Sonpal and Others vs State of U.P.

Surendra Kumar, J.—Heard Sri. Anil Srivastava, Sri. Ajay Vashistha, learned counsel for the appellants and Sri. Sangam Lal Kesherwani, learned AGA for the State and perused the evidence on record. Four appellants Sonpal, Totaram, Hukum Singh and Lala Ram have preferred this criminal appeal against judgment and order dated 6.11.1981 passed by the Sessions Judge, Etah, in Session Trial No. 338 of 1981, State v. Sonpal and others u/s 302 IPC read with Section 34 IPC, Police Station Sahawar, then District Etah whereby they were convicted u/s 302 read with Section 34 IPC and were sentenced to undergo imprisonment for life.

One of the appellants Tota Ram died pending consideration of the appeal, hence appeal in respect of appellant Tota Ram stands abated.

In this case, appellants are alleged to have shot dead two real brothers namely Khet Pal aged about 22 years and Mahendra Pal aged about 20 years, both sons of Het Ram on 4.1.1981 at 11:00 p.m. The first information report of the incident was lodged in the following morning on 5.1.1981 at 8:30 a.m. by the first informant Mewa Ram PW-2 who is brother of the deceased persons, in which all the appellants were named as murderers, by covering distance of six miles from place of the occurrence to the Police Station. The special report about the incident was sent from Police Station on 6.1.1981.

The prosecution story briefly stated is that both the deceased persons Khet Pal and Mahendra Pal and appellants Sonpal, Lala Ram and Hukum Singh were collaterals while appellant Tota Ram was son of Gokul who was maternal brother of Kashi Ram and was living in the same village for the last more than one year. Before this incident, Het Ram, father of both the deceased persons, had filed civil suit which was pending and Khet Pal had also lodged a report against Kunwarpal, Sonpal, Lala Ram and Hukum Singh. The appellants felt ill will because of this litigation.

The door of the house of the deceased was towards the north. There was a Dubari behind the door. A Chhapper/thatch structure followed Dubari. There were one room to the east and two rooms to the south inside the house. There was a thatched hut over the roof of this Dubari. There was another Kothari of a thatch outside Dubari and a ''Bitya'' (heap of dried cakes of animal dung) placed in systematic way covered by Phoos/dried leaves. This ''Bitya'' was about 30-35 paces away from Dubari. The houses of appellants Lala Ram and Sonpal were adjacent to the house of Mewa Ram.

At about 11 O'' clock in the night between 4/5.1.1981 the first informant Mewa Ram, his father Het Ram and one Ramesh brother-in-law of Mahendra Pal (deceased) were lying in the thatched Kothari outside Dubari and they were talking. Surajwati PW-3, sister of Mewa Ram PW-2, and Rustam were inside the house. A lantern was burning inside the thatch adjoining Courtyard. They heard some commotion on the roof and hearing noise, Mewa Ram came out and stood near Neem Tree. Mewa Ram had a torch which he flashed and saw all the four appellants being armed with country made pistols proceeding towards hut situated on the roof of Dubari. Khet Pal and Mahendra Pal (deceased persons) were sleeping in that hut. Mewa Ram on seeing the appellants set fire to ''Bitya'' which emitted sufficient light. All the four appellants then entered into the hut. Mewa Ram heard two gun shots from inside the hut when other inmates including females rushed out to the Courtyard of the house. Thereafter, appellants ran towards the south of hut after shooting two persons. Mewa Ram reached the place and found his brother Khet Pal dead while Mahendra Pal another brother was still alive. Mewa Ram along with other inmates of the house brought Mahendra Pal down and laid him on the cot in Dubari where Mahendra Pal also breathed his last.

Mewa Ram wrote the report (Ext. Ka-3), took it to Police Station and gave it there at 8:30 a.m. Mewa Ram had not proceeded to Police Station to lodge the report in the night because of fear of the appellants. Two gunny bags were spread on the cot on which the deceased persons were sleeping and there were Daris above those gunny bags. They were both blood-stained and are Ext. 1 and Ext. 2. The cot on which Mahendra Pal was kept after being brought down, was also covered with a Dari (Ext. 3). The deceased Khet Pal was wearing a shirt, vest (Baniyan) and underwear (Exts. 4 to 6) while deceased Mahendra Pal was wearing Kurta, vest (Baniyan) and underwear (Exts. 7 to 9). The other brother Rustam who was sleeping inside the house had a torch. Hence both torches and lantern were seen by the Investigating Officer and were given in Supurdagi of the first informant Mewa Ram PW-2 after preparing memo (Ext. Ka-4).

