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PETITIONER: OM PRAKASH AND OTHERS

       Vs.

RESPONDENT: STATE OF UTTER PRADESH

DATE OF JUDGMENT11/03/1983

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) TULZAPURKAR, V.D.

CITATION:  1983 AIR  431            1983 SCR  (2) 564  1983 SCC  (2) 358        1983 SCALE  (1)245

ACT:      Code  of   Criminal  Procedure  1973-Section  157-First Information Report:-  Time  of  despatch-Whether  should  be noted in it.      Penal  Code-Section   396-Muder  and  dacoity-Evidence- Appreciation of.      The deceased was the Pradhan of his village. There were feuds of  various kinds  and political rivalries between the party of the deceased on the one hand and the accused on the other and a number of cases were pending before the Courts.

HEADNOTE:      The prosecution  case against  the accused  was that on the night  of the occurrence, which was a moonlit night, the deceased was sleeping in the western room of his house while his wife  and children  were sleeping  in the  eastern room, between the two of which there was a barotha. In the room in which the  wife was  sleeping there  was a  lighted  lantern hanging from  a peg on the eastern wall of that room about 6 feet high  from the  floor. P.W.8. the brother-in-law of the deceased was  sleeping in  a tin shed situate to the west of the western  room. Sometime  late in  the night the deceased and his  wife woke  up on hearing some commotion. They found that a  number of  armed men  entered the  eastern room  and started breaking  open the  northern door whereupon the wife of the  deceased raised  the wick of the lantern to see what was happening.  By the time the deceased entered the eastern room the  accused who  were armed  with  pistols  and  other deadly weapons  had entered the room after breaking open the northern door. The 9 accused persons. severely assaulted the deceased who as a result of the injuries fell down dead. The accused also  assaulted the wife of the deceased (P.W.2) and her brother  (P.W. 8)  and ran away with ornaments, cash and clothes. In the meantime, some of the prosecution witnesses, who heard  the commotion  went  towards  the  house  of  the deceased and  saw in  the moon  light the assailants leaving the scene  of occurrence.  The first  information report was lodged by  P.W. 1  in the police station which was six miles away from the village at 6.05 a.m. On that day.      Before the  Sessions Judge  the accused  contended that the dacoity  was committed by an armed gang not known to the prosecution  witnesses   but  that  they  had  been  falsely

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implicated  on  account  of  enmity  between  them  and  the deceased.      The Sessions  Judge found  that the  first  information report had  been lodged  at the  police station  without any inordinate delay or that there was 565 nothing on  record to show that there was any oblique motive for concocting a false story of the occurrence. He, however, doubted the  veracity of the evidence of P.Ws. 1 and 7, that these witnesses could not have had sufficient glimpse of the miscreants to  be able to identify them. He also disbelieved the evidence  of P.W. 8, the brother-in-law of the deceased. He, however,  believed the  evidence  of  the  wife  of  the deceased (P.W.  2) that  she saw the accused in light of the lantern hanging  on the  eastern wall both when they entered her room  as well  as when  they attacked  her  husband  and thereafter carrying  away properties  from  the  house.  The Sessions Judge also accepted the evidence that P.Ws. 2 and 8 were present  in the house at the time of the occurrence and since they  had  received  injuries  at  the  hands  of  the assailants they  could see what had taken place and that the light of  lantern and moon light were sufficient to identify the assailants. He, therefore, acquitted some of the accused and convicted  the appellants  and sentenced them to undergo imprisonment for life.      On appeal  the High Court did not think it safe to rely on any  part of  the evidence  of P.W.  8 but  believed  the evidence of  P.W.  2  on  the  ground  that  she  had  given straight-forward evidence  without an  attempt at making any improvements to  fit it  with the  testimony  of  the  other prosecution  witnesses.   the  High   Court  confirmed   the conviction and sentences awarded to the appellants.      Dismissing the appeals, ^      HELD: There  is no substance in the contention that the first information  report was  ante-timed; nor  is there any requirement in section 157 of the Code of Criminal Procedure that the  first  information  report  should  be  despatched forthwith or  that  the  time  of  despatch  must  be  noted thereon. The Sessions judge found that the first information report had  been lodged  at the  police station  without any inordiate delay  and that no oblique motive for concocting a false story  of the  occurrence  in  the  first  information report had  been established.  If the police had intended to obtain a concocted report, it is more likely that they would have obtained  it from  P.W. 8,  who was in the house at the time of  occurrence than  take it from P.W. 1 who went there on hearing shouts and sounds. [573 B-D; 575 B]      The evidence  on record  shows that  the  formal  first information report was recorded in the police station at the earliest on  the morning of the occurrence, that is, at 6.05 a.m. This  had been  corroborated with  the evidence of P.W. 11, Sub-Inspector  of Police,  who reached the village which is about  6 miles away at 8 a.m. and immediately took up the investigation. [575 B-D; 575 B]      There is  no substance  in the  contention that, having regard to  the size  of the  eastern room  in which the dead body was  found, it  was not  probable that the 9 appellants armed with various weapons could have all been present in it at the  same time.  The room  was sufficiently  big and  the first information  report  stated  that  the  culprits  were moving  in  and  out  of  the  house  at  the  time  of  the occurrence. It  was not  likely that all of them were in the room at 566

