U.S. Tripathi, J.
1. The above two appeals have been preferred against the judgment and order dated 5-11-1981 passed by IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No. 312 of 1980 convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to undergo imprisonment for life.
2. The prosecution story, briefly stated, was as under :--
Appellants Shiv Bali and Bhola are real brothers and sons of Baijnath. Appellants Ram Mani and Maheshwari are also real brothers and sons of Ram Gopal. Baijnath, father of appellants Shiv Bali and Bhola and Ram Gopal, father of appellants Ram Mani and Maheshwari were real brothers. All the appellants and Satya Narain (P.W. 1) and his brother Deo Narain deceased were residents of village Datauli, P.S. Lilauli, district Fatehpur. Satyanarain (P.W.1) and Deo Narain deceased were residing at their Dera in village Burdawa to look after their cultivation.
3. One Shambhu was cousin brother of the appellants. Shambhu had died leaving his widow Smt. Maharania, who was residing at village Aunsar, district Banda. Smt. Maharania had agricultural land in villages Garhi and Satkara. The appellants were cultivating the plots of Smt. Maharania. Satyanarain (P.W.1) and his five brothers including Deo Narain deceased purchased agricultural land of Smt. Maharania prior to 4-5 months of the occurrence of this case. Satya Narain (P.W. 1) and others applied for mutation of their name over the plots of Smt. Maharania. Sheo Bali and Bhole on behalf of his son and Maiyadin brother of Ram Mani and Maheshwari appellants filed objection in the said mutation proceeding. On account of it, the appellants were having enmity with Satyanarain (P.W.1) and Dev Narain deceased.
4. On the night of 17/18-10-1979 17/18-10-1979 Satyanarain (P.W.1) and Dev Narain deceased had gone to watch their fields situate at Chandwa Har, as due to drought the people used to leave their cattle, which damaged crops. After watching their fields, they were returning to their Dera. In the way at about 10 p.m. they met with Saraju Prasad (P.W. 2) resident of village Mawaiya going to village Mawaiya. Dev Narain deceased asked Saraju Prasad (P.W.2) as to where he was going so late in the night. Saraju Prasad told that he was going to his village Mawaiya. Dev Narain deceased told that it was not safe to go there in night and asked him to stay with him at his Dera. Saraju Prasad (P.W.2) agreed to it and proceed along with them towards their Dera. When they came up to a distance 40-50 paces, the appellants came there. Satyanarain (P.W. 1) flashed his torch to see as who were they. On flash of torch Bhola Prasad appellant exhorted that they should be killed. On his exhortation all the appellants came near the deceased. Bhola was having Double barrel gun, Maheshwari was having a country made pistol and the remaining appellants were having Lathis. Hearing the exhortation Satyanarain (P.W. 1) and Dev Narain deceased started running. But in the meantime, Bhola fired two shots and Maheshwari fired one shot. The shots hit Dev Narain deceased, who fell down on the spot and died. Satyanarain ran away and reached to his Dera. Saraju Prasad (P.W.2) also escaped.
5. In the morning Satyanarain (P.W.1) came to his village Datauli and proceeded to P.S. Lalauli for lodging report. In the way to Lalauli, the village Chaukidar met him at village Kora Kanak and asked him as to where he was going. When he told him his purpose he told that the report of occurrence would be lodged at P. S. Ghazipur. From village Kora Kanak Satyanarain (P.W.1) came to Ghazipur, where he prepared report (Ext. Ka. 1) near a shop after purchasing paper and lodged the same at P. S. Ghazipur at 1.10p.m.
6. Chik F.I.R. (Ext. Ka-14) was prepared by Constable Heera Lal Srivastava, (P.W. 5) who made an endorsement of the same at G. D. report (Ext. Ka-15) and registered a case under Section 302 read with Section 34 IPC against Maheshwari Deen, Ram Mani, Shiv Ball and Bhola appellants.
