JUDGMENT M.C. Jain, J.
1. The sole accused appellant Siddha has preferred this appeal against the judgment and order dated 19.7.1984 passed by V Additional Sessions Judge, Hamirpur in Sessions Trial No. 343 of 1980 whereby he has been convicted under Section 302 I.P.C. and sentenced to life imprisonment.
2. The appeal was earlier decided by this Court on 29.8.2003 on merits and was dismissed. At that time, none had appeared on behalf of the accused appellant though he was represented on record by Sri Sanjiv Ratan and Sri Amar Saran, Advocates. This Court heard the learned A.G.A. for the State while dealing with the relevant aspects. As we said, the appeal was decided on merits and dismissed. The appellant filed S.L.P. before the Supreme Court. By order dated 27.2.2004, the Supreme Court has set aside the judgment of this Court and has remitted the appeal for fresh decision in accordance with law after affording opportunity of hearing to the counsel for the appellant. It is in this way that the appeal has come up for hearing again before us.
3. We have heard Sri G.S. Chaturvedi, learned Senior Advocate for the accused appellant and Miss N.A. Moonis, learned A.G.A. for the State.
4. We first give resume of the factual matrix of the case. The incident occurred on 9.9.1980 at about 4.30 P.M. in village Rath, P.S. Rath, District Hamirpur and the F.I.R. was lodged the same day at 5.15 P.M. by an eyewitness Shiv Vishal Dwivedi PW 1 (whose maternal grandfather the deceased Shambhu Nath Shukla was). He alongwith his maternal grandfather Shambhu Nath Shukla was returning from the market. In the way at about 4.30 P.M. he had a little talk with Madho Prasad and Veer Pratap PW 2 at the betel shop near Dharamshala and then proceeded towards the house. He had stepped few paces ahead of the deceased. He heard a sound of a shot and when he immediately turned back, he saw the accused running away holding countrymade pistol towards the petrol pump and Shambhu Nath Shukla falling by his face down on the road side. Fresh blood was oozing out from the injury on his back. He immediately, with the help of Madho Prasad and Veer Pratap PW 2, took the injured Shambhu Nath Shukla on a push cart to the hospital but he died by the time they reached the gate of hospital. Then he, with Madho Prasad and Veer Pratap, carrying Shambhu Nath Shukla on the push cart went to the police station and handed over written report of the incident which he had scribed at the gate of the hospital. A case was registered and investigation entered into by S.I. Kripal Kureel PW 4. He drew the inquest proceedings of the dead body of the deceased in front of the police station itself. The dead body after being sealed was handed over with necessary papers to the constables for post mortem. He then reached the spot and inspected the place of occurrence, preparing the site plan. The blood stained and simple earth were also collected by him. The statements of the witnesses were recorded.
5. The post mortem was conducted on 10.9.1980 at 12.30 P.M. by Dr. A.K. Srivastava PW 5. The deceased was aged about 65 years and about 18 hours had passed since he died. A gunshot wound of entry 2 cm x 2 cm on right side of back, 4 cm below superior angle of right scapula was found on his person. Five pellets were recovered from right side chest around right nipple in an area of 9 cm x 5 cm communicating to injury No. 1. There was ante mortem abrasion on outer angle of left eye and three ante mortem abrasions on left side of forehead in an area of 9 cm x 3 cm. The death had occurred due to shock and haemorrhage as a result of ante mortem firearm injury.
6. At the trial, the prosecution examined five witnesses-Shiv Vishal Dwivedi PW 1, Veer Pratap PW 2, HC Shyam Lal Dixit PW 3, S.I. Kripal Kureel PW 4 and Dr A.K. Srivastava PW 5. The first two were the eyewitnesses.
