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Judgment
Sushil Harkauli, J.—All the three appellants have been convicted u/s 302/34 I.P.C. and have been sentenced to undergo life imprisonment by the impugned judgment and order dated 8.9.1982, passed by the VIII Additional Sessions Judge, Agra, in Sessions Trials No. 327 of 1980, 452 of 1980 and 441 of 1981 by a common judgment.
In brief, the prosecution story is that on 18.1.1980 at about 6.00 P.M. when the deceased, Mauji Ram, was returning to his house from the local market, he was stopped and caught hold of by accused Ram Babu and Shyam Babu and assaulted with knives by both the accused. Simulaneously, the father of the aforesaid two accused, viz. Bateshwari, and accused Gyan Singh son of Jinshi came up from behind the deceased and they also assaulted the deceased with knives. The deceased died on the spot as a result of the multiple injuries received on his person, and the accused ran away. Shyam Babu, accused, has died. The remaining three accused have been tried and sentenced, as stated above. The incident was witnessed by the daughter of the deceased, Vidya, who was accompanying the deceased and who at that time was aged about 11-12 years. The incident was also witnessed by Subedar, nephew of the deceased, who was also accompanying the deceased.
The F.I.R. of the incident was lodged at 8.10 P.M. on the same day at police station located at a distance of about 2 miles to the west of the spot of incident. The Investigating Officer went to the spot at night but could not continue investigation because there was no light. The inquest report was prepared at about 7.30 A.M. the next morning, i.e. on 19.1.1980 and the body sent for post-mortem. The post-mortem was conducted the next day, i.e. on 20.1.1980. In the post-mortem examination the following 15 injuries were found on the body of the deceased:
Incised wound 3/4" x 2/10" x 1/10" on the left side head 3-1/2" above left ear.
Incised wound 3/4" x 2/10" x muscle deep on the front of left forearm 3/4" below elbow.
Incised wound 2" x 9/10" x ulna bone (cut) on the back and inner of left forearm 4" below elbow.
Incised wound 1-1/2" x 4/10" x muscle deep on the front of right thigh 1-1/2" above knee.
Incised wound 1-1/2" x 3/10" x muscle deep on the inner side of left thigh 2-1/4" above knee.
Stab wound 1" x 4/10" x abdomen cavity deep on the left side upper abdomen, just below subcostal margin, upper end is contused, lower end is acute nearby vertical.
Stab wound 2" x 3/4" x abdomen cavity deep on the front of left side abdomen 3/4" inner to injury No. 6, upper end contused, lower acute angle, loops of intestines coming out.
Stab wound 1" x 4/10" x abdomen cavity deep on left side abdomen 1-1/2" outer to umbilicus, upper end is contused, lower end is acute, loops of intestine coming out.
Stab wound 1-1/2" x 3/4" x abdomen cavity deep on the left side abdomen 1/2" outer to umbilicus, upper end is contused, lower end is acute, loops of intestine coming out.
Stab wound 1" x 2/10" x abdomen cavity deep on the upper abdomen at its midline 2-1/2" above umblicus, obliquely transverse, intestine abdomen 6-1/2" long obliquely from right side front of chest going the upper end of stab wound.
Stab wound 2" x 4/10" x abdomen cavity deep on the right side abdomen 1-1/2" outer to injury No. 10 upper end is contused, lower end is acute, intestine loops are coming out.
Incised wound 4/10" x 1/10" x muscle deep on the right side abdomen 3/4" middle lower to injury No. 11.
Stab wound 1" x 4/10" abdomen cavity deep on right side front lower abdomen just above right side anterior superior ulna spine.
Incised wound 1" x 3/4" x muscle deep on the outer part of left shoulder, 1" below its top.
Incised wound 3/10" x 1/10" x skin deep on the back of left lip upper third.
The Investigating Officer prepared a site plan and after completing investigation a charge-sheet was submitted. Apart from blood stained earth and plain earth being collected from the spot, a bicycle and a blanket left behind by the accused while running away were also recovered by the Investigating Officer and a recovery memo was prepared.
