Babu Ram and Others vs State of U.P.

B.K. Rathi, J.—All the five Appellants have been convicted for the offence punishable u/s 302 read with Section 149, I.P.C. and u/s 307 read with Section 149, I.P.C., and also u/s 324 read with Section 149, I.P.C. and each of them has been awarded sentence of imprisonment for life for the offence punishable u/s 302 read with Section 149, I.P.C, for committing the murder of Hajari Lal and Smt. Ram Shree, they have been further sentenced to five years'' rigorous imprisonment for the offence punishable u/s 307 read with Section 149, I.P.C, for making murderous assault on Balveer and have also been sentenced to two years'' rigorous imprisonment for the offence punishable u/s 324 read with Section 149, I.P.C, for causing hurt to Smt. Moharsri, with the direction that all the sentences of all the Appellants shall run concurrently vide judgment and order dated 3.12.1980 passed by Sri O. N. Asthana, the then I Vth Additional Sessions Judge, Mainpuri in Session Trial No. 43 of 1980. Aggrieved by the conviction and sentences awarded to them the present appeal has been preferred by the Appellants. However, Appellants Babu Ram and Phool Singh alias Bhajan Lal have died during the pendency of this appeal and their appeal stood abated.

Shorn of superficialities, the case of the prosecution unfolded by the evidence on record is that the victims of this case are residents of village Balarpur, police station, Bhongaon of district Mainpuri. Two persons have lost their lives in this incident. One is Hajari Lal and the other is Smt. Ram Shree, daughter-in-law of Hajari Lal and wife of complainant Harpal Singh. Balbir Singh and his wife Smt. Moharsri had received injuries in this incident. According to the prosecution, there is one more injured Shiv Singh, who is real brother of Balbir Singh. However, the trial court has held that it is not established that the injury to Shiv Singh has been caused in this incident.

The Appellants are also residents of the same village. Besides the Appellants, four other persons were nominated in the F.I.R. besides 3-4 unknown persons. The others are Registar Singh, Bahadur Singh, Subedar and Kedar Singh. Bahadur Singh is said to be an outsider and the other accused are of the same family. Appellants Babu Ram, Hori Lal and Sobran Singh are real brothers, sons of Channi Registar Singh is the son of Babu Ram Appellant. The other Appellants Phool Singh alias Bhajan Lal and Jai Singh are cousin brothers of Appellants Babu Ram, Hori Lal and Sobran Singh. Subedar and Kedar Singh accused nominated in the F.I.R. are the sons of Appellant Jai Singh.

Accused Registar Singh and Bahadur Singh remained absconding and as such they could not be tried. The trial court did not find Kedar Singh and Subedar guilty of any offence and acquitted them from the charges. Only five Appellants named above were held guilty and convicted as above.

According to the prosecution, Registar Singh and Bahadur Singh both are hardened criminals and are engaged in committing dacoities and were absconding from the village. In the year 1976 Ram Autar, brother of complainant Har Pal Singh was caught hold of by the accused persons and murderous assault was made on him of which F.I.R. was lodged by Harpal Singh complainant of this case, but the case ended in final report as nobody was prepared to support the case due to terror created by Registar Singh and Bahadur Singh. A litigation in the consolidation between the prosecution party and the Appellants and Register Singh also took place. For this reason, there was enmity and due to the terror of the accused persons. Ram Autar, brother of the complainant had shifted to Gopalganj in the Bihar. His another brother Ram Swarup had shifted to Mainpuri and used to come to the village at long intervals. The accused were angry with Ram Swarup, who was doing Pairokari in the case before consolidation court.

The fateful day of the incident was 2.11.79. Ram Swarup, brother of the complainant came to village and was staying on that day and the accused persons received information regarding this fact. All the accused persons, therefore, formed an unlawful assembly. Appellant Phool Singh and accused Registar Singh and Bahadur Singh were armed with guns, Appellant Jai Singh was armed with hand-grenades and the other accused were armed with country made pistols. All these Appellants were proceeding towards the village and were seen by Balbir Singh P.W.3, who was ploughing his field. Seeing the activities of the accused, Balbir Singh started running away towards the village. At this, accused Registar Singh raised an alarm to catch hold of him and chased him. He also fired shots with his gun causing injury in the right arm of Balbir Singh. However, Balbir Singh reached in front of the house of Harpal Singh and found Harpal Singh sitting on his cot. His mother and aunt were also sitting on the earth and they were busy in talking regarding family affairs. Hajari Lal, victim of this case, uncle of Balbir Singh was tethering his cattle. He informed that Registar Singh, Bahadur Singh and other family members are proceeding towards their house armed with firearms and they have also injured him by firing shots. Thereafter, Balbir Singh concealed himself inside his house. In the meantime, accused party reached there and Jai Singh threw hand-grenade at Hajari Lal victim which caused injuries to him and he fell down on the earth. Thereafter, Appellant Phool Singh and Bahadur Singh fired at Hajari Lal. Complainant Harpal Singh ran and entered In the house of his uncle Ram Swarup. He took rifle of Ram Swarup and fired towards the accused persons from the upper room of the house of Ram Swarup. Smt. Ramsri, wife of Harpal Singh complainant also fired from the gun of the complainant from the upper room of the house of the complainant. At this, the accused persons made indiscriminate firing at her due to which she received injuries and died. The accused persons reached at the house of Phool Singh and Anokhey, uncles of the complainant and fired several round of shots causing injuries to Smt. Moharsri, wife of Balbir Singh. Shiv Singh also received Injury In this incident. Hajari Lal and Smt. Ramsri died due to the injuries immediately. It is also alleged that the accused persons also took away the gun used by Smt. Ramsri. The incident was also witnessed by Smt. Roopwati wife of Phool Singh who is aunt of the complainant.

