JUDGMENT M. Chaudhary, J.
1. This is an appeal from the judgment and order dated 5th of June, 1981 passed by Additional Sessions Judge, Hamirpur in Sessions Trial No. 293 of 1980 State v. Ayudhya Singh and Ors. acquitting the accused of the charge levelled against them under Sections 147, 148 and 302 read with Section 149 IPC.
2. Since accused Ram Bahadur was reported having died the State appeal against him stood abated vide order dated 3.5.2005.
3. Brief facts giving rise to this appeal are that at 6:15 a.m. on 24th of July. 1980 Subeydar Singh lodged an FIR at police station Sumerpur situate at a distance 15 kms. from village Patyore alleging that he had got three sons Jai Karan Singh, Shiv Karan Singh and Rain Karan Singh; that in the year 1976 dacoity was committed at the house of his co-villager Lallu Singh and he doubted that dacoity was committed at his house at the instance of Ram Karan Singh and hence he started nursing grudge against him and his family members. One Raja Bhaiya resident of village Surauli way also involved in the said dacoity case and he appeared as a defence witness for accused Raja Bhaiya and therefore sons of Lallu Singh used to threaten him now and then but he did not pay any heed thereto. On 23rd of July, 1980 Jai Karan Singh had gone to the market at Sumerpur and in the evening he went to railway station known as 'Jamuna South Bank' to fetch him. The train reached at the station at about 7:30 p.m. and his son Jai Karan Singh, one Shiv Nath Kewat, Dayalu and several others got down from the train. He took gunny bag containing khali from Jai Karan and they along with Shiv Nath and others proceeded towards the village. At about 8:30 p.m. they took turn from link road from pathway going to the village and Ram Karan was going few paces ahead of them. As Ram Karan reached near the field of Brinda Singh, Ayudhya Singh along with Indra Pal Singh armed with DBBL guns and his brother Ranvijay Singh along with one Jagat Singh with SBBL guns and Ram Bahadur with lathi and torch who were already there assaulted him. Ayudhya Singh shouting that they had got their enemy fired at Jai Karan Singh with DBLL gun and immediately Ranvijay Singh, Jagat Singh and Indra Pal Singh also fired at him with their guns and sustaining the firearm injuries Jai Karan Singh fell down at the water channel and ridge of the field of Brinda Singh towards east on the way. The witnesses present there flashed their torches challenging the assailants and then all of them bolted away and the witnesses present recognized them well in the light of the torches and moonlight. Then Subeydar Singh with the help of his co-villagers took the dead body of Jai Karan Singh to his house at village Patyora. Early in the morning Subeydar Singh, father of the deceased, went to the police station Sumerpur situate at a distance of 15 kms from the place of occurrence and handed over written report of the occurrence to the police there. The police prepared check report on the basis of the written report handed over there and made entry regarding registration of the crime in the GD. Station Officer Asha Ram who took up investigation of the crime in his hand rushed to the place where the dead body of Jai Karan Singh was kept and drew inquest proceedings on the dead body preparing the inquest report (Ext Ka 5) and other necessary papers (Ext Ka 6 & Ka 7) and handed over the dead body in a sealed cover (Ext Ka 9) alongwith other necessary papers to Constables Raghuraj Singh and Raja Ram for being taken for its post mortem. He also inspected the torches of Subeydar and Shiv Nath illuminated at the time of occurrence, inspected them and returned the same and prepared the supurdagi memo (Ext. Ka 8). He also recorded statements of the witnesses. Then he went to the spot, inspected the place of occurrence and prepared its site plan map (Ext Ka 12). He also collected bloodstained and simple earth from the place of occurrence and prepared its memo (Ext Ka 9). He also picked up two empty cartridges, three tiklis etc. from the scene of occurrence and prepared their memo (Ext Ka 10).
4. Autopsy conducted by Dr P.N. Singh, Surgeon District Hospital, Hamirpur on 25th of July, 1980 at 11:00 a.m. on the dead body revealed below noted ante mortem injuries on the dead body:
1. Lacerated gunshot wound of entry 4.5 cm x 4 cm x brain deep on left side head near external ear, upper part of external ear lacerated and brain matter coming out from the wound. Tatooing present all around the wound and left temporal bone found fractured.
2. Lacerated gunshot wound of entry 2.5 cm x 2 cm x bone deep on left side upper part of neck near the ear lobule. Lower part of ear and ear lobule lacerated and tattooing found present around the wound.
