Subedar and Others (In Jail) vs State of U.P.

M.C. Jain, J.—There are three Appellants, namely, (i) Subedar son of Narayan Nai.

(ii) Ram Bhajan son of Chandan Ahir and

(iii) Suraj Pal alias Sarju Dhanuk son of Anokhey.

They have preferred this appeal against the judgment and order dated 30.9.1981 passed by Sri Sushil Kumar, the then VIIIth Additional Sessions Judge, Bareilly in Sessions Trial No. 465 of 1980. Each of them has been convicted u/s 302 read with Section 34, I.P.C. with a sentence of life imprisonment u/s 307 read with Section 34, I.P.C. with a sentence of five years'' rigorous imprisonment and u/s 449, I.P.C. with a sentence of seven years'' rigorous imprisonment. All the sentences have been ordered to run concurrently.

We have heard Sri K.D. Tripathi, learned Counsel for the Appellants and Sri Sudhir Kumar Agarwal, learned A.G.A. from the side of State.

The relevant facts may be set forth. The incident occurred in between the night of 7/8.10.1980 at about 2 O''clock in village Riona Dhimra, P.S. Fatehganj East, District Bereilly and the report was lodged on 8.10.1980 at 9.30 a.m. by an eye-witness Shyam Behari P.W. 1. The distance of the police station from the place of occurrence was about 7 kms. One Morsri alias Meera daughter of Chhotey Lal was murdered in the incident whereas 4 others, namely, Om Prakash P.W. 2, Sumilla, Katori Devi and Nanhey sustained injuries. There was one another unknown companion of the present accused-Appellants. The accused-Appellant Subedar was allegedly armed with paunia gun whereas two other accused-Appellants were armed with countrymade pistols and their unknown companion had a lathi. Shyam Behari P.W. 1 was sleeping in his house. At about 2 O''clock in the night he heard hue and cry emanating from the house of his brothers Chhotey Lal and Ram Ratan. He rushed up there with a torch. Om Prakash P.W. 2 also reached flashing his torch. They saw the present three accused-Appellants along with another unknown person with the weapons stated earlier. The accused-Appellants opened three fires to kill them and demanded the gun of Ram Swaroop. The shots hit Ram Swaroop, his mother and his brother Nanhey. Morsri daughter of Chhotey Lal was sleeping in the courtyard. Hearing the commotion, she was horrified and got up from the cot. One gunshot was inflicted upon her chest. Receiving the shot, she died at the spot. The wife of Chheda Lal was given lathi blow on the head by the 4th unknown companion of the accused-Appellants. All the inmates of the house were making hue and cry which attracted the villagers at the spot who challenged the accused-Appellants. Opening fire, they ran away from the place of occurrence through the northern door. They were very well identified in the light of torches on the spot and Dibiya (small lamp) glowing in the house of the incident. The miscreants were also flashing their torches during the commission of the offence. Ram Shanker, Sri Krishna and Bhajan Lal had also identified the accused-Appellant in the light of their torches.

On the lodging of the F.I.R. by Shyam Behari P.W. 1, a case was registered and the investigation entered into.

The Investigating Officer reached the spot and busied himself in the activities related to investigation. After preparation of the panchayatnama of the dead body of the deceased Morsri, he sealed it and sent for post-mortem which was conducted by Dr. J. N. Bhargava P.W. 7 on 9.10.1980 at 3.30 p.m. The deceased was aged about 11 years and about 1-1/2 days had passed since she died. The following ante-mortem injuries were found on her person:

(1) Gunshot wound of entry .4 cm. ? .4 cm. ? skin deep on right side of forehead, 1 cm. above lateral end of right eyebrow, no blackening or charring.

(2) Gunshot wound of entry .4 cm. ? .4 cm. ? skin deep on right side of forehead, 1 cm. above bridge of nose.

(3) Three gunshot wounds of entry in an area 4 cm. ? 2.5 cm. on left side of face just below left nostril, size .4 cm. ? .4 cm. ? skin deep.