The constable Clerk Ramesh prepared chik report (Ext. Ka-5) on the basis of written report and registered the case in general diary, a copy of which is Ext. Ka-6.

The investigation of double murder case was handed over to Sub Inspector, Lokendrapal Singh. He interrogated and recorded statement of Mewa Ram PW-2 at Police Station itself just after registering the first information report and then proceeded to the scene of occurrence where he examined both the dead bodies, prepared inquest memo, diagram, chalannash of the dead body of Mahendra Pal and a letter to the Chief Medical Officer, Etah, (Exts. Ka-7 to Ka-10). The Investigating Officer then prepared inquest memo of dead body of the deceased Khet Pal, its diagram, chalannash and letter to the Chief Medical Officer, Etah, (Exts. Ka-11 to Ka-14) and handed over both dead bodies to Constables Rameshwar Dayal and Mahendra Singh after sealing them. He inspected the scene of occurrence and prepared site plan map (Ext. Ka-15). He also found some ashes of burnt cow dung cakes and took its sample (Ext. 10) after preparing memo (Ext. Ka-16). He also took into custody blood-stained clothes found in the hut, sealed them and prepared memo (Ext. Ka-17). He also took into custody blood stained and simple earth from hut/place of the incident (Exts. 11 and 12) and put them in two different containers after preparing memo (Ext. Ka-18). In Dubari also, he found blood where Mahendra Pal had been kept, he took it in custody and also simple earth and put them in two different containers after preparing memo (Ext. Ka-19). He also took blood-stained clothes found on the cot of the deceased Mahendra Pal and sealed after preparing memo (Ext. Ka-20). The appellants were searched but could not be found.

On 17.1.1981, the Investigating Officer recorded statement of Surajwati PW-3, sister of the deceased persons u/s 161, Cr.P.C. Thereafter, investigation was taken over by Prakash Chand Chaturvedi, S.H.O. himself who after completing investigation submitted charge-sheet (Ext. Ka-21) against all the four appellants on 3.3.1981.

Post-mortem examinations on the dead bodies of both deceased persons namely Khet Pal aged about 22 years, on 6.1.1981 at 11:00 a.m. (Ext Ka-1) and Mahendra Pal aged about 20 years on 6.1.1981 at 11:45 a.m. (Ext. Ka-2) were conducted by Dr. P.K. Jain, PW-1.

Dr. P.K. Jain found following ante-mortem injury on the person of the deceased Khet Pal:

(i) Firearm wound of entry 2 1/2 cm x 2 cm x cavity deep on the front of left side chest at 6 O'' clock, 7 cm below left nipple. No blackening present. Direction backward, obliquely upward left to right.

On internal examination, he detected the following condition:--

Haematoma was present. Left 8th rib was found fractured. Pleura was grossly lacerated. Both cavaties contained about 30 ounce of free and clotted blood. Lungs were also grossly lacerated. The stomach was empty. Small intestines were empty. Large intestines were full of faecal matter. Four ''Gatta'' pieces were recovered from dead body and were sealed and sent to the Superintendent of Police, Etah.

Dr. P.K. Jain PW-1 found following ante-mortem injury on the person of the deceased Mahendra Pal:--

(i) Firearm wound of entry 4 cm x 3 cm x cavity deep on the front of right side of chest, 2 cm below nipple at 6 O'' clock position. No blackening present. Direction backward and downward.

On internal examination, he found following condition--

Haematoma was present. 6th and 7th ribs on the right side were found fractured. Pleura was grossly lacerated, and the cavity contained about 30 ounce of free and clotted blood. One ''Gatta'' and 16 pellets were recovered and sealed. Peritoneum was grossly lacerated and cavity contained about 15 grams of free and clotted blood. 36 pellets were recovered from cavity and were sealed. Stomach contained about two grams of digested food.

According to the doctor, cause of death was due to shock and haemorrhage as a result of ante-mortem injuries sustained by the deceased persons.

After submission of the charge-sheet against the appellants, case was committed to the Court of Sessions, Etah where it was registered as Session Trial No. 338 of 1981 and trial started. The appellants were charged u/s 302 read with Section 34 IPC by the Sessions Judge, Etah, on 9.9.1981 to which they did not plead guilty, denied the same and claimed to be tried on the said charges.

