JUDGMENT M.C. Jain, J.
1. Seven appellants, namely, (1) Surajmani alias Jhilmit Singh, (2) Gauri Shankar, (3) Narain Pal Singh, (4) Rajpati Singh, (5) Bahadur Singh, (6) Ram Asray Singh and (7) Algu Singh have preferred this appeal against the judgment and order dated 30-1-1980 passed by Sri U.S. Pandey, the then IV Additional Sessions Judge, Mirzapur in Sessions Trial No. 168 of 1978. All of them have been convicted and sentenced for life imprisonment under Section 302 I.P.C. read with Section 149 I.P.C. and five years rigorous imprisonment under Section 307 I.P.C. read with Section 149 I.P.C. Bahadur Singh has also been convicted and sentenced to life imprisonment under Section 302 I.P.C. simpliciter and Algu Singh has been convicted and sentenced to undergo five years' rigorous imprisonment under Section 307 I.P.C. Accused/appellant Surajmani alias Jhilmit Singh has also been convicted and sentenced to undergo two years' rigorous imprisonment under Section 147 I.P.C. while remaining appellants have been convicted under Section 148 I.P.C. and each of them sentenced to two years' rigorous imprisonment for the said offence.
2. One Gulab Singh was murdered in this incident and PW 2 Ghasitu alias Ram Pravesh Singh sustained injuries. The case of the prosecution, as per the F.I.R. and evidence adduced in the Court may be stated briefly. The incident took place on 29-5-1978 at about 7.30 A.M. in village Mujahara Khurd, Police Station Chilh, District Mirzapur and the F.I.R. was lodged by PW 1 Subhash Chandra Singh the same day at 8.45 A.M. The Distance of the Police Station from the place of occurrence was five miles. Accused-appellants Surajmani and Gauri Shankar are the real brothers. Algu Singh and Ram Asray Singh are cousins among themselves and they are also the cousins of the first two mentioned accused persons. Bahadur Singh is the son of Ram Prasad. Gauri Shankar and Ram Prasad are the real cousins Rajpati Singh is the pattidar of Gauri Shankar and Niramal Pal Singh is said to be related to the other accused. They are all residents of village Maujahara which is divided into two habitations, namely, Mujahara Kalan and Mujahara Khurd. Deceased Gulab Singh also belonged to village Mujahara Kalan.
3. Deceased Gulab Singh and the accused-appellants had there 'Pahi' in village Mujahara Khurd. The 'Pahi' is an out-house constructed at some distance from the main village where calltle are kept and fed. it is also used for keeping crops. The 'Pahi' of Gulab Singh was situate at a distance of about 4-5 furlongs towards the north. The relation between the parties were not cordial for the last long time. About eight years before the incident, Rajpati Singh and Algu Singh along with Narain Singh and Ram Prasad Singh-father of the accused-appellant Bahadur Singh had been prosecuted for assaulting Amar Nath-uncle of PW1 Subhash Chandra Singh informant. That case resulted in acquittal. Since then the parties were at daggers drawn. In the evening preceding the present occurrence, a bullock belonging to accused-appellant Rajpati Singh started eating grain and chaff from the heap of Gulab Singh. Gulab Singh drove away the bullock and also made a protest to Rajpati Singh. It led to exchange of hot words between the two. however, people intervened and averted the clash. Accused-appellant Rajpati Singh had then held out a thereat to Gulab Singh that he had become swollen headed and he would be set right.
4. On the day the occurrence at about 7.30 A.M. the informant PW1 Subhash Chandra Singh was at his Pahi. His brother Gulab Singh was coming to the Pahi in the company of PW2 Ghasitu. When both of them reached at the distance of about 100 yards from Pahi, all the accused-appellants surrounded Gulab Singh in the way. Out of them, Surajmani had a lathi and rest had spears. Bahadur Singh struck spear blow in the chest of Gulab Singh. The remaining accused-appellants also started assaulting him. PW2 Ghasitu tried to save Gulab Singh but Algu Singh struck a spear in his abdomen. The informent raised alarm. Ganga prasad Singh, Raj Bahadur Singh, Pahar Singh and PW3 Rammi Singh rushed up and arrived at the scene. The accused then ran away. Gulab Singh fell down and died PW1 Subhash Chandra Singh prepared the F.I.R. and went to the Police Station along with PW2 Ram pravesh Singh alias Ghasitu and lodged it there. A case was registered and investigation followed which was started by PW8 S.I. Shyam Surat Mishra and concluded by PW9 S.I. Saryjeet Singh.
