JUDGMENT M. Chaudhary, J.
1. This is an appeal from judgment and order dated 8th of September 1980 passed by I Additional Sessions Judge Etawah in Sessions Trial No. 77 of 1979 State v. Mahipal Singh and Ors. acquitting the accused of the charge levelled against them under Sections 147, 148 IPC and Sections 302 and 307 each read with Section 149 IPC.
2. Since accused Mahipal, Indal, Bhabhuti and Ramjit were reported having died, appeal against accused respondent No. 7 Ramjit stood abated vide order dated 7.4.05 and against rest of the accused respondents abovenamded vide order dated 18.7. 05.
3. Brief facts giving rise to this appeal in nutshell are that Moolu Singh and Kunji were real brothers Prayag Singh, Pahunchi Lal and Lalta Prasad were sons of Moolu Singh, and Badan Singh and Gaya Prasad sons of Kunji. Ratan Singh is the son of Prayag Singh and Nathu Ram and Rajendra Singh sons of Pahunchi Lal. Jaswant Singh was the son of Badan Singh and Ujagar Singh son of Gaya Prasad. At about 9:00 a.m. on 21.12.78 Nathu Ram and his father Pahunchi Lal were ploughing the field of their relation Badan Singh which they had taken on 'batai' and his uncle Gaya Prasad alongwith his son Ujagar were sowing their field. His uncle Prayag Singh alongwith his son Ratan Singh was also ploughing his field situate nearby. There was a water channel in the north of their fields and Mahipal was irrigating his field through that water channel. Since the water overflowing the water channel was going in the field of Gaya Prasad he asked Mahipal that he should see that water may not overflow the water channel as the water coming there through in his field was damaging the crop sown therein. Thereon Mahipal retorted that he should himself manage so that water might not come to his field which resulted in an altercation between them and Mahipal went away saying that he would see them. In the meanwhile Lalta Prasad, first cousin of Gaya Prasad and his nephew Jaswant Singh also reached there. They all were enjoying 'bins' sitting in their field; that at about 11:00 a.m. Nathu Ram and his father Pahunchi Lal resumed ploughing the field. In the meanwhile Mahipal and his brothers Shyam Babu and Tej Ram armed with guns, Indal with rifle and Bhabhuti with lathi alongwith their father Ramjit with spear and Babu Ram son of Bhabhuti with country made pistol reached there and Mahipal standing near Gaya Prasad shouted that he was speaking much and should be killed. Immediately Shyam Babu and Mahipal fired at Gaya Prasad with their respective guns thereby causing injuries to him and as his son Ujagar rushed for the rescue of his father and tried to intervene he also received pellet injuries and immediately Tej Ram fired at Ujagar Singh with gun. Prayag Singh, Pahunchi Lal, Lalta Prasad and Jaswant Singh rushed to the scene of occurrence. Then Ramjit and Bhabhuti shouted that they should also be killed and immediately Indal fired with rifle at Jaswant Singh and Prayag Singh, and Babu Ram and Mahipal fired at Pahunchi Lal and Lalta Prasad with country made pistol and gun respectively. Receiving the injuries all of them fell down in the field of Badan Singh excepting Prayag Singh who receiving the injuries fell down in the adjoining field of Jaivir. Ramjit also gave 2-3 ballam blows to Gaya Prasad. On hearing the hue and cry, Rajendra Singh brother of Nathu Ram, one Mansha Ram, Dalel Singh, Shyam Lal, Mukut Singh, Singhraj, Jasvir Singh and several other persons who were witnessing the occurrence rushed to the scene and challenged the bandits. Sighting them the miscreants bolted away towards east. Sustaining the fatal injuries Gaya Prasad, Ujagar Singh, Lalta Prasad, Jaswant Singh and Pahunchi Lal died on the spot instantaneously. Immediately Nathu Ram, son of deceased Pahunchi Lal went to police station Bharthana situate at a distance of some eight miles from village Walapur and lodged an FIR of the said occurrence with the police there at 3:30 p.m. the same noon.
