JUDGMENT M.C. Jain, J.
1. This appeal came to be filed by the State against the judgment and order dated 13.9.2002, passed by Sri Vimal Chandra, Additional Sessions Judge (Court No. 6), Gorakhpur in Sessions Trial No. 483 of 1999. Jagdish Murav, Ganga Murav, Uday Bhan Pandey and Ram Sahai Pandey have been acquitted of the charge under Section 307 read wish Section 34 I.P.C.
2. Under order dated 1.5.2003 passed by this Court, leave to file appeal was granted only against the accused respondent No. 1, Jagdish Murav who was said to be the main assailant. To the remaining three, namely, Ganga Murav, Uday Bhan Pandey and Ram Sahai Pandey, the role of exhortation had been assigned and the evidence was that they were unarmed too. Therefore, in this appeal, the Court is concerned only with accused-respondent No. 1, Jagdish Murav.
3. A brief reference to the factual position would suffice. The incident allegedly occurred on 6.3.1993 at about 8.30 P.M. in Mohalla Kauadah, Police Station Rajghat, District Gorakhpin and the F.I.R. by oral narration was lodged by an eyewitness Ram Surat PW 1, uncle of the victim Babu Lal Yadav PW 2. The informant, victim and the accused all were residents of Phulhar Khurd, P.S. Bansgaon, District Gorakhpur. There was some land dispute and litigation pending between the father of the victim on one hand and the accused Jagdish Murav on the other from before. On the fateful day, the informant Ram Surat with Dhanush Dhari and Chhedi had gone to Gorakhpur for marketing on the eve of Holi festival. The victim Babu La was employed as a truck driver with one Ashok at Gorakhpur and after making purchases, the informant Ram Surat PW 1 with his companions went to meet his nephew Balm Lal Yaduv PW 2 at Kauadah at about 8.30 P.M. Babu Lal was sitting on driver's seat in Swaraj Mazda vehicle. The accused Jagdish Murav and the other three co-accused were quarreling with him hurling abuses over the issue of litigation. Jagdish who was armed with a countrymade pistol opened fire on him hitting him on his neck. Thereafter, Jagdish and his companions made their escape good towards northern side. Babu Lal injured was taken to Medical College, Gorakhpur and admitted there. He was medically examined on 6.3.1993 at 9.30 P.M. by Dr. Virendra Kumar PW 3. The following ante mortem injuries were found on his person:
I. Lacerated wound 9 cm x 6 cm x muscle deep on the right side neck, just above the right clavicle, bleeding present. Blackening and abraded colour present around the wound. X-ray was advised. Margins inverted.
4. He was referred to surgery department and hospitalized. The injury was caused by firearm and was kept under observation. The duration was fresh
5. On the lodging of the F.I.R. thereafter by oral narration by Ram Surat PW 1 on 6.3.1993 at 10.15 P.M., a case was registered and investigated by S.I. Fanindra Singh Yadav PW 4. On submission of the charge sheet the accused were committed to the court of Sessions and trial was held.
6. The defence was of denial and false implication owing to enmity.
7. At the trial, the prosecution relied on the evidence of Ram Surat PW 1-informant, injured Babu Lal Yadav PW 2, Dr. Virendra Kumar PW 3 and the Investigating Officer Fanindra Singh Yadav PW 4. The trial Judge, however, acquitted the accused-respondents disbelieving the prosecution evidence. It was observed by him that the presence of Ram Surat PW 1 at the spot was doubtful and that other independent witnesses had not been examined. The trial Judge also held that there was no direct enmity between the victim and the accused. Further, according to him, as per the evidence adduced in the court, the accused had come on the spot from the southern side but in the site plan prepared by the Investigating Officer, they were shown to have come from the northern side. On these premises, he recorded acquittal.
8. We have heard Sri R.S. Sengar learned counsel from the side of the State and Sri R.L. Verma from the side of accused-respondent Jagdish Murav against whom alone the appeal was admitted, as observed earlier.
