S.M. Sikri, J.
1. These two appeals by special leave are directed against the judgment of the High Court of Judicature at Allahabad dismissing two appeals filed by the appellant against his conviction by the learned Sessions Judge, Muzaffarnagar, under Sections 302 and 394, I. P. C., in one case, and under Section 25(1)(a) of the Arms Act, in the other case.
2. The prosecution case is briefly as follows: Three persons, Mukhtar Ahmed, his father Nazir Ahmed and the deceased, Abdul Majid, were, on the evening of November 23, 1967 returning from the penth of Banat where they have sold some cattle. They were riding on cycle. Abdul Majid, deceased, was driving it, Mukhtar Ahmed was situing on the cross-bar while Nazir Ahmed was sitting on the carrier. When they reached the place of incident, a culvert, they were challenged by the appellant who asked them to get down. Mukhatar Ahmed flashed the torch which he had with him and saw the appellant who was armed with a pistol. On the demand of the appellant, Mukhtar Ahmed handed over the sum of Rs. 4/- which he had with him to the appellant. When the appellant turned to Nazir Ahmed and asked to hand over whatever he had, Abdul Majid told Nazir Ahmed that he should not hand over the money. Saying so, Abdul Maljd advanced towards the appellant who thereupon fired his pistol at Abdul Majid who fell down on being hit. Mukhtar Ahmed and his father then ran towards the adjacent village, Chorani, raising an alram. They brought a chowkidar and five other men from that village When they returned to the spot they found Abdul Majid dead. The cycle which they had left at the spot was missing. Mukhtar Ahmed, accompanied by the chowkidar, then proceeded to the Police Station, Shamli, three miles away where the First Information Report was lodged at 9 p m. The appellant was not named therein but the report contained a description that he was wearing a black coat. Station Officer, R. L. SHARMA, P.W. 8, arrived at the spot and found two empty cartridges, exts.5 and 6, lying at distance of four feet of the dead body of Abdul Majid, which he took into possession alongwith the blood stained earth near the dead body. The Second Officer, Harpal Singh, was deputed to trace out the culprit in the town of Shamli.
3. The search party after looking for the culprit at the Kairana bus stand as well as in the liquor shops of Shamli proceeded towards the Ashok Talkies where the second show was still going on They reached there about midnight. Sometime afterwards the appellant, wearing the black coat and holding the cycle left at the spot by Mukhtar Ahmed and Nazir Ahmed, appeared at the gate of cinema house. Mukhtar Ahmed and Nazir Ahmed pointed out the appellant to the Second Officer as the culprit and also claimed the cycle as their own. The police party then pounced upon the appellant who resisted the arrest and attempted to escape. He was, however, captured and in the process he sustained a number of injuries. From his possession a revolver, Ex.1, five live cartridges, Ex.10, one currency note of Re. 1/- and one currency note of Rs. 5/- (exts.11 and 12 respectively) bearing blood stains were recovered in. the presence of witness including Mukhtar Ahmed, Nazir, Zahoor and Seeda.
4. A bullet, Ext.13, was taken out from the victim's body during post mortem examination. This bullet alongwith the revolver recovered from the appellant, and the empty cartidge, exts.5 and 6, were sent to the Ballistic Expert for examination and report. In due course two challans were submitted against the appellant, one under Sections 394 and 302, I.P.C. and the other under Section 25(1)(a) of the Arms Act. The appellant was comitted to the Court of Sessions in respect of the two offences and was tired separately. In Sessions Trial No. 32/68 the appellant was tired for the offence under the Arms Act while in Sessions Trial No. 13 of 1998 he was tired in respect of the offence under Sections 394 and 302, I.P.C. As stated already, the learned Sessions Judge found the guilty and convicted him under Section 25(1)(a) of the Arms Act and sentenced him to undergo three years rigourous imprisonment, and in Sessions Trial No. 13 of 1968, the learned Sessions Judge found him guilty of the offence under Sections 394 and Section 302, for the former offence he was sentenced to hundered ten years rigourous imprisonment and for the latter offence he was sentenced to death.
5. The High Court upheld the convictions and the sentences, and having obtained special leave., the appeals are now before us.
6. The learned Counsel for the appellant says that the High Court did not adequately deal with the case of the appellant, which was considered in detail by the learned Sessions Judge. He says that the High Court was hearing reference under Section 374, Cr. P.C., in respect of the death sentence awarded to the appellant and it should have independently examined the evidence and all possible contentious which could be raised or were raised before the learned Sessions Judge.