3. Lacerated gunshot wound of exit 14 cm x 6 cm x brain deep on left side forehead and face extending to left eye, nose and right eye.
4. Gunshot wound of entry 15 cm x 1.5 cm x chest cavity deep on right side chest in mid axillary line.
5. Gunshot wound of exit 2 cm x 2 cm x chest cavity deep on left side chest lower part posterior axillary line 16 cm below and behind the left nipple.
6. Gunshot would of exit 3 cm x 3cm x abdominal cavity deep on left side of back 4 cm outer to midline.
Face was disfigured due to injuries and left eye destroyed completely. Right eye collapsed, Foul smell, present and small maggots crawling in the wounds.
On internal examination left temporal, parietal, frontal and left lower jaw bones were found fractured, Brain pulpy and coming out of the wound and its membrane torn and lacerated at several places. Base of skull was found fractured. Doctor recovered five small rounded pellets from cranial cavity. Right 7th rib from from and left 8th rib from behind were found fractured. Right lung and pleura were lacerated at places. Pericardium and heart went punctured. Peritoneum was found punctured at places and lacerated. Large intestine was also punctured. Lower spleen and left, kidney were found lacerated. The doctor recovered one pellet from lower and two waddings from left side chest cavity. Three pea sized pellets were recovered by the doctor in between 6th and 7th ribs on left side and one pellet in between 3rd and 4th ribs on left side and one pellet from near sternum. Sternum was also found fractured.
The doctor opined that the death was caused due to head injuries and cerebral laceration and shock one and half a day ago.
5. After framing of charge against the accused, the prosecution examined Subeydar Singh (PW1) and Dayalu (PW4) as eye witnesses of the occurrence. Testimony of rest of the witnesses is more or less of formal nature. PW2 Dr P. N. Singh who conducted autopsy on the dead body of Jai Karan Singh on 5th July, 1980 at 11:00 a.m. proved the post mortem report (Ext Ka 2). PW3 HG Dibiya who produced the case property in the Court has stated the said fact. PW5 Shiv Karan Singh, brother of the deceased who scribed the report at the dictation of his father Subeydar Singh has proved the report (Ext Ka 1). PW6 HM Rajendra Vir Singh who prepared check report on the basis of the written report handed over to him at the police station and made entry regarding registration of the crime in the GD has proved these papers (Ext Ka 3 and Ka 4). PW7 Station Officer SI Asha Ram Tripathi who investigated the crime and after completing the investigation submitted charge sheet against the accused has proved the police papers.
6. The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely on account of enmity. Admittedly accused Ram Bahadur, Ayudhya and Ranvijai Singh, were real brothers being sons of Lallu Singh and accused Jagat Singh and Indra Pal Singh their cousins.
7. On an appraisal of evidence and other material on the record the learned trial judge disbelieved the prosecution case and evidence and held the accused not guilty of the charge levelled against then and acquitted them.
8. Feeling dissatisfied with the impugned judgment and order this Government Appeal has been filed on behalf of the State assailing the judgment of acquittal.
9. We have heard learned AGA Sri K.P. Shukla for the State appellant and Sri Rakesh Prusad learned Counsel for the accused respondents and gone through the record.
10. Learned AGA for the State appellant vehemently argued that since the impugned judgment acquitting all the accused of the charge levelled against them suffers from illegality and manifest error in evaluation of evidence and the grounds on which order of acquittal is based are unreasonable it can not be sustained in law and is liable to be set aside. However learned Counsel for the accused respondents contended that the learned trial judge has given cogent and convincing reasons for acquitting the accused and hence it does not call for any interference therewith.
11. We are conscious of the fact that appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to appreciate the evidence and come to an independent conclusion but in doing so the appellate court should consider every matter on record and reasons given by the trial court in support of the order of acquittal and should interfere only on being satisfied that the view taken by the trial judge is perverse or unreasonable resulting in miscarriage of justice. If two views are possible on a set of evidence then the appellate court should not substitute its own view in preference to the view of the trial court which has recorded acquittal. If the trial court acquits the accused by giving undue importance to minor discrepancies and taking a suspicious view of the evidence based on conjectures and surmises then the appellate court would be justified in interfering with the order of acquittal.
