JUDGMENT M.C. Jain, J.
1. This appeal has been directed by the State against the judgement and order dated 25.2.1981 passed by Sri O.P. Shrivastava. the then Sessions Judge, Shahjahanpur in ST. No. 355 of 1980 acquitting the two accused-respondents Sukhdeep Singh alias Deep Singh and Raje.
2. The incident took place on 5.6.1980 at 9.00 A.M. in Village Nataura, Police Station Banda, District Shahjahanpur and the F.I.R. was lodged the same day at 1.30 P.M. by Gurubachan PW 2. The case as unfolded from the F.I.R. and the evidence adduced in the court, was like this: Two accused-respondents were friends, between themselves while complainant Gurubachan Singh and Karam Singh deceased were real brothers. Balvendra Singh-real brother of the accused Sukhdeep Singh alias Deep Singh had some dispute with Kashmir Singh of Marauri. Kashmir Singh was involved in some murder case. Therefore, Karam Singh used to look after his cultivation. About a month before the present incident. two accused-respondents came to the Jhala of the complainant and threatened Karam Singh to leave the company of Kashmir Singh as otherwise they would shoot him. On the day of the incident, i.e. 5.6.1980, both the accused-respondents again came to the Jhala of the complainant in the morning at about 6.00 A.M. and at that time Sukhdeep Singh alias Deep Singh Singh was carrying rifle of his brother Balvendra Singh while accused Raje was holding a gun. These two said to the complainant and the deceased Karam Singh that they should not feel bad of their (accused's) previous conduct and threat, offering to strike a compromise in case the complainant and the deceased left the company of the Kashmir Singh and did not speak ill of them ( accused), The complainant replied that they would do as desired by them. Both the accused then asked them to accompany to Gurudwara Kuinya Maholiya and to take an oath in that Gurudwara in this regard so that their other associates present there might know about it.
3. Accordingly, the complainant as well as the deceased started alongwith the accused for going to the Gurudwara for the above purpose. They first went to Village Nataura wherefrom the complainant took his Bahnoi Mahendra Singh and his uncle Darshan Singh, telling them as to what had been agreed between the two sides. Ail these persons were then going together reaching towards the south of the village Nataura at a distance of about two furlongs away. The complainant Gurubachan Singh, Mahendra Singh and Darshan Singh were going at a distance of about 15 or 20 paces, following the two accused and Karam Singh who were going ahead. As soon as the two accused and deceased reached at the crossing of village Nataura, Raje suddenly caught hold of the victim Karam Singh while Sukhdeep Singh alias Deep Singh opened shot which struck him (Karam Singh). He fell down at the spot near a mango tree. The complainant and others raised alarm and Sukhdeep Singh alias Deep Singh fired another shot on them but it did not hit anybody. Thereafter the two accused ran away towards west. Singh working in his field at that time arrived at the spot and he also saw the incident. Karam Singh died instantaneously. The complainant then went to the Police Station where he lodged the F.I.R. on the basis of which a case was registered and investigation started by S.I. Raghu Singh PW 7 which was concluded by S.I. Ranvir Singh PW 6. The first Investigating Officer reached the spot and busied himself, with the activities related to the investigation of the case including preparation of the inquest report of the dead body of the deceased. The dead body was sealed and sent for post mortem which was conducted on 6.6.1980 at 4.15 P.M. by Dr. C.P. Shrivastava PW 1. Outcome of the post mortem may be related. The deceased was aged about 17 years and about one day had passed since he died. The following ante mortem injuries were found on his person:
1.Gun shot wound of entry 0.8 cm x 0.8 cm on the epigastric region 3 cm left and lateral to the midline. No blackening, charring and tattooing. Direction of wound medially backward and slightly upward
2. Gun shot wound of exit-2 cm x 2 cm on the right side back of chest at the level of inferior angle of right scapula. Communicating with injury No. 1.
