JUDGMENT M. Chaudhary, J.
1. This is an appeal filed by the accused appellants from judgment and order dated 4th of January 1982 passed by XI Additional Sessions Judge Kanpur in Sessions Trial No. 293 of 1981 State v. Ram Singh connected with Sessions Trial No. 141 of 1981 State v. Sobaran Singh and Ors. convicting accused appellants Ram Singh, Jagannath Singh and Jai Singh under Section 147 IPC and accused Ram Babu, Sobaran Singh, Shyam Babu Singh and Ram Bilas Singh under Section 148 IPC and convicting all of them under Section 302 read with Section 149 IPC and sentencing accused Ram Singh, Jagannath Singh and Jai Singh to undergo one year's rigorous imprisonment and imprisonment for life respectively thereunder and accused Ram Babu, Sobaran Singh, Shyam Babu Singh and Ram Bilas Singh to undergo two years' rigorous imprisonment and imprisonment for life respectively thereunder. They were acquitted of the charge under Section 323 read with Section 149 IPC
2. Brief facts giving rise to this appeal are that at about 7: 30 a.m. on 28th of December 1980 Sheo Ratan Singh lodged, an FIR at police station Shiv Raj Pur District Kanpur that prior to one year of the incident Hira Singh had filed a complaint against Ram Babu Singh and Shyam Babu Singh under Section 307 IPC in which Dan Singh appeared as a witness against both of them and since then Ram Babu Singh and Shyam Babu Singh started nursing grudge against him. Some 2-3 days prior to the occurrence an altercation took place between Dan Singh on one hand and Ram Babu Singh and Shyam Babu Singh on the other and Ram Babu Singh had threatened Dan Singh that they would avenge themselves very soon On 27th of December 1980 Sheo Ratan Singh alongwith Dan Singh and his wife and one Mahadeo Singh had gone to Shiv Raj Pur. Dan Singh and his wife went to the house of Kirat Singh but Kirat Singh was not at his house as he had gone somewhere. At about 3:30 p.m. that afternoon Sheo Ratan Singh, Mahadeo Singh and wife of Dan Singh returned back in the buffalo- cart of Chhotey Singh, and Dan Singh stayed there telling that he would return afterwards as he wanted to see Kirat Singh in connection with the marriage of his daughter. As Sheo Ratan Singh alongwith Mahadeo Singh and wife of Dan Singh reached near Gauri Abhaipur Dan Singh also reached in the bullock-cart of Surya Bhan Singh and as they reached at the outskirts of village Bhatpura Surya Bhan Singh took his bullock-cart ahead of the buffalo-cart, and at about 6:00 p.m. as they reached near the chchikura tree Sobaran Singh armed with countrymade pistol alongwith Ram Babu Singh, Shyam Babu Singh, Jagannath Singh, Ram Bilas Singh and Jai Singh armed with lathis, axes and pharsa emerged from the mustard field and Ram Babu Singh asked Surya Bhan Singh to stop the bullock-cart then and there and as Surya Bhan Singh tried to run the bullock-cart Sobaran Singh shouted to drag Dan Singh therefrom. In the meanwhile Dan Singh got down and tried to run away for his life that Ram Babu Singh fired at him and Sobaran Singh, Jagannath Singh, Ram Singh and Ram Bilas Singh gave him lathi and pharsa blows and at that time Jai Singh was shouting that they would not let him go alive and immediately Sobaran Singh and Ram Bilas Singh kept lathi at his throat and Jai Singh and Shyam Babu Singh gave axe blows to him and Ram Babu Singh again fired at him with countrymade pistol. Sobaran Singh, Jagannath Singh and Ram Babu Singh also gave blows to Suiya Bhan Singh as he tried to intervene. On hearing the hue and cry some of the co-villagers including Insaf Ali, Kehar Singh and Babonu Singh rushed to the scene of occurrence and then the assailants fled away firing shots in order to scare them away. By that time Dan Singh succumbed to the fetal injuries sustained by him. Sheo Ratan Singh also mentioned in the written report that he and the witnesses recognized the assailants well as it was the time of sunset but there was sufficiently enough light to recognize the assailants, that on account of fear they could not go to the police station to lodge an FIR soon after the occurrence and that they alongwith other co-villagers guarded the dead body for the whole night. The police registered the crime and made entry in the GD regarding registration of the crime accordingly (Exts. ka 10 & 11 ) SI Yogendra Singh to whom investigation of the crime was entrusted recorded statement of Sheo Ratan Singh, the first informant at the police station itself. Then he went to the scene of occurrence and drew inquest proceedings on the dead body of Daa Singh and prepared the inquest report (Ext Ka 14) and other necessary papers (Exts Ka 17 to Ka 19). Then he entrusted the dead body in a sealed cover alongwith necessary papers to constables Lakhan Lai and Maharani Din Mishra for being taken for its postmortem. He recorded statement of Sav i Devi, wife of the deceased and inspected the site and prepared its site plan map (Ext Ka 20). He also collected blood stained and simple earthy and picked up pieces of three teeth, two empty cartridge and pellets lying at the scene of occurrence and prepared their memos (Ext Ka 2 & Ka 4) he also collected shoes of the deceased and broken spectacles and prepared their memos (Exts Ka 3 and Ka 5). He also recorded statements of other witnesses.