The informant. Niranjan, was examined as P.W. 1, the eyewitness daughter of the deceased, Vidya, was examined as P.W. 2 and the other eyewitness Subedar was examined as P.W. 3. Dr. S.P. Misra, who conducted the post-mortem, was examined as P.W. 4. The affidavit of the Constable Raja Ram, who took the dead body to mortuary for post-mortem, was filed as P.W. 5 and the Investigating Officer was examined as P.W. 6. All the evidence was recorded in leading S.T. No. 327 of 1980. In S.T. No. 441 of 1981 Constable Raja Ram was examined as P.W. 5 and Narsingh Yadav was examined as P.W. 6 to prove the F.I.R. and the General Diary entry about registration of the ease. In S.T. No. 441 of 1981 the Investigating Officer was not examined. The accused did not give any evidence in defence.
The first three witnesses, viz. P.W.I to P.W.3, have supported the prosecution story and so far as we have been able to see nothing worthwhile has been elicited from any of these witnesses during cross-examination so as to create any serious doubt on their testimony with respect to the essential and main facts of the incident.
During arguments in this appeal, learned Counsel for the appellants submitted that the F.I.R. appears to be ante-timed pursuant to an attempt by the prosecution to shift back the time of incident to the alleged 6.00 P.M. During arguments, the suggestion of learned Counsel for the appellants was that the deceased was assaulted later in that evening sometime during the darkness and that is why the inquest report was prepared the next morning and the post-mortem was delayed. In the month of January darkness must have fallen at around 7.00 P.M. leaving visibility poor. In fact the informant PW 1 was given repeated suggestions in an attempt to make out such a case, but the PW 1 has remained firm throughout the cross examination in his denials. We think, that in the light of the denials by PW 1 and the explanation by the Investigating Officer PW 6 for not being able to carry out the inquest proceedings at night, it is not possible to believe the defence theory about ante-timing of the incident.
Learned Counsel also submitted that the motive for the crime is also not serious, viz. some altercation during a marriage ceremony where the deceased had been invited by the accused. The last argument regarding motive, referred above, is misconceived and also factually incorrect. Apparently, the real motive for the offence, as mentioned in the F.I.R. itself, was a suspicion on the part of the accused that the deceased had been instrumental in trying to get the sons of accused Bateshwari, viz. accused Ram Babu and Shyam Babu, arrested by the Delhi police. Thus, the motive was to take revenge against a suspected informer.
The nature and number of injuries, which were found on the body of the deceased indicate that the assault could not have been by a single individual. There also does not appear to be any good reason why the real assailants should be let off by the daughter and nephew of the deceased and instead they would falsely implicate the appellants. The appellants had reason to bear a serious grudge against the deceased but apparently the informant or other witnesses did not have any serious reason to bear this kind of grudge against the accused. Learned Counsel for the appellants also submitted that lack of any injury on the body of eyewitnesses indicates that they did not make any attempt to save the deceased during the assault, and therefore there presence at the scene of crime should be doubted. For this purpose reliance was placed from the side of the appellants upon the decision of the Supreme Court in State of Punjab v. Sucha Singh and Ors. (46) 2003 A.C.C. 584 and this Court''s judgment in Jagdeo Singh and Ors. v. State 1979 A.Cr.R. 377.
Having examined the decisions we are of the opinion that no such blanket proposition of law has been laid down therein. Whether an attempt to save the deceased from the assault is likely to be made by the eyewitnesses or not depends upon several factors, viz. the closeness of relationship, the nature of relationship, the capacity of the witnesses to come out of the shock alter witnessing the incident, the basic courage and selflessness of the witnesses, etc. In the present case one of the witnesses is the 11 year old daughter, who, in the normal course of things, would have been dumb-struck by the nature and rapidity of the assault upon her father, by four persons armed with knives. The other eyewitness is the nephew of the deceased, whose relationship is not as close as the relationship of father or mother to their offspring. The third eyewitness again is the brother of the deceased, who has his own family to protect instead of sacrificing his own life also. Moreover, it was obvious that the brother, by himself, could hardly be in a position to put up a fight against the four persons armed with knives.