7. The investigation of the case was handed over to Sri Saligram Tiwari, I. O. (P.W. 3). The papers relating to the case were received by I.O. through Constable Om Prakash and Sukhram at about 4 p.m. at village Sankha. The I.O. reached the place of occurence at 6.30 p.m. where he interrogated Satyanarain (P.W.1). He appointed Punchas and conducted inquest of the dead body of Dev Narain deceased and prepared inquest report (Ext. Ka-2) and other relevant papers (Ext. Ka-3 to Ka-5). He sealed the dead body and handed over to Constable Om Prakash and Sukhram for taking it to mortuary. The I.O. collected blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka-7). He took into possession blood stained clothes of the deceased and prepared recovery memo (Ext. Ka-8). He also inspected torch of complainant, found it in working order and gave in the supurdaginamaof complainant, vide supurdaginama (Ext. Ka-9). On 19-10-1979 the I.O. inspected the place of occurrence and prepared site plan '(Ext. Ka-10).
8. The autopsy on the dead body of Dev Narain deceased was conducted on 19-10-1979 by Dr. Prakash Joshi (P.W.4), who found three gun shot wounds of entry and two gun shot wounds of exit on the person of deceased as ante-mortem injuries and cause of death as shock and haemorrhage. The Doctor prepared postmortem report (Ext. Ka-13).
9. The I.O. completed remaining investigation and challaned the appellants, vide charge sheet (Ext. Ka-11).
10. The cognizance of the case was taken by the Magistrate, who committed the case to the Court of Session.
11. The appellants were tried for the offence punishable under Section 302 read with Section 34 IPC. The appellants pleaded not guilty and contended that litigation had taken place between Bhola and Shiv Bali appellants on one hand and Satyanarain (P.W. 1) and his father Prabhu Dayal on other hand in Revenue Court. A case under Section 307 IPC was also initiated between Ram Mani and Maheshwari appellants on one side and Satyanarain on the other side. There was strong enmity between the parties. Dev Narain was murdered in the night. His body was found in the morning and the appellants were falsely implicated on account of above enmity. Appellant Ram Mani further contended that Satyanarain had married his niece in a lower family and he and his family members had not participated in the marriage and they also persuaded other villagers not to participate in the said marriage and therefore he and his brother Maheshwari were falsely implicated. Appellants Maheshwari and Ram Mani also pleaded their alibi.
12. The prosecution in support of its case examined Satyanarain (P.W.1) and Saraju Prasad (P.W.2) as witnesses of fact, besides Salikram Tiwari, I.O. (P.W.3), Dr. Prakash Joshi (P.W.4) and Heera Lal Srivastava (P.W.5) as formal witnesses.
13. The appellants did not adduce any evidence in their defence.
14. The learned Sessions Judge on considering the evidence of the prosecution held that testimony of Saraju Prasad (P.W.2) was not reliable, but the solitary testimony of Satyanarain (P.W.1) is worthy of credence as it received corroboration from medical evidence and circumstances of the case and the guilt of the appellants had been fully established. With these findings he convictedand sentenced the appellants as mentionedabove.
15. Challenging their above conviction and sentence, the appellants Shiv Bali and Bhola Prasad filed Criminal Appeal No. 2674 of 1981 and Ram Mani and Maheshwari filed Criminal Appeal No. 2714 of 1981.
16. Both the appeals have been directed against the same judgment and order and same question of fact and law are involved in both the appeals. Therefore, both the appeals are being disposed of by common judgment with the consent of parties' learned counsel.
17. We have heard Shri V.C. Tiwari, learned senior Counsel assisted by Shri A.K. Awasthi for the appellants in both the appeals and the learned A.G.A. for the respondents and have gone through the evidence on record.
18. The identity, death and cause of death of Dev Narain deceased is not disputed. According to the prosecution, fire arm injuries were caused on the deceased, due to which he died on the spot. Sligram Tiwari, I.O. (P.W. 3) stated that on reaching the spot on 16-10-1979 at about 4 p.m. he conducted inquest on the dead body of deceased, prepared inquest report, sealed the dead body and handed over the same to Constable Om Prakash and Sukhram Singh for taking it for postmortem. Dr. Prakash Joshi (P.W. 4) stated that sealed dead body of Dev Narain alias Rajju deceased was produced before him on 19-10-1979 and he conducted autopsy on said date on 2.30 p.m. and found following ante-mortem injuries on the person of the deceased.