To prove charge levelled against the appellants, the prosecution examined five witnesses in all, out of whom Dr. P.K. Jain, who had performed autopsy on the dead bodies of the deceased persons is PW-1. Mewa Ram PW-2, Surajwati PW-3 were eye-witnesses of the occurrence, Lokendrapal Singh S.I. PW-4 was the Investigating Officer. Constable Mahendra Singh PW-5 filed affidavit about taking the dead bodies intact to mortuary for post-mortem in sealed condition.

The appellants in their statements recorded u/s 313 Cr.P.C. admitted that there was enmity between two parties prior to the incident and denied the prosecution case alleging their false implication on account of old enmity. They further admitted that it was first informant Mewa Ram who set fire to ''Bitya'' which was situated near his house but denied that the appellants were identified by the eye-witnesses. The appellants neither adduced any defence evidence nor examined any witness.

Before dealing with the contentions raised by the learned counsel for the rival parties, we think it necessary to have a look at eye-witnesses account who are first informant Mewa Ram PW-2, brother of both deceased persons and Surajwati PW-3 real sister of PW-2 as well as deceased persons; Before appreciating testimony of the first informant Mewa Ram PW-2, it should be clearly stated that there were only three houses in the entire village, two of which belonged to the appellants and one belonged to the first informant. There was no possibility of getting any independent witness in the village at the time of the incident on the roof of house of the deceased persons. Only possible eye-witnesses could be inmates of the house of the deceased persons. Since Mewa Ram PW-2 was real brother of both the deceased persons, there can be no doubt about presence of Mewa Ram at the scene of occurrence. Mewa Ram PW-2 had fully corroborated all the material particulars of the prosecution story in his testimony as given by him in the first information report lodged by him after about nine hours covering distance of six miles.

What we have to actually see is whether witness is a natural witness and what he stated is truthful and supported by inherent circumstances of this case. What Mewa Ram PW-2 deposed in his evidence was that both the deceased persons Khet Pal and Mahendra Pal were real brothers. Khoob Chand and Rustam were also real brothers of the witness, their father was Het Ram. Todi Ram was grandfather of the witness. One Bhawani was also real brother of Todi Ram. Thus, Todi Ram and Bhawani were real brothers and sons of one Baldev. Bhawani had two sons namely Kashi Ram and Komal. Appellant Sonpal is son of Komal, appellants Lala Ram and Hukum Singh are sons of Kashi Ram. The dead appellant Tota Ram was son of Gukul. Gokul was maternal brother of Kashi Ram.

It is evident from testimony of this PW-2 that both parties were collaterals and their grandfathers were real brothers. Het Ram, father of Mewa Ram PW-2, prior to these murders had filed civil suit against ancestors of the appellants and at the time of the incident that civil suit was pending. One of the deceased Khet Pal lodged a report against the appellants prior to this incident and final report was submitted in that criminal case.

According to testimony of this PW-2, there were civil and criminal litigations between two parties at the time of the incident and both parties had old and deep rooted enmity. At the time of the incident, Mewa Ram PW-2, his father Het Ram and Ramesh were talking under thatch outside Dubari whereas his sister Surajwati and brother Rustam were inside the house. A lantern was emitting light in the Courtyard and this witness heard sound of tramp from the roof at the time of the incident, then the witness and others came out of thatch and flashed torch which the witness was having at the time of the incident. In the light of torch, this PW-2 saw the appellants Lala Ram, Hukum Singh, Sonpal and Tota Ram each being armed with Tamancha were coming towards hut, erected upon the roof of Dubari from the south. Both the deceased persons Khet Pal and Mahendra Pal were lying on the separate cots inside hut towards which appellants armed with pistols/Tamanchas were coming. The witness seeing the appellants, immediately set fire to Patai stored near ''Bitya'' and sufficient light was emitting from flames of the fire. It was further seen by this PW-2 that appellants barged inside the hut and sounds of two fire shots were heard by the witness and just thereafter the witness saw the appellants coming out from hut and going towards the south. It is further evident from testimony of PW-2 that when the appellants were coming towards hut, he intercepted the appellants and raised cries. Just after departure of the appellants from hut under which both the deceased persons were sleeping on the cots, Mewa Ram PW-2 immediately reached hut and found Khet Pal dead whereas Mahendra Pal, in critical condition, was still alive. Mahendra Pal was brought down from hut situated upon roof of Dubari and was laid on the cot inside Dubari, just then Mahendra Pal breathed his last. Both the deceased persons were profusely bleeding.