3. Autopsy on the dead body of deceased Dan Singh was conducted by Dr V.K.Dadhich, Medical officer TB Clinic Kanpur on 29th of December 1980 at about 3:00 p.m. which revealed belownoted ante mortem injuries on the dead body:
1. Incised wound on left side of head 4 cm x 1 cm x muscle deep on the lateral side 7 cm above left ear.
2. Incised wound on left side of head 7 cm x 1 cm on lateral side muscle deep 4 cm above left ear and 2 cm below injury No. l.
3. Incised wound 5 cm x 2 cm x bone deep extending from mid line to lateral border on right side on right eye brow.
4. Incised wound 5 cm x 2 cm x muscle deep 3 cm above left eyebrow on forehead.
5. Fire arm wound of entry 1 cm x 1 cm x cavity deep on the nose 3 cm below roqt of nose, blackening present around the wound in an area of 14 cm.
6. Incised wound 9 cm x 2 1/2 cm x bone deep left side of lower face extending 2 cm right from mid line to left angular mandible.
7. Incised wound 13 cm x 2 14 cm x bone deep just below the chin on upper part of neck 2 cm away from right lobule of ear to 4 cm away from left lobule with evulsion of trachea.
8. Fire arm wound of entry 1 14 cm x 1 cm muscle deep on left side of neck 8 cm below left lobule of ear. Area of blackening 4 cm on medial side and 1 cm lateral side. Direction of wound laterally and upwards. One pellet found under the injury.
9. Two burns on left clavicle in mid line area 1 cm x 1 cm each and 1 cm apart.
10. Contusion in an area of 15 cm x 6 cm on left upper chest and left shoulder 4 cm above left nipple.
11. Contusion on right upper chest and right shoulder in area of , 10 cm x 3 cm.
12. Abrasion 2 cm x 1 cm on the back of left forearm 3 cm above ulnar process.
13. Incised wound 1 cm x 1/2 cm bone deepen back of right hand just below ring finger fracture of 4th right metacarpal bone.
14. Three abrasions in area of 7 cm x 4 cm measuring 1 cm x 14 cm to 2 cm x 1 cm on lower abdomen left side just above anterior superior iliac spine and 2 cm away from umbilicus.