After the Incident, complainant Harpal Singh himself prepared the F.I.R. Ex. Ka-1 of this incident and he along with Balbir Singh and Smt. Moharsri Injured went to police station Bhongaon and gave the same there at 11.45 a.m. On its basis chik report Ex. Ka-4 was prepared by Virendra Singh, Head Constable P.W. 2 and he registered a case in the G.D. in presence of Sri Durga Prasad Sharma, S.I., P.W. 5 who started the investigation. He Immediately reached at the place of Incident and prepared the inquest report of the dead bodies and sent them for post-mortem. He took bloodstained and simple earth, empty cartridges from the various places and prepared the memos Ex. Ka-17 to Ex. Ka-24. The house of the accused persons were also searched, but they were not available. He submitted charge-sheet against the accused persons.

The injuries of Smt. Moharsri and Balbir Singh were examined by Dr. S.C. Dubey, P.W. 8, who was posted at District Hospital, Mainpuri, at 2 and 2.15 p.m. respectively on 2.11.79. The injury report of Smt. Moharsri Ex. Ka-36 shows that gunshot wound of entrance about 1 cm. x l cm. x2 cm. on medial side of upper part of right leg was found. Bleeding was present, but there was no mark of blackening, tattooing or scorching. The injury report Ex. Ka-37 of Balbir Singh shows that multiple gunshot wounds about 5 in number varying in size from 1 cm. x 1 cm. to 0.5 cm. x0.5 cm. in an area 8 cm. x 5 cm. on the lower part of right forearm were found. Bleeding was present from the injuries and no marks of blackening, tattooing or scorching were found, and skin abrasion on right lower part of abdomen was also found. The injury of Shiv Singh was examined on 6.11.79 and a central inciser was found dislocated. However, his injury report has not been marked Ext. by the trial Judge.

The post-mortem examination on the body of Hajari Lal was done by Dr. R.K. Jain, P.W. 6 on 3.11.79 at 3 p.m. The result of the post-mortem as mentioned in the report Ex. Ka-34 is as follows:

The victim was about 70 years of age and died about 11 /4 days before. The following ante-mortem injuries were found:

Gunshot wound of entry 2V2 cm. x l /2 cm. on the right side head 3 cm. above the right ear. Blackening present.

Gunshot wound of entry with blackening 2 cm. x 2 cm. on the right side neck 5 cm. below the right ear.

Gunshot wound of entry with lacerated margins and blackening 14 cm. x 7 cm. extending from left side just below to left eye to just below the left clavicle. There is a fracture of maxilla left mandible (left side) and fracture of I and II ribs with fracture of clavicle.

Gunshot wound of exit 2 cm. x 2 cm. on the left side back of chest lower part 31/2 cm. away from the mid line.

Four gunshot wounds of entry each size 0.2 cm. x 0.2 cm. in an area of 2 1/2 cm. x2 cm. on the right side chest 3V2cm-above the nipple. Blackening present.

Multiple gunshot wounds of entry each size 0.2 cm. x0.2 cm. in an area of 14 cm. x 14 cm. on the right side below the axilla in mid axillary line. No blackening present.

The death was the result of ante-mortem injuries.

Post-mortem examination on the dead body of Smt. Ramsri was also done by Dr. R.K. Jain on 3.11.79 at 4 p.m. She was about 32 years of age and died about 1J /4 days before and the following ante-mortem injury was found:

Gunshot wound of entry 4 cm. x 1'' /2 cm. x brain cavity deep on the right side face and lower of eye and forehead.

She also died due to the ante-mortem injury.

The learned Additional Sessions Judge relied on the oral testimony of Harpal Singh, Balbir Singh and Smt. Roopwati P. Ws. 1, 3 and 4 and the formal evidence .produced by the prosecution and convicted the Appellants as above. However, the trial court had not found accused Subedar and Kedar sons of Appellant Jai Singh, guilty on the basis of the above evidence and the plea of alibi that they were the students of National Inter College, Bhongaon and they were in the college at the time of incident.

The learned Counsel for the Appellants in the long and painstaking arguments has challenged the conviction of the Appellants on the following grounds:

Firstly, that accused Subedar and Kedar were acquitted by the trial court and the evidence against all the Appellants is identical. Therefore, the Appellants cannot be convicted on the same evidence and participation of the Appellants is also doubtful.

