Mansha Ram Verma and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant criminal appeal filed on behalf of the accused-appellants is directed against the judgment and order dated 23rd October, 2008 passed by Sri R.K. Gautam, the then Additional Sessions Judge/Special Judge (E.C. Act) Faizabad, in Sessions Trial No. 283 of 1998 whereby, the appellants have been convicted under sections 302/34 and 307/34 I.P.C. and sentenced to death by hanging and to undergo imprisonment for life, respectively.

Capital Sentence No. 5 of 2008 has been registered on the reference made for confirmation of aforesaid death sentence awarded to all the three appellants.

Since both involve the same factual matrix, same evidence and same points for consideration, they are being disposed of by a common judgment and order.

In the instant matter, facts of the prosecution case may be summarized as under:--

"That on 21st January, 1998 at 10.00 p.m., Radhey Shyam Verma, resident of village Gaderian Purwa, Majra @ Rekhu, Police Station Ibrahimpur, District Ambedkar Nagar, handed a written report at police station Ibrahimpur stating therein that, that on that day at 6.30 p.m., he and his Bhanja (nephew) Sanjay Verma were bringing ''Kase Hari'' on the tractor from village Karanpur, Barsawa. In the village ''Kase Hari'' loaded on the tractor, hit the electricity wire of Jagram Verma, whereas Jagram Verma and his brothers started to abuse them. When they asked not to abuse, an altercation started. Mansaram from a double barrel gun, Jagram Verma from ''Addhi'' (gun having sawn off barrel (s)), Motiram Verma and Vijay Kumar Verma from country made pistols began to fire on them. In the meantime, in order to intervene and save them his wife Phoolmati, ''Banja'' Ashok Kumar, Jagjivan Verma and many villagers came there. Gun shots fired by these four accused killed Phoolmati, Ashok Kumar, Jagjiwan Verma on the spot. Sanjay Verma, Kevalapati, Sakuntala Devi, Amarjeet, Rohit Verma and he sustained pellets injuries. All the accused persons were seen and identified in the light of lantern. Due to fear for a long time they could not come out of their houses. Anyhow leaving the dead bodies on the spot, he had come to the police station. On his information, necessary action be taken."

At this chik F.I.R. was scribed, Case Crime No. 8 of 1998 under sections 302, 307 I.P.C. was registered and requisite entry was made in the general diary. Investigation was taken over by Hari Shanker Misra, the then station officer of the police station, who after recording the statement of first informant Radhey Shayam and injured Rohit proceeded to the spot where, he held the inquest proceedings of Smt. Phoolmati, Ashok Kumar and Jagjivan, sent the dead bodies to the mortuary with requisite papers. That night he inspected the spot, prepared a site plan, Exhibit Ka-17, recovered three empty cartridges from the spot, took samples of blood stained and simple earth and also taken into possession lantern, referred in the First Information Report, prepared their appropriate memo. On the next day, he arrested the three accused persons while they were going to Sewaganj by Tractor and also took into possession gun and cartridges from the possession of Mansha Ram. Thereafter he examined rest of the witnesses and submitted the chargesheet against all the four named accused Exhibit Ka-22.

The case was committed to the Court of Session where all the four accused were charged under sections 302/34 and 307/34 I.P.C., which they denied and claimed to be tried.

In order to prove the charges, on behalf of the prosecution, in documentary evidence, besides other papers, written report Exhibit Ka-1, Inquest report Exhibit Ka-2, Inquest report Exhibit Ka-3, Inquest report Exhibit Ka-4, report Exhibit Ka-5, report Exhibit Ka-6, report Exhibit Ka-7, site plan Exhibit Ka-17, recovery memo Exhibit Ka-18, recovery memo Exhibit Ka-19, recovery memo Exhibit Ka-20, recovery memo Exhibit Ka-21, injury report Exhbit Ka-23, injury report Exhibit Ka-24, injury report Exhibit Ka-25, injury report Exhibit Ka-26, post-mortem report Exhibit Ka-27, post mortem report Exhibit Ka-28, post-mortem report Exhibit Ka-29, Injury report Exhibit Ka-30, Injury report Exhibit Ka-31, Injury report Exhibit Ka-32, Injury report Exhibit Ka-33, X-Ray report Exhibit Ka-34, X-Ray report Exhibit Ka-35, X-ray report Exhibit Ka-36, X-Ray report Exhibit Ka-37 and X-Ray report Exhibit Ka-38 were filed. In oral evidence, nine witnesses were examined thereafter statements of the present appellants were recorded. During the trial accused Jagram had died. Against him, proceedings were abated. On behalf of the surviving appellants, no defence was given before the trial court and the learned trial judge after hearing the arguments convicted the present appellants and sentenced them as above.

