G.D. Srivastava, J.
1. These two connected appeals arise out of the judgment of the learned I Additional Sessions Judge, Muzaffarnagar. Appeal No. 953 of 1977 has been filed by Vikram Singh and the other appeal is by Dharampal. Appellant Vikram Singh has been convicted under Section 302, I.P.C, simpliciter and has been sentenced to death. He has also been convicted under Section 307, I.P.C. with Section 34, I.P.C. and Section 27 of the Arms Act. He has been awarded a sentence of rigorous imprisonment for five years under the first count and rigorous imprisonment for four years under the second count. These two sentences have been ordered to run concurrently. Appellant Dharampal has been convicted under Section 302, I.P.C. read with Section 34 I.P.C. and also under Section 307 I.P.C. He has been sentenced to imprisonment for life under the first count and rigorous imprisonment for seven years under the second count. The two sentences have been ordered to run concurrently. There is the usual reference for confirmation of the death sentence.
2. The two appellants are related to each other; Dharampal's sister being married to the brother of appellant Vikram Singh. According to the prosecution case, the Sarhoo of Tek Singh complainant used to reside in the house of Jahan Singh as a tenant. The landlord had asked the tenant to vacate the house and in that connection the tenant was beaten by one Sewa Ram at the instance of the landlord. The tenant had lodged a report, about this beating against Sewa Ram and his brother. The police submitted a charge-sheet in that case and according to the prosecution story, the complainant and his son Rajendra Singh alias Pappu deceased used to do Pairvi in that case on behalf of the tenant. It was further alleged that prior to this murder, brother of Sub-Inspector P. N. Singh was murdered and in that connection a case of murder was registered against the two appellants. The property of appellant Vikram Singh was attached under the orders of the Court on 6-6-1975, The police used to visit the house of the complainant and had come to the house of the complainant on the date of attachment also. This was the reason for the two appellants having a grudge against the complainant and his son Rajendra Singh. On 8-10-1975 at about noon, the complainant and some Others were sitting on chairs in front of the complainant's shop while the deceased was sitting at the counter. At about 12-10 p.m., the two appellants came on a motor cycle (USP 3937). They left the motor cycle keeping the engine running at some distance and both of them entered the shop. Appellant Dharampal asked Rajendra Singh to stand up and immediately appellant Vikram Singh fired a number of shots in quick succession from his sten gun with the result that Rajendra Singh fell down on the chair. The two appellants came out of the shop while the complainant and others, after hearing the gun fire, wanted to proceed towards the shop but Dharampal fired his revolver towards them and the complainant and others, took shelter behind two trees. The two appellants immediately escaped on the motor cycle. The complainant and others went to the shop and found Rajendra Singh lying in a pool of blood. He was immediately taken to the District Hospital, Muzaffarnagar where the doctor declared him dead. A written report of this occurrence was lodged by Tek Singh at police station Kotwali at 1 p.m. The investigation was taken up by Sub-Inspector Raghuraj Singh who immediately reached the spot. On his direction Sub-Inspector R.L. Gautam went out in search of the assailants. The Investigating Officer recorded statements of the witnesses, prepared site-plan, picked up four empty cartridges Exts. 12 to 15, and a bullet Ext. 19, from the scene of occurrence, collected blood and also took in custody some blood-stained articles. Sub-Inspector Brijendra Singh went to the District Hospital where he held inquest on the body and sent it for postmortem examination with the necessary papers. Sub-Inspector R.L. Gautam, who had been deputed to search out the culprits received an information at about 2-30 p.m. that a motor cycle had knocked down a rickshaw. He at once reached the spot and there he came to know that a motor cycle going on a high speed had knocked down the rickshaw. He found revolver Ext. 1 lying on the ground. The revolver, which is Ext. 1, was taken in custody and it was found that it had three or four live cartridges in its chambers. The weapon was sealed and memo Ext. Ka. 13 was prepared. A report had been lodged by one Prabhu Dayal Singh on 6-10-1975 that his motor cycle No. USP 3937 had been snatched away by some robbers. Om Prakash (P.W. 11) noticed a motor cycle abadoned on the road outside his village Sher Nagar. He brought it to police station Nai Mandi and deposited it at the Thana. This motor cycle was found to be that of Prabhu Dayal Singh and it was given in his custody. On 8-11-1976 (1975?) the complainant found two bullets Exts. 20 and 81 lying under his Jeep which was at that time behind the chair on which Rajendra Singh was fatally shot at. These two bullets were deposited by him at the Thana. Under the orders of the Superintendent of Police, the investigation was handed over to the C.I.D. K. P. Shastri of the C.I.D. completed the investigation and submitted a charge-sheet. On 1-6-1976 Sub-Inspector M. P. Tyagi of Dehradun contacted Sub-Inspector Raghuraj Singh and after taking some police force, Sub-Inspector Tyagi went to Chandigarh in search of the accused persons. On 2-6-1976, some members of the U. P. Police force in plain clothes were seen grappling with the two appellants near a betel shop at 12-30 p.m. A.S.I. Kishori Lal of Chandigarh was coming on a Jeep with some accused persons of another case. On seeing this grappling, he stopped the vehicle and with the help of the members of the U. P. Police force, the two appellants were arrested. On a search being taken the two appellants were found in possession of unlicensed arms. On the basis of this recovery, cases under the Arms Act were registered. The two appellants were handed over to Sub-Inspector Gurbachan Singh. While under arrest, appellant Vikram Singh promised to point out the sten gun. The appellant led Sub-Inspector Bal Kar Singh and the witnesses to house No. 1197 in Chandigarh and from a locked room sten gun Ext. 2 with magazine and some other articles was recovered. The appellant could not produce any licence for the weapon, A case under the Arms Act was registered.
3. Dr. A. K. Gupta conducted the post-mortem examination of the body on 8-10-1975 at 7 p.m. He found five gun shot wounds of entry on the various parts of chest and left hand. There were also five gun shot wounds of exit on the various parts of the back and left palm. There was no blackening or scorching in any wound. On internal examination the Doctor found that the peritoneum and the intestines had multiple lacerations. Shots had passed through the pleura, lungs, diaphram, liver and heart. The third rib had been fractured. The cause of death was found to be shock and haemorrhage and the probable time since death was estimated to be about one and a quarter day. The recovered empty cartridges and the bullets were examined by the Ballistic Expert and he submitted his report which is dated 30-6-1976.
4. The prosecution placed reliance on the statements of three eye-witnesses, namely, Tek Singh (P.W. 1), Karam Ilahi (P.W. 3), and Salamat Ullah (P.W. 4). As already noted, all these three persons were sitting in front of the complainant's shop and they noticed the two appellants coming on the motor cycle. After the firing, they attempted to proceed towards the shop but when Dharampal fired towards them they took shelter behind trees. All the witnesses claimed to have recognised the two appellants. Sub-Inspector Bal Kar Singh (P.W. 5), Sub-Inspector Kishori Lal, Sub-Inspector Gur Bachan Singh, Head-Constable Gur Nam Singh and Jarnal Singh (P. W. 24) are witnesses for the arrest and recovery. B. Rai (P.W. 17) is the Ballistic Expert who, after examining the cartridges and the bullets, came to the conclusion that these cartridges and bullets had been fired by sten gun Ext. 2, The rest of the oral evidence is more or less of a formal nature,
5. Both the appellants pleaded that they had been falsely implicated due to enmity with the police. The relationship between the appellants inter se is admitted. The two appellants, however, denied the recoveries. The motive set up by the prosecution has also been denied. The learned Sessions Judge, relying on the statements of the three eye-witnesses, recoveries and the report of the Ballistic Expert came to the conclusion that the case of the prosecution had been fully established against the two appellants who were, therefore, convicted and sentenced as mentioned above. The motive set up by the prosecution was also found to have been established.
6. It does not appear to be disputed that Rajendra Singh alias Pappu was fatally shot at while he was sitting at his shop at the said date and time. This is established beyond doubt by the medical evidence, recovery of blood, blood stained articles and the recovery of empty cartridges and bullets. I may note at this stage that the recovery of. blood and other articles from the scene of occurrence has not been challenged by the defence. In other words, there appears to be no controversy regarding the date, time, and place of the occurrence. So far as the motive is concerned, it is admitted that the complainant's 'Sarhoo' was a tenant of Jahan Singh father of appellant Vikram Singh. A criminal case was going on with an allegation that the tenant had been beaten at the instance of Jahan Singh. The prosecution led evidence to prove that in that criminal case, the complainant and the deceased used to do pairvi on behalf of the tenant. It is also in evidence that in connection with the murder of the brother of Sub-Inspector P. N. Singh, the police used to visit the house of the complainant. These two circumstances are mentioned in the first information report also. The learned Sessions Judge has discussed these circumstances and has come to the conclusion that they had been established and he also held that this motive was sufficient for the commission of murder. These findings of the trial Court have also not been challenged before us. Agreeing with these reasons we therefore, hold that the motive part has also been proved.
7. It now remains to be seen whether the learned trial Judge was justified in placing reliance on the oral testimony of the eye witnesses and other circumstances set up by the prosecution. The main point raised by the learned Counsel for the appellants was that the weapon said to have been fired by appellant Vikram Singh had been referred to in the first information report and also at the investigation stage by the witnesses as a pistol while it was in fact a sten gun. It was, therefore, contended that if it was a day-time occurrence and the witnesses had seen the firing, they should not have committed such a blunder in description of the weapon. It was urged that for this reason, the entire prosecution case should be thrown out. It is of course evident that in the first information report and at the investigation stage the weapon used by Vikram Singh has been referred to aa a pistol. The question now is how far this mis-description affects the oral evidence. The eye witnesses, when questioned on the point deposed that they did not know what a sten gun was and that to their knowledge, the weapon was a pistol. Sten gun is a weapon which few people have an occasion to see. The common man is not expected to know what a sten gun is and what it is. like. Had it been a case of the witnesses being aware of the shape and size of a sten gun or had it been a case in which the witnesses were expected to know what a sten gun was, the position would have been different and there would have been much force in this contention. The learned Counsel for the appellants in order to illustrate his point, gave an example. He argued that if in an occurrence a witness had seen a motor car and he had not seen a motor car on any earlier occasion he would not describe it as a bullock cart. In our opinion, this reasoning is beside the point and contains a fallacy. Except for the fact that a bullock cart and a motor car are both meant for carrying people from one place to another, there is absolutely no point of similarity between the two. Thus if in an occurrence, a gun has been used and the witnesses describe the weapon as a spear, naturally such oral evidence will have to be rejected simply because there is absolutely no point of similarity between a gun and a spear. But in our opinion, this analogy will not apply to the instant case where a sten gun has been described as a pistol. Thus the only fault of the witnesses was that instead of saying that they had seen some firearm the like of which they had not seen before and did not know its name, the witnesses ventured to describe the weapon as a pistol. We have given our anxious consideration to the various circumstances and we think that such a mis description of the weapon does not shake the very foundation of the prosecution story. As already observed, it cannot be said that a sten gun and a pistol are so dissimilar that a witness could never have committed a mistake of this sort. While describing the weapon in the first information report or at the investigation stage, it was not said that it was a country made pistol or a regular pistol of foreign make, It is a matter of common knowledge that some country made pistols have long barrels also. It is, therefore, no wander that after seeing the large size of the barrel, the witnesses gathered an impression that the weapon was a country made pistol. If we closely examine the evidence, it can safely be said that in all probability, the witnesses must not have been able to see the whole of the weapon. We may go to the extent of saying that probably when the two appellants were seen going towards the shop, no weapon at all was seen otherwise the complainant and his companions must have raised a hue and cry. It is in evidence that when the two appellants were approaching towards the shop, none of the witnesses suspected that they were going to commit such an offence. P. W. 1 admitted that he saw the appellants coming down from the motor cycle but he did not see what weapons, they were carrying. He also said that appellant Vikram Singh was wearing a rain coat and he had concealed his sten gun under it. He further said that he actually saw the sten gun when it was fired. Similarly P. W. 3 said that he saw only the barrel and it was one or one and a quarter Balisht in length and to the same effect is the statement of P. W. 4 who made it clear that only the barrel was visible and the rest of the weapon had been concealed by Vikram Singh under his arm pit. Thus all the witnesses deposed that they had seen only the barrel portion and we think that this is quite natural under the circumstances. After seeing the extra large size of the barrel, the only impression which the witnesses could naturally gather was that it must be a country made pistol. By merely seeing the barrel, probably even a more experienced man could not have, in that state of excitement, noted that it was really a sten gun. Thus having considered all these facts and circumstances, we do not find any substance in this argument.
8. The other point of attack was that the presence of Tek Singh in front of the shop at that hour was highly improbable and, therefore, the presence of the other witnesses also stood falsified simply because the evidence was to the effect that the complainant and these witnesses were engaged in gossip. In support of this contention, our attention was drawn to certain factors. It was pointed out that according to the evidence, the usual practice was that among the father and the son, one of them used to go to the house to have lunch and that person used to bring lunch for the other at the shop. It was pointed out that it was 12.10 p. m. and, therefore, the complainant was normally expected to be at his house for lunch. Secondly, it was said that because the victim reached the hospital at 12. 30 P. M., the distance of the hospital being only half a furlong, this would go to show that the complainant was not on the spot and that he came only on getting a telephonic call. Thirdly it was said that if the complainant wag there, he was the real enemy and instead of killing Rajendra Singh, a boy of tender age these appellants must have attacked the real enemy and lastly it was pointed out that when the Investigating Officer visited the spot, no chairs were found in the compound. We have considered all these points and in our opinion none of them carries any weight. There is nothing in the evidence to indicate at what time. the complainant and his son used to have their lunch. In the absence of such an evidence, it would be too much to say that at 12.10 p. m., the complainant was expected to be at his house for lunch. Regarding the gap between the incident and the Doctor's examination of the victim, Tek Singh was not questioned. It goes without saying that after such an unexpected incident, the complainant must be in a state of shock and he must have certainly taken a few minutes in order to decide what to do. After he had discovered that his son was lying in a pool of blood, he must have at that moment, raised a hue and cry as a result of which people must have collected and then after some minutes, it must have been decided to take the victim to the hospital at once. The Doctor must have also taken some time in attending the patient. Regarding the chairs, it is of course admitted that they were not there when the Investigating Officer came and P. W. 1 stated that only one of the chairs belonged to him and the other chairs which belonged to other persons must have been taken by their owners. As regards his own chair, the complainant said that he did not know by whom it was removed. At the most it can be said that the presence of chairs could have been a circumstance in support of the prosecution case but it cannot be said that absence of chairs necessarily falsified the prosecution case. The answer to the question as to why the appellants assaulted Rajendra Singh and not his father partly depends on the mentality of the appellants which the prosecution could not possibly know. They might have thought it fit to punish the father in a more cruel manner by killing the son instead of the father. Again it is also possible that while rushing inside the shop, these appellants might not have noticed that at some distance, their real enemy was sitting. On the other hand, the appellants expected that the complainant would be at his shop and because they wanted to punish the complainant and his son both, they killed the person who was at that time available inside the shop. After one man had been killed, and after the attention of the people had been attracted, it could not be expected that the appellants would think of making an attempt to kill the complainant also. We, therefore, think that from this circumstance no adverse conclusion can be drawn. Our attention was also drawn to some discrepancies with regard to time inasmuch as in the inquest report and in the challan, the time of first information report was given as 1.15 P. M. and 1. 45 p. m. The Sub-Inspector concerned was questioned on the point and he said that it was only a slip of pen. We have not been able to find out any other circumstance which might throw any doubt regarding the time of the first information report.
9. Coming now to the quality of oral evidence, we find that the statement of the complainant has been corroborated by two wholly independent witnesses. The only suggestion to these two witnesses was that they had deposed due to police influence. It is not the suggestion of the defence that these two witnesses had any connection with the complainant or had any motive whatsoever to falsely implicate the appellants. Both the witnesses have given good reasons for being present. P. W. Karam Ilahi is a denter by profession. In connection with his profession, he used to visit the shop of Aijaz who is a motor mechanic. It was the day following Idul-Fiter and the witness bad no work in hand. He was, therefore sitting in front of the shop of Aijaz which has been shown in the site-plan. P. W. Salamat Ullah is a black-smith and his shop has also been shown in the site-plan. As already noted, these three persons were simply engaged in idle gossiping. We do not find any improbability in the story that in the month of October, these persons chose to sit in the open at about noon. Thus in short, there seems to be no reason to doubt the presence of these witnesses. We were not referred to any material discrepancy in the oral evidence and if the witnesses are quite independent, we think that the learned Sessions Judge wag perfectly justified in relying on their testimony.
10. This oral evidence in so far as it relates to appellant Vikram Singh is further supported by the recovery of sten gun at his instance and the report of the Ballistic Expert, We have carefully examined the evidence of recovery and in our opinion, it is quite consistent and convincing. We were not referred to any error in the appreciation of this evidence by the learned trial Court. The fact that the empty cartridges and the bullets picked up from the spot were found by the Ballistic Expert to have been fired from this very sten gun goes to corroborate the oral evidence. The correctness of the report of the Ballistic Expert was also not challenged before us. Having thus considered all the facts and circumstances we are of the opinion that the appellants were rightly found guilty of the various offences. Regarding the sentence of appellant Vikram Singh, we think that for such a daring preplanned crime in the heart of the city and for murder in a cold blooded manner of an innocent and helpless boy, the learned Sessions Judge has rightly imposed the maximum penalty and we do not find any reason to interfere with this discretion.
11. In the result, both the appeals are dismissed. The conviction and sentences of both the appellants are affirmed. The reference is accepted and the sentence of death imposed on appellant Vikram Singh shall be carried out in accordance with law.
Appellant Dharmpal is in jail and shall serve out the sentences imposed on him.