodged it. Naturally, it took some time before the F.I.R. could be lodged.
13. In the right perspective, there was no delay in lodging of the F.I.R. Rather, it was lodged within reasonable time after the incident having taken place.
14. The third argument of the learned amicus curiae was that the three eyewitnesses were not uniform as to when the incident occurred. He pointed out that in the F.I.R. lodged by Kunwar Pal PW 1 after getting it scribed by Ram Kishore PW 2, the time of incident was described as 10.30 P.M. on 7.8.2000. In his statement before the court, Kunwar Pal PW 1 stated that the incident took place at 10 P.M. The statement of Ram Kishore PW 2 was that the incident took place at about 9 or 10 PM though the time of incident spoken by Mool Chand PW 3 was 10.30 P.M. We do not think that there is any noticeable difference about the time of the incident in the testimony delivered by the three eyewitnesses. It has to be taken note of that Kunwar Pal PW 1 was completely illiterate who even put his thumb mark on the F.I.R. and his statement made before the court. Ram Kishore PW 2 was also not a highly educated person. He could only write a little and make his signatures. The eyewitnesses examined in the case belonged to the lower strata of the society. Time was not the essence of their life. They were small timers. The time of the incident spoken as about 9 or 10 or 10.30 P.M. by the witnesses of such background cannot be interpreted to mean that there was any meaningful difference in their testimony in this regard.
15. The fourth argument is that the witnesses were not uniform about the source of light at the spot. We have carefully scrutinised the testimony of the eyewitnesses in this behalf and find that the said argument is based on superfluous approach. As per the consistent testimony of the eyewitnesses, the incident took place in front of the hotel of Ram Kishore. The site plan shows that in the north of the spot was the English wine shop. The own shop of the deceased was in the south depicted by letter 'B'. As per Kunwar Pal PW 1, there was lighted petromex at the hotel of Ram Kishore. To the same effect was the statement of Ram Kishore PW 2 who was present at his shop (hotel) wherefrom he saw the incident. What Mool Chand PW 3 stated was that he was present at the hotel of Ram Kishore wherefrom he saw the incident. There was a lighted petromex at the hotel and a lighted petromex was there at the shop of Mohan victim also. The F.I.R. also says about the lighted petromex at the shop of the victim. So, what comes out is that lighted petromex was there at the hotel of Ram Kishore as also at the shop of the victim himself. It was natural also because the hotel could not be run without artificial light in the night. When the victim and Kunwar Pal PW 1 were sitting in front of their shops on a cot before the start of the incident, artificial light of petromex would have been there at the shop of victim Mohan also. There was obviously sufficient light at the spot to facilitate witnessing of the incident by the three eyewitnesses. There is no contradiction whatsoever in their testimony in this behalf.
16. The fifth argument of the learned amicus curiae is that as per the post mortem report and testimony of Dr. Y.K. Singh PW 5, the deceased sustained a single stab wound. This is what has been stated by Kunwar Pal PW 1 and Mool Chand PW 3. However, Ram Kishore PW 2 stated that the accused had given two knife blows to the deceased. According to him, it was a serious contradiction. It is not possible to accept this argument advanced from the side of the accused. As held by the Supreme Court in the case of State of Haryana v. Tek Singh and Ors. , there may be some exaggerations as also contradictions in the testimony of eyewitnesses but only on that ground the testimony of witnesses cannot be rejected. When the assault is over in very short time, it would be difficult for any witness to state exactly as to how many blows were inflicted on the victim. It may be futile to expect the exact description of the details of the attack on the victim by the witnesses who witnessed the incident. In the case at hand, the crux of the matter is that the accused appellant gave stab wound to the deceased in his abdomen. It is fully established as per the ocular testimony and the medical evidence. True, Ram Kishore PW 2 happened to say that the accused had given two knife blows. But he could be under the impression that two blows had been given by the accused in quick succession to the deceased. It does not render his evidence to be unbelievable.
17. Sixth argument of the learned amicus curiae is that Kunwar Pal PW 1 stated that the handle of the knife wielded by the accused was of brass whereas the knife (weapon of offence) recovered from the possession of the accused on 9.8.1982 had a wooden handle as admitted by SI Rajeev Kumar Pathak PW 6, Investigating Officer in his cross-examination. The handle was in the grip of the accused when he wielded it causing stab wound to the deceased. Therefore, the statement of Kunwar Pal PW 1 that the handle was of brass could be only his imagination. He seemingly so stated at random as if he was duty-bound to say something when asked about the handle of the knife. We reject this argument as well.