(4) Three gunshot wounds of entry in an area of 5 cm. ? 3 cm. ? skin deep on right side of cheek 2 cm. below eyebrow, size .4 cm. ? .4 cm. ? skin deep.

(5) Four gunshot wounds of entry 9 cm. ? 4 cm. of posterior aspect of right upper arm, 3 cm. below shoulder.

(6) Multiple gunshot wounds of entry in area of 23 cm. ? 14 cm. in front of chest and upper part of abdomen. Various size .4 cm. ? .4 cm. ? skin, muscle, chest and abdomen cavity deep, no blackening or charring is present.

(7) Gunshot wound of entry .4 cm. ? .4 cm. ? skin deep in front of left shoulder joint.

(8) Gunshot wound of entry .4 cm. ? .4 cm. ? abdomen cavity deep left side of abdomen, 7 cm. below sub-coastal margin.

The death had occurred due to shock and haemorrhage owing to firearm injuries.

Injuries of the injured Sumilla wife of Ram Ratan, Smt. Katori wife of Chheda Lal, Om Prakash P.W. 2 son of Ram Ratan and Nanhey son of Ram Ratan were examined by Dr. Shabbir Hussain P.W. 4, M.O. of P.H.C., Fareedpur, Bareilly on 8.10.1980 at 6.05 p.m., 6.30 p.m., 6.45 p.m. and 7.15 p.m. respectively. The following injuries were found on their persons:

Injuries of Sumilla:

(1) Two gunshot wounds .5 cm. ? .2 cm. ? skin deep on left side of head 2-1/2 cm. apart from each other, backward and front 10 cm. above left ear.

(2) Gunshot wound .2 cm. ? .2 cm. ? skin deep on left side forehead just above left eyebrow.

(3) Traumatic swelling 5 cm. ? 4 cm. ?on upper and lower eyelid on left side.

(4) Gunshot wound .2 cm. ? .2 cm. ? skin deep on right upper eyelid, swelling with traumatic swelling 5 cm. ? 4 cm. on both eyelids.

(5) Two gunshot wounds .2 cm. ? .2 cm. ? skin deep 1-1/2 cm. apart from each other on back of right hand, 1 cm. below right wrist, surrounded by traumatic swelling 5 cm. ? 5 cm.

(6) Gunshot wound .3 cm. ? .2 cm. ? skin deep on right side of chest, 14 cm. below right shoulder.

(7) Multiple gunshot wounds in an area of 7 cm. ? 3 cm. in front of right breast 3 cm. above right nipple, each measuring .2 cm. ? .2 cm. ? skin deep.

(8) Two gunshot wounds .2 cm. ? .2 cm. ? skin deep 3/4 cm. apart from each other upward and downward over front surface of right upper arm, 4 cm. above right elbow.

Injury of Smt. Katori:

(1) Lacerated wound 5 cm. ? 1-1/2 cm. ? bone deep on back of head right side, 3 cm. behind right ear, clotted blood present and under observation.

Injuries of Om Prakash:

(1) Gunshot wound .3 cm. ? .3 cm. ? skin deep on back of right hand, 1/2 cm. above the base of right ring finger.

(2) Gunshot wound .2 cm. ? .2 cm. ? skin deep on front of right forearm middle.

(3) Gunshot wound .2 cm. ? .2 cm. ? skin deep on front of right elbow joint of forearm.

(4) Two gunshot wounds 8 cm. apart from each other, on aspect of left index finger and root of left thumb.

(5) Multiple gunshot wounds in an area of 9 cm. ? 3 cm. in front of left upper arm, in front of left forearm upper part, each measuring .2 cm. ? .2 cm. ? skin deep.

(6) Multiple gunshot wounds in an area of 15 cm. ? 10 cm. on left shoulder region with left upper scapula region, each measuring .2 cm. ? .2 cm. ? skin deep to .4 cm. ? .2 cm. ? skin deep.

(7) Abrasion 1 cm. ? .2 cm. ? skin deep on right cheek, 3 cm. below right eye.

(8) Abrasion .2 cm. ? .2 cm. ? skin deep on right cheek, 1/2 cm. outer to nose.