Mewa Ram PW-2 wrote a report of the incident Ext. Ka-3 and handed it over at the Police Station at 8:30 a.m. This witness clearly testified that he had not gone to Police Station in the night to lodge the first information report because of fear of the appellants. This PW-2 clearly stated that one Ramesh, brother-in-law of the deceased Mahendra Pal colluded with the appellants and was not ready to speak the truth. At the time of murder of Mahendra Pal, wife of Mahendra Pal was at her parental place. This PW-2 also deposed in his evidence that appellants used to frequently assault the witness and his family members prior to this incident.

Perusal of cross-examination of Mewa Ram PW-2 shows that Kothari/thatch in which this witness, his father Het Ram and Ramesh, brother-in-law of one of the deceased Mahendra Pal, were talking, was the same in which the witness and his father used to sleep. Both the deceased persons Khet Pal and Mahendra Pal were already married, wife of Khet Pal was present in her in-laws'' house whereas wife of the deceased Mahendra Pal was in her Maika at the time of the incident. Surajwati PW-3 (sister of the PW-2), wife of Mewa Ram (PW-2) and wife of the deceased Khet Pal were sleeping in the same room. This PW-2 during cross-examination tried to make improvement at one or two places which can be ignored because the prosecution story could not be affected by such one or two minor improvements. The minor improvement is that fire had been set to the two bundles of Patai which were stored-near ''Bitya''. No such stand was taken in the first information report that fire had been set to two bundles of Patai stored near ''Bitya''. Another improvement is that according to the first information report lodged by PW-2, lantern was burning under thatch situated near Courtyard at the time of the incident namely 11:00 p.m. Mewa Ram PW-2 in his examination-in-chief stated that the said lantern was burning in the Courtyard. During cross-examination, the witness stated that lantern was burning outside thatch. Thus this is a very minor omission which does not cause dent in the veracity of the prosecution story.

It transpires from whole cross-examination of Mewa Ram PW-2 that light of lantern was available inside thatch adjoining to the Courtyard. Besides, lantern light, there was sufficient light which emitted by setting fire to ''Bitya'' having thick cover of Patai. The night of the incident was dark night and it was very difficult to identify any person without any light. PW-2 had torch at the time of the incident which he flashed and then identified the appellants.

A close and careful scrutiny of testimony of Mewa Ram PW-2 makes it quite evident that there were three sources of lights namely lantern, torch and flames at the time of the incident which enabled this PW-2 to correctly recognize and identify the appellants at the time when appellants armed with Tamancha came on the roof of the house where there was hut in which both deceased persons were sleeping, two fire shots were heard and thereafter the appellants went away towards the south after committing the double murder. Appellants and Mewa Ram PW-2 were previously on inimical terms due to old litigation and were neighbours. The appellants had adjoining houses to the house of the deceased persons and appellants came through roof of the house to the place of the incident namely hut in which both the decease persons were sleeping and after committing murder of two persons, appellants went away successfully towards the south where house of one of the appellants Lala Ram was situated.

It is further evident from cross-examination of Mewa Ram PW-2 that after flashing torch on the appellants, PW-2 intercepted the appellants only thereafter he set fire to that ''Bitya''. After fire was set to ''Bitya'' and due to flames thereof, sufficient light was emitted then only appellants entered the hut where the deceased persons were on their cots. The witness further clarified that the appellants entered inside the hut only after setting fire to ''Bitya'' by the witness. The appellants came out of hut at the time when there was more than sufficient light. Faces of the appellants were uncovered when they reached the place of the incident and they left the place after committing the murder of the deceased persons. Fire shots were made by the appellants within five to six minutes after flashing torch by PW-2. The appellants after committing murder of the deceased persons went towards the direction through which they came to the place of the incident. The appellants after committing the murders jumped from roof where the said hut was situated. The witness clearly denied false implication of the appellants on account of enmity. The witness further denied suggestion that he did not identify the appellants at the time of the incident.