7. The defence was of denial. The accused appellant pleaded that he had been falsely implicated on account of enmity.
8. Believing the prosecution case, the trial judge passed the impugned judgment.
9. Shiv Vishal Dwivedi PW 1 and Veer Pratap PW 2 both fully supported the prosecution case as detailed above and their testimony was also in conformity with the medical evidence. It has first been argued by learned Counsel for the accused appellant that there was no compulsion for Shiv Vishal Dwivedi PW 1 to accompany the deceased. He wanted his testimony to be disbelieved on this premise, urging that he had not at all accompanied the deceased at the time of incident and came to give evidence in favour of the prosecution simply because of his near relationship with the deceased who was his maternal grandfather. While scrutinizing his testimony, we find that there was nothing unusual that he was accompanying the deceased at the time of the incident, returning from Rath market to the house. The deceased, as per the post mortem report, was an old man aged about 65 years. Shiv Vishal Dwivedi PW 1 was his daughter's son, a young man aged about 25 years. Needless to say, one does not take company of the other simply out of compulsion. One may be with the other at a particular moment only for the sake of company. It is more so when the two are close relatives as in the present case, Shiv Vishal Dwivedi PW 1 satisfactorily explained that on the fateful day, the deceased had to come to Rath market for purchasing certain clothes for the children and he had accompanied him from the house itself. He also explained that the clothes for pant and shirt had been purchased by the deceased from the market. The deceased had asked him to accompany him to the market to help him in making choice of the clothes to be purchased. The clothes had been purchased for Jogendra-son's son of the deceased aged about 10 years. 80 cm cloth had been purchased for pant and 1 1/2 Mtr. for shirt. The deceased had not purchased anything for himself. They had started from the house at about 3 O' clock in the afternoon. For about 45 minutes, the deceased had stayed for some work in Tehsil. Thereafter both of them had reached the market Rath wherefrom the cloth had been purchased from a hawker. We do not think that there was anything unusual or unnatural in Shiv Vishal Dwivedi PW 1 being in the company of the deceased when the incident occurred in the way near Dharmshala while both of them were returning from the market after the purchase of the cloth.
10. It has next been urged for the appellant that there was long string of enmity between the two sides and possibility of false implication of the deceased was very much there. True, it has come to be revealed from the testimony of Shiv Vishal Dwivedi PW 1 that there was bitter enmity between the accused and deceased for the last long time. It was mentioned in the F.I.R. also that the enmity was there between the deceased and Dhaniram (father of the accused appellant for the last 30-40 years), but it has to be kept in mind that the enmity is a double edged weapon which cuts both ways. It has to be seen as to he could have the motive to commit a particular crime. The testimony of Shiv Vishal Dwivedi PW 1 shows that earlier to the present incident, Sri Prakash son of the deceased Shambhu Nath had been murdered. For that crime, Dhani Ram's nephew Chhakku and Bhaiya Deen were accused who had been convicted. The conviction was upheld even by the Supreme Court. In that case, Shambhu Nath used to do pairvy from the side of the prosecution. Then the appellant's brother Chenu alias Charan Das was murdered in which Shambhu Nath's son Kailash was accused. That case was fought in Chhatarpur (M.P.) and Kailash was acquitted. In that case also Shambhu Nath was doing pairvy on behalf of his son Kailash. So, on analysis of the above facts it surfaces that the grievance could be on the part of the accused appellant and his family to take revenge by murdering Shambhu Nath. Therefore, the appellant cannot advance this bogey to get away from the consequences of the crime committed by him that he had been falsely implicated because of long enmity between the two sides. It is a case of : direct evidence against the single accused appellant who committed this murder in broad day light, regarding which there was prompt F.I.R. with ocular testimony of two eyewitnesses cemented by medical evidence.
11. The third argument of learned Counsel for the accused appellant is that there was no trace of cloth allegedly purchased by the deceased near the spot and it made a dent in the prosecution story. The argument does not carry conviction. The victim was badly injured on receiving shot fired by the appellant. He had fallen on the road side on receiving the injury. He was put by Shiv Vishal Dwivedi PW 1 with the help of Veer Pratap PW 2 and Madho Prasad on the push cart and taken to the hospital, but on reaching the gate of the hospital he succumbed to the fatal injury sustained by him. The utmost anxiety of Shiv Vishal Dwivedi PW 1 was natural to have concentrated all his attention to carry the victim to the hospital to save his life, if possible. It could not be expected from him to have first cared for the clothes which the accused had purchased from the market they would have fallen on the road side. The ocular testimony could not be doubted because of clothes having not been found by the Investigating Officer at the spot when he visited it consequent upon the lodging of the F.I.R. and after preparing the inquest report of the dead body of the deceased at the gate of the police station itself. The dead body was taken at the police station on push cart after the death of the victim at the gate of the hospital which was situated between the police station and the spot. The F.I.R. was lodged on 9.9.1980 at 5.15 P.M. regarding the incident which took place at 4.30 P.M. The inquest proceedings were started by the Investigating Officer at the gate of the police station at 6 P.M. and concluded at 8 P.M. Naturally, he visited the spot thereafter and in the meantime, the clothes could have been taken away from the spot by some wayfarer.
