S.D. Khare, J.
1. Ram Raj Anant Ram and Bhagauti all residents of village Lorikpur, within police circle Kotwali, district Sultanpur have appealed against their conviction under Section 302 read with Section 34 I. P. C. and sentence of imprisonment for life to each
2. The prosecution case, briefly stated, was that there had been a Rood deal of dispute between Ramraj Tewari (deceased) a resident of village Bachanpur, on the one hand and the fathers of Ram Raj and Anant Ram (appellants) on other regarding some land left by Behari. The contention of Ramraj Tewari was that he had been in possession of that land. The mutation court in the year 1958 recorded a finding on the point of possession in favour of Jaduram, father Ram Raj (appellant) and Ram Naresh, father of Anant Ram (appellant). Even after that decision Ram Raj Tewari (deceased) continued to remain in possession over that land. Jaduram and Ram Naresh did not institute a civil suit against Ramraj Tewari. Proceedings under Section 107 Cr. P. C. were started, but they ended in discharge of notices of both the parties as a result of compromise. The prosecution case was that on the evening of 7th July, 1963, Ram Raj (appellant) came to the house of Ram Tewari (deceased) and required of him to give up possession over the land which had been mutated in the names of his father and uncle Ramraj Tewari (deceased) did not agree and stated that he would not give up possession till he was ejected in due course of law by a competent court. Ram Raj (appellant) left the place after extending a threat to Ramraj Tewari (deceased).
On the evening of 8th July, 1968, whileRamraj Tewari (deceased) was returning from the place of Badri Seth at Kurwar where he was serving, all the three appellants armed with spears launched an attack on him on the footpath near the grove of Jagannath (P. W. 4). On seeing the appellants coming out of the grove so armed, Ramraj Tewari (deceased) made an attempt to run away, but he could not do so because he was chashed and then injured by all the three appellants, with spears. The alarm raised by the injured attracted the attention of Radhey Shyam (P. W. 1), the son of Ramraj Tewari who was returning from the market of Kurwar and following his father at a short distance. Jhuri Singh (P.W. 3) was in the company of Ramraj Tewari when the attack on him was launched. Jhuri Singh had also tried to run away and was not injured because he took a different direction and then witnessed the occurrence from a short-distance. Other persons, including Bhagelu (P. W. 11) and Shiv Kumar (P. W. 12), also witnessed the occurrence.
3. When the witnesses reached very near the place of occurrence all the three assailants of Ramraj Tewari ran away taking their spears with them. Village Bachanpur is at a distance of less than one mile from the place of occurrence. One of the sons of Ramraj Tewari arranged for a cot and the injured was at once shifted to Kurwar dispensary. The distance between the place of occurrence and Kurwar dispensary was about one and a half furlongs. By the time Ramraj Tewari could reach the dispensary he was already dead. Dr. S.P. Bisht (P.W.2) who examined him at 6.45 p.m. stated on oath that Ramraj Tewari was already dead when he was brought to the Kurwar dispensary at 6.45 p.m. on 8-7-1963.
4. The first information report of the occurrence was lodged by Radhey Shyam (P. W. l), the son of the deceased and an eyewitness of the occurrence, at police station Kotwali at 9.40 p.m. on the same day Police station Kotwali is at a distance of nine miles from the place of occurrence. The motive for the crime, the incident as it had occurred and the names of the eye-witnesses were mentioned in the first information report.
5. The usual investigation followed. Blood has fallen at the place of occurrence and blood-stained and unstained earth was taken from that place and duly sealed and sent to the Malkhana. An inquest was held over the dead body of Ram Raj Tewari, whose body was sent for post-mortem examination to the mortuary, where the autopsy was held by Dr. M.P. Srivastava, Civil Surgeon, Sultanpur, on 9-7-1963 al 4-15 p.m. In the opinion of the doctor the deceased was about 45 years of age and the probable time since death at the time of thepost-mortem examination was about one day. Rigor Mortis had passed off from the upper limbs but was present in the lower limbs. Decomposition had not started. The following ante-mortem injuries were noticed as a result of the external examination:--
1. Stab wound 1-2/8' X 5/8' on upper part of right butlock 2 1/2' below the right iliac crest.
2. Stab wound 1-7/8' x 3/8' X 2' on the lower and outer side of right butlock.
3. Stab wound 2-3/8' X 3/8' X abdominal cavity deep on the lower and inner side of right butlock 2 1/2' X from the anal margin.