5. The injuries of PW2 Ghasitu Singh alias Ram Pravesh Singh were examined by PW5 A.K. Goswami on 29-5-1978 at 10.30 A.M. at P.H.C. Cone where he had been sent from the police Station immediately after the lodging of the F.I.R. As per injury report Ext.Ka1, the following injuries were found on his person:
1. Incised wound 1.5cm x 5cm x 3cm on the abdomen left side 4cm lateral to the umvilicus. Margins well defined, edges clean cut. Definite gapping present, fresh blood coming.
2. Contusion with brasion 3cm x 2cm on the lateral lower part of left reddish in clour, oblique in direction.
3. Complain of pain in right ankle joint & both wrist joints of both hands but no mark of external injury.
6. Both injuries were simple in nature, injury No.l was caused by sharp edged weapon whereas injury No. 2 was by friction against rough and hard object.
7. The post-mortem over the dead body of Gulab Singh was conducted by PW6 Dr. V.P. Gupta on 30-5-1978 at 11.30 A.M. As per post-mortem report Ext. Ka-3, he was aged about 27 years and about 1 1/2 days had passed since he died. The following ante-mortem injuries were found on his person :
1. Incised wound 2 1/2 cm x 1 cm muscle deep on the right side face 2 cm anterior to the right ear lobule.
2. Incised wouns 2 1/2 cm x 1 cm x muscle deep on the right side face 2 cm anterior to the injury No. 1.
3. Punctured wound 1 1/2 cm x 1 cm x chest cavity deep on the right side chest. 11 cm above to the right nipple with clean cut margins.
4. Incised wound 2 1/2 cm x lcm x muscle deep on the right upper arm medical aspect 6 cm below to the right shoulder joint.
5. Punctured wound 3 cm x 1 1/2 cm x chest cavity deep in the right arm pit with clean out margins.
6. Punctured wound 1 1/2 cm x 1 cm x abdominal cavity deep on the right side abdomen just above the right public bone with clean cut margins. 7. Punctured wound 1 1/2 cm x 3/4 cm x abdominal cavity deep in the left side abdomen 13 1/2 cm below the left nipple with clean cut margins.
8. Contusion 14 cm x 7cm on the right elbow.
9. Contusion 13 cm x 6cm on the left elbow.
10. Contusion 6cm x 2 cm on the upper arm on the back in the middle.
11. Contusion 5 cm x 2 cm on right thigh front just above the right knee.
12. Contusion 18 cm x 9 cm on the right side skull.
13. Contusion 15 cm x 15 cm on the back of the skull.
14. Contusion as a whole on the back and back of the shoulders (both) in an area of 38 cm x 30 cm.
15. Contusion 15 cm x 14 cm on the right side chest.
16. Contusion 10 cm x.8cm on the back of the right hand.
17. Contusion 10 cm x 7 cm on the back of the left hand.
8. The death had occurred due to shock and haemorrhage due to ante-mortem injuries.
9. The accused-appellants pleaded false implication owing to enmity. Besides relying on the documentary evidence, the prosecution examined nine witnesses out of whom PW 1 informant Subhash Chandra Singh, PW 2 Ghasitu alias Ram Pravesh Singh and PW 3 Rammi Singh were the witnesses of fact. The remaining were the Doctors, two Investigating Officers and formal witnesses.
10. The prosecution case and evidence found favour with the learned trial Judge and he accordingly convicted and sentenced the accused-appellants as related earlier.
11. We have heard Sri G.S. Chaturvedi, learned counsel for the accused-appellants in support of the appeal, in opposition, the arguments of the learned A.G.A. as also of Sri Dilip Gupta appearing for the complainant have been heard. We have also carefully waded through the evidence and material on record of the case, it has been urged by the learned counsel for the appellants that the motive assigned by the prosecution against the accused-appellants for the commission of this crime is too weak ; that there was delay in recording the statement of PW 2 Ghasitu alias Ram Pravesh Singh by the Investigating Officer, that there was delay in carrying the deadbody for post-mortem and in conducting autopsy over the dead body of the deceased leading to the inference that the first information report and other papers had subsequently been prepared to cook up a case against the accused-appellants ; that there was conflict between the ocular version and medical evidence shattering the prosecution story completely, it has been urged that as a cumulative result of the said shortcomings in the prosecution case and evidence, the accused appellants could not at all be convicted. It has been submitted that the prosecution case did not at all stand proved. We intend to deal with these aspects of the case in succeeding discussion keeping in view the evidence on record and arguments advanced from both the sides.