4. SI Surendra Nath Trivedi to whom investigation of the crime was entrusted recorded statement of Nathu Ram, the first informant at the police station itself. Then he rushed to the scene of occurrence and drew inquest on the dead bodies of Gaya Prasad, Ujagar Singh, Lalta Prasad, Pahunchi Lal and Jaswant Singh respectively. He prepared inquest report of the dead body of Gaya Prasad (Ext Ka 9) and other necessary papers (Exts Ka 14 to Ka 16) and then inquest report of the dead body of Ujagar Singh (Ext Ka 10) and other necessary papers (Exts Ka 18 to Ka 20). Then he prepared inquest report of the dead body of Lalta Prasad (Ext Ka 11) and other necessary papers (Exts Ka 22 to Ka 24). He also prepared inquest report of the dead body of Pahunchi Lal (Ext Ka 12) and other necessary papers (Exts Ka 26 to Ka 28). Lastly, he prepared inquest report of dead body of Jaswant Singh (Ext Ka 13) and other necessary papers (Exts Ka 30 to Ka 32). Then he handed over all the dead bodies in separate sealed covers alongwith necessary papers to constables Balram Singh and Ram Bahadur Dubey for being taken for their post mortem. He also recovered one 'tikli' of 12 bore lying over the dead body of each of Gaya Prasad and Pahunchi Lal and prepared their recovery memos (Exts Ka 34 and Ka 35). He also picked up four empties of cartridges of 12 bore and one clip of rifle from the scene of occurrence and prepared their memo (Ext ka 36). Then he collected blood stained and simple earth from near the dead bodies of Gaya Prasad, Ujagar Singh, Lalta Prasad, Pahunchi Lal and Jaswant Singh respectively and prepared their recovery memos (Exts Ka 37 to Ka 41). Next day station officer Mohan Singh Maliwar took up investigation of the case in his hands. He visited the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 42).
5. Injured Prayag Singh was got medically examined by Dr S.K. Rathore in-charge Primary Health Centre Bharthana at 5:50 p.m. the same day. His medical examination revealed below noted injuries on his person:
1. Wound measuring 12 cm x 5 cm x 2 cm with irregular lacerated edges on right lower back about 8 cm above and backward from posterior superior iliac spine (right) and about 17 cm below from inferior angle of right shoulder blade and medially upto mid line of body. Edges are scorched, blackened and tattooed.
The doctor opined that the injury was caused by firearm from distance of about 3 to 4 feet and about half day old in duration. The injury was kept under observation and x-ray of right lower back was advised.
X-ray of right lower back revealed multiple radio opaque foreign body shadows therein.
6. Autopsy on the dead bodies of Jaswant Singh, Pahunchi Lal and Lalta Prasad were conducted by Dr C.B. Nimesh, Medical Officer Police Hospital Etawah on 22nd of December 1978 between 12:30 noon to 4:00 p.m.
7. Autopsy conducted on the dead body of Jaswant Singh revealed below noted ante mortem injuries on the dead body:
1. Lacerated wound 13 cm x 4 cm x bone deep on the right side of the face including right side of the eye 1/2 cm lateral to nasal and 2 cm above the angle of mandible right side.
2. Incised wound 6 cm x 2 cm x hone deep on right side of the face and lower part of pinna (lobule) right 1/2 cm above the angle of mandible right side.
3. Gun shot wounds 4 in number each measuring 1/2 cm x 1cm x muscle deep with margins inverted in the area of 7 cm x 5 cm on the medial aspect of right upper arm, 4 cm below the right axilla. Tattooing present.
4. Gun shot wounds 3 in number each measuring3/4 cm x 1 cm x muscle deep with margins averted in the area of 7 cm x 8 cm on the post lateral aspect of right upper arm 12 cm below the right achrom prominence.
On internal examination right humerus, right maxilla and right zygomatic bones were found fractured. There was cut mark on the right side mandible Right frontal hone of skull was found fractured. Brain was lacerated and its membranes ruptured. Stomach contained pasty food about 350 Gms.
The doctor recovered two shots and one wadding piece from the muscles of right upper arm.
The doctor opined that death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
8. Autopsy conducted on the dead body of Pahunchi Lal revealed below noted ante mortem injuries on the dead body;
1. Multiple gun shot wounds on the lower part of abdomen pelvic region in an area of 15 cm x 17 cm, 4 cm below the umbilicus upto just above the root of penis. Size of gun shot wounds .4 cm x .4 cm muscle deep to cavity deep with margins inverted.
2. Multiple gun shot wounds on the right thigh medial aspect in an area of 8 cm x 4 cm, 6 cm below injury No. 1, size .4 cm x .4 cm muscle deep.