4. Stab wound 3/8' X 2/8' X 1/6' on the lower and front part of right leg 1-8/8' above the right ankle joint.
6. The internal examination revealed that there was a clean cut wound in the peritoneum 1-2/8' X 3/8' on the lower part of right side in continuation of external injury No. 3. There was clotted blood present in the abdominal cavity. The stomach was empty. The lower part of the small intestine had been punctured through and through in continuation of external injury No. 3 and faucal matter was coming out through the punctured wound. In the opinion of the doctor death was due to shock and haemorrhage as a result of injury to inlestines. The injury was sufficient in the ordinary course of nature of cause death. The blood-stained clothes of the deceased and the bandh of the cot on which he was carried from the place of occurrence to the dispensary were sent to the Chemical Examiner and Serologist for examination and report. They were found to be slained with human blood. The bloodstained earth taken by Ram Kewal Dube S. I. (P.W. 16) during the course of investigation and duly sealed in the presence of the witnesses could not be sent to the Chemical Examiner and Serologist because, due to some mistake somewhere sealed packets pertaining to another investigation made at about the same time by the same investigating officer were sent to the Chemical Examiner and Serologist for examination and report. The other occurrence relating to a Section 304A I.P.C. ease had taken place on 6-7-1963. Final report was accepted in that case and, therefore, all the property relating to that case had been destroyed. In these circumstances the blood-stained earth taken by the investigating officer from the place of occurrence could not be sent to the Chemical Examiner and Serologist for examination and report.
7. The prosecution relied on the lestimom of five eye witnesses, namely Radhey Shayam Jhuri Singh, Jagannath, Bhagelu and Shiv Kumar (P.Ws. 1, 3, 4, 11 and 12) in support of the prosecution case. They fully supported the prosecution case Jagannath (P.W. 4) was in his grove looking after the mango crop at the time of the occurrence. Jhuri Singh, according to the prosecution case, was in the company of Ramraj Tewari (deceased) when he proceeded from village Kurwar towards his own village. Radhey Shyam (P.W. 1), a son ofthe deceased, was following the latter at a distance of about 100 yards only when he heard the alarm raised by his father. Bhagelu (P.W. 11) is a resident of village Kurwar. He was grazing his goals when the occurrence took place and he witnessed it from a distance of about 30 paces. Shiv Kumar (P.W. 12), Pradhan of village Kurwar stated that he was returning from village Bachanpur and was going to the market of Kurwar when he passed near the place of occurrence and witnessed the occurrence from a distance of ten paces. They all claimed lo know the appellants from before the occurrence, and stated before the court that the appellants were the assailants of Ramraj Tewari
8. Two of the appellants, namely, Ramraj and Anant Ram had surrendered in the court of the Magistrate on 16th July, 1963. The third appellant, namely, Bhagauti, had surrendered himself before the Magistrate on 17th July, 1963. An application was moved on their behalf on 28th July, 1963, in which it was mentioned that the appellants were not known to any of the prosecution witnesses and identification proceedings may be taken. That application was opposed by the prosecution, presumably on the ground that the witnesses who lived within two miles of village Lorikpur where the appellants lived knew them from before the occurrence. The result was that the application was rejected and no identification parade was held.
9. All the three appellants pleaded not guilty and stated that they had been falsely implicated. Anant Ram further explained that in the course of the earlier litigation between Ramraj Tewari and his father. Shiv Kumar had conducted the case on behalf of Radhey Shyam and that he was inimical towards him and other members of his family. He further explained that Bhagelu. Jagannath and Jhuri Singh did not recognise the appellants and complained that no identification proceedings had been held. The explanation given by the remaining two appellants was similar to the one given by Anant Ram. No evidence was led in defence.
10. The learned Sessions Judge, after having considered the entire evidence on the record, arrived at the conclusion that the occurrence had taken place during day time and the prosecution witnesses were reliable. He, therefore, convicted and sentenced the appellants as aforesaid.
11. The learned Sessions Judge did not attach any importance to the fact that the blood-stained earth taken by the investigating officer from the place of occurrence could not be sent to the Chemical Examiner and Serologist for examination and report.
12. We have heard the learned counsel for the appellants. He has taken us through the entire record and we find that the explanation given by the prosecution for not being able to gel the blood-stained earth recovered from the place of occurrence examined by the Chemical Examiner and Serologist is reasonable. No adverse inference can be drawn against the prosecution on that account.
13. It was suggested to some of the prosecution witnesses during the course of their Cross-examination that the occurrence must have taken place after it had become dark. There is absolutely no substance in that suggestion. It is clear from the statement made by Dr. S.P. Bisht (P.W. 2), Medical Officer in charge Kurwar dispensary that the deceased had been brought to him at about 6-45 p.m. and he had prepared the examination report Ex. Ka-2 and declared him to be dead. The occurrence had taken place in the month of July, and it could not have become dark at 6.46 p.m. when the deceased was examined by Dr. S.P. Bisht. The occurrence must have taken place at least 15 to 20 minutes before he was taken to the dispensary. At that time it could not have been dark.