15. Multiple abrasions in area of 13 cm x 5 cm on lateral aspect of left knee joint.
16. Two abrasions on lower part of left knee in an area of 4 cm x 1 cm each measuring 1 cm x 1 cm on knee Joint.
17. Abrasion on left side of back 1 cm x 1 cm just below lower angle of scapula.
4. On internal examination the doctor found multiple fracture of frontal bone, both maxillary bones and both ranine of mandible and nasal bone. He also found multiple fracture of both temporal and left parietal bone and multiple clots present in brain. Base of skull was fractured in multiple pieces under injury No. 5. The doctor recovered 12 small pellets embedded in base membranes and brain substance. 1st and 2nd vertebrae were fractured under injury o.7. Right lung was lacerated and right pleura ruptured and 2nd rib fractured under injury No. 11. Large vessels in the neck were cut on both sides. Right thoracic cavity contained 4 oz of blood. Tongue was found in pieces. Stomach contained 2 oz semi digested fluid. Larynx and trachea were found cut under injury No. 7. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
5. Dr Shashi Kumar Raghuvanshi Medical officer in-charge Primary Health Centre Shiv Raj Pur medically examined Surya Bhan Singh on 28th of-December 1980 at 8:00 p.m. which revealed belownoted injuries on his person:
1. Abrasion 1 cm x 1 cm back side head above occipital and 12 .5 cm above the right ear.
2. Swelling of last inter phalanx joint contusion 1 cm x 0.5 cm transverse with reddish blue tint of nail of little finger of left hand. Contusion situated just medial to base of nail.
3. Abraded contusion 2 cm x 1 cm reddish colour with tint of darkness near the margin of injury on the dorsum of right hand on 2nd metacarpal just below the base of index finger.
4. Swelling with tenderness above the upper 1/3rd outer surface of right forearm 8 cm x 4 cm just from elbow joint.
6. The doctor opined that the injuries were simple in nature caused by friction against hard surface and simple in nature. However injury No. 4 was kept under observation up to 7 days
7. Subsequently investigation of the case was entrusted to SIS. SI Sri Girja Shankar Mishra SlS Kanpur to whom the investigation was entrusted investigated the crime since 1st of February 1981. After completing investigation the police submitted charge sheets against the accused accordingly (Exts Ka 25 and Ka 26).
8. After framing of the charge against the accused the prosecution examined Shiv Ratan Singh (PW 1), Mahadeo Singh (PW 2), Kehar Singh (PW 3), Savitri Devi (PW 4) and Surya Bhan Singh (PW 9) as eye witnesses of the occurrence. PW 8 Kirat Singh deposed that some eight months ago he met Dan Singh in the market at about 4:00 p.m. and thereafter he went back in the bullock-cart of Surya Bhan Singh and that after his death his daughter was married to his grandson. Testimony of rest of the witnesses more or less is of formal nature. PW 6 HC Shri Krishan who prepared check report on the basis of the written report handed over at the police station and made entry in the GD regarding registration of the crime has proved these papers ( Exts Ka 10 & Ka 11). PW 10 SI Yogendra Singh who investigated the crime in main has proved the police papers. PW 5 SI Surya Prasad Mishra who prepared recovery memos on the directions of the investigating officer and under his supervision has proved the recovery memos (Exts Ka 2 to Ka 5). PW 7 Dr Shashi Kumar Raghuvanshi who medically examined injured Surya Bhan Singh has proved the injury report (Ext Ka 13). PW 11 Dr V.K. Dadhich who conducted autopsy on the dead body of Dan Singh has proved the post mortem report stating that the ante mortem injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death. PW 12 SI Girja Shankar Mishra who was posted in SIS Kanpur and who after investigating the crime submitted charge sheets against the accused has proved these papers.
9. Out of five eye witnesses examined by the prosecution Shiv Ratan Singh (PW 1), Mahadeo Singh (PW 2), Kehar Singh (PW 3) and Surya Bhan Singh (PW 9) have not supported the prosecution case. As PW 1 Shiv Ratan Singh stated in his examination-in-chief that the fateful day when Dan Singh was murdered he was at his house and he did not see the assault at him and that on receiving the information in the village that Dan Singh was murdered he alongwith other co-villagers went to the scene of occurrence. Likewise PW 2 Mahadeo Singh and PW 3 Kehar Singh deposed that they did not witness the murder of Dan Singh and hence could not say as to who murdered him. PW 9 Surya Bhan Singh, the injured deposed that the fateful day Dan Singh met him in the market and he was returning back in his bullock-cart and at about 9:00 p.m. as they reached at the outskirts of village Bhatpura some 3-4 persons who had wrapped their faces with cloth asked "them to surrender cash etc whatever they possessed which resulted in an altercation between Dan Singh and the miscreants and then the miscreants fired shot at Dan Singh and also gave him blows with their respective weapons and that one of them also gave him lathi blows causing injuries to him and sustaining the fatal injuries Dan Singh died on the spot but he could not recognize any of the assailants.