Under section 366 (2) Cr.P.C. reference for confirmation of death sentence was made by the trial Judge. On behalf of the appellants, appeal against their conviction and sentence was also filed.

Heard learned counsel for the appellant and learned A.G.A for the State and perused the record.

Learned counsel for the appellant-respondent in support of the appeal has submitted that learned trial Judge has not appreciated the eye-witness account in the light of settled legal position and wrongly placed reliance on the ocular testimony in spite of material contradiction contained therein. He has further submitted that occurrence took place in the evening hours, there was no sufficient light for the witnesses to identify the assailants. He has further submitted that there is contradiction between the ocular version and the medical evidence. This contradiction has been erroneously ignored by the learned trial Judge. According to him, the deceased and injured were victim of the dacoity and on account of enmity, the appellants-respondents were falsely implicated. He has further submitted on the point of sentence that sentences awarded by the learned trial Judge are excessive. The occurrence was not pre-planned. Even according to the prosecution version, it took place on sudden provocation.

On behalf of the State, these arguments have been repelled, we have been taken through eye witnesses'' account given by three witnesses in support of the argument that contradictions pointed out by the learned counsel for the appellants are minor and on the basis of such minor contradictions, evidence of injured witnesses cannot be discarded. In reference to contradiction between medical evidence and ocular version, learned A.G.A. has submitted that ocular version has primacy if, found reliable. On the point of sentence, he has further submitted that it was a triple murder and many persons were injured. The sentences awarded by the appellant-respondent are commensurate with the crime committed by the appellant-respondent.

In reference to our obligations as an appellate court hearing appeal against conviction, we would like to refresh our memory by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222] in regard to our legal obligations. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 Cri.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First we would like to have a glance on the medical evidence. In the present case, Dr. Nand Lal Prasad, P.W.-5, Dr. S.C. Sinha, P.W.6, Dr. V.N. Singh, P.W.-7, have been examined as expert witnesses. C.P. Pandey, X-ray technician, P.W.8 has been examined as a supporting witness to the medical evidence. Autopsies were performed by Dr. S.C. Sinha, P.W.-6 on 26.1.1998. At that day at 1.30 p.m., he conducted postmortem examination on the dead body of Jagjivan that day at 2.30 p.m., he conducted postmortem examination on the dead body of Smt. Phoolmati and on the same day at 3.30 p.m. he conducted postmortem examination on the dead body of Ashok Kumar. According to him, death of the deceased persons had occurred due to shock and haemorrhage, as a result of ante-mortem injuries. He has also opined that on the stated date and time, their deaths could have occurred and proved postmortem reports of, Jagjeevan Verma, Exhibit Ka-27 and, Smt. Phoolmati, Exhibit Ka-26 and Ashok Kumar, Exhibit Ka-29. In the postmortem reports, he has recorded the ante-mortem injuries found on the dead bodies of the deceased persons.

Details of ante-mortem injuries of the deceased are as under:--On the dead body of Jagjivan Verma, he found the following ante-mortem injuries:--

"(1) Multiple fire arm (injuries) wound in an area of 25x8 c.m. in front of chest 4 c.m. from nipple. Blackening present.

(2) Multiple firearm wounds 30 x 8 c.m. present on (r) upper Arm & forearm just below the top of shoulder. Blackening present.

(3) Fire arm wound 0.5 c.m. x 0.5 c.m. present on (Rt) side of Abdomen 12 c.m. lateral to the umblicus.

(4) Fire arm wound present on (L) Pinna. vide exhibit Ka-27"

On the dead body of Smt. Phoolmati, he has found the following ante-mortem injuries:--

"(1) Multiple small firearm wound in an area of 20 x 6 c.m. present on (L) upper Arm including shoulder. Blackening present.

