JUDGMENT Imtiyaz Murtaza , J.
1. The present appeal has been filed against the judgment and order dated 19.2.1982 passed by the then Sessions Judge, Mirzapur in Sessions Trial No. 117 of 1981 whereby the appellant Vijai Shankar alias Lal Babu has been convicted under Section 302/307 I.P.C. and sentenced to under go rigorous imprisonment for life and 5 years respectively and appellant Rama Shankar alias Chhote has been convicted under Sections 302/34 and 307/34 I.P.C. and sentenced to under go rigorous imprisonment for life and 5 years respectively. The sentences of both the appellants have been directed to run concurrently.
2. The brief fact mentioned in the F.I.R. lodged by Ashok Kumar Misra is that about 15 days back Vijai Shankar alias Lal Babu and Chhote Shukla came to his house and asked him to marry his sister Deepak Kumari with Vijai Kumar alias Lal Babu. He replied that marriage of his sister is settled in village Tedui district Varanasi and 3rd June is fixed. He would not marry his sister with Vijai Kumar because he is not fit for her. Vijai Kumar and Chhote threatened his and told that nether he nor the person with whom the marriage has been settled would be left alive. In the night 14/15.5.1981 after taking dinner he and his guest Vishwanath Upadhyay were sleeping out side the door. At about 2.00 A.M. he heard the sound of gun shot and saw that Vijai Shankar alias Lal Babu shot Vishwanth Upadhyay. Thereafter he was caught hold by Chhote alias Rama Shankar by leg and Vijai Shankar shot him on the right side. On hearing alarm and sound of gun shot his sister Deepak Kumar came out of the house and his neighbour Raja Ram also reached there. The assailants Vijai Shankar alias Lal Babu and Rama Shankar alias Chhote ran away towards the northern side. His guest Vishwanath Upadhyay died on the spot and he received serious injury. The report was lodged at the police station on 15.5.1981 at 5.30 A.M. The distance of the police station form the place of occurrence is 5 miles.
3. After the registration of the case S.I. Kamta Singh started the investigation. He recorded the statement of Amar Nath Singh and thereafter reached at the place of the occurrence at 6.30 A.M. Injured Ashok Kumar was lying on a cot infront of the door and several persons collected there. He recorded the statement of injured and prepared Chitthi Majroobi (Ext. Ka-10) and sent him through constable Billar Ram for medical examination. He prepared the site plan (Ext. Ka-11). The dead body of Vishwanath Upadhyay was lying on a cot. He collected plain and blood stained earth and a piece of bed and prepared its recovery memo (Ext. Ka-12). Thereafter he prepared inquest report (Ext. Ka-13). He also prepared photo lash, chalan lash (Ext. Ka-14 to Ka-16). The dead body was sent for the post mortem examination through constable Yusuf Khan and home guard Bhola. Thereafter he recorded the statements of Deepak Kumari, Kunjan and witnesses of inquest report. On 16.5.1981 he recorded statement of Raja Ram. On 22.6.198 after conclusion of investigation he submitted charge sheet (Ext. Ka-17).
4. The post mortem of the deceased Vishwanath Upadhyay was conducted by Assistant Medical Officer district Jail Mirzapur. He noted the following ante mortem injury:
"Gun shot wound in an area of 12 cm x 2 cm x Bone deep on the top head 10 cm above the root of left ear. Brain matter came out. Blackening present."
5. According to the opinion of doctor the cause of death was due to shock and hemorrhage as a result of ante mortem injury.
6. Dr. G.D. Dubey medically examined the injured Ashok Kumar on 16.5.1981 and he noted the following injuries:
1. Four Gun shot wounds of entrance in an area of 6 cm x 5 cm on right side lateral surface of chest 6 cm below Rt. Axilla size of each varying from 1.5 cm x 1 cm to 1 cm x 1 cm. Dept could not be ascertained as probing is not advisable. Tattooing is present around the wound. Margins lacerated and inverted. Injury K.U.O. Adv. X Ray chest.
2. Abrasion 6 cm x 1 cm on right side chest just near Injury No. 1.
3. Gun shot wound of entrance lacerated and inverted margins size 1 cm x 1 cm x 2 cm on left arm Anterio medial surface 4 cm above left Elbow. Injury K.U.O. Adv. X-ray.