Secondly that according to the prosecution Registar Singh and Bahadur were the absconders, who have been nominated in the F.I.R. besides 3-4 known persons. Therefore, it is contended that dacoity with murder was committed by unknown persons and the Appellants being family members of Registar Singh have been falsely implicated.

Thirdly, that the witnesses examined are of the same family whose presence at the time of incident cannot be accepted and they have not seen the occurrence and independent witnesses have not been examined.

Fourthly, there was no motive for the Appellants to commit the murder.

Fifthly, the medical evidence is contrary and does not support the case of the prosecution.

Sixthly, the F.I.R. is antedated. Lastly, that the investigation is not fair due to which the Appellants are entitled to the benefit of doubt.

We have carefully considered the arguments of the learned Counsel for the Appellants and have scrutinised the evidence of the prosecution and have given our thoughtful consideration to the same. To come to the first argument, the perusal of the judgment of the trial court shows that Subedar and Kedar accused nominated in the F.I.R., who are the sons of Jai Singh Appellant, were mainly acquitted by the trial Judge on the basis of the evidence of Krishan Chandra Dubey and Prem Chandra Gupta, C Ws. 1 and 2, who are the teachers in National Inter College, Bhongaon and stated that both the above accused were students of the said college. Their attendance was taken at 12.10 p.m. on the day of incident and they were found present. The attendance register was also produced. The trial court has also referred to the statement of the I.O. Sri Durga Prasad Sharma, P.W.5. In the cross-examination, he has stated that he went to National Inter College, Bhongaon and examined the attendance register and interrogated the teachers and came to know that both these Appellants were present in the college at 12.10 in the noon. After considering the reasoning of the trial court, we are of the opinion that there was no sufficient evidence to prove that at the time of the incident, two accused were in the college. The statement of the I.O. is not admissible in evidence and was wrongly relied by the trial Judge. His" statement that he interrogated the teachers and examined the attendance register is only hearsay evidence. He did not take the attendance register in his custody nor recorded the statements of the teachers. The statements of the teachers were also not properly considered and from the cross-examination, it clearly appears that the attendance registers are not being maintained properly. Prem Chandra Gupta C.W. 2, has stated that the attendance of Subedar was marked from 13.11.97 to 30.11.97, though Subedar was sent to jail on 13.11.97 and, therefore, there is no question of attending his class from that date. He has also admitted that attendance of Manoj Kumar was wrongly marked from 2.11.97 to 21.11.97, which was later on struck off. Both the teachers have stated that the attendance is taken on the basis of roll numbers and names of the students are not called and the possibility of proxy is not ruled out. Therefore, on the basis of the evidence, the trial court definitely erred in accepting the plea of their alibi. The other reasoning is that the incident of this case took place at 10 a.m. The distance of the college, according to the evidence on record, from the village of the accused is eight miles. Therefore, even after the incident, the accused could have attended the classes. Therefore, in our opinion the pleas of alibi of accused Subedar and Kedar were not rightly accepted by the trial court and the evidence of the prosecution on its basis that they did not participate in the incident, cannot be rejected. The acquittal of Subedar and Kedar does not make the prosecution story improbable resulting in creating doubt regarding participation of the present Appellants. It is true that the State has not preferred any appeal against the order of acquittal of Subedar and Kedar, but for the reason that they have been acquitted, the participation of other Appellants is not doubtful as in this case as discussed above, their evidence does not show that their participation in the crime is impossible and they have been falsely implicated in this case.

In the F.I.R., nine persons have been nominated including five Appellants. Subedar and Kedar have been acquitted and two others are Registar Singh and Bahadur, who are mentioned to be the residents of the village, but it is alleged that they are absconding since long and visit their village very often. This allegation of the prosecution is correct as it found corroboration from the fact that they could not be arrested and tried and remained absconding. Both these persons belong to the gang of dacolts and participation of the family members with their gang cannot be doubted and, therefore, the allegation of the prosecution that 3-4 persons were un known, cannot be said to be incorrect. However, the participation of the known persons along with unknown persons cannot be doubted. It is more so because the present Appellants are also of the family of Registar Singh accused.

It is not a case of dacoity in which participation of known persons would be doubted. It is contended that at one stage, the I.O. came to the conclusion that it is a case u/s 396, I.P.C. This conclusion was drawn simply on the basis of the fact that the gun of Smt. Ramsri victim was taken away by the dacoits. Therefore, that conclusion is of no avail. The dacoity never appears to be an intention of the accused persons and it was a case of murderous assault. The Appellants at no stage have pleaded that the dacoity was committed, nor any such suggestion was given to any of the prosecution witness. Even no suggestion has been given that some articles from the house were taken away by the miscreants. In the absence of any such suggestions and evidence on record that any article, except the gun, was taken by the accused persons, it cannot be held to be a case of dacoity. It was, therefore, a case of murder and in a case of murder participation of known persons with unknown persons cannot be doubted. Therefore, for the fact that 3-4 persons were unknown, the participation of the Appellants in the crime cannot be doubted. The main reason is that all the Appellants are the family members of Registar Singh, who is undisputedly a hardened criminal and motive has also been alleged against the Appellants. In the result, the second contention that the Appellants have been falsely implicated being the family members of Registar Singh, cannot be accepted.