(2) Multiple small firearm wound in an area of 14 x 5 c.m. present in (L) side of chest & (L) Neck. 10 c.m. from (L) Ear. Blackening present.

(3) Multiple firearm wound in an area of 12 x 6 c.m. on the (L) side of face. Just in front of (L) Ear. Blackening present.

(4) 0.5 x 0.5 c.m. firearm wound present on (L) thigh on lateral aspect of (L) thigh 25 c.m. above the (L) knee.

vide exhibit Ka-28"

On the dead body of Ashok Kumar, he found the following ante-mortem injuries:--

"(1) Multiple fire arm wound in an area of 35 x20 c.m. present on chest just below clavical. Blackening present.

(2) Multiple fire arm wound in an area of 24 x 4 c.m. present in (L) side of Abdomen & upper part of (L) thigh 8 c.m. from umblicus. Blackening present.

(3) 0.5 c.m. x 0.5 c.m. fire arm wound present on (L) side of forehead just above the (L) eyebrow.

(4) 0.5 c.m. x 0.5 c.m. fire arm wound present on (L) pinna.

(5) Multiple fire arm wounds present on neck (r) side 5 c.m. above the sternum. Blackening present.

(6) Multiple fire arm wound in an area of 25 x 6 c.m. on (L) upper arm just below the top of shoulder. Blackening present.

vide exhibit Ka-29"

From the dead body of Jagjivan Verma, he recovered one pellet. From the dead body of Ashok Kumar, from the lungs he recovered pellets.

He did not find any pellet in the dead body of Smt. Phoolmati.

He has further opined that these ante mortem injuries could have been caused by the shots fired from gun, short barrel gun and country made pistol on the stated date and time. They were sufficient in the ordinary course of nature to cause their deaths.

The witness was cross-examined about distance from which gun shots could have been fired and also on the point of state of rigour mortis and its duration. From the line of cross examination, we notice that on behalf of appellants-respondents during the trial, homicidal deaths of all the three deceased were not disputed. He was only suggested that deceased could have died at about 9.30 p.m. on the fateful night. Duration of death is a matter of opinion, his factual statement about the findings recorded in the post mortem reports remains un-challenged and on its basis, we hold that all above three deceased sustained ante-mortem injuries found on their persons by the witness and as a result thereof they had died. We leave his opinion about time of their death to be dealt with while considering veracity of the ocular version of the occurrence.

This witness has also medically examined on 22nd January, 1998, at 12.15 p.m. injured Sanjay Verma and at 12.30 p.m. injured Rohit Verma and prepared injury reports Exhibits Ka 30 and Ka 31. The witness has proved the injury reports and opined that these injuries could have been caused on the stated date and time, by the fire arms.

During medical examination, on the person of Sanjay Verma, he has found following injuries:--

"1. Multiple small fire arm (injuries) wound. Present on right shoulder and upper arm in an area of 16 c.m. x 6 c.m. (size varying 0.2 x 0.2 to 0.4 x 0.4). Present on top of shoulder right and right upper arm. Kept under observation and advised X-ray of right shoulder and upper arm.

Multiple forearm wound. Present on head and part to the ear, 17 x 15 c.m. area 1 c.m. above and (sict) to the right ear (sick) advise X-ray of skull.

Multiple small fire arm wound in an area of 8 x 5 c.m. Present on right side of neck. 4 c.m. below to right ear. (sick) advise X-ray of neck.

Lacerated wound of.5 x 0.3 c.m. X scalp deep 12 cm. Above to left ear (sick).

Complaint of pain in chest right side.

H/0- Vomitting."

For Inquiry Nos. 1, 2 and 3, he advised X-ray and treatment at District Hospital. They were caused by fire arm. Injury No. 4 was simple, caused by hard and blunt object. Injuries were fresh in duration.

On the person of Rohit Verma, he found one injury which he recorded in the enquiry report Exhibit Ka-31, quoted as below:--

"1. Multiple small fire arm wound in an area of 13 x 7 c.m. Present on dorsal of right hand and forearm and wrist 18 c.m. Distal to right elbow. Oozing present. Kept under observation and advised X-ray of right head and forearm (size varying from 0.2 c.m. X 0.2 to 0.4 x 0.4 cm.)"