7. We have looked into the judgments of the learned Seasons Judges and the judgments of the High Court. The only points which the High Court has not dealt with in detail are the discrepancies regarding some minor points which had no relevance whatsoever to the main case against the appellant. The learned Counsel has taken us through the evidence of the witnesses and the police officer who captured the appellant. The learned Sessions Judge dealt with these points in the following manners:
I shall now proceed to consider the various points of criticism levelled against the prosecution evidence. To begin with, I have been referred to the discrepancies between the statements of Mukhtar Ahmad and his father which, in the contention of the learned Counsel make the presence of either of them doubtful at that hour near the place of occurrence. Mukhtar Ahmad is unable to state the price paid for the cloth, (Exs. 8 and 9) by Abdul Majid; according to him the cloth was purchased from a shop, near the police crossing in Shamli While Nlazir Ahmad informs that the two clothe pieces had been purchased from separate shops. As told by Mukhtar Ahmad, four bullocks had been sold by them and two remained unsold, in the penth, but Nazir Ahmad would state that two she-buffaloes and four bullocks had been taken for sale in the penth. According to the informant he had gone on foot to the police station from the spot but as told by Nazir Ahmad, he had gone by a Tractor. After the police party had reached the spot in consequence of the information made by Mukhtar Ahmad, they stayed there for an hour or so. According to Mukhtar Ahmad they returned in the tonga which carried the dead body, but Nazir Ahmad would state that they had gone back on foot, with the police party. The contradictions are, in my opinion, in immaterial details. The usual character of human testimony is substantial truth under circumstantial variety and very often such differences occur through there is agreement about the broad incidents of penth, the substantial truth. That they were returning from a that they purchased cloth pieces (Exs. 8 and 9), in Shamli, that the cloth pieces were found at the spot by the Investigating Officer, are facts in relation to which there is no variation between the witnesses. Moreover, whatever impact, the alleged discrepancies could have had on the truth of the prosecution story it is very much offset by the undersigned coincidence, which arc found woven in the texture of the events that took place in the wake of the occurrence. Village Garhi where the deceased lived is about five miles away from the scene of occurrence. It was the dark hour of the night and unless persons known to the deceased were in his company, the investigation by the police, with a detailed description of the deceased, would not have been possible, soon after. It is not shown that the deceased was known to the people of village Goharni, and that being so, and taking into regard the fact that the culprit was pointed out, very shortly after the occurrence at the Ashoka Talkies, Shamli the contention be accepted.
8. We find that the learned Sessions Judge has adequately dealt with these contradictions and perhaps the learned Counsel for the appellant did not place any reliance on this aspect before the High Court.
9. Be that as it may, the case against the appellant rests not only on the oral evidence of the eye-witnesses but also on the fact that soon after the crime he was found in possession of a revolver from which, according to the Ballistic expert, was fired the bullet, Ext. 13, which was found in the body of the deceased. Similarly, the two empty cartridges which were found at the spot were also stated by the expert to have been fired from the revolver found in the possession of the appellant.
10. It was a happy thought of the police officer which led to the arrest of the appellant and there is no reason whatsoever as to why the police officer and the eye-witnesses should implicate the appellant and let off the real assailant.
11. The learned Counsel says that this occurrence took place in the evening when it was dark, and the culprit might have left the revolver at the spot and this has been planted on the appellant. There is no evidence to sustain this contention.
12. The learned Counsel further says that the witnesses, other than Mukhtar Ahmed and Nazir Ahmad, who had signed the memo relating to the search of the appellant and the recovery of the revolver and cartridges and the blood-stained currency notes have not been examined. The prosecution had examined two eye-witnesses who were also party to the memo relating to the search of the person of the appellant & perhaps it was not thought necessary to call the other persons who had signed the memo. If there was any doubt about the matter the defence could have summoned the other persons as defence witnesses.
13. The learned Counsel has, however, drawn our attention to the evidence of Seeda, one of the witnesses to the recovery, in the Session Case under the Arms Act. The fact that he was not examined in the Other Sessions Case does not demolish or shake the prosecution case. The prosecution perhaps felt that in the Arms case it was necessary to examine Seeda. It appears that the prosecution in that case examined Seeda only but did not examine Mukhtar Ahmad or Nazir Ahmad.
14. These appeals are under Article 136 of the Constitution and the learned Counsel for the appellant has not been able to bring out any points to enable us to interfere with the concurrent findings of the courts below.
15. In the result both the appeals are dismissed.