(9) Multiple gunshot wounds in an area of 12 cm. ? 12 cm. on front of chest, each wound measuring .2 cm. ? .2 cm. ? skin deep.

(10) Multiple gunshot wounds in an area of 15 cm. ? 14 cm. on front of right thigh middle, each measuring .2 cm. ? .2 cm. ? skin deep.

(11) Two gunshot wounds 13 cm. apart from each other, upper and lower ankle of right leg, each wound measuring 2 cm. ? .2 cm. ? skin deep.

(12) Multiple gunshot wounds in an area of 11 cm. ? 5 cm. on front of left thigh lower part and left knee, each wound measuring .2 cm. ? .2 cm. ? skin deep.

(13) Two gunshot wounds 8 cm. apart from each other, on front of left leg middle, each measuring .2 cm. ? .2 cm. ? skin deep.

Injury of Nanhey:

(1) Gunshot wound .4 cm. ? .2 cm. ? skin deep on the top of left shoulder.

The accused denied the allegations of the prosecution and claimed to be tried. According to them, they had been falsely implicated due to enmity. Subedar stated that there were two parties in the village, one led by Ranveer and the other by Sher Singh, Shyam Behari P.W. 1 belonged to the party of Ranveer Singh and he himself belonged to Sher Singh''s party. Owing to party factions, he was falsely roped in this case. Suraj Pal stated that a dacoity took place at the house of Chhotey Lal and Ranveer Singh got him implicated falsely due to enmity. Ram Bhajan also claimed false implication owing to party factions.

Besides relying on documentary evidence, the prosecution in all examined seven witnesses including the Doctors and Investigating Officer. The material witnesses were Shyam Behari P.W. 1, injured Om Prakash P.W. 2 and Sri Krishna P.W. 3.

The accused-Appellants did not adduce any evidence in defence.

The submission of learned Counsel for the accused-Appellants is that there was no motive on the part of the accused-Appellants to commit this crime and that the witnesses examined by the prosecution were not reliable to warrant their conviction. We propose to examine the worth of these submissions in the discussion that follows.

So far as the question of motive is concerned, it is not evidence in a case. Moreover, motive is the hidden spring of human action and is exclusively known to the accused. The prosecution can only place on record the sequence of happening and the facts known to it. It is also well-settled that motive becomes insignificant when there is direct evidence of the commission of a crime by the particular accused. Learned Counsel for the accused-Appellants has urged that the accused could have no motive to commit the murder of Morsri, inasmuch as, according to the earliest version of the prosecution related in the F.I.R. and as per the evidence adduced in the Court, they (accused) had demanded the gun of Ram Swaroop and had commanded it to be given to them. According to the learned Counsel, it indicated that their intention was to commit robbery/dacoity and not murder. It appears to us that the prosecution has truthfully placed on record as to what was shouted by the accused at the scene of occurrence. But mere demand of gun of Ram Swaroop does not detract from their intention of committing murder.

It has been admitted by Shyam Behari P.W. 1 in his cross-examination that about seven years back Ram Swaroop was an accused in the case of kidnapping or abduction of a lady. He also admitted that Ram Swaroop was holder of a licensed gun. May be that the accused-Appellants had some grudge against Ram Swaroop in that connection and commanded the inmates of the houses to hand over his gun to them.

Morsri alias Meera aged about 11 years daughter of Chhotey Lal was an innocent child. Several shots were fired by the accused. Morsri died of gunshot injuries and a number of gunshot injuries were inflicted on others also, namely, Sumilla, Om Prakash P.W. 2 and Nanhey. Besides that, the blunt weapon (lathi) injury was inflicted on the person of Smt. Katori Devi. It bears testimony to the effect that the accused-Appellants were adamant to kill all the inmates of the family. It was just by providence because of the arrival of the witnesses and pressure built up by them, that they had to retreat, but before doing that they had caused extreme damage by committing murder of one person and inflicting injuries on four others. They are liable and answerable for the offences committed by them and cannot get away by raising the technical plea that there was no motive or intention on their part to commit murder. We, therefore, reject this first argument advanced from the side of the accused-Appellants.