(1) Two gun shot wounds of entrance 1 3/4' x 1/3' x muscle deep and 1/2' x 1/2' x muscle deep at a distance of 1/2' apart from each other on the left upper arm, upper IIIrd posteriorly lateral aspect. Margins lacerated and everted. Blackening and tattooing present.
(2) 8 gun shot wounds of exit 1/4' x 1/4' x muscle deep on left axilla in an area of 3 1/2' x 1 1/2' at a distance of 1/4' x to 1/2' apart from each other. Margins lacerated and everted (wadding pieces removed from the wound). Direction back to front and upwards.
(3) One gun shot wound of entrance 1' x 1 3/4' x chest cavity deep on left side back, middle third part near vertebral column (T11) 5' upwards and medially from left iliac creast. Margins lacerated and inverted. Blackening and tattooing present ever the wound. There was fracture of (T11) onwards and 12th rib left side underneath the injury with damage to spinal cord. (Clotted blood present underneath the injury).
(4) One gun shot wound of entrance 1' x 1' x chest cavity deep on right side back middle third part 3 1/2' downwards and medially from the inferior angle of right scapula 2' lateral from vertebral column. (There was ' fracture of T 9 and T 10 ribs on right side posteriorly. Clotted blood present underneath the injury.
(5) Five gun shot wounds of exit 1/4' x 1/4' x chest cavity deep on right side chest, middle third part in an area of 4' x 2' at a distance of 1/2' to 1' apart from each other. Margins lacerated and everted situated just below the level of right nipple. There was fracture of 5th, 6th, 7th and 8th ribs right side and 2nd on left side. (Clotted blood present underneath described area). Direction back to front and upwards. 5 gun shots big and wadding pieces removed.
19. He further stated that internal examination showed that there was fracture of T9 and T11 as described under injury. Spinal cord lacerated and perforated. Hematoma under injury Nos. 3 and 5. There was fracture of 12th rib on left side and 10th rib on right side back 5, 6, 7 and 8th ribs on right side front and 2nd on left side front perforated and lacerated at places. Larynx trachea and bronchi perforated and lacerated at places. Right and left lungs lacerated and perforated on lower middle and upper part both sides. Clotted blood present. Pericardium was lacerated and perforated. Heart was lacerated and perforated. Descending aorta perforated. Pleural cavity contained blood. There was hematoma on the back of abdomen. Peritoneum was perforated. Cavity contained blood. Stomach empty and contained gases only. Small intestine empty and contained gases only. Large intestine contained faecal matters and gases. Liver was lacerated on left side. Spleen lacerated and perforated in lower third part.
20. The cause of death was shock and haemorrhage as a result of above ante-mortem injuries, which were sufficient in ordinary course of nature to cause death.
21. The above medical evidence and the evidence of Investigation Officer has not been challenged. Thus, the identity, death and cause of death of deceased Dev Narain is established.
22. The prosecution relied on ocular testimony of Satya Narain (P.W. 1) and Saraju Prasad (P.W. 2). The prosecution declared Saraju Prasad (P.W. 2) hostile. The trial Court had also discarded the evidence of Saraju Prasad (P.W. 2) on the ground that his evidence does not give any substantial aid for the prosecution. We have also perused the evidence of Saraju Prasad (P.W. 2), who had stated that he was permanently residing in village Mawaiya, in his Sasural since 1959 and his parental house was in village Bhatpurwa. He used to go to village Mawaiya from village Bhatpurwa and village Datauli fell in the way. On the night of occurrence he was coming to village Mawaiya from village Bhatpurwa. When he reached village Datauli at about 9 p.m. Satya Narain (P.W. 1) and his brother Dev Narain deceased met him near their Dera. He was knowing them from before. They asked him as to where he was going and he told that he was going to Mawaiya. They further told that it was not safe to proceed further in the night and he should stay with them. He accepted their offer as he was also relative of Satya Narain (P.W. 2). From said place he along with Satya Narain (P.W. 1) and Dev Narain was proceeding towards south, towards their Dera. When he reached 40-50 paces on the pagdandi (kachcha uneven rasta). 4 persons were coming from eastern side. Satya Narain flashed his torch and the above four persons came near them. He saw in the light of torch that two persons were having guns and two persons were having lathis. Observing lathi and gun, he was frightened and could not recognise them. Observing the appellants in the dock, he stated that he could not say whether they were the assailants or not. All the four persons exhorted and one person fired on Dev Narain. Dev Narain fell down by the side of his chest and thereafter he and Satya Narain ran away. The other miscreants fired on Dev Narain with close range, while he was lying on the ground by chest side. The witness has thus not recognised the assailants and therefore, the prosecution declared him hostile. Assuming that the witness has supported the prosecution story regarding date, time and place of occurrence as well causing of fire arm injuries on Dev Narain deceased by two persons he has not recognised the assailants and therefore his evidence is of no avail so far complicity of the appellant is concerned.