The third argument of the learned Counsel for the Appellants is that independent witnesses of the locality have not been examined. It is contended that the murder has been committed in the bright sun inside the village abaci and, therefore, all the persons of the locality might have witnessed the incident. Non- production of independent witness shows that the material evidence has been suppressed by the prosecution and the witnesses examined being the members of the same family cannot be believed. The reply of this argument was given by the Hon''ble Supreme Court in the case of Appabhai and Another Vs. State of Gujarat, , the Hon''ble Supreme Court has observed "Experience reminds us that civilised people are generally insensitive when crime is committed even in their presence. They withdraw both from the victim and assailants. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they must not involve themselves. The kind of apathy of general public is, indeed, unfortunate but it is every where, whether in village life, town or cities."

This principle laid down by the Hon''ble Supreme Court is applicable in the present case with full force. The reason is that Registar Singh is the son of Babu Ram Appellant and Hori Lal and Sobran Singh Appellants are his real brothers. Everybody in the village was knowing that Registar Singh is a hardened criminal and could not have offered himself as witness against him and his family members so as to put his life in danger. The non- examination of independent witness therefore, not material in this case.

The learned Counsel for the Appellants has also stressed that the presence of the witnesses examined by the prosecution is doubtful and they could not have seen the incident. In the light of the argument, we have scrutinised the evidence of three witnesses of fact, namely, Harpal Singh, Balbir Singh and Smt. Roopwati, P. Ws. 1, 3 and 4 to find as to what extent they could be relied on. Regarding Harpal Singh, it is contended that he is a teacher in the school and admittedly the incident had taken place in school time. Therefore, in the ordinary course, he might be present in the school and his presence in the house is not probable. Secondly, it is contended that there was equal motive for the accused persons against him, but no injury was caused to him and even there is no allegation that any shot was fired towards him or any attempt for assault was made. It is also contended that he staled as soon as Balbir Singh informed him regarding presence of the accused persons, he immediately reached to the house of his brother Ram Swarup and concealed himself there in the upper room of the house. It is also alleged that the house of Ram Swarup is at a distance of 100 yards from his house and, therefore, there was no opportunity for him to witness the incident.

We have carefully considered the criticism of the learned Counsel for the Appellants. Harpal Singh is a teacher in a primary school at Bidhuna. He stated that on the day of incident, he went to school at 7.30 a.m., but came back at 8 a.m. after applying for leave as he was having headache. The persons having an idea of primary schools located in the village knew very well that the teachers never go and attend the classes. Some of them only appear on the day of taking salary. No evidence has been adduced that his presence was marked in the school on the day of incident. Therefore, in the circumstances, there is no reason to disbelieve his statement that he was in his house at the time of incident. No doubt, no injury was caused to him, but the question is whether there was any opportunity to the accused persons to make assault on him. According to the prosecution, the incident had taken place in three parts. In the first part, Balbir Singh was assaulted in the field, who came running and informed regarding the accused persons. On this information, Har Pal Singh immediately ran and concealed himself in the upper room at the house of his brother Ram Swarup and, therefore, there was no occasion or opportunity to the accused persons to make an assault at him. Therefore, no interference could be drawn from the fact that no injury was caused to him. The contention that he immediately went to the house of Ram Swarup, which is at a distance of 100 yards and, therefore, he had no opportunity to witness the incident, cannot be accepted. He has stated that after information was given to him by Balbir Singh, he saw the accused persons armed with weapons coming up. Therefore, he saw the accused coming with arms at the initial stage. Thereafter he alleged that he witnessed the incident from the upper room of the house of Ram Swarup. The house of Ram Swarup has been shown in the site plan Ex. Ka-16 by the I.O. and is in the east of the house of the complainant where murder of Hajari Lal was committed. There is no such evidence on the record to show that the place of incident is not visible from the upper room of the house of Ram Swarup. In the absence of the same, statement on oath of complainant Harpal Singh that he was witnessing the incident from the upper room, of the house of Ram Swarup cannot be disbelieved.

It is also contended regarding Harpal Singh that he had not seen the incident of assault of Balbir Singh P.W. 3 and that he could not have seen the assault on Smt. Ramsri. No doubt it is correct that Balbir Singh was assaulted in the field where no witness was present. Smt. Ramsri was murdered while she was on the upper room of her house. Even if, for the sake of arguments it is accepted that Harpal Singh could not have seen assaulting Smt. Ramsri, even then it does not make any difference. He saw all the accused persons armed with weapons in an unlawful assembly and making assault. At the most, he could not have seen the individual act of each of the accused. However, the argument that he could not have seen the participation of the accused, cannot be accepted.