The above injury was kept under observation and X-ray was advised. It could have been caused by gun shot on the stated time and place.

He was cross examined only on the point whether injuries found on the person of injured had blackening or not and length of duration stated by him as fresh, to this he replied, he had found no blackening around the injuries and he referred the word ''fresh'' to mean the injuries sustained within six hours. He accepted the suggestion that injuries could have been sustained on that night at 9.00 p.m. Thus, injuries have not been disputed. His testimony remains unchallenged and on its basis, we hold that at the time of medical examination, he has found gun shot injuries on the person of Sanjay Verma and Rohit Verma, as recorded in the Injury reports Exhibits Ka-30 and Ka-3. Injuries could have been caused within six hours from the time of medical examination. Except Injury No. 4 of Sanjay Verma, all were caused by fire arms.

C.P. Pandey, X-ray Technician, P.W.-1 has produced X-ray reports of Rohit Verma, Exhibit Ka-34. Radhey Shayam, Amarjeet and Kailashpati, Exhibits Ka-35-Ka-37. He has also identified X-ray plates Exhibits 1-5. He has also stated that Dr. S.K. Srivastava the then radiologist has died. This witness was suggested that on account of being of the same department, he was falsely deposing about signatures and handwriting of Dr. S.K. Srivastava. This suggestion was denied by the witness, his testimony remains unchallenged and we hold that radiological reports Exhibits Ka-34-Ka-37 and X-ray plates Exhibit 1-5 stand proved.

Dr. Nand Lal Prasad, P.W.-5 on 22nd January, 1998 had medically examined at 11.05 a.m. Smt. Kewalpati, at 11.5 a.m. Smt. Urmila at 11.25 a.m. Km. Sakuntala and at 11.30 a.m. Radhey Sharma prepared their injury reports. The witness has proved their injury reports Exhibits Ka-23 to Ka-26. The details of their injuries are as under:--

"On the person of Radhey Shyam at the time of medical examination, he found the following injuries:--

(a) One pellet wound injury 0.4 c.m. X 0.4 c.m. On (Rt) side of forehead, irregular margins, blackening.

(b) One pellet wound injury 0.4 c.m. X 0.4 c.m. on right axillary (sick), irregular margins blackening.

Vide Exhibit Ka-23"

According to him, for injury No. 1, X-ray was advised, injury No. 2 was simple, both were caused by fire arms and were 3/4 day old.

On the person of Km. Sakuntala, he found the following injuries:--

"(I) One pellet wound injury 0.3 c.m. x 0.3 c.m. x on (Lt) chest, 5 c.m. medial (Lt) axillary old, blackening.

(II) One pellet wound injury 0.3 c.m. x 0.3 c.m. on (Lt) upper Arm, 12 c.m. below from top of shoulder blackening colour.

Vide Exhibit Ka-24"

Injuries of Km. Sakuntala were also simple in nature. Those were caused by fire arm. They were 3/4 day old.

On the person of Smt. Urmila, he found the following injury:--

"(a) Red abrasion 0.3 c.m. x 0.2 c.m. on (sick) of (Lt) forearm, 8 c.m. above from (Lt) wrist (sic).

vide Exhibit Ka-25"

According to him, injury of Smt. Urmila was simple, caused by friction. It was 3/4 day old.

On the person of Smt. Kevalapati, he found the following injuries:--

"(a) Contusion with a multiple abrasion 18 c.m. X 8 c.m. on dorsion of (Rt) hand with suspected fracture of (Rt) hand.

(b) Red multiple pellets wound injury 23 c.m. X 18 c.m. on medial side of (Lt) thigh & front from (Lt) internal injury to lower part of (Lt) thigh, irregular mortis, blackening.

Vide Exhibit Ka-26"

According to him, injuries were simple in nature caused by fire arms, x-ray was advised, their duration was 3/4 day.

This witness was suggested that he prepared fictitious injury reports. The witness was posted as medical officer, Community Health Centre, Tanda (Ambedkarnagar), in discharge of his official duty, he medically examined these four injured. He had no enmity with the accused persons or no affinity with the first informant. He is an impartial witness. His deposition is corroborated by the injury reports and on the basis of his deposition and injury reports, we hold him a reliable witness and conclude that on 22nd January, 1998, at the time narrated by him, he medically examined above four injured and found on their persons, injuries recorded by him in the injury reports Exhibits Ka-23-26.