12. Another point of criticism taken by the counsel for the appellant against Shiv Vishal Dwivedi PW 1 is that as per his testimony, from the house he and the deceased first came to the Tehsil where the latter stayed for about 45 minutes and then they went to Rath market to purchase the clothes. But as per his testimony he did not go with the deceased inside Tehsil and kept outside. The learned Counsel argued that it was unnatural. We reject this argument. Shiv Vishal Dwivedi PW 1 was not supposed to be glued to the deceased like an inseparable part. The business inside the Tehsil was to be conducted by the deceased himself. Therefore, he kept outside Tehsil and waited for the return of his maternal grandfather so as to accompany him to the market to help him in the choice of the clothes to be purchased by him for his son's son Jogendra.
13. Yet another submission of learned Counsel for the accused appellant is that the conduct of Shiv Vishal Dwivedi PW 1 was unnatural that after the incident he did not immediately go to his house to inform other family members about the incident. He invited our attention to his statement in para-10 that the distance of the house of the deceased was only 150 paces from the spot. The argument is wholly artificial. The deceased had suffered a fatal shot injury as a result of firing made by the accused appellant. He had not instantaneously died. Anxiety of Shiv Vishal Dwivedi PW 1 was most reasonable and proper that he first took the victim on the push cart to the hospital to save his life, if possible. Since he succumbed to his injury at the gate of the hospital, it was also very natural and reasonable on his part that he scribed the F.I.R. of the incident there and took the same to the police station alongwith the deceased on the push cart. There was nothing unusual or unnatural in the behaviour of Shiv Vishal Dwivedi PW 1.
14. Learned Counsel for the accused appellant then urged for discarding the testimony of Veer Pratap PW 2 on the premise that it came to be admitted by him in paragraph-4 that he was co-accused with Kailash- son of the deceased in a few cases. It could only show that he was thick with the son of the deceased. But there was nothing to indicate that he had any enmity with the accused appellant which could tempt or actuate him to depose falsely against him. He gave plausible explanation for the presence at the spot that on that day he had come to Rath because he had some business to conduct in Tehsil Rath. He had taken Intekhab from the Tehsil on that date at about 2 1/2 - 3 P.M. Then he came to the side of the market and remained there till about 4 P.M. At the time of the incident, he was taking betel at a shop by the side of Dharmshala. He and Madho Prasad had even exchanged pleasentries with the deceased. He clearly stated to have seen the accused opening shot on the deceased and then running towards the side of petrol pump. He did not attempt to apprehend him as he had countrymade pistol in his hand. He was named in promptly lodged F.I.R. After the incident, he had helped Shiv Vishal Dwivedi PW 1 in placing the victim on a push cart and had accompanied him to the hospital. He corroborated the statement of Shiv Vishal Dwivedi PW 1 that the victim succumbed to his injury at the gate of the hospital and then Shiv Vishal Dwivedi PW 1 took a piece of paper, wrote F.I.R. and took the same with the deceased on push cart to the police station. We note that he, too, had gone to the police station as his name is found recorded in the G.D. of the registering of the case. Therefore, he could not be branded as a got up witness.
15. On careful consideration of all the arguments of the learned Counsel for the accused appellant, we do not locate any merit in any of them. The two eyewitnesses, namely, Shiv Vishal Dwivedi PW 1 and Veer Pratap PW 2 were wholly reliable and their testimony was beyond reproach. The trial court rightly believed them that they saw the deceased being shot by the present accused appellant. Their testimony, it may be stated at the risk of repetition, reconciles with the medical evidence. The guilt of the single accused appellant of committing murder of Shambhu Nath in broad day light was proved to the hilt beyond any shadow of doubt.
16. The appeal has no merit. We hereby dismiss it. The accused appellant Siddha is on bail. The Chief Judicial Magistrate, Hamirpur shall cause him to be arrested and lodged him in jail to serve out the sentence of life imprisonment passed against him.
17. Certify the judgment to the lower court to report compliance within two months from the date of receipt of certified copy of this order.