The other witness is Balbir Singh, who was ploughing the field and firstly he was assaulted by the accused persons. It is alleged that he has stated that Registar Singh fired a shot at him causing injury to him. It is contended that there is no corroborative evidence of the same. It is true that nobody had seen assaulting Balbir Singh and firing shot by Registar Singh at him, but the statement of Balbir Singh is sufficient to prove the same as after assault at him, all the accused persons in an unlawful assembly reached at the house of the complainant. It is contended that Balbir Singh has stated that after sustaining injury, he ran to his house and informed the complainant and other persons present at the house of complainant and then entered in his house to save himself. Thereafter he reached at the roof of the house where he heard the noise of bursting the hand-grenade and sound of 2-3 rounds of fire. He further stated that he saw that accused Bahadur climbed on the Neem tree and was firing towards his brother Shiv Singh, who was firing towards Registar Singh. It is, therefore, contended that his statement shows that he did not see any incident and he concealed himself in his house. He only says that he heard the sound of hand-grenade and fire. It is contended that this fact was not stated by him in his statement u/s 161, Code of Criminal Procedure. Therefore, his statement that he heard the sound of fire and hand-grenades and cries of his aunt Smt. Bhan Kunwar that father of Harpal has been murdered by the accused, cannot be believed. It is further contended that his statement is contradictory. In his statement he stated that he informed Shiv Singh and Harpal Singh that Registar Singh, Bahadur and their family members armed with fire-arm are coming and they have already fired and caused injury in his hand. However, in his statement before the I.O. he stated that he informed the persons present to run away as the assailants are coming. In his statement before the I.O., he did not name any of the assailants, who are coming. Even if the statement given before the I.O. is accepted, it is not material. He was already injured in the broad-day light and, therefore, he could have seen all the assailants. The arguments of the learned Counsel that Registar Singh alone assaulted him and other persons have been falsely implicated cannot be accepted. His specific statement is that Registar Singh fired at him and Bahadur fired towards Shiv Singh from Neem tree, but he has stated that other accused also fired at victims Hajari Lal, Smt. Ramsri and Smt. Moharsri. It is true that no specific roles have been given by him to other accused persons, but for that reason it cannot be accepted that other accused were not there. He has stated that after he received injury, accused Registar Singh challenged to catch hold of him, therefore in the ordinary course he should have run towards his house to take shelter there. Therefore, the contention of the learned Counsel for the Appellants that Balbir Singh had no opportunity to see the incident, cannot be accepted.

The last witness of the commission of crime is Smt. Roopwati, who is the mother of Balbir Singh, P.W. 3 and wife of Phool Singh. According to her statement, at the time of incident at 10 a.m. she along with Smt. Bhan Kanwar and Harpal Singh was sitting at the Chaupal out side the house and were talking. This fact has also been corroborated by Harpal Singh and Balbir Singh P. Ws. 1 and 3. It is contended that the houses of Phool Singh, Ram Swarup and Hajari Lal are separate and there has been a complete partition between them. However, the site-plan shows that their houses are in the vicinity. The incident had taken place in the month of November at 10 a.m. and there is nothing unnatural if all the persons of the family were assembled there and enjoying sun-rays^ and talking regarding family affairs. The house of Smt. RoopwatI is only at a distance of 30-40 steps from the place of Incident. In the ghastly crime all the persons of the locality could have reached and witnessed the incident. The presence of Smt. RoopwatI at the time of incident cannot be doubted.

It is contended that in the site-plan the place where she was sitting and from where she saw the incident, has not been shown. It shows that she was not there at the time of the incident. In our opinion the absence of showing that place is because of the fault of the I.O., her presence, in the circumstances of the case, cannot be doubted.

It is contended that her conduct is very unnatural and she stated that she remained standing there watching the incident. She stated that she had no fear and was confident that she will not be assaulted. Smt. Bhan Kunwar also remained with her as she was also confident that she will not be assaulted. She had not received any Injury. The reason that she did not make any attempt to escape, does not show that she was not there. It appears that seeing the assailants she became stunned. She is an old lady and might be having a feeling that she will not be assaulted by the accused, who are of her village. Therefore, we do not find any reason to disbelieve her statement. The Hon''ble Supreme Court in Rana Partap and Others Vs. State of Haryana, , has observed as under:

Every person who witnesses a murder reacts In his own way, some stunned become speechless and stand rooted to the spot. Some become speechless and start wailing, some start shouting for help, others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim even going to the extent of counteracting'' the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unreliable and unimaginative way.

It is natural that every person, who witnesses an incicent reacts in his own way. Smt. Roopwati became stunned and speechless and remained watching as to what is happening. Her conduct does not show that she was not present at the place of incident.