Surajwati PW-3 daughter of Het Ram who was aged about 16 years at the time of the incident was also examined as eye-witness of the incident. According to her testimony, on the day of the incident around 11 O'' Clock in the night, Khet Pal and Mahendra Pal, were inside the hut which was erected on the roof of Dubari. At that time, she was sleeping in Madhaiya/Kotha in front of Dubari. Her brother Rustam, Bhabhi Smt. Anar Devi and Premwati were also lying in Madhaiya/Kotha. Her father Mewa Ram was lying under thatch situated out of Madhaiya. Ramesh was also under the same thatch where Mewa Ram was present. Her brother Khoob Chand was also lying in the adjoining Madhaiya. Khoob Chand raised cries that there was someone upon roof of the house and just then witnesses including PW-3 got up and came out in the Courtyard. Khoob Chand also had torch and he flashed the torch. Her father Mewa Ram and Ramesh set fire to Patai and Phoos which emitted sufficient light. Lala Ram, Hukum Singh, Tota Ram and Sonpal having Tamanchas were present on the roof, entered inside the hut and then she heard two shots from inside hut. Thereafter, appellants ran away towards the same direction from which they came. Just after departure of the appellants from the place of the murder, this PW-3 and other witnesses immediately came upon the roof where hut was situated and found that Khet Pal had died and Mahendra Pal was still alive. Mahendra Pal was brought down on the ground floor and lied down under Dubari where he breathed his last.

Surajwati PW-3 was cross-examined on some aspects of the case. It is evident from her cross-examination that Darogaji reached the village during day time where she met him but her statement was not recorded by Darogaji/Investigating Officer on that day, whereas she was interrogated after 10-11 days of the incident. She identified the appellants while she was standing on the ground floor in the Courtyard of her house. She clearly told Investigating Officer that she and other inmates of the house were standing in the Courtyard of the house without taking any shelter behind anything and she could not tell how Investigating Officer mentioned in her statement that she had seen the incident while taking shelter behind something. She witnessed the appellants going towards hut and also witnessed the appellants when they were coming out of hut leaving place without any hurry. The appellants did not conceal or cover their faces when torch was flashed at them by her brother Khoob Chand. It is also evident that roofs of the houses of the deceased persons and that of the appellants were adjacent to each other and after committing the murders, the appellants reached directly to the roof of their own houses.

Now we deal with the contentions raised by learned counsel for the appellants as well as learned AGA for the State.

First contention of the learned counsel for the appellants is that there was no sufficient light to enable the eye-witnesses to identify the appellants at the time of the incident. Three sources of light namely torch with the first informant, fire set to ''Bitya'' and lantern burning inside the thatch adjoining Courtyard have been given by the prosecution. We have considered this submission carefully and cautiously in the light of the facts and circumstances of the case and evidence of PW-2 Mewa Ram and PW-3 Surajwati (eye-witnesses). According to the first information report, lantern was burning under thatch near Courtyard at the time of the incident namely 11:00 p.m. in the month of January, 1981. In the first information report lodged in the following morning at 8:30 a.m., there is a mention of torch which was flashed by the first informant Mewa Ram, by which light, the appellants are alleged to have been seen when they were entering in the hut wherein the deceased persons were present and further seen while they were leaving the same hut after committing two murders. The first information report clearly mentions that sufficient light was generated due to flames as a result of setting fire to ''Bitya'' having thick cover of Phoos. Thus evidence on record makes it evidently clear that there was sufficient light on the spot to enable the eye-witnesses to identify the appellants at the time of the incident. The night of the incident was dark and torch was necessary thing to be kept at night. ''Bitya'' which was set to fire by the first informant Mewa Ram was covered with ''Patai'' because ''Bitya'' had to be protected against rains and ''Bitya'' is normally covered by ''Patai'' or ''Phoos''. Thus this does not make any difference that as per the first information report, ''Bitya'' was set to fire and sufficient light was generated on the spot because ''Bitya'' is prepared by cow dung cakes which could not be set to fire without help of ''Phoos''. In the village, most of ''Bityas'' are covered by ''Phoos'' in order to protect the same against rains. No person would commit folly to set fire to heap of cow dung cakes to emit light for no reason. The ready material to which fire can be set is the covering of ''Bitya'' rather than cow dung cakes. Thus, very mention of the fact that fire was set to ''Bitya'' should be taken to mean that fire was generated by burning ''Patai'' of ''Bitya'' which might have extended to cow dung cakes later on. There can be no doubt that these sources of light namely torch, fire from ''Bitya'' were available to the first informant Mewa Ram PW-2 at the time of the incident. Thus, submission of the learned counsel for the appellants regarding absence of sufficient light at the time of the incident is not borne out by evidence on record. This contention is, accordingly, repelled.