9. The submission from the side of the State is that there was prompt F.I.R. and that there was no ground to disbelieve the presence of Ram Surat PW 1 at the spot. His testimony and that of the injured Babu Lal Yadav PW 2 clinchingly established the guilt of the accused Jagdish Murav. The ocular testimony, argued the State Counsel, was in complete harmony with the medical evidence. On the other hand, the submission from the side of the accused respondent Jagdish Murav is that there was no motive on his part to commit this crime; that the F.I.R. was ante-timed; that Ram Surat PW 1 was not at all present to witness this incident and that the distance of firing as per the ocular testimony did not reconcile with the medical evidence according to which, there was blackening around the wound found on the person of the victim.
10. The record of the case is before us and we have carefully scrutinized the evidence. We are of the firm opinion that the trial Judge acquitted the accused respondent Jagdish Murav on conjectures and surmises. The finding of his acquittal is perverse and cannot be countenanced on judicious scrutiny of the evidence on record. We propose to record the reasons for our this conclusion meeting the arguments advanced from the side of the State and the accused-respondent.
11. Taking the question of motive first, it is not always fathomable as to how and why the human mind acts and reacts in a certain manner and it cannot be explained every time by reasonable hypothesis. Moreover, the motive is immaterial when there is direct evidence of the commission of a crime by a particular accused, as is the case here. It has come through the evidence of Ram Surat PW 1 that there was litigation between his family and the accused. It also came to be stated by Ram Surat PW 1 that earlier to the incident, over the dispute of land, his brother Ram Asrey (father of Babu Lal) had been assaulted and Jagdish was one of the accused in that case. The victim Babu Lal Yadav PW 2 was working as a driver in the city of Gorakhpur and there was nothing unusual that the accused Jagdish considered him to be the main person strengthening his family members to pursue litigation and thought to weaken his adversary by eliminating him. Judged in the right perspective, the argument of the learned counsel from the side of the accused respondent Jagdish Murav is liable to be rejected that he had no motive to commit this crime.
12. The second argument of the F.I.R. being ante-timed also does not have any merit. It has to be pointed out that the F.I.R. was lodged by an illiterate villager, i.e., Ram Surat PW 1 by oral narration on 6.3.1993 at 10.15 P.M. The incident had taken place that night at about 8.30 P.M. The victim had been injured by shooting of Jagdish in the neck. It was in the fitness of things that he was first taken to Medical College whereafter the F.I.R. was lodged by Ram Surat PW 1, The lodging of the F.I.R. by oral narration is rather indicative of its spontaneity and of the fact that there was no consultation or deliberation in the lodging of the F.I.R. The argument of ante-timing of the F.I.R. was sought to be backed by this submission that Ram Surat PW 1 stated in his cross-examination that he had reached the shop of Ashok (employer of Babu Lal) at about 5 P.M. and had stayed there for about 2-4 minutes and on being told that Babu Lal would be available at Kauadah, he had then proceeded for Kauadah reaching there within five minutes where he witnessed the incident. It was also pointed out that as per his evidence he reached the Medical College with the injured at 10.15 P.M. and remained there till 10.45 P.M. whereafter the report was lodged. These revelations; the counsel argued, indicated that the incident did not take place at about 8.30 P.M. and that the F.I.R. was ante-timed. Suffice it to say in this regard that Ram Surat PW 1 was a rustic illiterate villager who could not even make signatures. Time is not the essence of life of villagers. Under the stress of cross-examination, he might have given such timings which could not be interpreted with mathematical accuracy to hit the prosecution case.
13. The presence of Ram Surat PW 1 at the spot was doubted on the premise that he would not have gone to make sundry purchases from his village to Gorakhpur covering a distance of about 35 Kms. and that in the medical examination report of the victim, he (victim) had been shown to have been brought by Mangal Prasad and further that his parentage is not noted. Rather he is shown to be the son of unknown. Mad Ram Surat PW 1 been with him, he being the real uncle of the victim, he would have disclosed the parentage of the victim and the victim would also have been shown to have been brought by him. We do not think that there was anything unusual if on the eve of Holi festival, Ram Surat PW 1 thought to visit Gorakhpur to make sundry purchases and also to meet his nephew Babu Lal who was a driver there. Moreover, he has very well explained in his statement as PW 1 that immediately after the incident he informed Ashok (employer of Babu Lal) who sent one Mangal with vehicle to rush the injured to Medical College. He had also accompanied him to the Medical College but it was Mangal who took the injured before the Doctor after reaching the Medical College and he kept standing outside. It is thus well explained as to how the injured was produced before the Doctor by one Mangal Prasad and not by Ram Surat. Mangal being not aware of the parentage of the injured could not give it out to the Doctor. Ram Surat being an illiterate villager did not know the procedure to be followed in the Medical College and so kept outside, letting the injured be taken before the Doctor by Mangal, a person from the city sent by Ashok (employer of Babu Lal) as a helping hand. In the night, an illiterate person can hardly make a distinction whether it is 8 O' clock, 10 O' clock or 12 O' clock because all the hours in the night have the same features till the sun rises.