The other criticism of the learned Counsel for the Appellants regarding the witnesses is that there are material contradictions in their statements. It is contended that In the F.I.R. as well as the statements before the I.O. u/s 161, Code of Criminal Procedure., the witnesses have alleged that while the accused found that Smt. Ramsri has died, they took her gun with them. In the evidence, it was for the first time introduced that the gun was taken by the accused after cutting the window. The other contradiction pointed out is that in the statements recorded by the I.O., all the witnesses have stated that Balbir Singh alarmed that the miscreants are coming and to run to save themselves. However, in the statements, the witnesses including Balbir Singh have stated that the information given by him was that Reglstar Singh, Bahadur and other family members are coming armed with fire-arms and they have fired at the hand of Balbir Singh, It is also contended that according to the witnesses the accused arrived at the house of Harpal Singh, P.W. 1 and there they committed murder of his father Hajari Lal. Thereafter, some of the accused went to the house of Balbir Singh and caused injury to Smt. Moharsri there and some of the accused went to the house of Shlv Singh and fired there and murdered Smt. Ramsri wife of Harpal Singh. However, no witness has specified as to which accused went to the house of Balbir Singh and which accused went to the house of Harpal Singh. It is also contended that Balbir Singh P.W. 3 did not state before the I.O. that Harpal Singh was sitting on a cot and was present there and Shiv Singh was also there. He also did not state before the I.O. that he heard the sound of busting hand-grenade and sound of gun shots. He also did not state before the I.O. that the wife of Hajari Lal raised alarm for help saying that father of Harpal Singh has been murdered. He also did not state that Smt. Ramsri wife of Harpal Singh was firing from the room of first floor of the house, at this accused Sobaran, Kedar and Phool Singh fired at her. It is further contended that Smt. Roopwati P.W.4 did not state before the I.O. that accused Babu Ram had a Banka and cut the window of the room from which Smt. Ramsri fired shots.

We have carefully gone through the statements of all the witnesses and are of the view that the contradictions pointed out are not material in this case and they are natural variances. It may be mentioned that the contradictions pointed out are also not material as the statements of the witnesses have been corroborated by the spot inspection made by the I.O. The first incident took place in the field where Balbir Singh P.W. 3 was ploughing the field and in part of it there was a chilly crop. He found part of the land cultivated and chilly plants threshed by running. The I.O. also found 13 empty cartridges near the dead body of Hajari Lal. The blood was also found near the dead body which show that the murder was committed at the place. Blood was also found near the dead body of Smt. Ramsri supporting the place of murder on the first floor room and three empty cartridges, pellets and ticklies were found, which were fired by the accused persons and five empty cartridges were found, which were fired by Smt. Ramsri. An empty cartridge was also found in the upper room of Harpal Singh. Fourteen cartridges were found on the roof of the house of Balbir Singh. Apart from this, the marks of pellets were found on the walls of the room of first floor of the house in which dead body of Smt. Ramsri was found showing that indiscriminate firing was done by the accused towards Smt. Ramsri. The window of this room was also found broken, which supports the case that the gun of Smt. Ramsri was taken by the accused after breaking the window. Therefore, the fact that the witnesses upto the stage of statements u/s 161, Code of Criminal Procedure., did not say that the window was cut, is not material. The fact as to whether Balbir Singh disclosed the names of raiding assaitants is also not material. Nobody could reproduce the talks and the words uttered by them some time before.

After carefully scrutinising the evidence of these witnesses, therefore, we are of the view that the testimony of the witnesses did not suffer from any glaring infirmity. The statements of the witnesses have a ring of truth and, therefore, could not be brushed aside.

The next point that arises for consideration from the arguments of the learned Counsel is regarding motive of the accused to commit this crime. Complainant Harpal Singh has stated regarding motive in para 4 of his statement in which he stated that about 6-7 years before, there was a litigation regarding the land in consolidation between him and the accused Registar Singh. In para 23, he further stated that Phool Singh accused filed a case of land agp''nst his father. P.W. 4, Smt. Roopwati has also stated that in the consolidation, there was a case in which the prosecution party was on one side and father of accused Jai Singh was on the other side. It may be stated again that all the accused are of the same family except one accused Bahadur, who was not tried. It, therefore, appears that there was enmity regarding litigation of land.

It is next alleged that the accused persons in year 1979, made a murderous assault on Ram Autar, younger brother of complainant Harpal Singh and a. F.I.R. was also lodged by Harpal Singh, but that case resulted in final report as nobody was prepared to support the case because of terror of the accused. One more fact has been added in the evidence and it is alleged that the proceedings u/s 107/116, Code of Criminal Procedure., also took plaee between the parttes. The prosecution In order to establish the same has filed two copies of challanee reports of the accused in this case, which are Ex. Ka-33 and Ex. Ka-39. Both are dated 20.10.79, Le" only about 12-13 days before this incident. The contention of the learned Counsel for the Appellants is that this evidence had been created by the I.O. to make a motive and the challanee reports have been prepared after the incident and have been antedated. It is contended that it is apparent from the fact that no order on these challanee reports was passed prior to the incident and the order was passed by the Magistrate on 10.1.80. It is further contended that there is no evidence to show as to when the challanee reports reached to the Magistrate. That all the nine accused nominated in this F.I.R. have been mentioned in the challanee reports. It is admitted'' to the I.O. that this challan was not done on the basis of complaint of any of the parties either oral or written. He stated that challan was made on the basis of the complaint of Chaukldar of the village. It is contended that even then the Chaukidar of the village has not been kept as a witness. We have considered the arguments, but in our opinion, it is of no avail in view of the fact that genuineness of these challanee reports had been admitted by the counsel for the accused before the trial court. Therefore, now it does not lie in the mouth of learned Counsel for the Appellants to argue that these challanee reports have been prepared afterwards.