Next contention of the learned counsel for the appellants is that learned trial Court disbelieved testimony of Surajwati PW-3 who was aged about 16 years and unmarried at the time of the incident and got subsequently married. Learned trial Court recorded finding that Surajwati could not be in a position to see faces of the persons who were walking on the roof. According to her testimony, she had seen the appellants who were at roof of Dubari when she was standing on the ground floor in the open space of the house. She in her statement u/s 161, Cr.P.C. stated that she had seen the assailants on the roof, hiding herself behind cover or thing. According to her statement u/s 161, Cr.P.C. she had got up on hearing gun shots. The main reason for disbelieving her testimony as given by learned trial Court was that there was contradiction in her evidence before the Court and statement u/s 161, Cr.P.C. In the former, she stated that she had seen the assailants while standing in the Courtyard in the open place, of her house and in the later she stated that she had seen the appellants on the roof of the house hiding herself behind the cover.

Learned trial Court observed that on hearing gun shots, she might have naturally felt frightened and she might have taken cover behind shelter and then tried to locate the persons moving on the roof. In addition to it, she was not interrogated by the Investigating Officer on the very first day in spite of the fact that she was present at the time when the Investigating Officer reached there. She was interrogated by the Investigating Officer after about 10-11 days of the incident. Reason given by the Investigating Officer in his evidence for not examining her on the same day was that she was weeping and wailing and was not in a fit state of mind to be interrogated as witness on the very first day. This part of the behaviour of the Investigating Officer was also not accepted by the trial Court just on the ground that the Investigating Officer had not made a note in the case diary to the mental state of the witness. In our considered opinion based on careful analysis of the evidence of Surajwati PW-3, she could not be disbelieved on the basis of such minor contradictions or discrepancies. PW-3 clearly deposed that she was very much present on the first day of the incident and when the Investigating Officer reached there, she was not interrogated by him. The Investigating Officer also cited reasons for not examining her on the first day. She could not be disbelieved just on the basis of that very minor and inconsequential discrepancies or inconsistencies regarding taking shelter behind anything. PW-3 is real sister of both the deceased persons and her presence in the house, on the roof of which incident of double murders took place at the relevant time was quite probable and natural and her presence could not be doubted on the basis of any such minor inconsistencies. The explanation given by the Investigating Officer in his evidence that she was not in a fit state of mind for being interrogated appears to us to be sound because in the previous night, she had lost her two real brothers. So far as testimony of Mewa Ram, first informant PW-2 is concerned, there can also be no doubt about presence of Mewa Ram, first informant PW-2, at the scene of the occurrence. He was real brother of both the deceased persons. He has fully corroborated material part of the prosecution as given by him in the first information report. Since there were only three houses in the village to which two were of the appellants and one was of the first informant, hence there was no possibility of getting any independent witness of the night incident.

Learned counsel for the appellants challenged sanctity of the testimony of Mewa Ram PW-2 on the following grounds:

(a) Firstly, Mewa Ram should not have been awakened at that hour of night and he would first get up after hearing gun shots and by that time, the assailants would have finished their work. On this point, the witness has given a very plausible explanation that brother-in-law (Sala) Ramesh of Mahendra Pal deceased had come to the village as he had to attend this visitor, he had not slept by that time and was still awake when the incident took place. Naturally if a visitor had come in the house, his normal routine would have disturbed and there would have been some delay caused in sleeping.

(b) Secondly, Mewa Ram PW-2 after flashing torch, had accosted the assailants and then he went to set fire to the cover of ''Bitya''. There was a gap of 5-6 minutes in the commission of the crime and the witness could not be able to get advantage of the light. In this connection, we can observe that villagers generally did not get exact idea of time three decades ago. Even if witness spent a minute in setting fire to ''Bitya'' there would have been sufficient light of torch to enable him to see faces of the appellants. It must also be borne in mind that the witness had not felt presence of the persons on the roof till they started walking on the roof and naturally the appellants must have had distance of few paces from hut when the witness flashed torch. It was possible that the witness might have not been able to fully recognize the appellants in the short flash of the torch and thinking that some miscreants had, come, he might have got an idea of setting fire to ''Bitya''.