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the same  time and it was not improbable that they were seen by P.W.  2 at  different times  during the  occurrence which went on for some time. [575 F-H]      Although the  explanation of  the prosecution  for  its failure to  examine the  doctor  who  attended  the  injured persons was not satisfactory the fact that the witnesses had stated that  they sustained  injuries during  the occurrence was not  disputed. Therefore,  more non-examination  of  the doctor  for  proving  the  injuries  is  not  fatal  to  the prosecution case. [576 C-E]      From the  mere fact  that none of the looted properties had been  recovered from  any of the appellants it could not be said  that they were not the culprits in the case. On the contrary, there  is enough  incriminating  evidence  against them. [576 G-H]      There is  no substance in the contention that there was no sufficient  light in the room to identify the assailants. Though, the  prosecution had  not got the lantern identified by P.W.  2, P.W.11 testified that the lantern was hanging on a peg  on the  eastern wall  of the  room and was in working condition. This  fact was mentioned in the first information report. P.W.2  woke up  on hearing  the noise and raised the wick of the lantern. It was a moon-lit night. All this apart it was  not the  case of  the appellants  that there  was no lantern in  the room  at all.  Nor was it suggested that the night was cloudy and visibility was poor. [577 H; B-F]      The submission that P.W.2 had modulated her evidence to fit in  with the  prosecution case  is not well founded. She had denied  the suggestion  that  unknown  persons  came  to commit decoity  inside the  house and  that she  had falsely implicated the  appellants because  she could  not recognise the real  culprits. She  was undoubtedly in the eastern room which was  the scene  of the  occurrence and  had sufficient opportunity to  recognise the  assailants, who were known to her.  During  the  occurrence  she  herself  sustained  many injuries. [579 D-E]      Merely because  P.W. I  had not  sustained  any  injury during the occurrence and had not mentioned the names of any of the  accused to  the villagers who entered the house soon after the  occurrence, it  is not  possible  to  reject  his evidence altogether. [580 A-B]      The Sessions  Judge erred  in rejecting the evidence of P.Ws. 1  and 7  and the  High Court  erred in  rejecting the evidence of  P.W. 8.  There  is  no  reason  whatsoever  for rejecting the evidence of these witnesses to the extent that their evidence  was corroborated  by the  evidence of P.W. 2 whose evidence  had been  believed by both the courts below. The evidence  of P.Ws.  1, 7  and 8  in so far as it goes to prove the  presence of  the appellants  at the  scene of the occurrence lends assurance to the evidence of P.W.2 that the appellants entered  the  house  and  assaulted  her  husband fatally and  that some  of them  caused injuries  to her and committed decoity.  The  prosecution  had  proved  the  case against the  appellants beyond all reasonable doubt. [580 D- H] 567

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeals Nos. 54 &55 of 1974.      Appeals by  Special leave  from the  Judgment and Order dated the  21st September,  1973 of the Allahabad High Court in Criminal Appeal Nos. 1923 & 1918 of 1969 respectively.