14. We are of the firm view that the presence of Ram Surat PW 1 at the spot was very well established. He corroborated the statement of the injured Babu Lal Yadav PW 2 in material particulars that it was the accused respondent Jagdish who opened shot oh him while he (victim) was sitting on the driver's seat in the vehicle. Jagdish was known to him as also to the injured Babu Lal Yadav PW 2 from before as all of them belonged to the same village. It is also there in the testimony of Rain Surat PW 1 that there was mercury light illuminating the scene of occurrence. Blackening was found in the gunshot wound sustained by the victim meaning thereby that it was a close range shot. There could be no possibility of mistaken identity about the shooter, i.e., Jagdish accused respondent.
15. The learned counsel for the accused respondent urged that as per Ram Surat PW 1 the shot had been fired from a distance of six paces whereas, according to injured Babu Lal Yadav PW 2 , it was from a distance of 1-IVa palm (Bitta). We cannot agree that there is any contradiction, what to say material contradiction, in the ocular testimony of the two eyewitnesses on the one hand and the medical evidence on the other as to the distance of shooting. There being blackening in the wound, it was a close range fire as per the medical evidence and the testimony of the two eyewitnesses is substantially the same. Ram Surat PW 1 and Babu Lal Yadav PW 2 could not use the same set of words to describe the distance of shooting. Naturally, variance with regard to such distance is necessarily to be there in the testimony of truthful witnesses. Moreover, the Supreme Court has held in the case of State v. Sugarh Singh, AIR 1978 SC 191 that in case of gunshot injury, inconsistency relating to distance from which the shot was fired between the medical evidence and eyewitnesses is not of significance when the prosecution evidence pertaining to assault by shooting substantially tallies with the medical evidence. The same is the case here. The injured Babu Lal had been shot at from close range by the accused respondent Jagdish while he (victim) was sitting on the driver's seat in the vehicle. The blood had also fallen on some part of the seat and the Investigating Officer had cut a piece of blood stained seat and taken the same in his possession through Phard Ex.Ka-4. Therefore, the place of incident was specifically fixed through such evidence too. No doubt, Ram Surat PW 1 was the uncle of the victim but mere relationship or interestedness was not sufficient to discard his testimony when his presence was fully established. If a witness is related to the victim, he would naturally be interested in ensuring that the real culprit is punished and not screened. The evidence of close relative of the victim of a crime cannot be doubted on the ground of being partisan when his presence at the spot is beyond question, as we have found in the present case. The testimony of the injured was corroborated in material particulars by Ram Surat PW 1 and the ocular evidence was in complete harmony with medical evidence.
16. We should also point out that the observation of the trial court is factually wrong that in the evidence before the court it had come to be stated that the accused had come from southern side but in the site plan, the accused were shown to have come from northern side. The fact, on the other hand, is that Babu Lal Yadav PW 2 stated that the accused had come from southern side. It is in the F.I.R. lodged by Ram Surat PW 1 by oral narration that the accused had vanished after the incident in the northern side. The Investigating Officer Fanindra Singh Yadav PW 4 in the site plan showed that the accused had run after the incident in the northern side. The trial Judge carelessly misinterpreted the evidence and the position depicted in the site plan to draw a wrong conclusion.
17. The victim had been shot at on vital part-neck by Jagdish accused respondent. He did so with premeditation. It is there in the evidence of Babu Lal Yadav PW 2 that he remained in the hospital in the Medical College for 22 days. It was just by chance that worst did not happen and he survived. The acquittal of accused respondent Jagdish is based on perverse finding recorded by the trial court. This enumerated acquittal has to be reversed and corrected. The accused Respondent Jagdish Murav is liable to be convicted under Section 307 I.P.C. A sentence of five years' rigorous imprisonment to the accused respondent would meet the ends of justice.