23. There remains sole testimony of Satya Narain (P.W. 1) real brother of the deceased. He stated the inter se relationship of the appellants, which is not disputed. He further stated that Shambhu was cousin brother of Ram Gopal, father of Ram Mani and Maheshwari appellants. Smt. Maharani was widow of said Shambhu. She was residing in village Chausar, district Banda. She had her agricultural plots at villages Garni and Satkara. The appellants were cultivating her agricultural plots on batai basis. Satya Narain and his 5 brothers including Dev Narain deceased purchased the agricultural land of Smt. Maharania 4-5 months prior to the occurrence of this case. After obtaining sale deed he and his brothers applied for mutation. Shiv Bali and Bhola on behalf of his son, filed objection in the said mutation case. Maiyadeen brother of Ram Mani and Maheshwari appellants also filed objection. Despite of their objection mutation was allowed in favour of vendees. He had his Dera in village Bandawa. The houses of appellants Ram Mani and Shiv Bali were near his Dera. He and his brother Dev Narain deceased were residing at their Dera to have watch on their agricultural fields of Chandua Har. It was drought at the time of occurrence and on account of it, the people used to leave their cattle in the night. On the night of occurrence at about 10 p.m. he along with Dev Narain deceased was returning to his Dera after watching their plots at Chandua Har. Saraju Prasad (P.W. 2) met them in the way. Dev Narain asked him as to where he was going and when he told that he was going to Mawaiya. Dev Narain asked him to stay in the night with him to which he agreed. The witness along with Dev Narain and Saraju Prasad was returning to his Dera and when travelled a distance of 40-50 paces from main rasta, the appellants came near them. He flashed his torch and Bhola appellant exhorted 'Aaj sale achchhe mile ho bachkar nahni jane denge.' Bhola appellant was armed with gun, Maheshwari with country made pistol and remaining appellants with lathis. Hearing exhortation of Bhola the witnesses tried to run, but in the meantime, Maheshwari fired from his country made pistol and Bhola fired from his gun, which hit Dev Narain. Bhola fired two shots. Maheshwari fired one shot. The gun of Bhola was of double barrel. Sustaining injuries Dev Narain deceased died and the witness ran away towards Dera. On the morning he came to his village Datauli and thereafter was going to Lilauli to lodge report. In the way at village Kora Kanak, Chaukidar of the village met and he inquired from him where he was going. When he told that he was going to lodge report at Lilauli, the Chaukidar told, that report would be lodged at P.S. Ghazipur. Thereafter, he came to P. S. Ghazipur and prepared a report in front of a shop and lodged the same.
24. The learned counsel for the appellants contended that the occurrence allegedly took place at about 10 p.m. in the night of 17/18-10-1979 17/18-10-1979 and the report of occurrence was lodged on next day at 13.10 p.m. i.e. after 15 hours and this indicates that the occurrence has taken place in odd hours of night, none had seen the occurrence and dead body of deceased was seen in the morning. Satya Narain lodged the report against appellants, who were inimical with him after due deliberations and consultation and that the explanation offered by the informant Satya Narain (P.W. 1) for said delay is afterthought, bogus and unreliable.