4. The death had occurred due to shock and haemorrhage as a result of ante mortem injuries.
5. The accused were arrested on 11.6.1980 from the Village Kuinya Maholiya. During the course of investigation, the rifle Balvendra Singh alias Chhida brother of Sukhdeep Singh alias Deep Singh also came to be taken possession of and was sent to Ballistic Expert for comparison with empty cartridge that had been found at the spot.
6. The defence was of denial.
7. The prosecution, in all, examined seven witnesses. Dr. C.P. Srivastava PW 1 had conducted autopsy on the dead body of the deceased, the details of which have been related earlier. Gurubachan Singh PW 2, Ninder Singh PW 3 and Mahendra Singh PW 4 were examined as eyewitnesses whereas Ram. Asharey Pandey PW 4 was Ballistic Expert who proved that empty cartridge recovered from the spot had been fired from the rifle of Balvendra Singh alias Chhida (brother of accused Sukhdeep Singh alias Deep Singh). S.O. Ranvir PW 6 and S.I. Raghu Singh PW 7 were the two Investigating Officers of the case.
8. Finding fault with the prosecution evidence, the trial judge recorded acquittal which is under challenge from the means of this appeal.
9. We have heard Sri K.P. Shukla from the side of the State and Sri Alok Sharma, learned counsel for the accused-respondents. The record is before us.
10. The submission from the side of the State is that the guilt of the accused respondents was conclusively proved by the testimony of three eyewitnesses. Their testimony, Sri Shukla argued, was in conformity with medical evidence. He urged that the trial judge recorded acquittal on a pedantic approach. On the other hand, the learned counsel for the accused respondents stood by the side of the acquittal recorded by the trial court, supporting the reasoning adopted in reaching the conclusion.
11. Before proceeding further it would be apt to note that the acquittal has been recorded by the trial court for these reason:-
1. The prosecution failed to prove any motive against the two accused respondents; for the; commission of the present crime. The greater possibility was that the murder of Karam Singh was committed by someone else at some other time while it was still dark and the two accused respondents came to be implicated in crime at the instance of Kashmir Singh with whom accused Sukhdeep Singh alias Deep Singh had long drawn enmity over the murder of his brother Darshan Singh.
2. The evidence of the eyewitnesses Gurubachan Singh PW 2, Ninder Singh PW 3 and Mahendra Singh PW 5 was not natural and trustworthy. Instead, they had not seen the actual incident and had given concocted and tutored evidence probably at the instance of Kashmir Singh. They did not even know the two accused-respondents from before.
3. The oral evidence of the witnesses was inconsistent with medical evidence because as per the testimony of the witnesses the accused and the deceased were standing at the same level at the time of shooting. However, as per Dr. C.P. Srivastava, PW 1, who conducted the post mortem over the dead body of the deceased, the gunshot injury could have been caused by firing shot from a distance of more than six ft. and if deceased and assailant both were standing at the same level, then the same could not be possible. According to him, the assailant must have been at a lower level than the deceased.
4. The empty cartridge that was recovered from the spot and sent to the Ballistic Expert was not the same as was allegedly recovered from the spot. That was described in the recovery memo as empty cartridge of 315 bore.
12. We have carefully scrutinised the evidence on record in the light of the reasoning adopted by the trial judge and the arguments advanced at the bar. So far as the accused Raje is concerned, we are of the opinion that his acquittal is justified. The role assigned to him was that he caught hold of the victim when the other accused respondent, namely, Sukhdeep Singh alias Deep Singh opened shot on him (Karam Singh). It does not have the attraction of logic that one would catch hold of the victim to facilitate his shooting by another. The reason is that he runs the risk of himself being hit by the shot. Nobody would ordinarily risk his own life in catching hold of the victim at the time of shooting by another. Moreover, in this case he himself allegedly had a gun and there could hardly be any point in his catching hold of the victim to be shot by the other accused Sukhdeep Sing. He could have used his own gun to shoot the victim. So, judged in right perspective, the role assigned to him could not inspire judicial confidence and his acquittal does not call for any interference at all. At times, there is tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger of false implication. The only real safeguard against the risk of connecting the innocent with the guilty lies in insisting on acceptable evidence which in some cases implicates such accused and satisfies the conscience or the court. In such cases, no doubt, the prosecution witnesses claim to have seen the occurrence and the commission of the crime by all the accused, assigning role to them. But it is safe only to convict accused, assigning roles to them. But it is safe only to convict the accused who is stated to have taken active part and about whose role there can be no reasonable doubt. In the instant case, for the reasons mentioned by us above, we find that the acquittal of accused-respondent Raje is justified and sustainable.
