JUDGMENT M. Chaudhary, J.
1. Since both the appeals have arisen out of the one and the same judgment dated 19thof November, 1981 passed by VI Additional Sessions Judge, Bareilly in Sessions Trial No. 436 of 1980 State v. Mohd. Mian and Ors. , they have been taken up together and are being disposed of by one and the same judgment.
2. Government appeal has been filed on behalf of the State from the impugned judgment and order passed by VI Additional Sessions Judge, Bareilly in Sessions Trial aforesaid acquitting accused Zamir Mian, Ahmad Mian and Shamim Mian of the charge levelled against them under Sections 302 and 307 each read with 34 IPC. Mohammad Mian was also acquitted of the charge levelled against him under Section 302 read with Section 34 IPC. However accused Mohammad Mian who was convicted by the Additional Sessions Judge under Section 307 IPC and sentenced to undergo six years' rigorous imprisonment there under has filed criminal appeal.
3. Brief facts giving rise to these appeals are that at 9: 10 a.m. on 24th of April, 1980 Sharafat Husain handed over an FIR at police station Shahi situate at a distance of four miles from village Firozpur alleging that Zamir Mian, Ahmad Mian and Shamim Mian are sons of accused Mohammad Mian. Sharafat Husain and Firasat Husain are sons of Riyasat Husain. Mohammad Mian used to run a fair price shop in the outer portion of his house. At about 7: 00 a.m. that very morning Iqrar Mohammad son of Firasat Husain went to the fair price shop of Mohammad Mian to buy sugar who supplied him 1 kg sugar instead of 2 kgs against his ration card. Then Firasat Husain went to the shop of Mohammad Mian and asked him as to why he had supplied only 1 kg of sugar when he used to get 2 kgs of sugar on his ration card. Thereon Mohammad Mian started abusing him stating that he would provide only 1 kg of sugar and it was upto him to take the same or not which resulted in an altercation between them and immediately Mohammad Mian fired at Firasat Husain with his gun hitting him on his thigh and as he turned back Zamir Mian son of Mohammad Mian fired at him with country made pistol hitting him at his upper right gluteal region and sustaining the injuries he fell down. On hearing the sound of shots, Riyasat Husain went out of his house and proceeded towards the scene of occurrence. After seeing his son Firasat Hussain lying injured there he questioned Mohammad Mian as to why it was done which resulted in a brawl between them. Thereon Mohammad Mian asked his sons to kill Riyasat Husain and immediately Ahmad Mian taking gun and Shamim Mian with country made pistol went on the roof and as Riyasat Husain turned back both of them fired at him with their respective weapons in quick succession and sustaining the fatal injuries Riyasat Husain fell down 2- 3 paces ahead of Firasat Husain. On hearing the sound of several shots, Sharafat Husain went out of his house and proceeded towards the scene of occurrence. The said incident was witnessed by Sabir Husain, Mohd Aslam, Summed, Rahat Husain and others who were going to the shop for purchasing sugar. Immediately Sharafat Husain went to his father Riyasat Husain who was lying in precarious condition and gasping. Then he with the help of others took his injured father to his house; but by that time he succumbed to the fatal injuries sustained by him. He kept the dead body of his father in the 'Dalan' of his house. In the meanwhile injured Firasat Husain was also brought from the place of occurrence.
4. The police registered a crime against the accused and made entry regarding registration of the crime in the General Diary accordingly. After receiving information at village Mohanpur Sl Srinivas Sharma to whom investigation of the crime was entrusted went to the scene of occurrence and then to the house of Sharafat Husain where the dead body of the deceased was kept. Injured Firasat Husain was sent to the District Hospital for his medical examination. He drew inquest proceedings on the dead body of Riyasat Husain, prepared the inquest report of the dead body (Ext Ka 4) and other necessary papers ( Exts Ka 5 & Ka 6 ) and handed over the dead body in a sealed cover alongwith necessary papers to Constables Raj Kumar and Vijai Kumar for being taken for post mortem. Then he recorded statements of the witnesses. He also inspected the scene of occurrence and prepared its site plan showing the streak of blood from the spot to the house of the deceased ( Ext Ka 7). He also collected blood stained and simple earth from two places at the scene of occurrence and also from the place where the dead body of Riyasat Husain was kept, sealed them in separate packets and prepared their memo ( Ext Ka 10). He also picked up a pellet lying at the scene of occurrence and prepared its memo (Ext Ka 9).