25. Admittedly, there is delay in lodging the report. Satya Narain (P.W. 1) has offered explanation that on the morning of occurrence he came to his village Datauli and thereafter proceeded to police station Lilauli for lodging report. In the way, at village Kora Kanak Chaukidar met and when he told him that he was going to P. S. Lilauli to lodge report he told that report would be lodged at P. S. Ghazipur. Then he returned to P. S. Ghazipur and lodged the report. This explanation does not find place in the F.I.R. The explanation for delay offered in the F.I.R. was that in the night informant Satya Narain remained near dead body of his brother and in the morning leaving the dead body under watch of his brother Kailash and uncle he came to police station to lodge the report. In his cross-examination the witness stated that he had not told before the I.O. the explanation of delay that initially he was going P. S. Lilauli and then returned to P. S. Ghazipur from village Kora Kanak as the I.O. had not inquired about it. Thus, the explanation regarding delay offered for the first time in the evidence is an afterthought. It cannot be said that no explanation was offered initially in the F.I.R. itself. In the F.I.R. the witness had offered another explanation. But he changed the same just to meet the time gap. The distance of police station, Ghazipur is only 16 Km. and assuming that Satya Narain (P.W. 1) had started for the police station in the morning he could easily cover said distance within 3-4 hours. It cannot be said that the witness was illiterate and was not knowing in which police station, the place of occurrence lies. He was a literate person and had faced several criminal and civil litigations and therefore, it cannot be said that the witness was not aware of his police station. Therefore, the explanation of delay in lodging the report given by the witness is not convincing and the delay remained unexplained.
26. In Thulika Kali v. State of Tamil Nadu, : 1972CriLJ1296 the Apex Court discussed delayed filing of F.I.R. and its consequences as below :--
'First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of concocted Story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained.
27. This is the position consistently followed by Apex Court in Maharaj Singh v. State of U. P. and in Thanedar Singh v. State of M. P. : 2002CriLJ254 .
28. The decisions of the above cases was again reiterated by the Apex Court in a recent decision in Rajeevan v. State of Kerala, : 2003CriLJ1572 .
29. As mentioned above unexplained delay in lodging the F.I.R. quite often results in embellishment, which is a creature of an afterthought. In this case admittedly there was enmity between the parties and the delay in lodging the F.I.R. is indicative of the fact that since the informant had not seen the assailants he implicated the appellants with whom he was having enmity, as they were opposing mutation application of the informant Satya Narain (P.W. 1) by filing objection in it.
30. The motive alleged by the prosecution was that the deceased and his 5 brothers had purchased agricultural land of Smt. Maharania, which annoyed the appellants as they were cultivating the plots of Smt. Maharania on batai basis and they had also filed objection in the mutation application moved on behalf of the deceased and his 5 brothers. The learned Counsel for the appellants contended that though it was stated by Satya Narain (P.W. 1) that Smt. Maharania was of the family of appellants, but he could not state her relationship with the appellants and in fact she belonged to the family of Satya Narain (P.W. 1) and that it has also not been established that the appellants were cultivating plots of Smt. Maharania prior to the execution of sale deed. The certified copies of the objections filed in mutation application are on record, which show that Shiv Bali and Maiyadeen, s/o Ram Gopal as well as Bhola Prasad had filed objection in mutation proceeding and in the above objection they have asserted their possession over the plots in dispute. As such, it is admitted case of the appellants that they were in possession over the plots of Smt. Maharania, which she subsequently sold to the deceased and his brothers. Therefore, it can be said that the appellants had motive, but it is equally established from the evidence on record that the appellants were inimical with Satya Narain (P.W. 1) as they had fled objection in the mutation application. Therefore, there was also equally motive for Satya Narain (P.W. 1) to falsely implicate them.
31. There is sole testimony of Satya Narain (P.W. 1). There is no dispute that even a sole testimony is sufficient to base the conviction provided it inspires confidence and is corroborated by medical evidence, F.I.R. and other circumstances of the case.