On internal examination abdominal cavity contained one and a half litre blood. Stomach contained 550 grams rice food. Small and large intestine and their mesenteries were ruptured. Bladder was lacerated and ruptured.
The doctor opined that death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago....
9. Autopsy conducted on the dead body of Lalta Prasad revealed below noted ante mortem injuries on the dead body:
1. Gun shot wounds six in number on the right (hypochondrium) side& 3 cm below the last rib and 3 1/2 cm lateral to mid line in the area of 11 cm x 4 cm size ranging from 1 cm x 1 cm x cavity deep to 2 cm x 11 1/2 cm x cavity deep with inverted margins. Tattooing & charring present.
2. Gun shot wounds six in number on the back of right side lumbar region just above the post iliac crest and 6 cm lateral to mid line in an area of 7 cm x 5 cm. Size ranging from 2 cm x 1 1/2 cm x cavity deep to 1 1/2 cm x 1 cm x cavity deep with margins everted.
On internal examination small and large intestine and their mesenteries were found ruptured. Stomach contained pasty food 250 grams. Liver was lacerated.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
10. Autopsy on the dead bodies of Ujagar Singh and Gaya Prasad were conducted by Dr S. Tripathi, Surgeon District Hospital Etawah on 22nd of December 1978 at 3:00 p.m. and 3:45 p.m. respectively.
11. Autopsy conducted on the dead body of Ujagar Singh revealed below noted ante mortem injuries on his person:
1. Multiple gun shot wounds of entry in area of 35 cm x 22 cm on the front of abdomen and left thigh upper part and upper lateral part of right thigh 51 in number each measuring .3 cm x .3 cm abdominal cavity or muscle deep. No blackening of skin or singeing of hair.
2. Abrasion 2 cm x 1 cm on back of right shoulder.
3. Abrasion 1 cm x 1 cm behind left elbow.
No gunshot injury in the back or left upper limb.
On internal examination abdominal wall was found punctured by shots. Abdominal cavity contained 500 ml blood. Stomach contained 500 grams of rice. Small and large intestine and their mesenteries were punctured at several places. The doctor removed 14 pellets from abdominal muscles.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
12. Autopsy conducted on the dead body of Gaya Prasad revealed below noted ante mortem injuries on his person:
1. Incised wound 3 cm x 1 cm x bone deep on the right side of head 3 cm behind the ear.
2. Lacerated wound 1 cm x 1 cm x bone deep on the back of 1st outer phalangeal joint of right index finger.
3. Multiple gun shot wounds of entry in area of 15 cm x 10 cm on front of right thigh and penis each measuring .3 cm x .3 cm muscle deep. Total 21 in number.
4. Gun shot wound of entry 7 cm x 5 cm x abdominal cavity deep just below xiphi sternum with multiple gunshot wounds each measuring .3 cm x .3 cm muscle to abdominal cavity deep in an area of 3 cm around it. No blackening seen.
On internal examination liver was found lacerated. Stomach was punctured at several places and contained rice. The doctor removed 28 pellets from front of right thigh and penis and 40 pellets from the liver and abdominal walls and three wad pieces from the liver.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
13. The investigating officer got blood stained clothes of all the five deceased and blood stained and simple earth collected from near the place where the dead bodies of all the five were lying sent to Forensic Science Laboratory U.P. for Serologist's opinion if they contained human blood and if so of which blood group.
14. A perusal of the Serologist's Report goes to show that clothes of Ujagar Singh (item Nos. 1 to 6) and those of Gaya Prasad (item Nos. 21 to 24) contained human blood of blood group 'A', Blood stained clothes of Jaswant Singh (item Nos. 7, 8,10 & 11) and those of Lalta Prasad (item Nos. 17 to 19) contained human blood of blood group 'B'. Clothes of Pahunchi Lal (item No. 13) contained human blood of blood group 'AB'. Blood stained earth collected from near the dead bodies of Jaswant Singh and Pahunchi Lal (item Nos. 26 & 27) contained human blood. On the remaining items including blood stained earth collected from near the dead body of Ujagar Singh (item No. 25) the blood stains were found disintegrated.