5. Injured Firasat Hussain was medically examined by Dr. J.N. Bhargava, Medical Officer, District Hospital, Bareilly at 12:25 p.m. the same noon. Medical examination of injured Firasat Husain revealed below noted injuries on the person:
(1) Gun shot wound of entry 1 cm x 1 cm on right iliac fossa 2 cm below anterior superior iliac spine with margins inverted No blackening, charring or tattooing present around the wound.
(2) Gun shot wound of exit 1.5 cm x 1.5 cm over right buttock upper outer quadrant with margins everted. No blackening, charring or tattooing present.
6. The doctor opined that injuries were caused by firearm and fresh in duration. The doctor advised x-ray and the injuries were kept under observation.
7. Dr. K.S. Tiwari, Senior Radiologist, District Hospital, Bareilly who conducted autopsy on the dead body of Riyasat Hussain on 25thof April, 1980 at 2:30 p.m. found below noted ante mortem injuries on the dead body:
(1) Gun shot wound of entry 1 cm x 1 cm x chest cavity deep on back of chest 6 cm below the spine of scapula lateral end, margins inverted and ragged. No blackening or tattooing present. Under the injury humerus bone was fractured on upper part.
(2) Gun shot wound of entry 1 cm x 1 cm x cavity deep on left side back of chest 5 cm below injury no. 1 Margins inverted and ragged. No blackening or tattooing present.
(3) Gun shot wound of entry 1 cm x 1 cm x cavity deep on left side back of chest 8 cm away from midline and 19 cm below root of neck. Margins inverted and ragged. No blackening or tattooing present.
(4) Gun shot wound of entry 1 cm x 1 cm x cavity deep on left side back 10 cm below injury No. 3.
(5) Gun shot wound of exit 1.2 cm x 1 cm on the front of left shoulder 2 cm below top of shoulder corresponding to injury no. I, margins everted.
(6) Gun shot wound of exit 1.2 cm x .1.1 cm on front of chest left side upper part 4 cm above left nipple corresponding to injury no. 2, margins everted.
(7) Gun shot wound of exit on left side chest 6.5 cm below left nipple corresponding to injury no. 2, margins everted.
(8) Gun shot wound of exit 1.2 cm x 1 cm on front of chest left side 2.1 cm from mid line and 19 cm from umbilicus corresponding to injury no. 4, margins everted.
(9) Abrasion 2 cm x 2 cm on outer aspect of left buttock 10 cm below anterior superior iliac spine On an internal examination left humerus bone was found fractured. 5 th rib on left side was found fractured, 7thcostal cartilage was found fractured on front side. Left Pleura torn upto plueral cavity containing 1 litre of blood. Left lung was found punctured through and through at two places . Pericardium was also punctured and cavity contained 300 cc. blood. Left atrium and right ventricle were punctured through and through. Stomach contained about 50 gm semi digested food material.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about 1 to 1 1/2 day ago.
8. After completing investigation the police submitted charge sheet against the accused accordingly.
9. After framing of charge against the accused the prosecution examined Sharafat Husain (PW1), Firasat Husain (PW2) and Summeri (PW3) as eye witnesses of the occurrence. PW4 Dr. J.N. Bhagarva who medically examined injured Firasat Husain on 24thof April, 1980 at 12:25 a.m. has proved the injury report (Ext Ka 2). PW5 K.S. Tiwari who conducted autopsy on the dead body of Riyasat Husain has proved the post mortem report ( Ext. Ka 3) stating that the ante mortem injuries sustained by Riyasat Husain were sufficient to cause his death in ordinary course of nature. PW6 Sl Srinivas Sharma who investigated the crime in main has proved the police papers . PW7 HC Raghvendra Pal Singh who prepared check report on the basis of written report of the occurrence and made entry in the General Diary regarding registration of the crime has proved these papers (Ext. Ka 13 & Ka 14). PW8 Constable Raj Kumar to whom the dead body of Riyasat Husain in a sealed cover alongwith necessary papers was entrusted for its post mortem has stated the said fact.