14. It had been alleged in the application dated 28th July, 1963, that none of the prosecution witnesses knew the appellants from before. That allegation could hardly be made as against Radhey Shyam (P.W. 1) son of Ramraj Tewari (deceased). There was long standing enmity between Ramraj Tewari and the members of the family of Ramraj and Anant Ram (appellants). Bhagauti, according to the statement made by Radhey Shyam (P.W 1) is a relation of Ramraj and Anant Ram (appellants) and also belonged to the same family The distance between village Lorikpur. where all the three appellants resided and village Bachanpur. where Ramraj Tewari and his son Radhey Shyam lived, is less than 2 miles. In the circumstances. It could not be said that the appellants were not known to Radhey Shyam (P. W. 1) from before the occurrence.
15. In the case of Shiv Kumar (P.W. 12). It was claimed and established by the defence that he had appeared as a witness for Ramraj Tewari in the mutation case fought out between him and the father of Ramraj (appellant) and father of Anant Ram (appellant). Shiv Kumar is a resident of village Kurwar which is also at a distance of less than two miles from village Lorikpur. Shiv Kumar was also expected to know all the three appellants from before the occurrence.
16. It was in these circumstances that the three appellants while explaining the circumstances appearing against them did not even allege that Radhey Shyam and Shiv Kumar did not know them from before the occurrence. Their contention, however, was that Jhuri Singh, Jagannath and Bhagelu did not know them from before the occurrence.
17. A perusal of the cross-examination of the three witnesses for the prosecution named above will show that none of these witnesses was cross-examined on that point. It was not even suggested to any of them that he did not know the appellants from before the occurrence.
18. In the circumstances a vague application moved on behalf of the appellants on 28-7-1963 claiming identification from all the prosecution witnesses could not demolish the prosecution case There can be no doubt that all the witnesses, who are residents of the same locality, living in villages within a radius of two miles from the abadi of village Lorikpur, claiming to know the appellants from before the occurrence actually knew them from before the occurrence.
19. The learned counsel for the appellants has placed reliance on the case of Lajja Ram v. State. AIR 1955 All 671 in support of his contention that as a matter of prudence it was the bounden duty of the prosecution to have put up all the accused persons for identification when their contention was that the prosecution witnesses did not know them from before. It is true that in all cases where there can be any doubt as to whether or not the accused persons were known to the prosecution witnesses from before the occurrence the prosecution would be well advised as a matter of prudence to put up all the accused persons for identification to ascertain whether or not the prosecution witnesses could identify them. However, that is not necessary in each and every case. The accused persons have nothing to lose in case an identification parade claimed by them is not held because if they are able to establish at the time of the trial that the prosecution witnesses did not know them from before the occurrence, their testimony with regard to their identity would not be accepted.
The case of Lajja Ram, AIR 1955 All 671 relied upon by the accused does not lay down anything different In that case the prosecution witnesses were not relied upon because after having examined the entire evidence the court came to a definite finding that it could not be said with regard to any of the witnesses for the prosecution that they certainly knew the appellants from before. In the present case the facts are different. All the prosecution witnesses resided within two miles of village Lorikpur the village in which all the three appellants lived They stated in court that the accused persons present in the dock were the assailants of Ramraj Tewari (deceased) and as observed already there was not an iota of cross-examination on that point. It was not even suggested to any of them during the course of the cross-examination that they did not knew the appellants from before the occurrence
20. No adverse inference can, therefore, be drawn from the omission by the prosecution to get all the three accused persons duly identified by the prosecution witnesses in properly conducted identification parades.
21. All the five prosecution witnesses of the occurrence are natural and probable witnesses of the occurrence. Nothing could be shown by the defence why the statements made by Radhey Shyam. Jhuri Singh, Jagannath and Bhageiu (P.Ws. 1, 3, 4 and 11) should not be accepted. Jhuri Singh, Jagannath and Bhagelu (P. Ws. 3. 4 and 11) had no enmity whatsoever with the appellants The presence of Radhey Shyam (P.W. 1) could not be doubted because he took the injured to Kurwar dispensary and thereafter on learning that his father was dead he rushed to police station Kotwali and lodged a report there the same night at 9.40 p.m. In our opinion the learned Sessions Judge was perfectly justified in not rejecting the testimony of Shiv Kumar (P.W. 12) merely on the ground that he had once appeared as a witness for Ramraj Tewari in a case against the members of the family of Ramraj and Anant Ram.
22. The circumstances in which the attack was made by the appellants on Ramraj Tewari with spears leave no room for doubt that they did so in furtherance of the common intention of all to cause the death of Ramraj Tewari
23. We see no force in this appeal and it is accordingly dismissed. The conviction and sentence of the appellants are upheld. They are in jail and shall serve out their sentence.