10. Thus relying on the testimony of PW 4 Savitri Devi, wife of the deceased and other evidence and facts and circumstances attending the case the learned Additional Sessions Judge held the accused guilty of the charge , levelled against them convicting and sentencing them as stated above.
11. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress.
12. We have heard learned counsel for the appellants and learned AGA for the State as well.
13. We have gone through the record and impugned judgment and given our anxious consideration to the findings recorded by the Additional Sessions Judge holding the accused guilty of the offences of rioting and murder of Dan Singh.
14. A perusal of the record goes to show that PW 4 Savitri Devi, wife of the deceased has narrated all the facts of occurrence from the beginning to the end as stated above. She was subjected to gruelling and rambling cross-examination but nothing useful to the accused could be elicited therefrom. Hence this witness appears to be truthful, honest and trustworthy. She has given such a graphic description of the occurrence and her statement is so spontaneous that it leaves no room for doubt regarding her presence at the scene of occurrence. Her sworn testimony stands corroborated by the testimony of PW8 Kirat Singh who categorically deposed that the fateful day Dan Singh met him in the market near his house at Shivrajpur at about 3:30 p.m. , that about half an hour thereafter he went back to his village Taktoli in the bullock-cart of Surya Bhan Singh and that next morning he learnt that he was murdered. Ante mortem injuries found on the dead body of Dan Singh by the doctor conducting autopsy have lent support to the prosecution case as to the manner in which the assault was made and the weapons used and duration of the ante mortem injuries also coincides with the time when the injuries were inflicted upon him. There is no reason why Savitri Devi, wife of the deceased should exculpate real culprits and implicate the a reused falsely. PW6 HM Shri Krishan deposed that at 7:20 a.m. on 28th of December, 1980 Shiv Ratan Singh (PW1) alongwith Soney Singh and Ranvir Singh came to the police station and handed over the written statement of the occurrence to him and he prepared check report on the basis thereof (Ext. Ka 10) and made entry regarding registration of the crime in General Diary accordingly. (Ext. Ka 11). There is no reason to doubt the genuineness of the G D entries made by the police officials in discharge of their official duties unless proved otherwise. No doubt that PW1 Shiv Ratan Singh stated that on being asked by Soney Singh, first cousin of the deceased he went to the police station to lodge FIR of the occurrence and scribed the FIR though with the qualification that he scribed FIR of the occurrence on the dictation of the sub-inspector at the police station and that he did not witness the murder of Dan Singh. He was declared hostile and cross-examined by the prosecution with the permission of the court. He was contradicted with the statement given by him to the investigating officer supporting the prosecution case in entirety; but he could not give any satisfactory explanation therefor except saying that he could not say as to how the investigating officer recorded his eye witness account of the occurrence. However he admitted this much that the report of the occurrence scribed was handed over by him to the police at the police station in the morning itself. Savitri Devi, wife of the deceased categorically stated that after the occurrence she remained present near the dead body of her husband Dan Singh for the whole night alongiwth other co-villagers and that at about 4 a.m. she went to the house of Shiv Ratan Singh in her village and asked him to do the needful and then Shiv Ratan Singh scribed the FIR in the village itself and went to the police station. PW 6 HM Shri Krishan to whom written FIR was handed over by Shiv Ratan Singh, the first informant has nowhere been suggested in his cross-examination by the defence counsel that the report scribed by Shiv Ratan Singh was scribed on the dictation of sub-inspector at the police station. He was given the only suggestion that the FIR was scribed in consultation with the police which he denied categorically. PW6 HM Shri Krishan deposed that sub-inspector Yogendra Singh put his signatures on the check report prepared by him. However SI Yogendra Singh (PW10) too was not given a suggestion even in his cross-examination that he got report of the occurrence scribed by Shiv Ratan Singh, the first informant at his dictation at the police station.