10. The accused pleaded not guilty denying the alleged occurrence altogether stating that they were implicated in the case falsely on account of enmity.
11. On an appraisal of evidence and other material on the record the trial judge disbelieved the prosecution case regarding latter part of the occurrence and giving benefit of doubt to all the accused acquitted them of the charge levelled against them under Section 302 read with Section 34 IPC. However he held only accused Mohammad Mian guilty of the charge levelled against him under Section 307 IPC convicting him under Section 307 IPC and sentencing him to six years' rigorous imprisonment thereunder He acquitted the remaining accused of the charge levelled against them under Section 307 read with Section 34 IPC.
12. Feeling dissatisfied with the impugned judgment an appeal has been preferred by the State assailing acquittal of the accused respondents.
13. Feeling aggrieved by his conviction under Section 307 IPC and sentence awarded thereunder accused Mohammad Mian also filed an appeal for redress.
14. We have heard learned AGA Sri R.S. Sengar for the State appellant and Sri G.S.Chaturvedi learned Senior Advocate for the accused respondents.
15. We have also heard the appellant's learned counsel Sri G.S.Chaturvedi and learned AGA Sri R.S.Sengar for the State respondent in the criminal appeal.
16. Learned AGA for the State appellant .submitted that the learned trial judge has not properly appreciated evidence of the eye witnesses and has ignored their testimony regarding murder of Riyasat Husain on tenuous ground resulting in gross miscarriage of justice. On the other hand, learned counsel for the accused appellant vehemently argued that the learned trial judge wrongly placed reliance on the testimony of the eye witnesses and hence conviction of accused appellant Mohammad Miyan can not be maintained in law. He further contended that finding of acquittal of the accused recorded by the trial court should not be interfered with in appeal as the learned trial judge has given cogent and convincing reasons in support of the judgment of the acquittal.
17. 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 reappreciate 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 an 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.
18. A perusal of statements of the eye witnesses examined by the prosecution goes to show that PW 1 Sharafat Husain, son of the deceased is the first informant who lodged FIR of the occurrence at police station Shahi situate at a distance of four miles from the place of occurrence at 9:10 a.m. without losing any time. He stated that soon after the occurrence he with the help of others brought his injured father in precarious condition and injured brother Firasat Husain from the spot to his house though his father Firasat Husain succumbed to the firearm injuries sustained by him by the time he reached his house. Then after knowing the fact of firing at Firasat Husain by Mohammad Mian and Zamir Mian he got a report of the occurrence scribed by Meharban, the co-villager and then went to the police station and handed over written report of the occurrence to the police there. He also stated that he could not take his injured brother Firasat Husain to the police station as no vehicle was available there. The police registered a crime on the basis of the written report handed over at the police station against the accused at 9:10 a.m. the same morning and made entry regarding registration of the crime in the general diary (Exts Ka 13 & Ka 14). We see no plausible reason to doubt the veracity of the GD entry prepared by the police official in the discharge of his official duties and time of registration of the case mentioned in the check report. We therefore find that FIR of the occurrence was lodged by Sharafat Husain, son of the deceased at the police station promptly.