The most important fact in this case showing the deep-rooted enmity between the parties is that Harpal Singh, P.W. 1 has stated in his examination-in-chief that due to the terror and fear of the accused persons, his brother Ram Autar (who was earlier assaulted in 1976) settled in Gopalganj (Bihar) and his younger brother Ram Swarup for the same reason had shifted to Mainpuri district headquarter. Not only that, this fact was stated by Harpal Singh in his statement as P.W. 1, identical allegations have been made in the F.I.R. Ex. Ka-1. However, I find that this statement of Harpal Singh complainant has not been challenged in the cross-examination and, therefore, it has to be accepted. If this statement is accepted, it shows that there was deep-rooted enmity between the complainant party and the accused party to the extent that the members of the family of the prosecution party left the village and settled at other places. It is always difficult to prove the enmity by evidence which remained locked in the hearts of the culprits. However, the above evidence shows that there was enmity and the accused persons had motive to commit the murders. The evidence of the motive produced by the prosecution has, therefore, also to be believed.

The next contention of the learned Counsel for the Appellants is that the F.I.R. of this incident is antedated and ante timed. The evidence of the prosecution in this regard is the statement of Harpal Singh P.W. 1 who has stated that after the incident, he prepared the F.I.R. Ex. Ka-1 and went to village Jagatpur on bullock-cart and at Jagatpur, he found the tractor of Thakur Brij Bhushan and on that tractor, he went to police station Bhongaon from village Jagatpur, which took less than one hour. According to the statement of H.C. Virendra Singh P.W. 2, the F.I.R. Ex. Ka-1 was given at the police station on 2.11.79 at 11.45 a.m. and on its basis prepared the chik report Ex. Ka-4 and registered a case in the General Diary. This statement has also been corroborated by the statement of the I.O. Durga Prasad Sharma P.W. 5. The contention of the learned Counsel for the Appellants is that the F.I.R. was antic locked and the same was not in existence at the time when the inquest reports of the dead bodies and other connected papers were prepared. In support of the arguments, the learned Counsel has referred to the inquest reports and contended that the crime number has not been mentioned in the inquest report as well as challan of the dead bodies in Form No. 13 and also in the letters to C.M.O. and R.I. and the letters for medical examination. The other contention is that Harpal Singh, the complainant of this case has been kept as Panch in the inquest report as it was not decided by that time that who will be the first informant. That in the F.I.R. it is mentioned that the first attempt on the life of Hajari Lal was made by hand-grenade, but in the inquest report, only it has been mentioned that murder has been committed by fire from the fire-arms and there was no reference of hand-grenade. It Is further contended that In the challan of the dead bodies in Form No. 13 Ex. Ka-8 and Ex. Ka-10 the time of occurrence, time of F.I.R. and the time of sending of the dead bodies etc. have not been mentioned. That according to the I.O. the inquest reports were ready at 2.25 and 3.30 p.m. respectively, but the Constable Megh Singh P.W. 7, who carried the dead bodies, stated that the dead bodies were given at 4.30 p.m. It is also contended that these dead bodies reached in the police line on the next day at 12.30 noon which is at a distance of 25 Kilometers only. That this fact also shows- that the F.I.R. was not ready and therefore, delay was made.

We have carefully considered the arguments of the learned Counsel for the Appellant and are of the view that they are without any substance. Both the inquest report show that on the back page of each of them crime No. 370 has been mentioned. The time of F.I.R. as 11.45 a.m. has also been mentioned in both of them. Therefore, it was not necessary to mention the crime number on the challan of the dead bodies, letters to R.I. and C.M.O. and letters for medical examination. All these documents are prepared after preparation of the Panchayatnama and the facts which were mentioned In the Panchayatnama need not be repeated in all the documents. Therefore, the omission to mention these details in these documents is not material. It may also be pointed out that H.C. Virendra Singh P.W. 2, has stated that the letters for medical examination were prepared by Constable Harish Chandra Gupta, who was sitting by his side. It appears that he did not tnke sufficient care for mentioning the crime number on the same. The omission appears to be unintentional as there was no space for mentioning crime number on the letters.

It is true that in the F.I.R., it was mentioned that the first attempt was made by hand-grenade, but there was no mention of hand-grenade in the inquest reports. This does not appear to be material for the reason that It appears that on examination of the dead bodies, the I.O. found only fire-arm injuries on the dead bodies. He accordingly mentioned that the injuries have been caused by fire-arms.