(c) Thirdly, when torch was flashed on the faces of the appellants and fire was set to ''Bitya'', the appellants did not make any effort to conceal their faces. This meant that they had not fear in their mind and had no desire to do it quietly, then why should the appellants not have committed these two murders in the day light particularly when their fields and fields of the deceased persons were adjacent and both parties used to meet almost everyday as clearly stated by the first informant. There can be various reasons for which no prosecution witness can furnish an answer. For example, many people might have been able to see this offence if committed in the day because persons other than the appellants and first informant would have been present near about.

(d) Fourthly, if the appellants came in a day time to attack someone, they would have been visible from a distance and would have given opportunity to the person who was intended to be assaulted to make good his escape while this opportunity will be denied to the victim if act was done in the night. It is also probable that the appellants might have thought to kill as many persons of the family as possible and if offence would have been committed in day time, they could not have got chance of assaulting more than one person.

The presence of Mewa Ram first informant PW-2 and Surajwati PW-3 who are brother and sister of the deceased persons on the date, time and place of the occurrence is established from a close scrutiny of their evidence and they are natural and reliable witnesses. There is nothing on record to discredit their testimonies. Their statements are in affirmative with one another having no material contradiction or discrepancy. Time and place of the occurrence are not disputed and have been sufficiently proved by the ocular circumstances found by the Investigating Officer. The fact of fire having been set to ''Bitya'' was also proved by presence of ash taken by the Investigating Officer. The fact that two shots were fired, is further proved that two persons died because of separate firearm injuries, the same is corroborated by the medical evidence. We are of the considered opinion that statements of Mewa Ram PW-2 and Surajwati PW-3 should be given full credibility because they are reliable witnesses and no independent witness at that hour of night could reach there. So far as non-examination of Ramesh brother-in-law (Sala) of one of the deceased is concerned, it has come in evidence that he was won over by the appellants and colluded with them.

Learned counsel for the appellants lastly argued on the motive submitting that there was no motive for the appellants for annihilating two persons. It is a case of direct evidence where evidence of both eye-witnesses is creditworthy and fully reliable then motive has no significance. In this case, both parties were previously on inimical terms having old litigation and the appellants committed murders on account of old deep rooted enmity. Thus there was sufficient motive for the appellants to commit these two murders. No other contention has been raised by the learned counsel for the appellants.

In the case of Waman and Others Vs. State of Maharashtra, , it has been observed by Hon''ble Apex Court that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being relative cannot by itself discard their evidence. In other words, relationship is not a factor to affect credibility of witness and Courts have to scrutinize their evidence meticulously with care. It has also been observed that if testimony of the related eye-witnesses, close relative of the deceased persons is found to be convincing and trustworthy about incident, the same cannot be disbelieved merely because of some omission in the statement u/s 161, Cr.P.C. and evidence before the Court. The fact that some statements of one of the eye-witnesses were not noted by the police cannot be a basis to reject the evidence.

In Mst. Dalbir Kaur and Others Vs. State of Punjab, following observations were made:--

(i) Witness gained over by accused not examined by the prosecution--held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the Court for examining such witnesses.

(ii) witness who gives details with absolute accuracy is trustworthy.

In Yakub Ismailbhai Patel Vs. State of Gujarat, and also Yakub Ismailbhai Patel Vs. State of Gujarat, , it was observed by the Hon''ble Supreme Court that human behaviour or conduct of a witness depends upon facts and circumstances of each given case and there is no set rule of natural reaction. The evidence of any eye-witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation. In Yakub Ismail Bhai Patel''s case, the accused inflicted injuries on vital organs of the deceased, eye-witnesses, friends of the deceased present on the spot did not go forward to help deceased at the time of incident and did not stop the accused. The Hon''ble Supreme Court observed that these cannot be the circumstances to disbelieve testimony of the said witnesses, particularly when rest of testimony of the witnesses is tested with cross-examination.

In State of Rajasthan Vs. Smt. Kalki and Another, it was held that in the depositions of witnesses, there are always normal discrepancies however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and the like material discrepancies are those which are not normal and not expected of a normal person.

In Chand Khan and another Vs. State of Uttar Pradesh, , it was observed that minor discrepancies in evidence of eye-witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye-witnesses.