Learned Counsel for the accused-Appellants then tried to castigate the testimony of the eye-witnesses on the premise of the alleged non-availability of light. We have carefully scrutinized the evidence in this behalf and we firmly endorse the finding of the learned trial court that there was sufficient light to facilitate the witnesses to identify the accused-Appellants. We have emphatic testimony of Shyam Behari P.W. 1 and Om Prakash P.W. 2, injured that a dibbi (small lamp) was glowing inside the house of Chhotey Lal. That apart, Shyam Behari P.W. 1 as well as Om Prakash P.W. 2 had flashing torches in their hands, illuminating the scene. The torch light did facilitate them to recognise the Appellants.

It has also come in the testimony of Shyam Behari P.W. 1 and Om Prakash P.W. 2 that the accused were also flashing their torches. Indeed, they could not commit the operation in pitched darkness. There is not the slightest doubt that there was sufficient light to facilitate the recognition of the accused-Appellants by the witnesses who were known to them from before.

The third witness, namely, Sri Krishna P.W. 3 (whose name also finds place in the F.I.R.) had seen and recognised the accused-Appellants coming out from the house of Chhotey Lal. He, too, had a torch. He had come out of his house on hearing the hue and cry from the houses of Chhotey Lal and Ram Ratan as also the sound of firing. With the lathi and torch he had stood by the side of the wall of Niranjan in the northern side of the house of Chhotey Lal at a distance of 10-12 paces only.

All the three witnesses correctly described the weapons also of the accused-Appellants. They were subjected to searching cross-examination which they faced boldly and nothing could come out to shake their testimony as to the availability of light which facilitated them in identifying the accused-Appellants as the participants of this crime.

Another ground advanced by the learned Counsel for the accused-Appellants to assail the testimony of the eye-witness is that according to them, only three shots had been fired by the accused-Appellants, whereas the gunshot injuries sustained by Morsri deceased, Sumilla, Om Prakash and Nanhey, taken together, were much more which could not be possible by three shots only. In our opinion, the argument proceeds on a superficial approach of the matter. It is beyond question that the deceased and the above named three injured received gunshot injuries attributed to the firing resorted to by the present three accused-Appellants. It being so, the number of actual shots fired by them is insignificant. The Supreme Court has held in the case of Lula Ram (D) through Duli Chand v. State of Haryana, JT 1999 (6) SC 274, that the number of shots is immaterial in a case of shooting. Contradiction in this regard does not travel to the root of the nature of offence. Moreover, it should also be pointed out that out of eight gunshot injuries received by the deceased Morsri as recorded in her post-mortem report reproduced earlier, four were on the facial region and the rest were on right upper arm, chest, abdomen and left shoulder. Dr. J. N. Bhargawa P.W. 7 (who conducted autopsy) was asked in his cross-examination as to whether her injuries could be the result of two shots. He could not say anything in this behalf definitely. But, as we said, it is inconsequential whether she was hit by one shot or two shots. True, the evidence of Shyam Behari P.W. 1 and Om Prakash P.W. 2 was that the accused-Appellants had opened three shots. It is there in the testimony of Shyam Behari P.W. 1 that the shots so fired by them had hit Om Prakash, Sumilla, Nanhey and Morsri. Om Prakash P.W. 2 stated that the shot fired by Subedar hit him whereas the shot opened by Suraj Pal alias Sarju hit his mother and brother Nanhey. According to him, Morsri had been hit by the shot fired by Ram Bhajan. It is also there in the testimony of Om Prakash P.W. 2 and Sri Krishna P.W. 3 that they had fired two more shots while leaving the spot. Indeed, in an incident of shooting like the present one, it cannot be expected of the witnesses to specifically fix up in their memory as to whose shots hit whom and how many shots were received by a particular victim. It is not at all possible to doubt the prosecution case on the premise of number of shots received by each of the victims and by all of them cumulatively. All the accused-Appellants resorted to shooting as a result of which one girl aged about 11 years died and other three received gunshot injuries, whereas fourth injured received blunt weapon injury at the hand of their unknown companion armed with lathi.