15. After completing the investigation the police submitted charge sheet against the accused.
16. After framing of the charge against the accused the prosecution examined Nathu Ram (PW 1), Prayag Singh (PW 3) and Mukut Singh (PW 6) as eye witnesses of the occurrence. Testimony of rest of the witnesses is more or less of formal nature. PW 2 constable Ram Bahadur Dubey to whom dead bodies of Gaya Prasad, Ujagar Singh, Lalta Prasad, Pahunchi Lal and Jaswant Singh in separate sealed covers along with necessary papers were entrusted for being taken for their post mortem has stated the said fact. PW 4 Dr S.K. Rathore in-charge Primary Health Centre, Bharthana who medically examined injured Prayag Singh on 21.12. 78 at 5:50 p.m. has proved the injury report (Ext Ka 2). PW 5 Dr C.B. Nimesh, Medical officer Police Hospital Etawah who conducted autopsy on the dead bodies of Jaswant Singh, Pahunchi Lal and Lalta Prasad has proved the post mortem reports (Exts Ka 3 to Ka 5). PW 7 Dr S. Tripathi, Surgeon District Hospital Etawah who conducted autopsy on the dead bodies of Ujagar Singh and Gaya Prasad has proved the post mortem reports (Exts Ka 6 & Ka 7). PW 8 SI Surendra Nath Trivedi who drew inquest proceedings on the dead bodies of Gaya Prasad, Ujagar Singh, Lalta Prasad, Pahunchi Lal and Jaswant Singh has proved the inquest papers. He also proved recovery memos of blood stained and simple earth collected from near the dead bodies of all the five deceased (Exts Ka 37 to Ka 41). He also proved memo of 'tiklis' lying near the dead bodies of Gaya Prasad and Pahunchi Lal and memo of 'tikli' found on each of the dead bodies of Gaya Prasad and Pahunchi Lal at the time of inquest (Exts Ka 34 & Ka 35). He prepared the memo of four empties of cartridges of 12 bore picked up by him from the scene of occurrence (Ext Ka 36). PW 9 constable Jitendra who took 15 bundles of the articles to Forensic Science Laboratory Agra for chemical examination has stated the said fact. PW 10 Station Officer Mohan Singh Maliwar who took up investigation of the case in his hands on 22.12. 78 and after completing investigation submitted charge sheet against the accused has proved the police papers. PW 11 Dr Rajendra Singh, Radiologist, District Hospital Etawah who x-rayed lower back of injured Prayag Singh proved the x-ray plate (Ext 47) and x-ray report (Ext Ka 44). PW 12 HM Chatar Singh who prepared check report on the basis of written report (Ext ka 1) handed over by Nathu Ram at the police station and made entry regarding registration of the crime in the general diary has proved these papers (Exts Ka 8 and Ka 45).
17. The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely due to village party factions.
18. The accused examined DW 1 Gorey Lal and DW 2 Satendra Singh in their support. DW 1 Gorey Lal is the clerk in Canal Department and DW 2 Satendra Singh Lekhpal of village Walapur, They have stated certain facts on the basis of record. Since their statements are not based on the spot position they are of no avail to the accused.
19. On an appraisal of the parties evidence and other material on the record the trial court disbelieved the prosecution evidence and holding the accused not guilty of the charge levelled against them acquitted all of them.
20. Feeling dissatisfied with the impugned judgment this Government appeal has been filed on behalf of the State assailing acquittal of the accused respondents.
21. We have heard learned AGA Miss M.A. Munis for the State appellant and Sri Akhilesh Singh, learned Counsel for the accused respondents and gone through the record.
22. Learned AGA for the State 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 grounds on which order of acquittal is based are unreasonable it can not be sustained in law and is liable to be set aside. On the other hand, learned Counsel for the accused respondents contended that since the learned trial judge has given cogent and convincing reasons for acquitting the accused the finding of acquittal of the accused respondents recorded by the trial judge need not be interfered by this Court in appeal.