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    Frank Anthony  and K  B. Rohtagi  for the Appellants in Crl. A . 54 of 1974.      Frank Anthony,  S N.  Singh  and  T.N.  Singh  for  the Appellants in Crl. A.No. 55 of 1974      S.M.Jain, H.M.  Singh  and  Dalveer  Bhandari  for  the Respondent in both Appeals.      Devendra  N.   Goburdhan  and   D.  Goburdhan  for  the complainant in both the Appeals.      The Judgment of the Court was delivered by      VARADARAJAN J.  These  appeals  by  special  leave  are directed against the dismissal of Criminal Appeals Nos. 1918 and 1923  of 1963  by a Division Bench of the Allahabad High Court. Those  appeals in  the High  Court were filed against the conviction  of nine  accused persons, Om Prakash (A- 1), Anoop Singh  (A-2), Sheo  Gopal  (A-3),  Raj  Narain  (A-4), Chandra Prakash  (A-6), Mool Chand (A-12), Beni Singh (A-16) Ram Pal  (A-17) and Lajjar Ram alias Raja Ram (A-18)under s. 396 I.P.C. and the sentence of imprisonment for life awarded to them  by the  learned Sessions  Judge, Kanpur  Etawah  at Kanpur in Sessions Trial No. 172 of 1969, in which in all 18 accused persons  were tried.  The trial  Court acquitted the other nine  accused,  Bhoop  Singh  (A-5),  Virendra  (A-7), Ramadhin (A-8), Ranjit (A-9), Chhotay Lal (A-10), Chunni Lal (A-11), Bhanu Prakash (A-13), Dhani Ram (A-14) and Ram Gopal (A-15) in  the alleged  dacoity with  murder at the house of Mauji Lal,Pradhan  in Makhauli  village, at  about 1.A.M. in the night  of 16/17.2.1968.  In that incident Mauji Lal died and his  wife  Ram  Shree  (P.W.2),  Parasuram  (P.W.7)  and P.W.2’s brother  Ram Shankar  (P.W.8)  are  stated  to  have sustained injuries.      The case  of the prosecution was this: There was enmity between the  deceased Pradhan Mauji Lal and his brother Baij Nath (P.W.1)  on one  hand and  the appellants  on the other ever since the 568 deceased Mauji  Lal, fought  an election battle in 1955 with Mauji Lal,  the father  of Om  Prakash  (A-1)  and  Bhagwati Prasad, the  father of  Raj Narain (A-4). There were several cases  between  the  parties.  About  a  month  before  this occurrence, Mauji  Lal  had  reported  by  Exh.  Ka-7  dated 22.1.1968 that  accused persons  Om Prakash  (A-1) and  Sheo Gopal (A-3)  had committed  theft of timber belonging to the village school managed by him. A few days later on 26.1.1968 Mauji  Lal   had  complained   before   the   Sub-Divisional Magistrate,  Ghatampur   that  Mool  Chand  (A-12)  forcibly occupied Gaon  Sabha land.  In 1967 there was rioting in the village, to  which the prosecution party and accused belong. In that  rioting one Ran Sanahi was murdered on one side and Kanwar Lal  was murdered  on the  other side,  and two cases were registered, and Om Prakash (A-1), Sheo Gopal (A-3), Raj Narain (A-4),  Ranjit (A-9),  Chhotay Lal (A-11), Mool Chand (A-12), Bhoop  Singh (A-5), Rampal (A-17), Lajjar Ram (A-18) and other  are accused  in one  case while in the other case the deceased  Mauji Lal  and 14 others including Mauji Lal’s brother Baij  Nath (P.W.1)  are accused and those cases were pending even  on the date of the occurrence in this case. Om Prakash (A-1),  Anoop Singh  (A-2), and Sheo Gopal (A-3) are brothers. Raj Narain (A-4), Bhoop Singh (A-5) Virendra (A-7) and Chandra  Prakash (A-6)  are brothers.  Mool Chand (A-12) and Bhanu  Prakash (A-13)  are brothers,  Beni Singh  (A-16) nephew of Dhani Ram (A-14) and Ram Gopal (A-15), Ram Pal (A- 17) and Lajjar Ram alias Raja Ram (A-18) are cousins.      On the  moon lit-night  of 16/17.2.1968  deceased Mauji Lal who  was Pradhan  of the  village and his wife Ram Shree (P.W.2) and  their children  were sleeping in their house in