12. Taking up the question of motive first, suffice it to say that when there is direct eye-witness account, as is the case here, motive loses much of its significance. The motive is the object of the person committing the crime and others including the prosecution can only guess about if on the basis of the previous background, if any. What is important in the case is that the previous background has been related by PW 1 Subhash Chandra Singh informant in the first information report which is the earliest version of the prosecution as well as in his evidence before the Court without concealing anything, that about 7-8 years back his uncle Amar Nath had been assaulted in which two of the present accused-appellants (Raj Pati Singh and Algu Singh) with others had been tried but acquitted and that there was bad blood between the two sides since then, The incident of the previous day had also been spelled out that the bullock of Raj Pati Singh had strayed and was eating grain and chaff from the heap of Gulab Singh over which Gulab Singh had protested and both had exchanged hot words, but the people had intervened. Raj Pati Singh had then allegedly held out a threat to Gulab Singh. Nothing more could be expected from the prosecution when the previous background, as it was, had been clearly related. The case is of direct eye witness account and the guilt of the accused-appellants has to be judged after subjecting the evidence to judicial scrutiny. In other words, the so-called insufficient motive alone cannot come to the rescue of the accused-appellants in claiming acquittal by throwing away the prosecution case over-board.
13. Criticism over delay in recording the statement of PW 2 Ghasitu alias Ram Pravesh Singh also does not make out a point in favour of accused-appellants. No doubt, PW9 Sarvajeet Singh stated that he recorded the statement of this witness on 30-6-1978. The chargesheet was also submitted by him the same day. The contention of the learned counsel for the appellants is that if he had gone to the Police Station along with PW 1 Subhash Chandra Singh for lodging the first Information report, his statement would have been recorded then and there and, in any case, much before 30-6-1978. it has also been urged that PW 2 Ghasitu stated before the Court in his testimony that his statement was never recorded by Daroga. Taking this last contention first, he is a rustic villager. There is no reason to disbelieve the Investigating Officer-PW 9 SI. Sarvajeet Singh that he recorded his statement on 30-6-1978. What is important is that no material contradiction could be shown between his statement recorded by the Investigating Officer and the testimony delivered by him before the Court. G.D. Ex. Ka 12 relating to the registering of the case at the Police Station clearly records that he had acompanied the informant at the time of the lodging of the first information report and he was in injured condition. It also records that he had immediately been sent for medical examination. He being an injured, medical aid to him with medical examination was of utmost importance, instead of detaining him to the Police Station for the purpose of recording his statement at that very time. It has also been explained by him that for about 15 or 20 days he had remained admitted in the hospital. on taking a global consideration, it does not adversely affect the prosecution case that the Investigating Officer recorded his statement on 30-6-1978.
14. Thirdly, it is also not acceptable that there was delay in carrying the dead body of the deceased for post-mortem and the conduct of autopsy thereon. The learned counsel for the accused appellants has referred to the statement of PW 4 Constable Sewa Nand Pandey that he had reached with the dead body at the mortuary on 29-5-1978 before 1-1-1/2 hrs. of the setting of sun. It has been submitted that according to his own statement the distance between the place of occurrence and mortuary was only 23 kilometers and the dead body had been handed over to him by the Investigating Officer at 11.30 A.M. that day. learned counsel for the accused appellants has urged that so much time could not have been consumed in covering the distance of 23 kilometers only. Rather, according to him, the fact was that the papers were not ready and the dead body had actually been carried to the mortuary on 30-5-1978 after preparation of the documents. He tried to buttress this argument by the testimony of PW 6 Dr. V.P. Gupta who stated that he conducted autopsy on the dead body on 30-5-1978 at 11.30 A.M. we are of the opinion that it is not possible to accept the line of approach suggested by the learned counsel for the appellants. PW 4 Constable Sewa Nand Pandey has stated that for two kilometers the dead body had been taken on foot up to Pucca road and 2 hours had been spent in it. Naturally, some more time must have been spent in arranging conveyance on Pucca road to carry the dead body to the mortuary. The statement of PW 4 Constable Seva Nand Pandey has to be belived that he had reached the mortuary on 29-5-1978 before sunset. Indeed, the post-mortem could not be conducted immediately thereafter in the night. The statement of PW 6 Dr. V.P. Gupta does not advance the argument of the learned counsel for the appellants any father. He spoke of the time when he conducted the autopsy on the dead body on 30-5-1978. He was not interrogated as to what was the day and time recorded in mortuary register of the receipt of the dead body. The argument is without any foundation that papers had subsequently been prepared. PW 6 Doctor V.P. Gupta clearly stated that he had received 8 documents (nine leaves) along with dead body. The details of the same are recorded in Panchayatnama Ex. Ka 7, which too contains his signature. The documents forwarded to the Doctor included copy of Chik and all the documents also contained the details of crime number and sections of I.P.C. There is no cutting or overwriting. It can, therefore, be safely concluded that all the documents including Chik had been forworded to the Doctor along with dead body of the deceased. This argument is built on straw that there was delay in carrying the dead body to the mortuary or in conducting the autopsy thereon and further that the documents had subsequently been prepared. We may point out that even injuries of the injured-PW 2 Ghasitu had been examined on 29-5-1978 at 10.30 A.M. It could be possible only when the case had earlier been registered at the police Station, it provides intrinsic evidence in support of the fact that first information report had actually been lodged on 29-5-1978 at 8.45 A.M. by PW 1 Subhash Chandra Singh as is the case of the prosecution.