23. We are conscious of the fact that an 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.
24. A perusal of the record goes to show that PW 1 Nathu Ram, PW 3 Prayag Singh and PW 6 Mukut Singh have appeared as eye witnesses of the occurrence. PW 1 Nathu Ram, son of deceased Pahunchi Lal has narrated all the facts of the occurrence from the beginning to the end as stated above deposing that at about 9:00 or 9: 30 a.m. the alleged morning he and his father Pahunchi Lal were ploughing the field of Badan Singh which they had taken on 'batai' and his uncle Gaya Prasad and his son Ujagar were sowing crop in their field; that his uncle Prayag Singh and his son Ratan Singh were ploughing their field situate at a distance of 40-50 paces from the field in which they were working; that Mahipal Singh was irrigating his field through the water channel abutting the field of Gaya Prasad and since the water was overflowing Gaya Prasad asked Mahipal Singh to irrigate his field through that water channel so as not to damage the crop sown by him by overflow of water which resulted an altercation between them and Mahipal Singh went away saying that he would see him; that thereafter Lalta Prasad and Jaswant Singh also reached there and all of them sitting in the field of Badan Singh were relaxing by conversing together and smoking 'bins'; that at about 11:00 a.m. that very noon he and his father resumed ploughing their field; that in the meanwhile Mahipal Singh, Shyam Babu and Tej Ram taking guns, Indal with rifle and Bhabhuti with lathi alongwith their father Ramjit with ballam and Babu Ram son of Bhabhuti with countrymade pistol reached there and Mahipal pointing at Gaya Prasad started shouting that he was speaking much and should be killed; that immediately Shyam Babu and Mahipal Singh fired at Gaya Prasad with guns and that immediately Ujagar rushed for the rescue of his father and he also received pellet injuries and immediately Tej Ram fired at him with gun. He further stated that immediately Pahunchi Lal and Prayag Singh rushed to the scene of occurrence and then Ramjit and Bhabhuti shouted that they should also be killed; that immediately Indal and Babu Ram fired at Jaswant Singh and Pahunchi Lal with their respective weapons; that thereafter Mahipal Singh and Indal also fired at Lalta Prasad and Prayag Singh with their respective weapons; that Ramjit and Bhabhuti also gave blows to the injured with their respective weapons and that sustaining the fatal injuries Pahunchi Lal, Ujagar, Lalta Prasad, Gaya Prasad and Jaswant Singh died on the spot and Prayag Singh received firearm injuries at his back. He further stated that thereafter at about 12:00 noon he went to the police station Bharthana situate at a distance of some eight miles from the village on foot; that on the way he got a report of the occurrence scribed by co-villager Jai Ram Singh at his shop and then taking the written report went to the police station and handed over report of the occurrence to the police there. PW 3 Prayag Singh, the injured and PW 6 Mukut Singh corroborated him stating likewise on all the material aspects of the case. All the three eye witnesses were subjected to searching and gruelling cross-examination but nothing tangible could be brought on the record in their cross-examination to impair their credibility. However, the trial judge discarded the testimony of all the three eye witnesses doubting their presence at the scene of occurrence. He observed that presence of PW 1 Nathu Ram and PW 6 Mukut Singh is doubtful at the scene of occurrence as they did not receive even a scratch in the incident and their ocular testimony is in conflict with the medical evidence. He doubted presence of PW 3 Prayag Singh, the injured observing that he deposed that accused Indal fired two shots with rifle, one at Jaswant Singh and the other at him but a perusal of the postmortem report and injury report (Exts ka 3 & ka 2) respectively showed that none of them received firearm injury caused with rifle and therefore he might have received injury somewhere else. It is true that while the assailants were about to assault Prayag Raj he ran for his life and at that time he might have felt that shot was fired at him by Indal with rifle but it might have been fired by any of the assailants armed with gun or countrymade pistol. When there were so many assailants armed with firearms and as many as six victims and shot was fired at him from behind, the mere fact that gun shot injury received by him could not be caused with rifle would not be sufficient to discard his testimony. The reason is that the shot was fired at him from behind while he was running for his life and at that time he might have perceived that shot was fired at him by Indal with rifle but in fact it might have been fired by any of the other assailants armed with guns or countrymade pistol as the x-ray of his lower back revealed multiple radio opaque foreign body shadows therein. But ante mortem injury No. 1 sustained by Jaswant Singh, the deceased could be caused with rifle. No doubt, PW 5 Dr C.B. Nimesh, Medical Officer Police Hospital Etawah who conducted autopsy on the dead body of Jaswant Singh stated in his cross-examination that injury No. 1 could be caused with lathi, but on a perusal of internal examination we are of the view that injury No. 1 could be caused with rifle. A perusal of the internal examination goes to show that right maxilla, right zygomatic and right frontal bones were found fractured and brain was lacerated and its membranes were ruptured. In our opinion that much internal damage could not be caused with a single lathi blow. Therefore, the said finding recorded by the trial judge doubting presence of PW 3 Prayag Singh, the injured at the scene of occurrence is erroneous. This injured witness Prayag Singh withstood his cross-examination firmly, and his presence at the scene of occurrence cannot be doubted.