19. A perusal of the record goes to show that PW 2 Firasat Husain, the injured and PW 3 Summed appeared as witnesses of the entire occurrence and PW 1 Sharafat Husain only as a witness of murder of Riyasat Husain. No doubt PW 1 Sharafat Husain nowhere mentioned in the FIR that he witnessed the murder of his father Riyasat Husain but his statement regarding thereto is quite natural and coherent. He stated that he got the FIR of the occurrence scribed by Meharban according to what he himself saw and what was told to him by his injured brother Firasat Husain. PW6 SI Sri Nivas Sharma, the investigating officer deposed that after receiving information of the crime at village Mohanpur he alongwith the police force immediately rushed to the scene of occurrence and after drawing inquest proceedings on the dead body of Riyasat Husain and entrusting the same to constables Raj Kumar and Vijai Kumar he recorded statement of Sharafat Husain (PW1) and then he inspected the scene of occurrence in the presence of Sharafat Husain. A perusal of the site plan map goes to show that Sharafat Husain witnessed the occurrence by standing near the dilapidated 'baithak' of Chhotey Pradhan. He gave an eye witness account of the murder of Riyasat Husain deposing that Mohammad Mian used to run a fair price shop in the outer portion of his house situate at a distance of 60- 70 paces from his house, that at about 7:00 a.m. the alleged morning Iqrar, son of Firasat Husain went to take sugar from the said fair price shop; that ration card was deposited at the fair price shop of Mohammad Mian since before and the sugar was issued on ration card; that he brought only one kg sugar whereas Firasat used to get two kgs sugar at his ration card ; that then Firasat went to the shop of Mohammad Mian to complain as to why he had supplied only one kg sugar; that after a little while he heard sound of shots and then he and his father, went out of their house; that Riyasat Husain proceeded towards the fair price shop and he stood near the dilapidated 'baithak' of Chhotey Pradhan where Summed and Mohammad Aslam were also standing; that after seeing his son Firasat Husain lying injured Riyasat Husain went towards the fair price shop and a wrangling took place between Riyasat Husain and Mohammad Mian; that thereon Mohammad Mian asked his sons that he should be killed; that immediately Ahmad Mian taking gun and Shamim Mian with country made pistol went at the roof of the verandah abutting the shop; that by that time Riyasat Husain was about to turn that immediately Ahmad Mian and Shamim Mian fired shots at Riyasat Husain in quick succession thereby causing fatal injuries to him and sustaining injuries he fell down and both the miscreants took to their heels and that then he with the help of co-villagers took his injured father Riyasat Husain to his house but by the time he reached his house he succumbed to the firearm injuries sustained by him. He also took his injured brother Firasat Husain to his house. There is no room for any doubt that he himself witnessed the murder of his father Riyasat Husain. It has to be kept in mind that due to sudden murder of his father and serious injuries caused to his brother Firasat Husain he must have gone baffled and confounded and in that condition of mind whatever he thought necessary he mentioned in the FIR. The very fact that soon after returning from the police station he gave eye witness account of his father's murder to the investigating officer who reached the spot can not be thrown away merely because he did not mention in the FIR that he also witnessed the occurrence. PW 2 Firasat Husain, the injured has narrated all the facts of the occurrence from the beginning to the end as stated above. After receiving the firearm injury Firasat Husain fell down at a distance of some 7-8 paces from the fair price shop of Mohammad Mian. After receiving the firearm injury injured Firasat Husain was mentally alert as he had received injury at right iliac fossa having a communicating wound of exit over right buttock without getting any vital organ of his body damaged. We find that though lying injured he was quite alert and was very much in a position to see the assault at his father. PW 3 Summed also narrated all the facts of the occurrence from the beginning to the end deposing that at about 7:00 a.m. the alleged morning he was going to the fair price shop of Mohammad Mian to take sugar and as he reached near the dilapidated 'baithak' of Chhotey Pradhan he saw that some altercation was going on between Firasat Husain and Mohammad Mian over the quantity of sugar supplied; that in the meanwhile Mohammad Mian fired at Firasat Husain with his gun causing injuries to him and after taking turn he