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Makhauli village,  Mauji Lal  in the  western kotha and PW 2 and her  children in  the eastern kotha, between which there is a barotha. There was a lighted lantern hanging from a peg at a  height of 6 feet from the floor on the eastern wall of the eastern  kotha. Ram  Shankar (P.W.8)  the brother of Ram Shree (P.W.2)  who was assisting his deceased brother-in-law Mauji Lal  in the cultivation of his lands was sleeping in a tin shed  situate west  of the  western kotha.  The deceased Mauji Lal  and his wife Ram Shree (P.W.2) woke up on hearing some commotion  when the  miscreants who entered the eastern kotha of  the house  were breaking  open the  northern  door P.W.2 raised  the wick  of the  lantern, material  Exh. III, which had  been lowered previously, and there was sufficient light in the kotha for recognising the miscreants. Mauji Lal had come 569 into the  eastern kotha  before its northern door was broken open by  the miscreants. Om Prakash (A.1), Sheo Gopal (A-3), Anoop Singh  (A-2), Raj Narain (A-4), Chandra Prakash (A-3), Mool Chand  (A-12), Beni  Singh (A-16),  Ram Pal  (A-17) and Lajjar Ram  alias Raja  Ram (A-18) entered the eastern kotha after breaking  open the  northern door  with a  kulhari, Om Prakash armed with a pistol and the others armed with Kanta, ballams, kulhari  lathi and  pistol. A Pistol shot was fired through the  opening  in  the  door  before  the  miscreants entered the  eastern kotha.  These nine  accused persons, Om Prakash (A-1),  Anoop Singh  (A-2), Sheo  Gopal  (A-3),  Raj Narain (A-4), Chandra Prakash (A-6), Mool Chand (A-12), Beni Singh (A-16),  Ram Pal  (A-17) and Lajjar Ram alias Raja Ram (A-18) severely  assaulted Mauji Lal who died at the spot as a result of the injuries sustained by him. Sheo Gopal (A-3), Chandra Prakash (A-6), Beni Singh (A-16), Ram Pal (A-17) and Lajjar Ram  alias Raja  Ram (A-18) assaulted P. W.2 severely and ransacked  the house for about 15 or 20 minutes and took away from  that eastern  kotha and  the adjacent box-room of the house  ornaments, cash,  clothes  etc.,  valued  at  Rs. 2,700/-. Ram  Shankar (P.W.8)  who was  sleeping in  the tin shed, as  stated above,  woke up  on hearing  the shouts and sound  of  gun-fire  and  saw  accused  Virendra  (A-7)  and Ramadhin (A-8)  standing near  his cot armed with lathis and they  inflicted   lathi  blows   on  him.  When  he  got  an opportunity, Ram  shankar (P  W.8)  entered  the  house  and concealed himself  by the side wall near the door connecting the eastern  kotha and  the barotha  and witnessed  what was happening inside  the eastern kotha. P.Ws. 2 and 8 could see the miscreants  in the  light of  the lantern  material Exh. III. Baij  Nath (P.W.1), Parasuram (P.W.7) and others of the village woke  up on hearing sound of gun-shot, and proceeded towards the  house of the deceased Mauji Lal and stood under a neem  tree  in  front  of  one  Banwari  Lal’s  house  and concealed themselves  in the  chappra of one Motilal situate east of  the  deceased  Mauji  Lal’s  house.  They  saw  the miscreants when they were departing from the scene, with the moonlight. The miscreants standing on the roof of Sham Lal’s house  earlier  shot  at  Parasuram  (P.W.7)  while  he  was standing in  front of  that house  and he sustained gun shot injuries.      About one  and a  half hours  after the miscreants left the place,  P.W. 1 who went inside the house and found Mauji Lal lying  dead with  injuries and  P.Ws.  2  and  8  having injured, got  the report,  Exh. Ka-1  written by one Shankar Singh. He thereafter proceeded to 570 the Police  Station at  Mooa Nangar  situate six  miles away from the  village, and  handed it over to the Head Constable