25. Further, it has been pointed out by the learned Counsel for accused respondents that PW 1 Nathu Ram stated that Ramjit gave 2-3 piercing blows with ballam to Gaya Prasad whereas a perusal of the post mortem report goes to show that he received only one incised wound 3 cm x 1 cm x bone deep on right side of head 3 cm behind the ear. No doubt that autopsy conducted on the dead body of Gaya Prasad did not reveal any punctured wound but when he was given blows with ballam he having received so many injuries must be floundering and fluttering due to shock and pain and in that situation the blows given by Ramjit might not have hit him. The fact remains that Gaya Prasad received one incised wound caused by pointed and sharp edged weapon and ballam may be pointed and sharp edged both at the same time. In fact when there were seven assailants armed with various weapons and six victims and five victims out of six succumbed to the fatal injuries received by them on the spot, it is very difficult for the witnesses to perceive and observe and then reproduce them accurately with minute details. One or two shots fired by the assailants with their firearms might have missed the aim. FIR of the occurrence was lodged by Nathu Ram, son of deceased Pahunchi Lal at the police station Bharthana situate at a distance of some eight miles from village Walapur promptly as the said occurrence took place at 11:00 a.m. and he proceeded from the scene of occurrence for the police station on foot at about 12:00 noon and got report of the occurrence scribed by co- villager Jai Ram Singh at his Arhat and handed over written report of the occurrence at the police station at 2:30 p.m. In the FIR name of Prayag Singh, the injured and that of Mukut Singh are mentioned as eye witnesses. In the forenoon the fateful day Nathu Ram alongwith his father Pahunchi Lal being engaged in ploughing his field, his presence at the scene of occurrence was very natural and could not be doubted. PW 3 Prayag Singh is the injured who received injuries in the said incident. The alleged forenoon he was also ploughing his field situate nearby to the scene of occurrence. He stated that at the relevant time he was sitting with Pahunchi Lal and Ors. in the field of Badan Singh and smoking 'Biri'. His presence too at the scene of occurrence could not be doubted. All the victims were members of one family. PW 6 Mukut Singh had his hut and field at a short distance from the place of occurrence towards north east. Thus presence of neither of the three eye witnesses at the scene of occurrence can be doubted in any way.
26. No doubt, PW 1 Nathu Ram is closely related to all the deceased as he is son of deceased Pahunchi Lal and nephew of deceased Lalta Prasad. PW3 Prayag Singh, the injured is real brother of deceased Pahunchi Lal and Lalta Prasad. PW 6 Mukut Singh too can not be termed to be an altogether independent witness as he admitted in his cross-examination that he had some land in joint khata with the victims. But their testimony can not be discarded on the ground of relationship alone as they appear to be honest and truthful witnesses and their testimony has not been impaired in their cross-examination. Testimony of injured witness Prayag Singh (Pw 3) who received injuries in the same occurrence has its own relevance and efficacy.
27. It has also been observed by the trial judge that the statements of the witnesses are self-contradictory and inconsistent with each other. As for example, PW 1 Nathu Ram stated in his examination-in-chief that when the accused armed with various weapons reached there he alongwith his father was ploughing his field whereas he stated in his cross-examination that when the accused armed with various weapons reached the scene of occurrence they were sitting there. A perusal of the statement of PW 1 Nathu Ram goes to show that his cross-examination was deferred several times. Under the circumstances it is quite natural that a witness gets tired by lengthy and arduous cross-examination and in that state of mind some contradictions in his statement are quite natural. It has also been observed by the trial judge that PW 3 Prayag Singh, the injured stated that the co-villagers took him to the police station and that he reached the police station at about 6:00 p.m. and then he alongwith the constable taking 'mazroobi chink' was sent to PHC Bharthana for his medical examination whereas a perusal of the injury report goes to show that he was medically examined by Dr S.K. Rathore Medical officer in-charge PHC Bharthana at 5:50 p.m. the same day. PW 3 Prayag Singh being a rustic witness would not have had correct idea of time. He would have reached the police station at about 5:30 p.m. or so and if he stated that he reached the police station at about 6:00 p.m. there is nothing wrong in it because rustic villagers do not have idea of precise time, more so time is not essence of their life. It has also been pointed out that Nathu Ram, the first informant nowhere mentioned in the FIR that accused respondent Bhabhuti had given any lathi blow to any of the victims. No doubt, PW 1 Nathu Ram nowhere mentioned in the FIR that Bhabhuti gave any lathi blow to any of the victims but the state of mind of the person making the FIR should be kept in mind. Seeing the murder of his father, two uncles and two cousins he must have baffled and confounded and might have forgotten to mention the secondary facts as they might have escaped his attention at the time of getting the report scribed. It is pertinent to observe that all the three eye witnesses consistently stated in their examination-in-chief that Bhabhuti gave lathi blows to the victims and their testimony on the point stands corroborated by the medical evidence. A perusal of the post mortem reports goes to show that deceased Ujagar Singh received two abrasion injuries and Gaya Prasad also received a lacerated wound. These omissions or contradictions are of trivial nature not affecting credibility of the ocular testimony of the three eye witnesses who withstood the test of their cross-examination firmly and therefore ought not be magnified.