15. The last argument of the learned counsel for the appellants concerning the alleged conflict between the ocular version and medical evidence may now be taken up. In this regard, it has first been pointed out that the incident allegedly took place in May at about 7.30 A.M. but faecal matter was found present in the large intestine of the deceased, it is urged that normally he would have answered the call of nature by that time. The presence of faecal matter in his large intestine, it has been reasoned, indicated that the incident, took place sometime in the night. We are not impressed in the least by this argument, it is not possible or justified to draw any such freak inference. The learned trial Judge has rightly pointed out that at what time one answers the call of nature by easing himself depends entirely on his habits. We may also point out that the time of 7.30 A.M. is also not such that he would have necessarily answered the call of nature by that time, he might be thinking to do so by reaching his Pahi, but was done to death before he could do so. We are of the opinion that ocular version as to the time of the incident contained in the testimony of eye witnesses cannot be doubted on the basis of the presence of faecal matter in the large intestine of the deceased. Nor it is indicative of any conflict between the medical evidence and ocular version. Another so called conflict between the two, as per argument of learned counsel for the appellants, is that three incised wounds had also found on the person of the deceased, besides punctured wounds and contusions, it has been urged that the spear could only cause punctured wounds and not incised wound. We have been taken through the statement of PW 6 Doctor V.P. Gupta who stated that if a spear is wielded like a lathi or Gandasa, injuries Nos. 1. 2 and 4 (incised wounds) could be caused but such a possibility was very rare. Learned counsel for the appellants has also submitted that one incised wound found on the person of PW 2 Ghasitu and four punctured wounds together with three incised wounds found on the person of the deceased were not commensurate to the number of spears wielded by the accused who were six. We are of the opinion that things cannot be viewed in a purely theoretical and hypothetical manner losing sight of the practical aspect. There is no contradicition whatsover between the medical evidence and ocular version so far as the punctured wounds and blunt weapon injuries sustained by the deceased and injured witness PW 2 Ghasitu are concerned. It has to be kept in mind that Gulab Singh deceased would not have remained stationary while being assaulted. Indeed, he was a moving being and the instinct of self preservation is strongest in everyone. Indeed, he would have been moved about to save himself while being assaulted by spears and in that process, every possibility was there that some of the spear blows were inflicted on him as lathi or Gandasa. It has to be kept in the mind that the tip of a spear is pointed. It sides are also sharp edged which can cause incised wounds. Therefore, the fact that the deceased sustained three incised wounds of the dimension of 2 1/2 cm x 1 cm each which were muscle deep and that PW 2 Ghasitu also sustained an incised wound 1.5 cm x.5 cm x.3 cm, does not produce any conflict between the ocular version and medical evidence.
16. We also wish to lay stress that out of three eye witnesses, one namely, PW 2 Ghasitu himself is the injured of the felony. His presence is beyond doubt. He was accompanying the deceased at the fateful time and has given a plausible explanation in this behalf. He was also going to his Pahi which was also situated near the Pahi of Gulab Singh. Though he did not have any enmity with the accused appellants, but he was assaulted as he tried to intervene and save Gulab Singh. PW 1 Subhash Chandra Singh is also the most natural witness of the incident took only at a distance of about 100 yards from his Pahi wherefrom he had rushed up. PW 3 Rammi Singh too sounds to be an independent witness with no enmity with the accused-appellants. Nothing could be elicited from his cross examination which could create any dent in his evidence. He too was going to his Pahi and ahead of him Gulab Singh and PW 2 Ghasitu were going. It was quite usual for him to be going to his Pahi in the morning time at about7.30 A.M. To come to the point, the presence of the these witnesses at the spot cannot at all be viewed with suspicion.