7. Dr. K.M. Srivastava had conducted X-ray examination of the injured Ashok Kumar Misra (Ext. Ka-2).
8. After submission of charge sheet the case was committed to the Court of Session. The prosecution examined 10 witnesses. P.W.1 Ashok Kumar Misra, P.S. 2 Deepak Kumari and P.W. 3 Kunjan Kumari are eye witnesses. P.W.4 Dr. K.M. Srivastava had conducted X-ray examination of the injured Ashok Kumar Misra. P.W. 5 Dr. N.C. Verma had conducted the post mortem examination of the deceased. P.W.6 Ram Parsan Dubey, Head Constable had prepared the chik F.I.R. P.W.7 raja Ram Singh had reached at the place immediately after the occurrence. P.W. 8 Yusuf Khan had taken the dead body of deceased for post mortem examination. P.W.9 Dr. G.D. Dubey had examined the injured Ashok Kumar Misra and P.W.10 Kamta Singh S.I. is the investigation officer.
9. The case of the defence is of denial and the appellants have not produced any witness.
10. We have heard learned counsel for the appellants and the learned A.G.A. for the State.
11. counsel for the appellants challenged the findings of the trial court on the ground that the occurrence took place in the night and there was no source of light in which the assailants could be recognised. The appellants have been falsely implicated in this case on account of enmity. The testimonies of the witnesses are not reliable and the conviction of Rama Shankar alias Chhote under Sections 302/34 and 307/34 I.P.C. is bad in the eyes of law.
12. We have considered the submissions of the counsel for the appellants, perused the entire evidence on record and the order of the Sessions Judge. The findings of the Sessions Judge are based upon the testimonies of the eye witnesses namely P.W.1 Ashok Kumar Misra, P.W.2 Deepak Kumari and P.W.3 Kunjan Kumari and also P.W.7 Raja Ram Singh who reached immediately after the occurrence.
13. P.W.1 Ashok Kumar is complainant of the case. He stated that for the last about 7-8 years he is residing in village Dadra where his fields are situated. He has three sisters. His elder sister Bindawasim Devi was married with Rajendra Prasad Upadhyay. The deceased Vishwanath Upadhyay was younger brother of his brother-in-law. He further stated that the appellant Vijai Shankar alias Lal Babu resides in village Kalwari and Rama Shankar alias Chhote lives in his village. Vijai Shankar alias Lal Babu is uncle of Rama Shankar. At the time of occurrence some talks about the marriage of his younger sister Deepak Kumari were going on in village Tendui district Varanasi. His brother-in-law Rajendra Prasad Upadhyay and deceased Vishwanath Upadhyay were mediator. About one month prior to the occurrence appellant Rama Shankar came to his house and asked him as to why he is worried about the marriage of his sister. He suggested him to marry her with Vijai Shankar. He refused and said that Vijai Shankar is not a right person. Next day Vijai Shankar came and started abusing them. After two days, he went to Deepapur in the house of his sister and told her that accused are harassing him 4-5 days prior to the occurrence Vishwanath Upadhyay came to his house and told that Vijai Shankar had gone to Deepapur and an altercating had taken place. About 15 days prior to the occurrence both the accused had come to his house and threatened him and said that they would kill him and Vishwanath Upadhyay and the person with whom they will marry his sister. In the night between 14/15.5.1981 he was sleeping infront of his house and Vishwanath Upadhyay's cot was also 2-3 steps away from him. Deepak Kumari and Kunjan Kumari were sleeping inside the house. At about 1.30 A.M. he woke up for urinating and again slept on the cot. At about 2.00 A.M. he heard the sound of the shot and woke up and sat on the cot and saw that Vijai Shankar was standing near the cot of Vishwanath Upadhyay armed with Katta. There was moon light. Vishwanath was wreathing in pain and blood was oozing from his head. He called Vishwanath but he did not reply. Rama Shankar was standing on the eastern side of his cot. Vijai Shankar came near him and as he was trying to run away, Rama Shankar caught hold of his leg and Vijai Shankar fired on his right side. He cried and fell down on the cot. His both sisters witnessed the occurrence from the door. After firing the accused persons ran away on the northern side. Raja Ram Sing, Gop Nath Singh and their wives and children reached at the place of occurrence. His younger sister Deepak