28. It may also not be out of place to point out that for practical purposes, the use of rifle, ballam and lathi in the incident has become meaningless because these weapons were used by the accused respondents who have died during the pendency of appeal. The point is that two of the surviving respondents Shyam Babu and Tej Ram used guns and the third one Babu Ram used countrymade pistol in shooting. It is the undenying fact that all the five deceased and injured Prayag Singh received injuries of such weapons.
29. The trial Judge also observed that the accused had no motive for committing the said crime. We may mention here that in the case of direct evidence like present one motive pales into insignificance. Sometimes murders are committed on trifling matters.
30. The trial judge also laid much emphasis upon the fact that since it is mentioned in the inquest report that the wounds sustained by the deceased were bandaged and if Nathu Ram, the first informant went to the police station after seeing that all the five namely Pahunchi Lal, Gaya Prasad, Lalta Prasad, Jaswant Singh and Ujagar Singh had succumbed to the injuries sustained by them there was no point in getting injuries sustained by the deceased bandaged. A perusal of the inquest reports goes to show that the sub-inspector who drew inquest proceedings on the dead bodies of all the five deceased mentioned in the inquest reports of Gaya Prasad, Ujagar and Lalta Prasad that a gamcha was tied around the fatal injuries sustained by each of them. A perusal of inquest reports of Pahunchi Lal and Jaswant Singh goes to show that it is mentioned therein that wound of Pahunchi Lal was tied with a piece of Dhoti and that of Jaswant Singh with Chadra, It appears that as the assailants bolted away from the scene of occurrence, the relatives of the victims present there immediately tied the wounds sustained by each of them bleeding profusely with Gamcha or a piece of Dhoti or Chadra in order to stop the flow of blood in the expectation that any of them could survive, but unfortunately all the five succumbed to fatal injuries sustained by them. The trial judge unnecessarily laid much emphasis on this aspect by interpreting the fact mentioned in the inquest reports otherwise without any foundation. Further, it appears that due to winter season family members would have put quilt or bed covers over the dead bodies. There is nothing unusual in it because it is a mater of common knowledge that dead body is never left uncovered by family members of the deceased. Thus, the finding given by the trail judge that under the circumstances the testimony of the eye witnesses was to be discarded is perverse and erroneous.
31. Since evidence on the record has not been properly analysed and the trial court acted on surmises and conjectures ignoring relevant aspects and unnecessarily putting emphasis on certain aspects which did not have any foundation we are of the view that the impugned judgment cannot be sustained in law and is liable to be set aside.
32. The appeal is allowed and the impugned judgment acquitting the accused respondents is hereby set aside. Since accused Mahipal, Indal, Bhabhuti and Ramjit were reported having died, the State appeal against them stood abated. Accused respondents Shyam Babu, Tej Ram and Babu Ram are hereby convicted under Section 148 IPC and Sections 307 and 302 each read with Section 149 IPC.
IPC and each of them is sentenced to two years' rigorous imprisonment, five years' rigorous imprisonment and imprisonment for life respectively thereunder. All the sentences shall run concurrently.
33. Accused respondents Shyam Babu, Tej Ram and Babu Ram are on bail. Chief Judicial Magistrate, Etawah is directed to get all the three accused respondents above named arrested and lodged in jail to serve out the sentences imposed upon them.
34. Let a copy of the judgment be certified to the court below.
35. Record of the case be transmitted to the court below immediately for necessary compliance under intimation to this Court within two months from the date of receipt of copy of the judgment.