17. However, while recording our final conclusion, we have to say that the experience shows that exaggeration of the part played by other side in the course of the incident is quite common. At times, it has been found that when only some members of the rival group are involved in the offence, quite often one finds a tendency also to falsely rope in some other members. In doing so, story is improved and modified to achieve this purpose. Therefore, the Court has to be circumspect in the appreciation of the evidence so that over emphasis on the enmity factor does not cause either the innocent to be wrongly convicted or guilty to be wrongly acquitted. It is the duty of the Court to separate the chaff from the grain. The benefit of doubt should be afforded to those accused in respect of whom evidence of the prosecution witnesses cannot firmly and safely be relied upon on a cummulative consideration of all relevant factors, in the case at hand, right from lodging of the first information report till the delivery of evidence by the eye witnesses before the Court, specific role has been assigned of wielding lathi only to accused-appellant Suraj Mani Singh and of wielding spears to the accused-appellants Bahadur Singh and Algu Singh. No specific role has been assigned to any other accused appellants. The deceased as well as PW 2 Ghasitu sustained blunt object injuries of lathi as well as of spears. Consistent and specific case of the prosecution in the first information report and the evidence adduced before the Court has been that Bahadur Singh had struck the first spear blow in the right side chest of the deceased ; that PW 2 Ghasitu alias Ram Pravesh Singh had been struck spear blow by Algu Singh accused and that lathi had been wielded by accused Suraj Mani Singh. The other accused-appellants, thoxigh also named, but nothing has been brought on record as to the specific role of each of them, in this view of the matter, it would not be just and safe to rely on the testimony of eye witnesses to convict the accused-appellants Gauri Shanker Singh, Narain Pal Singh, Raj Pati Singh and Ram Asrey Singh. The benefit of doubt should have been afforded to them. However, so far as the remaining three appellants, namely, Suraj Mani Singh @ Jhilmit Singh, Bahadur Singh and Alug Singh are concerned, their guilt is proved to the hilt by convincing and clinching evidence. It admits of no doubt whatsover that they were the assailants of Gulab Singh deceased and Ghasitu alias Ram Pravesh Singh injured. It is also clear that they had the intention to kill Gulab Singh in whose right side chest the first spear blow had been struck by Bahadur Singh. The injuries caused to Ghasitu alias Ram Pravesh Singh fall within the scope of attempt to murder punishable under Section 307 1.P.C. The Supreme Court has held in the case of Amar Singh v. State of Haryana AIR 1973 SC 2221 that conviction "read with Section 34 I.P.C." is possible when charge is "read with Section 149 I.P.C." if facts proved and the evidence adduced would have been the same if the accused had been charged "read with Section 34 I.P.C". In such a case failure to charge the accused "read with Section 34 IPC" does not result in any prejudice.
18. In view of what has been discussed above, we are inclined to allow this appeal partly. The accused-appellants Gauri Shanker, Narain Pal Singh, Raj Pati Singh and Ram Asrey Singh would be acquitted. Conviction and sentence of the other three accused-appellants Suraj Mani Singh alias Jhilmit Singh, Bahadur Singh and Algu Singh would be modified in that each of them would stand convicted under Section 302 I.P.C. read with Section 34 IPC and under Section 307 read with Section 34 I.P.C.
19. In final conclusion, we allow this appeal partly and modify the judgment and order under appeal as stated hereinnow.:-
20. The accused-appellants Gauri Shankar, Narain Pal Singh, Raj Pati Singh and Ram Asrey Singh are found not guilty and are hereby acquited. The accused-appellants Suraj Mani alias Jhilmit Singh, Bahadur Singh and Algu Singh are found guilty of the offences punishable under Section 302 I.P.C. read with Section 34 IPC and under Section 307 read with Section 34 I.P.C. Each of them is sentenced to life imprisonment under Section 302 I.P.C. read with Section 34 IPC and five years' rigorous imprisonment under Section 307 I.P.C. read with Section 34 IPC. Both the sentences shall run concurrently. The accused-appellants Suraj Mani Singh alias Jhilmit Singh, Bahadur Singh and Algu Singh are on bail. Their bail is cancelled. The Chief Judicial Magistrate concerned is directed to get these accused appellants arrested and to commit them to prison to serve out their sentences.
21. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively.