Shiv Dayal, J.
1. The appellants have been convicted for two offences under Section 302, read with Section 34, of the Penal Code, and each has been sentenced to suffer rigorous imprisonment for life for each of the two murders. The sentences have been ordered to run consecutively in case of each of the appellants.
2. The accused and the deceased were related thus:--
| | | |
Babulal Gangaprasad Shambhudayal Nokhelal
(killed) (accused) |
There was some dispute regarding land between Gangaprasad and Babulal. Gangaprasad had filed a suit against Babulal for possession. In that suit, Shambhudayal and Johrilal were also joined as defendants. A decree for possession was passed in favour of Gangaprasad. They are residents of village Gowari. On May 10, 1967, the marriage of one Khushaliram's daughter was to be celebrated at village Kudodobri. Gangaprasad and Gendlal went there to attend the marriage. At about 8 P. M. on that date, when Gangaprasad was sitting in the 'Manda' in front of Khushaliram's house, both the accused Shambhudayal and Johrilal suddenly appeared there and Johrilal dealt a blow with his axe on the neck of Gangaprasad. Shambhudayal also struck him with his lathi. Gendlal rushed to rescue his father, whereupon a fight ensued between them and Gendlal. The accused Johrilal managed to give another blow with his axe on the shoulder and neck of Gendlal. Both father and son fell dead. The accused fled away towards village Gowari.
3. The defence of both the accused was that they were falsely implicated by Mehtabsingh because of enmity.
4. The case for the prosecution has been found proved by the trial Court. The conviction is based on the ocular evidence of Ramnath (P. W. 1). Nand-kishore (P. W. 2) Mehtabsingh (P. W. 11) and Babulal (P. W. 15). In consequence of the information given by the accused, an axe and a lathi were recovered. Human bloodstains were found on both of them and also on the clothes of the accused.
5. Kumari Nagrath contended that the accused were falsely implicated by the prosecution. It was a dark night and the lanterns on the spot provided too dim a light to enable witnesses to recognise the assailants. She argued that some unknown persons caused the death of Gangaprasad and Gendlal for which the appellants could not be held liable. She took us through the entire evidence.
6. Mehtabsingh (P. W. 11) is son-in-law of Khushaliram. Mehtabsingh's sister-in-law (wife's sister) was to be married on May 10, 1967. He had gone there to attend the marriage. The marriage ceremony was to be celebrated during the night. At about 9 P. M. when he was sitting in front of the Manda, Gangaprasad arrived there from village Gowari and sat in the Manda. His son Gendlal followed him but did not sit in the Manda. As the marriage party was about to come, Mehtabsingh was removing his bicycle which was in the Manda. Nandkishore also came from Gowari and while he was untying his shoes, his (witness's) attention was, all of a sudden, attracted towards Gangaprasad. He saw Johrilal lifting his axe with both the hands and dealing a blow to Gangaprasad. Before the witness could intervene, in quick succession Shambhudayal dealt a lathi blow to Gangaprasad. Gangaprasad fell down. The witness caught hold of the axe which was in Johrilal's hand and tried to snatch it but Johrilal would not leave it. In the meantime, Gendlal reached there with a lathi in his hand. The witness raised an alarm and asked the people to catch hold of Gendlal. Babulal, Nandkishore and some other persons apprehended Gendlal but Gendlal released himself and rushed at Johrilal with a lathi in his hand. Johrilal asked the witness to leave him, otherwise, he (witness) might be injured. The witness then left Johrilal. Just then Shambhudayal also reached there, and there was a quarrel between Gendlal on one side, and Johrilal and Shambhudayal on the other. In that scuffle, Johrilal dealt a blow with his axe on Gendlal's shoulder. The latter fell down.
We have gone through his cross-examination. Two things were argued for disbelieving this witness. Firstly, the light on the spot was not enough to enable the witness to clearly see the faces. The witness was asked about it. He said that there were two lanterns in the Manda and there was a petromax on the back side of the house, light of which also fell in the Manda. Secondly, Mehtabsingh did not know the accused from before. He was a stranger to them. There was no test identification parade. In our opinion, having regard to the peculiar facts and circumstances of the case and particularly because Mehtab-singh actually caught hold of the axe in Johrilal's hand, upon which both tried to snatch the axe from each other, it could not be said that Mehtabsingh's evidence is not credible just because a test identification parade was not held. The wit-ness was subjected to a lengthy cross-Examination. Mehtabsingh says that both he and Johrilal, in an effort to snatch the axe from each other's hand, went up to a room in a lane which was about 10 to 12 paces from the Manda. We do not find anything for which the witness should not be believed. It is true that the witness made statements containing the sentences A to A, B to B, and C to C, but, in our opinion, the contradictions are not material. The evidence of the witness cannot be rejected on that ground.
7. The evidence of Mehtabsingh is substantially corroborated by Babulal (P. W. 15). This witness saw Mehtabsing having caught hold of the axe which was in the hand of Johrilal. He says that Shambudayal also came there and they started quarrelling. He states that he saw an axe in the hands of Johrilal and a lathi in the hands of Shambhudayal.
8. The statement of Ramnath (P. W. 1) is not very clear and Nand-kishore (P. W. 2) turned hostile.
9. On the information given by Shambhudayal (Ex. P-16), a lathi was recovered from his house (seizure memo Ex. P-17), and on the information given by the accused, the Investigating Officer took Johrilal and Shambhudayal to the river near the village from the bank of which the appellants took out an axe.
Kumari Nagrath's argument was twofold. She firstly contended that there was contradiction between the evidence of Narayan (P. W. 10) and Munshilal (P. W. 14), both on the date on which and the place from where these articles were recovered. In Para. 2 of his deposition, Munshilal (P. W. 14) stated that on the following day the Sub-Inspector arrived at the house of Khushali Maharai for investigation and drew up certain memoranda (Exs. P-22 and P-22A) and after that the Sub-Inspector proceeded to village Gowari. The houses of Shambhu and Johri are in front of each other. The Sub-Inspector enquired from them about the axe. Shambhu informed the Police that the axe had been buried on the bank of the river. Shambhu took out 'a lathi from his house. The Sub-Inspector then drew up the information memo (Ex. P-16) and the recovery memo in respect of the lathi (Ex. P-17) It is pointed out that according to this witness, all this happened on the 11th May, while according to Narayan (P. W. 10), the information was given by the accused on the 12th May and the articles were also seized on the 12th May.
In our opinion, the argument is not correct. Even according to Munshilal (P. W. 14), the information was given by the accused on the 12th May and the articles were also seized on the 12th May. The words 'Dusre Din' (the following day) do not here mean the day following the occurrence. It will appear from the last sentence of paragraph 1 of his deposition that the first information report was made by Munshilal's son at the instance of Munshilal. This was on the 11th May. The next sentence (which is the first sentence of paragraph 2) is that on the following day the Sub-Inspector, with some Constables, reached the village. Thus, the following day here means the 12th May. Similarly, about the place from which the articles were recovered, there is no discrepancy. It is not as if both the articles were recovered from the house according to one witness and from the bank of the river, according to another.
10. We are satisfied that the conviction of both the accused is well-founded and must be maintained.
11. Regarding sentence, Kumari Nagrath urged that when an accused is sentenced to imprisonment for life twice, that is, for the murder of two persons, the sentences could not be directed to run consecutively. It is enacted in Sub-section (2) of Section 397, Criminal Procedure Code, as follows :
'When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.'
Learned Government Advocate argued that this provision cannot apply to the present case inasmuch as when there is conviction in the same trial and imprisonment for life is awarded for another offence, it cannot be said that for the purposes of the sentence passed for another offence in the same trial, the earlier sentence for imprisonment for life is being undergone.
12. On an examination of the scheme and intention of Section 397, read with Section 35, Criminal Procedure Code, we are of the opinion that two consecutive sentences of imprisonment for life cannot be awarded under our law.
13. It cannot be denied that the murders were gruesome.
14. The appeal is partly allowed. While the convictions and sentences of Shambhudayal and the convictions and sentences of Johrilal are both maintained, we direct that both the sentences of imprisonment for life would run concurrently in case of each accused.
15. We thank Kumari Nagrath who appeared before us as amicus curiae, and, after a thorough preparation, ably argued everything which could be said for the benefit of the accused.