Kumari put cloth on his injuries. Blood had fallen on the cot. He sent his sister Kunjan Devi along with Ram Bachan to Deopura. His sister Shashi Kalan, Chet Narain, Amarnath Singh, Kamta Singh reached there. He dictated the F.I.R. to Chet Narain and he signed the F.I.R. (Ext. Ka-1). He sent the F.I.R. to the police station through Amarnath Pradhan. At about 6.30 a.m. the Investigating Officer reached at the place of occurrence. He interrogated him and thereafter referred him for the medical examination to Mariyahan. From Mariyahan he was referred to the district hospital. He was admitted in the district hospital at 9.30 A.M. He remained in the hospital for about 19-20 days. In the cross-examination he stated that prior to the occurrence he had no dispute or enmity with Chhote alias Rama Shankar. He had no enmity with Vijai Shankar. He had not caused any damage to the accused persons. They had dispute with his brother-in-law Vishwanath Upadhyay. He had fixed the marriage of his sister for 3rd June. The accused were pressurizing them to marry his sister to Vijai Shankar. He did not mention about the dispute to his father. He did not lodge any report regarding the threats by the accused. There was no lantern near the place where they were sleeping. The lantern was kept at the place where his sisters were sleeping. He had a torch with him. There was moon light till 3.30 a.m. and thereafter the night became dark. His sister brought the lantern near him. He prepared the F.I.R. at 3.30 A.M. and report was lodged at 5.30 A.M. He did not give the torch to the Investigating Officer. At the time of first shot he was sleeping. The accused did not cover their face with cloth. They had not tried to conceal their identity. He did not see any weapon in the hand of Chhote Lal. Rama Shankar @ Chhotey had caught hold of his leg and immediately thereafter Vijai Shankar had fired on him.
14. P.W.2 Deepak Kumari is sister of the complainant. She stated that occurrence took place about 9 1/2 months back. 15 days prior to the occurrence both the accused came to her house and threatened Ashok Kumar Misra and said that if she is not married with Lal Babu then they will kill Ashok Kumar Misra and said that if she is not married with Lal Babu then they will kill Ashok Kumar Misra and the person with whom she is married. Her marriage was settled by Rajendra Prasad Upadhyay and Vishwanath Upadhyay in village Tendui district Varanasi. Vishwanth Upadhyay came to her house 3-4 days prior to the occurrence. On the date of the occurrence her mother and father had gone to attend a marriage in the house of her maternal uncle. She, her sister Kunjan, Ashok Kumar Misra and Vishwanath Upadhyay were present in the house. She was sleeping in the Osara alongwith her sister Kunjan Kumari. Ashok Kumar Misra and Vishwanath Upadhyay were sleeping infront of the house. They heard a sound of gun shot and woke up. She saw that Vijai Shankar alias Lal Babu is standing near Vishwanath Upadhyay armed with a country made pistol. Vishwanath Upadhyay was wreathing in pain and blood was coming out. Chhotey was empty handed and he had caught hold of the legs of her brother Ashok Kumar Misra and Vijai Shankar alias Lal Babu had fired on his chest. He fell down on the cot. In the moon light she saw the occurrence. They had also raised alarm and Raja Ram Singh had also reached there. She had covered the wound of her brother with cloth. They sent her sister Kunjan Kumari along with ram Bachan to call their family members who were residing in Deopura. On the dictation of Ashok Kumar Misra, Chet Narain had written the F.I.R. which was sent through Amar Nath Pradhan to the police station. In the cross-examination she stated that she had no dispute with the accused persons. She used to go to collect water from a water stream near the house of Chhotey Lal and they used to make dirty comments which she use to dislike. This happened about 5-6 months prior to the occurrence. She did not tell it to her brother nor to the Investigating Officer. She did not lodge any report. About 15 days prior to the occurrence accused had threatened her brother. Her father was also present there. In the night of the occurrence they had taken dinner at 7.30 P.M. She and her sister were sleeping on the same cot. Nether she nor here sister had any torch. She had seen the torch of her brother which was kept on the cot. The report was prepared after 2 1/2 hours of the occurrence.