Dr. V.N. Singh, medical officer, C.H.C. Tanda, had medically examined at 1.30 p.m. on 22.1.98, Amarjeet and at 1.45 p.m. Kailashpati. The witness has proved the injury reports Exhibits Ka-32 and Ka-33. On the person of Amarjeet, he found the following injuries:--

"1. Blackish injury in area of.5 c.m. X of right shoulder. Injury is surrounded by red margins irregular.

Blackish charred abrasive wound 3 c.m.,.3 c.m, 4.5 c.m. above wrist joint, right side.

Vide Exhibit Ka-32."

Both the injuries were advised to be X-rayed. They were caused by firearm, their nature was simple. They were caused within 24 hours.

On the person of Kailashpati, he found the following injury:--

"(i) Black charred injury 6 c.m. X.3 c.m. surrounded by reddish margin on anterior aspect of thigh 27 cm. Above knee joint right.

Vide Exhibit Ka-33"

The above injury could have been caused by gun shot, X-ray was advised. The injury could have been sustained by both the injured on the stated date and time.

During cross examination, he has stated that these injuries were surrounded by blackening. They were caused from the distance of 3 ft. He could not tell the direction of the gun shot and admitted possible variation of six hours in their duration.

For the reasons, we have narrated in reference to reliability of Dr. Nand Lal Prasad, we also hold the statement of Dr. V.N. Singh, to be reliable and further hold that he medically examined Amarjeet and Kailashpati and found injuries on their persons as recorded in Exhibits Ka-32 and Ka-33. From the radiological reports, injured were found to have sustained pellet injuries. Rohit Verma had sustained fracture in his finger of his right hand. On the skull and chest of Sanjay Verma, multiple small irregular radiopaque shadows of metallic objects were found.

From here we leave medical evidence and proceed to consider the respective arguments and credibility of eye witness account given by Radhey Shayam, P.W.-1, Sanjay Verma, P.W.-2 and Amarjeet, P.W.-3. To re-examine and reevaluate the probative force of the testimonies of these witnesses, we have in our mind a very illuminating observation made by Hon''ble The Apex Court in the case of Krishnan and another v. State (, AIR 2003 Supreme Court 2978). The relevant para-21 of the report on reproduction reads as under:--

"21. It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses'' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

In order to proceed properly, we feel that before re-examining and reassessing the testimonies of eye witnesses, we must deal with one argument that was advanced before the learned trial Judge and rejected by him, to wit, ante timing of F.I.R. This argument is based on one sentence uttered by Radhey Shayam, P.W.-1 that he had signed written report Exhibit Ka-1 on the dictate of Sub-Inspector, neither he read that paper nor the Sub-Inspector informed him what was written in that paper. He also identified before the trial court written report Exhibit Ka-1 to be the paper which was signed by him on the dictate of Sub-Inspector of Police. This argument was rejected by the learned trial Judge on the ground that the witness is not educated, due to non-comprehension, he had uttered the sentence by mistake.

In the examination-in-chief, this witness has stated that leaving behind deceased, he took injured Sanjay, Rohit and Ghanshyam to the police station by jeep, in front of police station at one tea shop, he dictated the report to a person who read the report to him thereafter he signed it and took it to the police station and handed it over there. During cross examination, when he was being cross examined about spot inspection made by the investigating officer and he had stated that the investigating officer took his signature on one paper, on that paper he affixed his signature, he neither read nor he was told by the investigating officer what was written in it. Thereafter, he had identified that paper to be written report Exhibit Ka-1. When his statement is read as a whole, the reason assigned by the learned trial Judge appears to be more plausable. The witness must have took it to be a paper prepared by the investigating officer at the time of spot inspection. The learned trial Judge after seeing the performance of this witness in the witness box had formed the opinion mentioned above. We also notice that admittedly this witness was farmer by profession and lived in a village so we cannot expect the same comprehension, vigilance and understanding in him as possessed by a person living in a city and well educated. In the case of Dimple Gupta (minor), Rahiv Gupta; , A.I.R. 2008, S.C. 239, the Hon''ble Apex Court has observed that rustic witnesses do not have sense accuracy of time, etc, their evidence should be evaluated keeping in mind their rural background and scenario in which the incident had happened. The observation of the Hon''ble Apex Court, opinion formed by the learned trial Judge are enough for us to hold that the sentence indicative of ante-timing of F.I.R. is a result of non-comprehension and on the basis of that isolated statement, we do not think in the present matter F.I.R. can be said to be ante-timed.