32. Satya Narain (P.W. 1) was, having strong enmity with the appellants and therefore his testimony is to be scrutinised with great caution. In the F.I.R. it was mentioned by Satya Narain (P.W. 1) that Bhola Prasad was having gun and Maheshwari was having country made pistol while remaining appellants were having lathis. That on the exhortation of Bhola, Maheshwari fired by country made pistol and Bhola fired by gun. In his evidence he stated that Bhola fired two shots and Maheshwari fired one shot. The gun of Bhola was double barrel. He further clarified in his cross-examination that Maheshwari fired first and thereafter the deceased fell down. The remaining two shots were fired on the deceased while he was lying flat and that Bhola fired shots by placing the barrel of his gun on the body of the deceased. In his examination-in-chief the witness had stated that on sustaining fire arm injuries, Dev Narain deceased fell down and he (witness) ran to his Dera to save his life. The occurrence had taken place in the night at about 10 p.m. and on hearing the sound of fire, the witness ran away. In such a situation the witness was not expected to observe so minutely, as to which of the particular appellant fired two shots and in which manner i.e. by keeping barrel of the gun touching the body of the deceased or otherwise. This indicates that the witness was giving his statement in consonance with the medical evidence, as the tattooing and charring were found in the injuries Nos. 1 and 3 and wadding pieces were recovered from injury No. 2. The nature of weapon possessed by Bhola was also subsequently developed probably to explain the number gun shot wounds on the person of the deceased and no recovery of cartridges from the spot.
33. The photogenic description of the manner of the occurrence given by the witness in his cross-examination further indicates that the witness tried to make his statement in consonance with medical evidence, but in view of the facts and circumstances of the case and occasion for the witness to observe the incident indicated that he could not so minutely observe the incident.
34. The admission of the witness as well as the documents relied on by the appellants indicated that there was inter se enmity between appellants Shiv Bali and Bhola on one hand and Ram Mani and Maheshwari on the other hand. No circumstance has been shown that both sides of the appellants, who were daggers drawn with each other joined and shared common intention to commit murder of the deceased. It is true that two persons opposed to each other may join together for their common cause and object, but in the instant case, no role had been assigned to appellants Ram Mani and Shiv Bali, though, it was alleged that they were having lathis. There was no blunt object injury on the person of the deceased and no overt act has been assigned to those two appellants. Their implication may be said exaggeration of number of accused. But it could not be ignored simply on the ground of exaggeration as Satya Narain (P.W. 1) had equal enmity with those appellants and therefore it is probable that they were falsely implicated on account of enmity.
35. Though Sarju Prasad (P. W. 2) had not supported the prosecution story and was declared hostile by the prosecution, but his evidence shows that his presence on the spot was highly doubtful. According to evidence of Satya Narain (P.W. 1), Sarju Prasad (P.W. 2) was going to village Mawaiya at about 9 p.m. He met Satya Narain (P.W. 1) and the deceased in the way and on the request of deceased he agreed to stay with him in the night. The witness often used to go to village Mawaiya where he was residing and there was no special occasion on the night of occurrence for staying him with the deceased. The introduction of Sarju Prasad (P.W. 2) as eye-witness, who was distant relative of Satya Narain (P.W. 1), whose presence on the spot was not natural and probable further indicated that he had not seen the occurrence, but was made witness as he happened a distant relative of the deceased. Sarju Prasad (P.W. 2) however admitted that he was also related with the appellants and probably this was the reason for his not supporting the prosecution story.
36. Thus on scrutiny of the sole testimony of (P.W. 1) we find that his statement is full of subsequent developments and embellishment and in the facts and circumstances of the case he could not observe the occurrence so minutely as stated by him. Besides being inimical the presence of the witness on the spot also appears doubtful in view of inordinate delay in lodging the F.I.R. and introducing Sarju Prasad whose presence on the spot was highly doubtful. Therefore, sole testimony of Satya Narain (P.W. 1) does not inspire confidence and it cannot be made basis for conviction.
37. The Complicity of the appellants in the incident was, thus, highly doubtful. Consequently the guilt of the appellants was not proved beyond all reasonable doubt and the appellants are entitled to benefit of doubt. The appeal thus succeeds.
38. Both the appeals are, accordingly, allowed and conviction and sentence of the appellants are set aside and they are acquitted of the offence to which they stood charged with. All the appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.