15. P.W.3 is Kunjan Kumari. She stated that she woke up at 2.00 A.M. due to sound of gun shot. Her sister Deepak Kumari also woke up. They saw that Vijai Shankar was standing near Vishwanath Upadhyay armed with a pistol. Vishwanath Upadhyay was wreathing in pain. There was fire arm injury on his head and there was bleeding. Here brother was sleeping on a cot. As soon as here brother Ashok Kumar Misra got up Chhotey caught hold of his leg and Vijai Shankar had fired on him. They had raised an alarm and Raja Ram Singh arrived there. She had gone to village Deopura along with Ram Bachan for calling her sister. Amar Nath Pradhan, Kamta Singh and Chet Narain came from Deopura along with her sister. Her brother had dictated the report the Chet Narain which was given to Pradhan for lodging at the police station. In the cross-examination she stated that Deopura is about one Kosh (about two miles) from her village. The condition of her brother was serious.
16. P.W.4 is Dr. K.M. Srivastava. He conducted X-ray examination of Ashok Kumar Misra and radio opaque metallic shadows were found on the chest and hand. The X-ray report is Ext. Ka-2.
17. P.W.5 is Dr. N.C. Verma who had conducted the post mortem examination of the deceased which is already mentioned in the earlier part of the judgment.
18. P.W.6 is Ram Parsan Dubey, Head Constable. He prepared the chick F.I.R. (Ext. Ka-4). He had prepared the G.D. (Ext. Ka-5). The special report was dispatched at 7.05 A.M. through constable Kamta Rai which was also entered in the G.D. (Ext. Ka-6).
19. P.W.7 is Raja Ram Singh. He is neighbour of the complainant Ashok Kumar Misra. He stated that the appellant Chhotey Lal is resident of his village and Vijai Shankar is his relative. He further stated that on the date of the occurrence at about 2.00 - 2.30 A.M. he wok up on the sound of gun shot. He say that Ashok Kumar Misra was injured and Vishwanath Upadhyay was lying dead on the cot. Ashok Kumar Misra and his sisters Deepak Kumari and Kunjan Kumari were present there and they were crying. After some time Kunjan Kumari went to Deopura. The night was moon lit night. In the morning he went to attend a marriage in the house of his sister. His statement was recorded by the Investigating Officer on the next morning.
20. P.W.8 Yusuf Khan (constable) has filed and affidavit in which he stated that he had taken the dead body of deceased Vishwanath Upadhyay in a sealed cloth to the mortuary.
21. P.W.9 is Dr. G.D. Dubey, Medical Officer of district hospital, Mirzapur who had examined Ashok Kumar Misra on 15.5.1981.
22. P.W.10 is S.I. Kamta Singh, Investigating Officer of this case. He stated that the case was registered at 5.30 A.M. He recorded the statement of Amar Nath Singh and thereafter he reached at the place of occurrence at about 6.30 A.M. He recorded the statement of injured Ashok Kumar Misra and prepared the chitthi majrubi and sent him for the medical examination through constable Billar Ram. Chitthi majrubi is Ext. Ka-10. He prepared the site plan (Ext. Ka-11). He collected blood stained and plain earth and a piece of bed and prepared its recovery memo (Ext. Ka-12). He prepared the inquest report (Ext. Ka-13) and other relevant papers which are Ext. Ka-14 to Ka-16. The dead body was dispatched for the post mortem. He recorded the statement of Deepak Kumari and Kunjan Kumari and also recorded the statements of other witnesses. On 16.5.1981 he recorded the statement of Raja Ram and after conclusion of the investigation submitted the charge sheet.
23. We have carefully examined the testimonies of the eye witnesses namely P.W.1 Ashok Kumar Misra, P.W.2 Deepak Kumari, P.W.3 Kunjan Kumari and P.W.7 Raja Ram Singh who reached immediately after the occurrence.