13. however, the discussion that we intend to make hereinafter would make it abundantly clear that the trial judge committed grave error in acquitting the other main accused-respondent Sukhdeep Singh alias Deep Singh on the reasoning adopted by him in the judgment, the gist of which we have related a little above.
14. So far as the motive part is concerned, it is immaterial in a case of eyewitness account as is the present one. The prosecution brought on record the earlier background as known to it. The accused Sukhdeep Singh alias Deep Singh was the real brother of Balvendra Singh alias Chinda who had dispute with one Kashmir Singh of Marauri. Kashmir Singh was involved in a murder case of Darshan Singh (brother of Sukhdeep Singh alias Deep Singh and Balvendra Singh). Karam Singh (deceased of the present incident) used to look after the cultivation of Kashmir Singh. Therefore, believing Karam Singh to be an ally of Kashmir Singh, the accused respondent Sukhdeep Singh was annoyed of him. It is very clear that Sukhdeep Singh and his brother Balvendra Singh were bracketed together in their annoyance against Kashmir Singh with whom Karam Singh was friendly. Even about a month before the incident he had threatened Karam Singh in the presence of Gurubachan Singh PW 2 to leave the company of Kashmir Singh. The evidence of Gurubachan Singh PW 2 was to the effect that at that time his uncles Khandara and Sarnel Singh were also present. They had advised the accused who had then left. On the date of the incident at about 6.00 A.M., the accused again reached Karam Singh in the presence of Gurubanch Singh PW 2 and regretted his earlier threat and conduct. Assuming a friendly posture, he offered to mend the patch with Karam Singh, asking him to leave the company of Kashmir Singh and taking an oath in the Gurudwara of Kuinya Maholiya. By sugar-coated talks, the accused trapped Karam Singh to accompany him so as to go to Gurudwara for taking oath. The deceased Karam Singh and Gurubachan Singh genuinely believed the accused Sukhdeep Singh that he was really interested in a compromise. So, there was nothing unnatural that with a view to purchase peace, they agreed to go to Gurudwara so that oath could be taken there by Karam Singh to bury the old hatchet. Therefore, there was no justification on the part of trial judge to discard the prosecution case on the premise of there being no motive on the part of the accused Sukhdeep Singh to commit the murder of Karam Singh. As a matter of fact, there was a previous background as between Karam Singh and Sukhdeep Singh accused and it stood explained as to why Karam Singh with his brother Gurubachan Singh had started from Jhala for going to Gurudwara.