On behalf of the appellants, veracity of the ocular version of the occurrence has been challenged on various grounds. They are; erroneous appreciation of oral testimonies, doubt about sufficiency of light, contradictions contained therein are material but ignored and ocular version is in contradiction with the medical evidence.

Incorrect appreciation of the testimonies of eyewitnesses is taken up by us generally. In this regard, first question arises whether presence of Radhey Shyam, P.W.-1 at the relevant place and time is natural and probable. He is himself an injured. He has not been given suggestion that his injuries were manufactured. Two wounds caused by pellets were found on his person at the time of medical examination. We find no reason not to treat him as an injured witness. Presence of injured witness at the time of occurrence is presumed implicitly. Such witnesses have been accorded a special status in the eye of law. Our view is forfeited from the observation of the Hon''ble Apex Court made in the case of Balwan & Others v. State of Haryana, , A.I.R. 2014, Supreme Court 3644. In para-30 of the report, the Hon''ble Apex Court in the present reference, has observed the following:--

"It is trite law that the evidence of injured witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished."

The second yardstick for judging the veracity of his testimony is whether he has opportunity to see the occurrence. Being an injured witness, he was nearby the assailants. According to prosecution, time of occurrence is 6.30 p.m. on 21st January, 1998. At that time sun must have set but the time was not so advanced that darkness of the night could have set in completely. More so, in the First Information Report, we find that at the place of occurrence, lantern was burning. These two factors persuade us to conclude that at the time of occurrence, sufficient light existed which enabled the witness to see the occurrence. In the case of State of U.P. v. Nahar Singh, , 1998, Crl.L.J., 2006, in similar factual scenario, the Hon''ble Apex Court rejected the argument, that the light was not enough to identify the assailants. Here we would like to quote para 20 of the report. Same is quoted below:--

"20. From the above quoted statement, it is evident that the time was 6.30 p.m. And that though the sun had set, yet there was light and at that time the lantern was also lighted. She had given the explanation for lighting the lantern as "Dono Wakt mil gaye the". It is a colloquial phrase which means that the day time was over and the evening time had commenced. At that time, it won''t be too dark to see the person particularly when they are known. Further, when the light was enough to enable the assailants to identify their victims and kill them, it can hardly be contended, much less accepted, that the light was not enough to identify the assailants."

The next inbuilt check for ensuring the trustworthiness of the testimony, is the performance of the witness during cross examination. He was cross-examined on three various days. His cross examination runs into 12 page. He has given satisfactory answers to the questions put to him. During cross -examination, nothing has come out to adversely affect his testimony. He withstood the test of cross examination successfully. He is the first informant and an injured. His wife Phoolmati, two nephews, Ashok Kumar and Jagjivan were murdered and several relatives were injured, we do not think he would falsely implicate the present appellant and would not try to get the guilty punished. We think him to be a truthful witness intrinsically.

Extrinsically his testimony has been impeached on the ground that he did not disclose to the investigating officer that he had stopped the tractor and Sanjay alighted there. Thereafter, he took the tractor nearby his house and further he disclose the exhortation made by the assailants and injuries sustained by Urmila.

Being first informant, he was examined by the investigating officer immediately after the occurrence. His state of mind at that time, we could understand. For this reason, we do not think any omission occurring in his statement recorded under Section 161 Cr.P.C., has to be ignored and learned trial Judge has rightly ignored them. What happened during the occurrence and who sustained injuries, it cannot be expected from him to observe and remember them at every time. In such cases, the Hon''ble Apex Court has also opined that eye witnesses are not expected to enumerate photograph details of the occurrence. Vide para 18 Shivaji Shahab Bodade v. State of Maharashtra; 1973 SCC (C.R.I.) 1033. Thus, non-mentioning of injuries of Urmila is not a ground to discard his testimony.

In this way, after anxious consideration and subjecting his testimony to strict scrutiny, we find him to be a trustworthy witness and the learned trial Judge has rightly placed reliance on his testimony.