15. For the foregoing reasons , we place implicit reliance on the sworn testimony of PW4 Savitri Devi, wife of the deceased who narrated all the facts from the beginning to the end as stated above and PW6 HM Shri Krishan who prepared check report on the basis of written report handed over to him by Shiv Ratan Singh and made entry regarding registration of the crime in GD. And we are therefore in full agreement with the findings recorded by the court below against the accused convicting and sentencing them as stated above.
16. However the appellants' learned counsel has advanced the following arguments assailing judgment of the trial court:
17. The first and foremost argument advanced by the appellants' learned counsel is that Savitri Devi , wife of the deceased did not witness the occurrence as she was not present at the scene of occurrence and otherwise too her interested testimony should not be relied upon. As observed above, she has given such a graphic description of the occurrence and her statement is so spontaneous and she withstood her cross-examination so firmly that there is no room for doubting her presence at the scene of occurrence. She was subjected to searching and rambling cross-examination but nothing could be elicited to shake the central core of her assertions regarding the prosecution version. PW 1 Shiv Ratan Singh, PW 2 Mahadev Singh and PW 9 Surya Bhan Singh the alleged eye witnesses have not supported the prosecution version but we are conscious of the fact that ordinarily witnesses remain reluctant to come to the courts to appear as witness of the occurrence unless it is inevitable for them and even if somehow their attendance is procured and they have to appear in the witness box in rare case they support the prosecution case sincerely as in most of the cases either they are won over by the accused or they do not want to invite trouble for themselves by deposing against the accused. As observed above statement of PW4 Savitri Devi is quite impressive and spontaneous and she appears to be a truthful and straightforward witness. We have no hesitation in placing implicit reliance on her sole testimony. Even the trial court which had the opportunity to watch her demeanour did not castigate her testimony in any manner. Hence the said argument advanced by the appellants' learned counsel is repelled.
18. Secondly, the appellants' learned counsel vehemently argued that at about 6:00 p.m. in the month of December it becomes all dark and since there was no light it was not possible for the witnesses to recognize the assailants. No doubt that the said occurrence took place at the time of sunset but it is matter of common experience that even after sunset for about 30-40 minutes it is never pitch dark. Admittedly the accused appellants and the witnesses used to reside in close vicinity in the same village and were known well to each other. Dan Singh, the deceased and his family on one hand and accused Shyam Bahadur and Ram Babu who are real brothers on the other were next door neighbour. Accused Jai Singh is cousin of accused Shyam Babu and Ram Babu, and accused Jagannath used to reside in their house. The well known persons can well be recognized even in flimsy light at the time of sunset or soon thereafter from a distance of 20-30 paces. Otherwise too, the miscreants did not miss their aim while assaulting the victim with their respective weapons and both the shots fired from some distance hit him. Therefore they too could be recognized in that light by the known persons from a distance of 20-30 paces. Thus the said argument too advanced by the appellants' learned counsel holds no water and fells to the ground .
19. Thus after wading the evidence on record and facts and circumstances attending the case and after giving our anxious consideration to all the relevant aspects, we are of the view that the trial court was perfectly justified in believing the prosecution case and evidence against the accused appellants. They had formed an unlawful assembly armed with various weapons with a common object to commit the murder of Dan Singh and in prosecution of the said common object as members of the unlawful assembly aforesaid they committed the murder of Dan Singh.
20. Therefore the appeal has got no merit and is hereby dismissed. Conviction of accused Ram Singh, Jagannath Singh and Jaj Singh under Section 147 IPC and accused Ram Babu, Sobaran Singh, Shyam Babu Singh and Ram Bilas Singh under Section 148 IPC and of all of them under Section 302 read with Section 149 IPC sentencing accused Ram Singh, Jagannath and Jai Singh each to undergo one year's rigorous imprisonment and imprisonment for life respectively thereunder and accused Ram Babu, Sobaran Singh , Shyam Babu Singh and Ram Bilas Singh each to undergo two years' rigorous imprisonment and imprisonment for life respectively thereunder are hereby confirmed.
21. The accused appellants are on bail. CJM Kanpur Dehat shall get the accused appellants arrested and send them to jail to serve out the sentence imposed upon them. Both the sentences shall run concurrently.
22. Office to send copy of the judgment alongwith record of the case to the court below immediately to ensure compliance under intimation to this court within two months from today.