15. The three eyewitnesses, namely, Gurubanchan Singh PW 2 (informant), brother of the deceased Karam Singh, Ninder Singh PW 3 and Mahendra Singh PW 5 were examined as eyewitnesses of the incident. True, the testimony of Ninder Singh PW 3 it liable to be ignored. There are two reasons for it. Firstly, he was not named in the F.I.R. Secondly, in his deposition before the court, he admitted that he did not know the accused form before. When the villagers assembled at the spot after the incident, they gave out their names. Indeed, after departure of the accused, this witness could not possibly link the culprits to be present accused respondents. But the testimony of the other two eyewitnesses clinchingly established the accused respondent Sukhdeep Singh to be the shooter of the deceased Karam Singh and the trial judge disbelieved their testimony qua him on flimsy and untenable grounds. Gurudbachan Singh is the real brother of deceased Karam Singh who had been cultivating the land of Kashmir Singh with whom Sukhdeep Singh's brother Balvendra Singh alias Chhida had a dispute. Balvendra Singh's rifle had been used by Sukhdeep Singh in this incident. Earlier to the present incident, he had once threatened Karam Singh in the presence of Gurubanch Singh. Keeping all these facts in view, it could not be doubted that Gurubanch Singh PW 2 very well knew Sukhdeep Singh from before. The trial judge criticized that when he was shown the exhibited rifle (weapon of offence), he (Gurubachan Singh PW 2) stated that he could not recognize the said rifle and could not say as to whom it belonged. But he offered a plausible explanation also that all the rifles are alike. On this score, his this statement could not be disbelieved that Sukhdeep Singh had come to his Jhala holding the rifle of Balvendra Singh. Therefore, when Balvendra Singh was admittedly a rifle's licence holde and Sukhdeep Singh came to his Jhala with rifle, he took it to be that of his brother Balvendra Singh. The trial judge was unnecessarily obsessed that the statement of Gurubachan Singh PW 2 and Mahendra Singh PW 5 were the result of tutoring of Kashmir Singh. It was simply a figment of imagination that Gurubanch Singh PW 2 named Sukhdeep Singh accused to be the shooter of Karam Singh at the behest of Kashmir Singh.
16. The testimony of the other eyewitness Mahendra Singh PW 5 is also capable of inspiring judicial confidence. He is named in the F.I.R. His presence at the spot is well explained. He is Bahnoi of Gurubanch Singh PW 2 and the deceased Karam Singh. As Gurubanch Singh and Karam Singh genuinely believed Sukhdeep Singh that he was interested in burying the old hatchet after Karam Singh's taking oath in Gurudwara, it was in the fitness of things that both of them thought it proper to take another close relative (Mahendra Singh PW 5) with them to join in this mission so that he should also be a witness that the patch between Karam Singh and Sukhdeep Singh had completely been mended and they had given up their differences in Gurudwara with no bitterness left for future.
17. The accused Sukhdeep Singh belonged to nearby village of that of Mahendra Singh PW 5. Mahendra Singh being present in his village had been reached by Gurubachan Singh, Karam Singh and the accused for joining to go to Gurudwara. He had joined them for the purpose. Therefore, the finding of the trial judge was wholly fantastic that this witness did not and could not know Sukhdeep Singh alias Deep Singh.
18. All those going to Gurudwara could not be moving in straight horizontal line in the way and it so happened that Gurubanch Singh PW 2 and Mahendra Singh PW 5 were at a few paces behind the accused Sukhdeep Singh and Karam Singh when Sukhdeep Singh shot dead Karam Singh.
19. We are conscious that Gurubanch Singh PW 2 and Mahendra Singh PW 5 are own relations of deceased, but that alone is not sufficient to throw away their testimony when their presence at the spot is beyond doubt. The Supreme Court has held in the case of Agnoo v. State of U.P. AIR 1971 SC 296 that if the witness is brother of the deceased, his relationship would add to the value of the evidence because he would be interested in real culprit being punished. The evidence of close relations of the victim of a crime cannot be doubted on the ground that then deposition was "partisan".
20. We are in judgment hat the testimony of Gurubachan Singh PW 2 and Mahendra Singh PW 5, tested through cross-examination, had the ring of truth qua the main shooter Sukhdeep Singh and the same could not be disbelieved as has wrongly been done by the trial judge on wholly untenable grounds.