The second eye-witness Sanjay is also an injured witness, who was present at the place of occurrence from the beginning of the occurrence to the last. He has given graphic details of the occurrence. His presence at the relevant time on the spot is natural and probable. There was light sufficient for him to see the occurrence and identify the assailants. During fairly long cross examination, his testimony remained unshaken. He is similarly placed with Radhey Shyam, P.W.-1 on other counts. We also hold him to be a truthful witness.

Amarjeet Verma, P.W.-3 is the son of Radhey Shyam, P.W.-1. Phoolmati deceased was his mother. He has also sustained injuries in the occurrence. He has successfully faced the test of cross examination. For the reasons mentioned hereinabove, in reference to other two witnesses, we find him to be a trustworthy witness.

The learned trial Judge has rightly rejected the grounds challenging the trustworthiness of the ocular version given by above three eye witnesses. Now, for us remain two points to consider; one is contradiction in medical evidence and eye witness account and the other is suggestion of the case of defence that during dacoity, unknown persons murdered the deceased persons and caused injuries to the injured persons and on account of enmity, appellants were falsely implicated.

The facts stated by the doctors are not in dispute. The indicated discrepancy emerges on the basis of the opinion of the doctors solicited during cross examination. What is the effect of such discrepancy, this point is no more res-integra. Hon''ble the Apex Court has clarified that any variation between medical evidence and ocular evidence is not fatal for the prosecution, provided, ocular evidence has been found reliable and medical evidence relates to opinion part. In the present case, ocular version of the occurrence have been found reliable. Facts stated by the doctors are not at variance with the ocular version, only on the basis of opinion of the expert witnesses, trustworthiness of the ocular version has been questioned. Hon''ble The Apex Court in the case of Suraj Singh v. State of U.P., , 2008 (3) J.I.C. 520 (SC) has thrashed out this point and in para-41 of the report observe the following:--

"41. It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses'' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

As already discussed above, testimonies of eyewitnesses have been found by us to be without blemish and trustworthy. For this reason we reject the present argument advanced on behalf of the appellants-respondents.

The suggestion about the defence case is not an evidence. During cross examination, nothing has come out which may make the defence case to be probable one. Therefore, we also reject the argument that it was a case of dacoity and the appellant-respondent was implicated due to enmity.

On behalf of the appellant-respondent, no other argument has been advanced to challenge their conviction.

We have found ocular version of the occurrence trustworthy. Having considered the nature and manner of assault by all four assailants, we have no hesitation to conclude that they all shared common intention and in prosecution thereof they fired. Homicidal deaths of three persons by use of firearm and voluntarily causing simple and grievous injuries to Radhey Shyam, Sanjay, Kewalapati, Shakuntala, Amarjeet, Kailashpati and Rohit Verma, except one injury, were caused by use of fire arms that too indiscriminately. Intention was to commit murder is evident from the result achieved by indiscriminately firing in the form of death of three persons. The other injured were also subjected to assault by fire arms with the same intention it was their luck that they had escaped the death. Thus, we find charge of attempted murder of the injured persons punishable under Section 307/34 I.P.C. also stands proved beyond reasonable doubt.

On behalf of the appellants, it has been argued that excessive sentences have been awarded to the appellants. Sentences were awarded to the appellants on 23rd October, 2008, for more than seven years, death reference and appeal against conviction and sentence remained pending. This delay entitle the appellants to have their sentence of death converted into the sentence of imprisonment for life under Section 302/34 I.P.C. with fine of Rs. 1 lakh each. In default thereof, to further undergo four years rigorous imprisonment. Out of fine, when paid, half of the amount will be paid to the legal representatives of the deceased.

Death reference (Capital Sentence No. 5 of 2008) is rejected and Criminal Appeal No. 2542 of 2008 is partly allowed to the extent indicated above and partly dismissed. We affirm the conviction of the appellants under sections 302/34 and 307/34 I.P.C. Sentence of death awarded under Section 302/34 I.P.C. is altered into sentence of imprisonment for life and further to pay fine of Rs. 1 lakh each by the appellants, in default thereof they would further undergo rigorous imprisonment of four years. Sentence awarded under Section 307/34 I.P.C. is also affirmed by us.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.