24. P.W.1 Ashok Kumar Misra is an injured witness. He received serious fire arm injuries which is supported by the testimony of P.W.9 Dr. G.D. Dubey who had examined him on 15.5.1981 at 9.30 A.M. and had found fire arm injuries. P.W.4 Dr. K.M. Srivastava had conducted the X-ray examination of injuries of P.W.1 Ashok Kumar Misra and radio opaque metallic shadows were found. He received injuries in the same occurrence and his presence at the place of occurrence cannot be doubted. The place of occurrence is infront of the house of the complainant. The other eye witnesses P.W.2 Deepak Kumari and P.W.3 Kunjan Kumari are natural witnesses. All the eye witnesses have described the prosecution case which finds full corroboration from the testimonies of the doctor who had conducted the medical examination and the post mortem. The report is promptly lodged. At the time of occurrence family members were not present, P.W.3 Kunjan Kumari was sent along with Ram Bachan to village Deopura where her elder sister is married. The scribe of the F.I.R. is Chet Narain who is resident of village Deopura which is at a distance of one Kosh (about 2 miles). Thereafter the report was lodged at the police station which is at a distance of 5 miles. A perusal of the report indicates that complainant had described the essential features of the prosecution case including time and place of incident, names of the accused, weapon in the hands of appellant Vijai Shankar alias Lal Babu, name of the victim, manner of assault, name of the witnesses and motive of the crime. The witnesses have fully supported the prosecution case. The manner of assault finds full corroboration from the medical evidence. The witnesses were extensively cross examined but nothing could be extracted therefrom which could impair their credibility. In our view the learned Sessions Judge acted correctly in accepting the evidence of P.W.1 Ashok Kumar Misra, P.W. 2 Deepak Kumari, P.W. 3 Kunjan Kumri and P.W. 7 Raja Ram Singh. P.W.7 Raja Ram Singh is next door neighbour who reached immediately after the occurrence. He found that Ashok Kumar Misra had received injuries and Vishwanath Upadhyay was lying dead on the cot. Both P.W.2 Deepak Kumari and P.W.3 Kujan Kumari were present there and they had informed him that Lal Babu and Chhotey Lal had committed the offence. He also stated that Kunjan Kumari was sent to Deopura.
25. The counsel for the appellants had argued that there was no source of light in which the assailants could be recognised. In the F.I.R. he stated that he had recognised the accused and his sisters had also recognised them. The appellant No. 2 Rama Shankar alias Chhotey is resident of same village. He was already known. It is also stated that 15 days prior to the occurrence they had threatened him. A perusal of the site plan indicated both injured and deceased were sleeping on a cot adjacent to each other. The post mortem report indicates the shot was fired from a very close range. P.W. 5 Dr. N.C. Verma who had conducted the post mortem examination had found 31 small pellets and three pieces of waddings. The medical examination report of P.W.1 Ashok Kumar Misra indicates that he had found tattooing in the wound. The prosecution case from the F.I.R. is that appellant Rama Shankar alias Chhotey had caught hold the legs of P.W.1 Ashok Kumar Misra. This clearly indicates that bath the assailants were very close to him. It has also come in evidence that it was a moon night and moon was visible up to 2.30 A.M. Identification of known persons is possible from the manner of speech, manner of walking and special features of a person like the physical attributes. Even in faint darkness, the faces of known person could be identified. The submission of the counsel for the appellants that there was no source of light in which the assailants could be recognised is rejected.
26. Counsel for the appellants had challenged the testimony of P.W.3 Kunjan Kumari and submitted that her name does not find place in the F.I.R. We have considered the submission of counsel for the appellants and in our opinion she is a reliable and natural witness. At the time of occurrence she was aged about 12 years and it is not necessary for the complainant to include the name of all the persons present in the house. Her testimony can not be discarded only on the ground that her name does not find place in the F.I.R. and she is sister of complainant. The testimony of P.W.3 Kunjan Kumari fully inspires confidence. She stated that she was sleeping along with her sister Deepak Kumari in Osara. She woke up after hearing the sound of gun shot and thereafter she had seen that Rama Shankar alias Chhotey had caught hold the leg of P.W.1 Ashok Kumar Misra and Vijai Shankar alias Lal Babu had fired. Another circumstance which clearly indicates that P.W.3 Kunjan Kumari was present at the time of occurrence is that it is in the testimonies of all the witnesses that elder sister of complainant resides in village Deopura and P.W.3 Kunjan Kumari was sent to Deopura along with Ram Bbachan and on her information several persons including the scribe Chet Narain came from De4opura and he had prepared the F.I.R. on the dictation of complainant. The presence of P.W.3 Kunjan Kumari is corroborated by the testimonies of all the persons. All of them have clearly stated that Kunjan Kumari was sent to Deopura and after her return from Deopura F.I.R. was prepared which was lodged at the police station in the morning at 5.30 A.M.