Learned Counsel for the appellants submitted that it is unlikely that the witnesses, particularly the informant, would have walked to the police station instead of going there on a bicycle. Hence the FIR should be held to be delayed. This argument does not appeal to us. Upon witnessing an incident of this nature the whole body and mind naturally falls in the grip of shock and in such a condition a person does not think very logically and in such a state of shock the informant may not have trusted himself to ride a bicycle.
We may further observe that the aforesaid argument on behalf of the appellants are more in the nature of conjectures, ignoring the fact that human behaviour may vary from person to person. There is no set rule of reaction. Everyone reacts in his own special way and in what way a witness would have reacted cannot be predicted. In Rana Partap and Others Vs. State of Haryana, the apex Court in para 6 of the judgment held as under:
Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was In the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric 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 counter-attacking 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 unrealistic and unimaginative way.
In Bachhitar Singh and Another Vs. State of Punjab, observing on human behaviour, the apex Court held:
Human behaviour vary from man to man. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each case. How a man would behave in a particular situation, can never be predicted. In the given circumstances, the behaviour of Joginder Singh, PW 4 sleeping on the roof of the house of Sukhwant Singh, after seeing the accused armed with weapons and hearing the firing, jumping from the roof and running towards his Village Mastewala to inform his father and family members instead of loitering around in the Village Dholewala and informing somebody risking his life, is quite natural. One should not forget that the incident had happened at 1.00 a.m. and that at that odd time, nobody would be readily available to be informed without loss of time. In the process, the life of the witness would be at great risk.
In view of the aforesaid it cannot be said that the eyewitnesses reacted in an abnormal way or their statement cannot be trustworthy only for the reason that they did not react in the manner as suggested or expected on behalf of the accused or someone else.
The Investigating Officer has given a plausible reason for not being able to proceed with the investigation, i.e. the inquest, at night due to lack of light. He has repelled the suggestion that light could have been obtained from the nearby places. Therefore, the inquest conducted at 7.30, next day, in the morning during the winter of January cannot be said to suffer from any undue delay.
I The repeat learned Counsel for the appellants also argued that there is no independent witness and all the three eyewitnesses are related to the deceased. Mere relationship of a witness to the deceased or complainant would not suffice to discredit his evidence. The law is well settled in this regard. The apex Court in Dalip Singh and Others Vs. State of Punjab, of the judgment has laid down as under:
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused, such an enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
The above decision has been followed in Guli Chand and Others Vs. State of Rajasthan,
In Masalti Vs. State of U.P., the apex Court held:
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
In Israr v. State of U.P. (2005) SCC 1260 rejecting the concept of discarding a witness on the ground of relationship the Supreme Court in para 12 of the judgment held as under:
...Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Witnesses are the eyes and ears of justice. Eyewitnesses'' account would require a careful independent assessment and evaluation for their credibility and must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the ''credit'' of the witnesses; their performance in the witness box; their power of observation. Merely because a witness is an interested witness is not by itself sufficient to disbelieve him. What is to be examined is whether the eyewitness who has been produced is trustworthy and his statement is consistent with the undisputed facts.
As pointed out above, neither the deceased nor the witnesses had any serious motive to falsely implicate the accused, leaving out the real assailants. On the other hand, the accused did have a serious motive for carrying out the assault. Further, as we have already stated above, we have carefully examined the testimony of the eyewitnesses including their detailed cross-examinations and we do not find any thing substantial therein to cast any serious doubt upon the testimony of these eyewitnesses.
In these circumstances, we are of the opinion that the appellants have been rightly convicted and sentenced. Accordingly, the appeal is dismissed. The conviction and sentence awarded by the court below is maintained. The accused-appellants are on bail. Their bail is cancelled. They will be taken into custody forthwith to serve out the remaining part of their sentence.