It is true that the dead bodies reached Mainpuri headquarter at 12.30 noon on the following day, but no Inference can be drawn from this fact. The dead bodies were transported by the bullock-cart. After such a ghastly crime in the village, nobody could have dared to travel on the bullock-cart in the night. No inference can be drawn from this fact for another reason that Constable Megh Singh P.W. 7, who carried the dead bodies, was not cross-examined regarding delay and it was not asked to explain as to how he could reach at 12.30 noon on the next day. Considering the entire evidence, therefore, we are of the view uV the Appellants cannot make out any capital to the fact of certain omissions and there is nothing to disbelieve the prosecution evidence that the F.I.R. was lodged at 11.45 a.m. The F.I.R. is, therefore, prompt and is not a result of consultations and have a corroborative value. The above lapses of the investigation appeared to be due to the negligence of the I.O. and the investigation cannot be termed as unfair and onesided.

The last but most important circumstance that has to be considered is whether the case of the prosecution finds corroboration from the medical evidence. In this regard, the contention of the learned Counsel for the Appellants is that according to the prosecution Hajari Lal was first assaulted by Appellant Jai Singh by hand-grenade, who was carrying it in a bag. The evidence of the prosecution is that because of the injury of hand-grenade, Hajari Lal fell down and thereafter shots from firearms were fired at him. It is also alleged by the prosecution that the injuries of gunshots were caused to other victims Smt. Ramsri and Smt. Moharsri and Balbir Singh. We have already referred to the injuries found on their person and the injury reports show that the injuries of both the deceased and the two injured have been caused by fire-arms. Therefore, there is no contradiction in this regard that the injuries of deceased Hajari Lal and Smt. Ramsri and injured Smt. Moharsri and Balbir Singh were caused by fire-arms. This part of the prosecution evidence fully finds corroboration from the medical evidence and this has also not been disputed.

The point of attack is that there was no injury of hand-grenade and the case of the prosecution is not correct. The attack of hand-grenade is alleged to have been made on Hajari Lal. Dr. R. K. Jain, P.W. 6, who conducted the post-mortem, has stated that all the injuries of Hajari Lal have been caused by fire-arm. On behalf of the prosecution, it was not even suggested to him that there are some injuries of hand-grenade. With this fact, there is evidence of the prosecution that no splinter or part of hand-grenade was found at the spot. The witnesses have stated that there was a lot of smoke when the hand-grenade was blasted, but this evidence also does not find corroboration from any evidence and it is admitted to the witnesses of fact including the I.O. that smoke was not found on any article. The witnesses also admitted that no ditch was created by the blast of the hand-grenade. The injuries of Hajari Lal do not show that hand-grenade was blasted at him. Therefore, the use of hand-grenade has not been established by the prosecution beyond reasonable doubt. The other prosecution evidence has been corroborated by the medical evidence. The question is whether the entire case of the prosecution should have been disbelieved for the reason that the prosecution evidence regarding assault by hand-grenade has been found to be doubtful and, what is the effect of the same. In our quest to reach the truth, we have thoroughly considered the evidence and are of the view that other part of the prosecution story cannot be disbelieved and the participation of Appellant Jal Singh, who is alleged to have made an assault by hand-grenade at the most may be held to be doubtful. Conscience of the fact that all the three eye-witnesses examined by the prosecution are of the same family and are interested witnesses and there is no independent corroboration regarding participation of Appellant Jai Singh and in the absence of corroboration of assault made by hand-grenade, we are of the view that the participation of Appellant Jai Singh in thi6 crime is doubtfuL If there is any reasonable doubt, the accused is entitled to the benefit of doubt and therefore, on the face of this circumstance, the Appellants are entitled to the benefit of doubt.

As regards the remaining Appellants Babu Ram, Hori Lal, Sobran and Phool Singh, they are alleged to have been fired by firearms including guns and country made pistols. As already said that the injuries of these weapons were found and it has also been corroborated by collection of empty cartridges and pellets by the I.O. There is evidence of motive against them and their participation has been corroborated by prompt F.I.R. as well. Therefore, the participation of the Appellants in the commission of crime cannot be doubted and they have been rightly convicted and sentenced by the learned Additional Sessions Judge. We do not find any ground to interfere in their conviction and sentences.

As already said that Appellants Babu Ram and Phool Singh have died during the pendency of this appeal and the report of the C.J.M., Mainpuri regarding their death has already been received. Therefore, their appeal stood abated.

The appeal of Appellants Babu Ram and Phool Singh has abated.

The appeal of Appellant Jai Singh is allowed and his conviction and sentence recorded by the learned Additional Sessions Judge, Mainpuri are set aside and he set free.

The appeal of Appellants Hori Lal and Sobaran Singh is dismissed and their conviction and sentences awarded by the learned Additional Sessions Judge, Mainpuri are maintained. They shall be taken into custody and shall be sent to jail to serve out the sentences awarded to them.