21. We do not see that there is any inconsistency between ocular testimony of Gurubachan Sing PW 2 and Mahendra Singh PW 5 and the medical evidence. True, there was no blackening, charring or tattooing in the gunshot would and Dr. C.P. Srivastava PW 1 stated that shot must have been fired from over a distance of six ft. But, the criticism is not sustainable that as per the eyewitness account it being a close range fire, there is conflict in eyewitness account and the medical evidence. Gurubanch Singh PW 2 gave the distance of shooting as about 5-6 paces. We note that in the site plan prepared by the Investigating Officer the distance between the place of shooting and the deceased has been shown as 5 paces. One pace is nearly equal to 1 1/2 ft. So, distance of shooting was about 7.5 ft. The distance of shooting is not to be mathematically calculated as from a measuring tape. The Supreme Court has held in the case of State of U.P. v. Sughar Singh AIR 1978 SC 191 that when death is by gunshot injury and the evidence of eyewitness is available, of no significance when the prosecution evidence pertaining to assault by shooting substantially tallies with medical evidence. The same is the situation here. As to the level of the shooter and the victim also we do not see any inconsistency between medical evidence and the ocular testimony. The gunshot wound of entry of the deceased was medially backward and slightly upward whereby the Doctor inferred that such an injury could not be caused if the shooter and the victim were at the same level. He opined that the assailant must have been at a lower level than the victim or that the barrel of the weapon should have been at a lower level. Gurubanch Singh PW 2 has explained that the level on which the assailant was standing and the level on which the deceased was standing at the time of firing was not even. In any case, the speculative probability cannot eclipse the convincing proof coming through the testimony of Gurubachan Singh PW 2 and Mahendra Singh PW 5 that the accused Sukhdeep Singh had shot dead Karam Singh. The shooting could not be expected as if it had been prearranged. On the analogy of the case of Sughar Singh (supra), such hyper-technical view to draw the conclusion of conflict between medical evidence and ocular testimony is not at all justified. Our view is that there is no conflict between medical evidence and ocular testimony.
22. Now, we come to the last aspect that the rifle seized from Balvendra Singh, brother of Sukhdeep Singh-weapon of offence was of .315 bore and the cartridge collected from the spot by the Investigating Officer as per Ext. Ka-11 was also shown as of .315 bore but one sent to Ballistic Expert for comparison was found to be of .303 bore. The evidence of Ballistic Expert Ram Asharey Pandey PW 4 is there that the recovered empty cartridge of .303 bore had been fired from the rifle in question. It is abundantly clear from the evidence and report that the cartridge of .303 bore could be shot from a rifle of .315 bore. May be that the Investigating Officer was a little negligent in describing the recovered empty cartridge as of .315 bore is of no consequence at all. The recovered empty cartridge was sealed and sent to the Ballistic Expert for comparison with the rifle in question. Had some manipulation being intended at the investigation stage, the recovery from the spot could have been shown of any empty cartridge of .315 bore instead that of .303 bore. Our impression is that it was simply negligence and carelessness on the part of the Investigating Officer that he described the recovered empty cartridge to be that of .315 bore. The negligence was simply in describing the recovered empty cartridge by the Investigating Officer. The material point is that the recovered empty cartridge of .303 bore could and had been discharged from the rifle in question. It was of no consequence that .303 is prohibited bore and .315 bore are easily available in the market. The prosecution was not supposed to explain as to how the accused got hold of the cartridge of .303 bore which he used in shooting the victim through the rifle in question belonging to his brother.
23. In view of the above circumspectus, we reach the conclusion tat the finding of acquittal in respect of accused respondent Sukhdeep Singh alias Deep Singh is based on perverse reasoning. The accused-respondent Sukhdeep Singh alias Deep Singh committed the murder of Karam Singh by shooting at the given date, time and place as proved by the trustworthy testimony of Gurubachan Singh PW 2 and Mahendra Singh PW 5 whose testimony is in complete harmony with the medical evidence.
24. In the result, we party allow this appeal and reverse the finding of acquittal recorded by the trial judge in respect of accused-respondent Sukhdeep Singh alias Deep Singh. He is found guilty of having committed at offence of Section 302 I.P.C. murdering Karam Singh. We convict him under Section 302 I.P.C. murdering Karam Singh. We convict him under Section 302 I.P.C. and sentence him to life imprisonment. The acquittal in respect of other accused-respondent Raje if affirmed.
25. The accused-respondent Sukhdeep Singh alias Deep Singh is on bail. The Chief Judicial Magistrate, Shahjahanpur shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment imposed on him under Section 302 I.P.C.
26. The judgment be certified to the lower court for reporting compliance within two months from the date of receipt.