18. The learned amicus curiae seventhly argued that the Investigating Officer did not find any blood at the spot and it renders the place of occurrence to be doubtful. The argument is based on half reading of the statement of the Investigating Officer SI Rajeev Kumar Pathak PW 6, who categorically stated that after the incident it had rained. Therefore, he could not collect the blood stained earth from the spot. This argument is, therefore, lost.
19. It has eighthly been argued that as per the testimony of eyewitnesses, the deceased had been put on a cot and taken to one Dr. Virendra who declared him to be dead. Kunwar Pal PW 1 also categorically stated that blood had fallen on the cot. But the Investigating Officer did not take in possession any bloodstains on the cot or on its strings. True, it would have been better if he had done so, but his omission to do that either owing to his negligence or inexperience could not cause any ripple in the prosecution case, which is fully established by the testimony of three eyewitnesses falling in line of medical evidence. It has been so repeatedly held by the Apex Court. We may cite with profit the case of Leela Ram v. State of Haryana and Dhanaj Singh @ Shera and Ors. v. State of Punjab .
20. The amicus curiae lastly argued in the alternative, that it was not a premeditated murder and it was on sudden quarrel between the accused and the deceased while trading abuses that the accused caused a single stab wound which resulted in his death. It was not preplanned. He did not intend to cause his death and the offence could not go beyond culpable homicide not amounting to murder under Section 304 Part II I.P.C.
21. On consideration, we do not find any substance in this argument. It was a cold blooded murder. The accused reached the spot and started hurling abuses on the deceased to which he objected as any self regarding man would do. Moreover, the accused had come armed with a knife. The background was of some exchange of hot words between him and the deceased in the day as stated by Kunwar Pal PW 1, The deceased himself did not cause any provocation to the accused. It was a self sought provocation which the accused now wants to employ as an excuse for the serious crime committed by him. The single blow of knife was inflicted with full force on vital part (abdomen) which instantaneously took the life of the victim, though he was a young man aged about 20 years. It would be preposterous to accept that it was something less than murder. We, therefore, reject this argument too.
22. We should say while concluding that actually the accused was roaming in the dark and had no defence to put forth. In cross-examination, this suggestion was made to Kunwar Pal PW 1 that he had a covetous eye on the property of his Sasural and he himself committed the murder of his Sala. He came with a cock and bull story in his statement under Section 313 Cr.P.C. that he had been implicated falsely owing to enmity. He had gone to the fair price shop of Ram Kishore to purchase two litres of kerosene. He was offering control price but Ram Kishore was asking Rs. 25/- per litre. There was a jerican of 20 litres of a policeman which was being filled. He objected to it as to why so much kerosene was being provided to him. It was said that kerosene was going for Daroga. Some exchange of hot words took place. He was then produced before Daroga and was asked to apologise. He did not abide by his command which enraged the Daroga and he got him falsely implicated in this case in collusion with the witnesses. There could hardly be any question of taking of any kerosene from fair price shop at about 10 P.M. Further, Ram Kishore PW 2 clearly stated that in the days of the incident, he was running a hotel and had no ration shop. It was next to impossible that the accused appellant would have been falsely implicated in this case simply because he did not obey the command of the Daroga and refused to apologise. There was no enmity between him on the one hand and the eyewitnesses on the other. The possibility of his false implication was completely ruled out.
23. On threadbare analysis of the arguments of the learned amicus curiae in the light of the evidence on record and concomitant circumstances, we endorse the finding of conviction recorded by the trial court. The accused appellant did commit the offence of murder punishable under Section 302 I.P.C. by intentionally causing the death of unfortunate and unarmed Mohan by stabbing him in his abdomen.
24. Accordingly, we dismiss this appeal and affirm the conviction of the accused appellant Rameshwar under Section 302 I.P.C. with sentence of life imprisonment and fine of Rs. 10,000/- as imposed by the trial court, in default of which two years' further rigorous imprisonment has been awarded. He is in jail. The Chief Judicial Magistrate Shahjahanpur shall confirm it. The accused appellant shall serve the punishment as awarded.
25. Sri Gaurav Kackar who argued the case as amicus curiae for the accused appellant shall get Rs. 1000/- as his fee.
26. Certify the judgment to the lower court. Compliance be reported within two months.