proceeded few paces ahead that his son zamir Mian fired at him with country made pistol and he could not see if that fire hit Firasat Husain or not; that on hearing the sound of shots, Riyasat Husain and Sharafat Husain went out of their house and Sharafat Husain stood with him and Riyasat Husain went to see his son lying injured and then talked to Mohammad Mian as to why he had done so which resulted in a brawl between them; that in the meanwhile Mohammad Mian asked his sons that he should be killed; that immediately Ahmad Mian taking gun and Shamim Mian with countrymade pistol went at the roof of their verandah adjoining the shop and fired at Riyasat Husain in quick succession and that sustaining the fatal injuries Riyasat Husain fell down and then the miscreants ran away shouting that if any one would chase them he would also be shot dead. PW 1 Sharafat Husain, son of the deceased and PW 2 Firasat Husain the injured were subjected to searching and gruelling cross-examination but nothing tangible to discredit their testimony could be brought on record. No doubt, PW 3 Summed stated in his cross-examination that two shots were fired by Ahmad Mian and Shamim Mian from the roof at Riyasat Husain and two shots were fired by Mohammad Mian and Jamir Mian from the shop at him. But it is not of far reaching consequence. By and large, the testimony of PW 3 Summeri has remained intact in all respects and he corroborated both the eye witnesses abovenamed on all the material points The principle of 'falsus in uno falsus in omnibus' is not to be blindly invoked in appraising evidence adduced in our courts where witnesses seldom tell the whole truth and often resort to exaggerations, embellishments and 'padding up' to support a story, however, true in the main. It is the function of the Court to disengage the truth from falsehood and to accept what it finds to be true and reject the rest. Otherwise too, memory of the witness may be in fault due to his power of observation and perception. On a careful scanning the evidence of the three eye witnesses it is established that at about 7:00 a.m. the alleged morning an altercation took place between Firasat Husain and Mohammad Mian over supply of less quantity of sugar and during altercation Mohammad Mian fired at Firasat Husain with firearm causing injuries to him; that on hearing the sound of shot, Riyasat Husain and his son Sharafat Husain went out of their house, that as Riyasat Husain saw his son lying injured near the said fair price shop a wrangling took place between Riyasat Husain and Mohammad Mian and that at the exhortation of Mohammad Mian his sons Ahmad Mian and Shamim Mian fired with gun and countrymade pistol from the roof of the verandah of their house at Riyasat Husain causing fatal injuries to him resulting in his death. The learned trial judge disbelieved the testimony of the eye witnesses regarding murder of Riyasat Husain mainly on the ground that since all the four shots were fired by Ahmad Mian and Shamim Mian at Riyasat Husain from the roof of their verandah from a distance of some 10-11 paces, direction of ante mortem injury No.l found on the dead body upwards falsifies the prosecution version. In making the said observation the learned trial judge committed grave error. After receiving two or three firearm injuries at back of his chest having communicating wounds of exit at the chest the injured must have staggered and stumbled and in the course of stumbling down if a shot hit him at his back its direction would be upwards. Out of four firearm wounds of entry direction of gunshot wound of entity No.l corresponding to wound of exit No.5 is upwards. Direction of gunshot wound of entry No.2 corresponding to wound of exit no. 6 is at the same level and direction of gunshot wounds of entry Nos. 3 and 4 corresponding to gunshot wounds of exit Nos. 7 and 8 respectively is downwards. Since the learned trial judge did not advert to this aspect of medical evidence from the said angle his approach that since the shots were fired at the victim from the roof ante mortem gunshot wound of entry No.l corresponding to gunshot wound of exit no. 5 being upwards could not be caused is wholly erroneous.
19. When the shots are fired in quick succession it is very difficult for the witnesses to tell with exactitude as to which shot fired at the victim landed at which portion of his body. The victim apprehending imminent danger to his life can not remain static or stationary for a moment even and at the moment the shot fired hit him at what position he was can not be said. It also can not be said with certainty if all the shots fired at the victim hit him. Therefore discrepancies in the statements of witnesses in this regard should be ignored.