We have carefully scrutinized the testimony of eye-witnesses and the same is found inspiring judicial confidence. Out of the three witnesses, Om Prakash P.W. 2 is himself an injured whose testimony is entitled to great weight. Presence of other two eye-witnesses, namely, Shyam Behari P.W. 1 (informant) and Sri Krishna P.W. 3 (who saw the accused-Appellants and their fourth unknown companion coming out of the house of Chhotey Lal and running) was also most natural. The house of Chhotey Lal was adjacent in the western side to that of Shyam Behari P.W. 1. Chhotey Lal being his brother, it was most natural that he (Shyam Behari P.W. 1), on hearing hue and cry from the houses of Chhotey Lal and Ram Ratan rushed to the scene with lathi and torch. Ram Swaroop and Ram Ratan are real brothers, being sons of Phuttu Lal and their houses were just adjacent in the west to that of Chhotey Lal. Ram Swaroop and Ram Ratan are also brothers of Shyam Behari P.W. 1. Sri Krishna P.W. 3 was also the immediate neighbour, his house being just two houses away from that of Chhotey Lal. He woke up on hearing hue and cry from the houses of Chhotey Lal and Ram Ratan and the sound of three shots. Raising shouts, with lathi and torch he rushed towards the scene and stood by the side of the wall of Niranjan, 10 or 12 paces in the north of the house of Chhotey Lal wherefrom he saw the three accused-Appellants (whom he has named with their weapons) and their fourth unknown companion armed with lathi coming out of the house of Chhotey Lal and running towards the western side, opening two shots. Om Prakash P.W. 2 is the son of Ram Ratan. Chhotey Lal is his uncle. On the day of incident, his father as well as Ram Swaroop were not present at the house and had gone out. On hearing shouts from the house of Chhotey Lal, he himself, his mother and brother Nanhey had awaken. He had flashed torch towards Chhotey Lal''s house where his uncle Shyam Behari P.W. 1 had also reached with lathi and torch.

There is no manner to doubt the place of incident also. It deserves mention that blood stained earth had been found at the spot. The Investigating Officer had also recovered 29 pellets from near the dead body of the deceased girl. Two empties of cartridges were also found by him at the spot.

The stock plea of false implication owing to party factions does not carry conviction at all. Groupism on caste lines or because of party politics is the normal feature of rural life but it does not mean that one would falsely implicate his opponents in serious offences. In the present case, there is no evidence to this effect either that the prosecution witnesses and the accused-Appellants belonged to opponent groups or factions.

As a matter of fact, there is no reason for the false implication of the accused-Appellants. The F.I.R. was lodged without any delay. The names of the eye-witnesses find place therein. Out of the three eye-witnesses, one is himself the injured and inmate of the house where the incident occurred. The other two are also most natural witnesses of the incident. There was no attempt of any concoction on the part of the prosecution and it is clear from this fact that Shri Krishna P.W. 3 did not claim himself to be the witness of the actual incident. He deposed only about what happened before his eyes, i.e., the three accused-Appellants and their fourth unknown companion coming out of the house of Chhotey Lal and fleeing towards the western side, firing two shots. Had there been any malice on the part of the prosecution against the accused-Appellants, he, too, could pose to be the witness of the actual incident. Nothing of the kind was done. The deceased and three injured sustained injuries of firearms used by the accused-Appellants. The fourth injured sustained lathi injury. It would be recalled that the lathi was wielded by the fourth unknown companion of the accused-Appellants. To say shortly, the medical evidence is in conformity with ocular version. The three accused-Appellants were acting in concert with their fourth unknown companion with previous meeting of minds.

To come to a close, we do not find any merit in the arguments advanced by the learned Counsel for the accused-Appellants in support of the appeal. The accused-Appellants had rightly been convicted and sentenced for the various offences committed by them.

We hereby dismiss the appeal. The accused-Appellants are on bail. The Chief Judicial Magistrate, Bareilly, shall cause them to be arrested and sent to jail to serve out the sentences imposed upon them by the trial court. He shall report compliance within two months from the date of receipt of a copy of this order.