27. Counsel for the appellants also submitted that the appellants had no motive to commit the offence. So far the question of motive is concerned it is alleged that the accused persons had approached P.W.1 Ashok Kumar Misra and asked him to marry his sister Deepak Kumari to Vijai Shankar. He had refused the marriage on the ground that Vijai Shankar is not a fit person for marriage. The accused had threatened him and had also challenged that they will not permit the complainant or any other person who acted as mediator in the marriage. The appellants had not stated about any enmity with the complainant and there is no suggestion for false implication also. Rama Shankar alias Chhotey stated that he is falsely implicated on account of enmity but the nature thereof had not been disclosed. P.W.1 Ashok Kumar Misra in his statement has also stated that about a month before the occurrence Rama Shankar approached him and asked him to marry his sister with Vijai Shankar. He further stated that about 15 days before the occurrence the accused persons again came to him and threatened him. P.W.2 Deepak Kumari had also stated that she sued to go to collect water from a stream and accused persons used to pass remarks against her but she did not convey the same to her family members. There was no other dispute except this one. It is well settled that where the direct evidence regarding the assault is worthy f credence and can be believed, the question of motive becomes more or less academic.
28. Lastly the counsel for the appellant submitted that the appellant Rama Shankar alias Chhote was empty handed and he did not assault anybody and he cannot be convicted for committing the murder of Vishwanath Upadhyay.
29. We have examined the contention and are constrained to observe that it is devoid of merit.
30. Section 34 I.P.C. reads as under:
"34. Act done by several persons in furtherance of common intention - when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
31. Its perusal shows that for its application two pre - requisites have to be satisfied :
(a) a criminal act should be committed by several persons i.e. by more than one person; and
(b) the said criminal act should be committed by them in furtherance of their common intention.
It is only when (a) and (b0 co-exit, would be said persons be liable for it, as if it was done by them alone.
32. In our view, the expression in furtherance of common intention as used in Section 34 I.P.C. in offences pertaining to human body, does not necessarily connote that several persons should assault the victim, in respect of whom the inference of common intention is sought to be raised. In our judgement, if facts and circumstances in a given case lead to inference that the offence was committed by them in furtherance of their common intention, the inference of common intention within the meaning of Section 34 I.P.C. can be raised against them despite the fact that several persons did not assault the victim. In other words the answer to the question whether an act was committed by several persons in furtherance of their common intention; would depend on the facts and circumstances of a given case.
33. The facts and circumstances of the case irresistibly lead to the inference that the murder of the deceased was committed by the appellants Vijai Shanker alias Lal Babu and Rama Shanker alias Chhote in furtherance of their common intention. We have reached this conclusion for the reasons mentioned hereinafter:
1. Both the appellant came at the house of the complainant in the night. Appellant Vijai Shanker alias Lal Babu was armed with fire arm.
2. Appellant Vijai Shankar alias Lal, Babu shot Vishwanth Upadhyay.
3. After shooting Vishwanath Upadhyay both came near the informant.
4. When informant tried to run away he was caught hold by Rama Shankar alias Chhote. Thereafter Vijai Shanker alias Lal Babu fired at informant.
5. Thereafter both ran away towards the northern side.
34. The above circumstances make it crystal clear that the murder of deceased Vishwanath Upadhyay was committed by the appellants in furtherance of their common intention in terms of Section 34 I.P.C. Hence this submission also fails.
35. In view of the above discussion the appeal is devoid of any merit and is hereby dismissed. We according confirm the connation and sentence awarded to the appellants by the Sessions Judge.
36. The appellants are on bail. They are directed to surrender to serve out the sentences awarded to them. The C.J.M., Mirzapur is also directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by the trial court and confirmed by us.