20. There was streak of bad blood between the two sides as 15-16 years ago Ausaf Ali, brother-in-law (Sala) of Mohammad Mian and Riyasat Husain had contested the election of Gram Pradhan and Mohammad Mian and his family members had supported Ausaf Ali. However Ausaf Ali was trounced and Riyasat Husain was elected Pradhan. An election petition was also litigated between the two which was decided in favour of Riyasat Husain. This backdrop of enmity was allegedly responsible for the murder of Riyasat Husain in this incident as it was sparked by wrangling between the two the fateful morning.
21. It has also been contended by the learned counsel for the accused respondents that Riyasat Husain had several enemies and it is quite possible that he might have been done to death and his son Firasat Husain assaulted by one of them at some dark hour of night and the accused were implicated in the crime on account of long standing enmity. The said argument advanced by the learned counsel for the accused respondents is far fetched and deserves outright rejection for twofold reasons: (i) because injured Firasat Husain was medically examined by Dr J.N. Bhargava at District Hospital Bareilly on 24thof April 1980 at 12: 25 noon and at the time of his medical examination his injuries were found fresh. Normally injuries caused within six hours of medical examination are said to be fresh. Had the injuries been caused before sunbreak they would not have been found fresh, (ii) a perusal of the post mortem report goes to show that the doctor conducting autopsy on the dead body of Riyasat Husain mentioned that stomach contained about 50 grams semi digested food material which goes to show that within half an hour prior to the incident Riyasat Husain would have taken something solid in the breakfast. Had he been done to death at some hour before sunbreak his stomach would have been found empty.
22. A perusal of the site plan map goes to show that the investigating officer found streak of blood from the spot to the house of the deceased. Sworn testimony of the three eye witnesses which is of unimpeachable character stands well corroborated by the medical evidence and FIR of the occurrence lodged promptly by Sharafat Husain, son of the deceased at the police station. The medical evidence leaves no room for doubt as to the factum of the occurrence and the prosecution case with regard to its time and manner, and the weapon used in the assault also receives corroboration from it. Therefore the benefit of doubt rendered by the trial court to accused Mohammad Mian, Ahmad Mian and Shamim Mian runs straight in the teeth of ocular evidence. On appreciation of oral evidence of the three eye witnesses and other material on the record we are of the view that the prosecution has proved that at the exhortation of Mohammad Mian his sons Ahmad Mian and Shamim Mian fired at Riyasat Husain with gun and countrymade pistol respectively thereby causing fatal injuries to him resulting in his death beyond all reasonable doubt. Mohammad Mian was at the root of the problem and he shared the common intention with his sons Ahmad Mian and Shamim Mian who shot dead Riyasat Husain at his exhortation. The learned trial judge acquitted all the three accused abovenamed giving benefit of doubt on tenuous grounds.
23. Since the shot allegedly fired by Zamir Mian at Firasat Husain did not hit him and no overt act has been assigned to him in the murder of Riyasat Husain he should be given benefit of doubt, and hence his acquittal is affirmed.
24. The State appeal is allowed in part and the impugned judgment acquitting accused Mohammad Mian, Ahmad Mian and Shamim Mian under Section 302 read with Section 34 IPC is hereby set aside. Accused respondents Mohammad Mian, Ahmad Mian and Shamim Mian are hereby convicted under Section 302 read with Section 34 IPC and each of them is sentenced to imprisonment for life thereunder. Criminal Appeal filed by accused Mohammad Mian is dismissed. Conviction of Mohammad Mian under Section 307 IPC and sentence of six years' rigorous imprisonment awarded to him thereunder is affirmed. Both the sentences awarded to accused respondent Mohammad Mian shall run concurrently. All the three accused respondents, namely, Mohammad Mian, Ahmad Mian and Shamin Mian are on bail. Their bail bonds are hereby cancelled. Acqnited of zamir miane is hearing affigmed. He is on bail Hic bail bound are hearing discharged .
25. Let the judgment be certified to the court boelow immediately. Chief Judicial Magistrate Bareilly is directed to get all the three accused respondents abovenamed arrested and sent them to jail to serve out the sentences imposed upon them. Record of the case be transmitted to the court below immediately for necessary compliance.