12. Learned Counsel for the accused respondents vehemently argued that the FIR of the occurrence is much delayed as according to the prosecution, the occurrence took place on 23rd of July 1980 at 8:30 p.m. whereas FIR of the occurrence was lodged at police station Sumerpur the following morning at 6:15 a.m. The trial judge observed that to doubt, police station Sumerpur was situate at a distance of 15 kms from the place of occurrence at village Patyore but the FIR of the occurrence could very well be lodged at police outpost Surauly of police station Sumerpur situate at a distance of 3-4 miles from the place of occurrence as it was a reporting police outpost. However, since PW1 Subeydar Singh, father of the deceased and the first informant was not specifically put any question on the point by the defence Counsel in his cross-examination as to why he did not lodge an FIR of the occurrence at police outpost Surauli, the accused respondents can not take any benefit therefrom. Police station Sumerpur was situate at a distance of 15 kms from village Patyora and Subeydar Singh, the first informant explained that due to fear and non-availability of any conveyance he could not go to the police station to lodge FIR of the occurrence soon thereafter. He stated that after the murder of his son Jai Karan Singh he with the help of his companions took the dead body of his son from the place of occurrence to his house and since they were all wailing and grief stricken he got the report of the occurrence described by his another son Sheo Karan Singh at about 3:00 a.m. and then at 4:00 a.m. he proceeded to the police station Sumerpur and handed over the written report to the police there. Under the circumstances the explanation offered by Subeydar Singh for not lodging FIR of the occurrence soon thereafter is quite plausible and convincing.
13. PW1 Subeydar Singh, father of the deceased and PW4 Dayalu appeared as eye witnesses of the occurrence. PW1 Subeydar Singh narrated all the facts of the occurrence from the beginning to the end as stated above deposing that on 23rd of July he had sent his son Jai Karan Singh to Sumerpur market by train for purchasing khali for the cattle Sugar etc; that he had to return back by train the same evening and therefore he went to the railway station Jamuna South Bank; that the train reached the station at about 8:00 p.m. and his son Jai karan got down and he took the gunny bag containing 15 kgs of khali from his son and he had bag (jhola) containing 3 kgs of sugar; that Dayalu, Sheo Nath Laali and several other co-villagers also alighted from the train; that he accompanied with Dayalu, Sheo Nath and Laali proceeded towards the village and Jai Karan Singh was going a few paces ahead of them as he was holding only a bag containing 3 kgs of sugar; that as they left the link road and took turn on the pathway loading to their village and Jai Karan Singh reached near the field of Brinda Singh, Ram Bahadur shouted that their enemy had reached and he should be killed and immediately Ajudhya Singh fired at Jai karan Singh with DBBL gun hitting Jai Karan Singh; that immediately thereafter Jagat Singh, Indra Pal Singh and Ranvijai Singh each fired at him with their respective weapons and sustaining the firearm injuries Jai Karan Singh fell at the water channel towards the field of Brinda Singh and he recognized all the assailants well in the light of his torch and the torch illuminated by Sheo Nath and in the moon light and that then the assailants fled away. He further stated that thereafter he asked Jagani who was also coming back from the railway station and going to the village to inform about the murder of Jai Karan Singh at his house and then with the help of his companions present there he took the dead body of his son to his house. PW4 Dayalu also corroborated him stating likewise deposing that he recognized the assailants well in the moonlight and in the light of torches illuminated by Ram Bahadur and Sheonath.
14. However, the trial judge pointed out several contradictions and omissions in the statements of these two witnesses doubting their presence at the scene of occurrence. He observed that Subeydar Singh did not mention in the FIR that some ten days prior to the occurrence accused Ram Bahadur had threatened him in the precincts of Collectorate stating that the dacoity was committed at his house at the instance of his son Ram Karan Singh. It may be mentioned here that in the year 1976 the said dacoity was committed at the house of Lallu Singh, father of accused Ram Bahadur; that in that dacoity none of the miscreants was named and Raja Bhaiya and Gulab who were real brothers and happened to be the nephews of mother of Subeydar Singh were subjected to identification proceedings in connection with the said dacoity and were identified by inmates of the house and the witnesses as participants in that dacoity and in that case Subeydar Singh appeared as a defence witness for Raja Bhaiya some 20 days prior to the said occurrence. It is well settled that FIR is a report giving information of the commission of cognizable crime which may be made be any person knowing about commission of such an offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to writing by the official concerned at the police station which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept at the police station in such form as the state government may prescribe in that behalf. The registration of FIR empowers the officer-in-charge of the police station to commence investigation with respect to the crime reported to him. It is not the requirement of law that all the minute details should be mentioned in the FIR lodged immediately after the occurrence. This much was mentioned in the FIR by Subeydar Singh, the first informant that since he had appeared as a defence witness for Raja Bhaiya, Lallu Singh and his family members took ill of it and threatened him. That was quite sufficient.
15. Further, the trial judge observed that a perusal of the post mortem report showed that Jai Karan Singh, the deceased was a young man of 35 years of age and of good built and, therefore, there was no occasion for Subeydar Singh to go to the railway station to fetch his son. No doubt, it is mentioned by the doctor in the post mortem report, but that would pot falsify the statement of Subeydar Singh that his son Jai Karan Singh was asthmatic and therefore he used to be vigilant that he should not take much physical strain and because of that since he was returning from Sumerpur market by train having a weighty bag containing khali he went to the railway station to fetch him to share his burden and took the bag of khali himself. Being father there was nothing wrong if he knowing fully well that his son was asthmatic and he should not be burdened taking load etc he went to the railway station.to take the load of khali himself as he had gone in the morning to Sumerpur market and would have got tired by that time. It has come in evidence that the railway station Jamuna South Bank was situate at a distance of some six furlongs from the village. A young man seemingly Subeydar Singh got down from the train but in the next breath retracted stating that not Subeydar Singh but he alongwith Sheo Nath Singh, Laali and several others got down from the train.
16. The trial judge observed that since this witness did not state that Jai Karan Singh also got down from the train it is a material contradiction in the statements of the two witnesses going to the very root of the case. This witness Dayalu further stated that as they proceeded from the railway station Jai Karan Singh met them a few paces ahead. Thus PW4 Dayalu has not negated the presence of Jai Karan Singh and Subeydar Singh at the railway station. It is not necessary that a person getting down from the train should see all the known persons alighting from the train. Since the gunny bag containing khali was taken over by Subeydar Singh from his son Jai Karan Singh and he was holding only a bag containing 3 kgs of sugar there is nothing unusual if being a young man he went 4-5 paces ahead of them and Dayalu did not see him getting down from the train.
17. Further, the trial judge also observed that PW4 Dayalu stated that only accused Ram Bahadur and witness Sheonath accompanying him illuminated torches and no other person possessed any torch, which was lighted at the spot. PW1 Subeydar Singh stated that he also had a torch and in the light of torches flashed by him and Sheonath he recognized the assailants. The trial judge observed that since the statements of both the witnesses regarding torch are inconsistent the prosecution case becomes doubtful. It may be noted here that in the FIR Subeydar Singh, father of the deceased mentioned that they illuminated their torches and in the light of the torches flashed recognized all the assailants well. In the morning when the station officer alongwith the police force reached the spot at about 9:30 a.m. he also produced his torch lighted by him at the spot and after inspecting his torch and that of Sheonath the investigating officer prepared their supurdagi memo.
18. Thus we are of the view that the trial Judge has given undue importance to minor inconsistencies in the statements of the two witnesses and omissions on the part of Subeydar Singh which are of very trivial nature and insignificant and should have been ignored.
19. It has also been argued by the learned Counsel for the accused respondents that since ocular testimony of the eye witnesses and medical evidence are at variance the prosecution case should be discarded. It has been contended that both the eye witnesses stated that all the assailants each possessed with guns fired a shot at the victim but a perusal of the post mortem report goes to show that doctor found only three firearm wounds of entry. No doubt that autopsy on the dead body of Jai Karan Singh revealed three firearm wounds of entry but in our considered opinion there is no real inconsistency between the ocular testimony and the medical evidence for twofold reasons: (i) it is not necessary that all the four shots fired at the victim would have hit him and (ii) it is but natural that on receiving the first firearm injury the victim must have floundered and in the process of falling down he received the remaining injuries. A perusal of the post mortem report goes to show that gun shot wounds of exit Nos. 5 and 6 must correspond to gun shot wounds of entry Nos. 2 and 4. Injury No. 3 lacerated gunshot wound of exit 14 cm x 6 cm x brain deep would be corresponding to injury No. 1 lacerated gun shot wound of entry 4.5 cm x 4 cm x brain deep. Looking to the size of both the wounds i.e. wound of entry and wound of exit (injury Nos. 1 and 3) it appears that two shots fired hit the victim at his head overlapping on left side of his head because in that position only the size of the wound of exit may be 14 cm x 6 cm x brain deep. On internal examination left temporal, parietal and frontal bones were found fractured. Left lower jaw was also found fractured. Brain was pulpy and coming out of the wound. Base of skull was also found fractured. Thus in our considered opinion there is no real inconsistency between the ocular testimony and medical evidence.
20. The trial judge also observed that the investigating officer did not take the gunny bag containing khali and the bag, containing 3 kgs of sugar which got blood stained as it was being taken by the victim and also fell in the water. PW7 station officer SI Asha Ram who investigated the crime was put a question in his cross-examination regarding thereto and he stated that he did not think it necessary to take these things into his possession. Even if it is considered necessary that the investigating officer Should have inspected the bag containing sugar which was being taken by the victim in his hand and which got blood stained and fell in the water and the investigating officer did not consider it necessary this lapse on the part of the investigating officer is not of such a nature so as to discredit the sworn testimony of two eye witnesses and throw the prosecution case over board.
21. The trial judge also observed that according to the eye witnesses, sustaining the fatal injuries Jai Koran Singh fell down in the slush and water but there is nothing in the post mortem report to show that mud was found on his body. The said observation made by the trial judge is wholly misconceived. PW2 Dr P.N. Singh admitted in his cross-examination that the clothes put on by the deceased at the time of occurrence contained grass and mud.
22. It has also been observed by the trial judge that there was no motive for the accused to commit the murder of Jai Karan Singh because if they bore any grudge that was against Rarn Karan Singh at whose instance they suspected that dacoity was committed at their house or against Subeydar Singh who appeared as a defence witness for accused Raja Bhaiya. It has come in evidence that Ram Karan. Singh was involved in some criminal cases and since the police was after him normally he did not reside in the village. As far as the fact that Subeydar Singh appeared as a defence witness for accused Raja Bhaiya in the dacoity case, Subeydar Singh was quite old at the time of occurrence and if the accused committed murder of his young son Jai Karan Singh it was much painful for Subeydar Singh for his whole life. In the circumstances there is nothing strange if sons of Lallu Singh along with their cousins thought it better to liquidate the eldest son of Subeydar Singh.
23. It has also been argued that both the witnesses examined by the prosecution are interested witnesses as Subeydar Singh was father of the deceased and PW4 Dayalu too was not an impartial witness as he admitted that some seven years ago he was prosecuted for a case of theft and Mohan Singh appeared as a witness against him. A suggestion was given to PW4 Dayalu in his cross-examination that Mohan Singh and accused Ajudhya Singh used to reside in, one bakhri to which he replied that he did not know. The defence wanted to conclude by these facts that Mohajn Singh was a relation of accused Ayudhya Singh and others. No doubt PW1 Subeydar Singh is father of the deceased and PW4 Dayalu may not be an altogether independent witness but their sworn testimony can not be discarded merely because one of them is a close relation of the victim and the other is a partisan witness if on close scrutiny their testimony is found to be above reproach of suspicion. Both the witnesses have been subjected to searching and rambling cross-examination but nothing tangible could be brought on the record to shake their credibility. Moreover, if the witness is related to the deceased it would add to the value of his evidence if found reliable because he would naturally be interested in ensuring that real culprits are punished and not screened.
24. Thus on a conspectus of oral evidence of the two eye witnesses and other material of record we are of the view that the prosecution has proved participation of the accused in the said crime beyond reasonable doubt. The trial judge acquitted them giving benefit of doubt on tenuous grounds. Since the reasons assigned by the court below for recording acquittal of the accused are manifestly erroneous and contrary to evidence the impugned judgment cannot be sustained in law.
25. Therefore, the State appeal is allowed and the impugned judgment acquitting the accused is hereby set aside. Since Ram Bahadur has been reported having died the appeal against him stood abated. Accused respondents Ayudhya Singh, Ranvijay Singh, Jagat Sigh and Indra Pal Singh are held guilty of the charge levelled against them under Section 148 IPC and Section 302 read with 149 IPC. All the four accused abovenamed are hereby convicted under Section 302 read with 149 IPC and Section 148 IPC and each of them convicted thereunder is sentenced to imprisonment for life and two years rigorous imprisonment respectively thereunder, They are on bail. Chief Judicial Magistrate, Hamirpur is hereby directed to get all the four accused respondents namely, Ajudhya Singh, Ranvijai Singh, Jagat Singh and Indra Pal Singh arrested and lodged in jail to serve out the sentence imposed upon them.
26. Let the judgment be certified to the court below. Record of the lower court be transmitted to the court concerned immediately for necessary compliance under intimation to this court within two months.