The Hon''ble Apex Court in State of Rajasthan Vs. Arjun Singh and Others etc., has recently observed that non-recovery of pistol or cartridge namely crime incriminating material or other articles does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes etc. cannot be taken or construed as no such occurrence had taken place. In this case law, regarding motive, it has been observed that motive for doing a criminal act is generally a difficult area for the prosecution to prove since one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Even in the absence of specific evidence as to motive, in view of the fact that in the case on hand, two persons have been killed and one sustained injuries due to firearms, the case of the prosecution cannot be thrown out on this ground. It has further been observed in this case that the testimony of interested witnesses should not be rejected merely because witnesses are related to the deceased. Their testimonies have to be carefully analysed because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable.

In the State of U.P. Vs. Nawab Singh, it was observed that in a murder case when there is direct evidence, motive looses its importance. Some omissions in the statement u/s 161, Cr.P.C. are not sufficient to discard the truthful and creditworthy evidence of the witness and also failure of the witness to give direction from which side the accused came caused due to illiteracy or lack of knowledge of the witness.

In Balraje @ Trimbak Vs. State of Maharashtra, , this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, Apex Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible; there is no reason to discard the same.

Hon''ble Supreme Court in Gosu Jairami Reddy and Another Vs. State of A.P., has observed that it is not always easy for an eye-witness to a ghastly murder to register precise number of injuries that were inflicted by assailants and part of the body on which the same were inflicted. A murderous assault is often a heart-rending spectacle in which even a witness wholly unconnected to the assailant or the victim may also get a feeling of revulsion at the gory sight involving merciless killing of a human being in cold blood. To expect from a witness who has gone through such a nightmarish experience, meticulous narration of who hit whom at what precise part of the body causing what kind of injury and leading to what kind of fractures or flow of how much blood, is to expect too much. Courts need to be realistic in their expectation from witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorised by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix up or confusion. It is the totality of the evidence on record and its credibility that would eventually determine whether the prosecution has proved the charge against the accused.

Hon''ble Apex Court in Nathuni Yadav and others Vs. State of Bihar and another, , observed that if the assailants are not stranger, the victims having enough visibility are able to correctly identify the assailants. When eye-witnesses are well acquainted with physiognomy of which one of the killers and assailants have enough light to identify the victims, there is no difficulty for the eye-witnesses to correctly identify the assailants. In the reported case, the victims and appellants were close relative, a man and his wife were shot dead at terrace of their residential building due to family feud and their neighbour was also shot dead as he woke up hearing sound of fire. Hon''ble Apex Court held that the victims/eye-witnesses being acquainted with physiognomy of each of the killers had enough visibility to correctly identify them as assailants were not stranger. Hon''ble Apex Court further held that "what is sauce for the goose is sauce for the gander" means that even assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. The light then available, though meagre, was enough for the assailants, why should we think that same light was not enough for the injured who would have certainly focused their eyes on the face of the intruders standing in front of them.

After a close and careful analysis of the above evidence, we find that eye-witnesses have given truthful version of the prosecution story and their evidence is further strengthened by the medical evidence. Surajwati PW-3 has wrongly been disbelieved by the trial Court. There was sufficient light on the spot at the time of the occurrence which enabled the eye-witnesses to see the incident. The statements of the eye-witnesses conform to each other, suffer from no major contradictions. The presence of the eye-witnesses on the date, time and place of the incident is established beyond doubt and being natural witnesses, they were fully able to see the incident. The investigation in this case of murder was started promptly and statements of the witnesses u/s 161, Cr.P.C. were also recorded promptly. The first information report of the incident was lodged at 8:30 a.m. i.e. 9 hours 30 minutes of the incident in which the name of the murderers and the arms used by them were mentioned and the distance of Police Station from the place of the occurrence was 6 miles. Thus the first information report in this case was lodged without any consultation or deliberation and there is no chance of any false implication of the surviving appellants.

We had been taken through the entire record by the learned counsel for the parties. In view of the above meticulous analysis of the whole evidence available on record, the appeal filed fey the appellants lacks merit and is, accordingly, dismissed.

Since the appeal is dismissed, the bail bonds and surety bonds of the appellants are cancelled. The appellants are directed to surrender before the trial Court immediately to serve out the remaining part of the sentence awarded to them. If they fail to surrender, the trial Court is directed to get the appellants arrested and send them to jail for serving out the remaining part of the sentence awarded by the trial Court by means of the judgment and order dated 6.11.1981. Let a copy of this order be sent to the trial Court forthwith for compliance.