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Ram Kishore  Panday (P.W.9).  On the  basis of that report a formal FIR  was registered  at the Police Station at 6.05 AM on 17.2.1968.  Tiwari, the Sub-Inspector of Police (P.W. 11) took up  investigation and  reached the  village at  8 AM on 17.2.1968 when  PW 2 handed over to him a list of properties which had been looted from her house. P.W. 11 found the dead body of  Mauji Lal  in the  eastern kotha  and  the  lantern material Exh.  III hanging from a peg in the eastern wall of the kotha  and boxes broken open and the locks thrown in the verandah.      Autopsy on  the body  of Mauji Lal was conducted by Dr. Sharma (P.W. 3), Civil Surgeon, Kanpur at 2 PM on 18.2.1968. He found  six incised wounds, two lacerated wounds and three abrasions on  the body  of the  deceased. The  left eye  was found black.  The sculpt  bones were  found cut  through and through under  three incised  wounds. The doctor (P.W.3) was of the opinion that the incised wound might have been caused by some  sharp edged  weapons like  kanta and  axe, that the lacerated wounds could have been caused with lathi, that the abrasions might have been caused by coming into contact with some rough  object, that  the blackening of the eye might be due to clotting of blood due to the head injury and that all the injuries together were sufficient in the ordinary course of nature  to cause  instantaneous death.  Ex. Ka-2  is  the post-mortem certificate issued by P.W.3.      The injured  witnesses P.Ws.  2, 7  and 8 were examined between 6  PM and  7.30 PM  on 17.2.1968 by Dr. Mukherjee of Chattarpur Dispensary,  who  could  not  be  examined  as  a prosecution witness on account of difficulty due to his non- availability. The  wound certificates, Exh. Ka 18-20, issued by that  Doctor in  respect of  P.Ws.2, 7  and 8  have  been proved by  the Compounder  Vishamber Nath  (P.W. 13). P.W. 2 had sustained  19 injuries consisting of one lacerated wound on the  left side of the head and a number of contusions and abrasions on  various parts of her body, all caused by blunt weapons. P.W.  7 had sustained six gun-shot injuries. P.W. 8 had sustained  a contusion  on the top of his shoulder joint and an  abrasion on the lower aspect of the right clavicular region, all caused by blunt weapons such as lathis.      That fact  the there was enmity between the two parties and that Mauji lal was murdered and property worth about Rs. 2,700/- from  his house  was  looted  in  the  night  of  16 17.2.1968 and that in 571 that incident  Mauji Lal’s  wife (P.W. 2) and brother-in-law (P.W.8) were  injured and  P.W. 7 who came near the scene of occurrence had  received  six  gun-shot  injuries,  was  not doubted or disputed before the learned Sessions Judge by the learned counsel  for the defence. But all the accused denied in their  statement their  presence and participation in the occurrence. The suggestion made on behalf of the accused was that an  armed gang of dacoits, not known to the prosecution witnesses, committed  the crime  and that  the accused  have been falsely  implicated on  account of  enmity. No  defence witnesses were examined.      The prosecution  examined. PWs  1,2,7  and  8  as  eye- witnesses to speak about the participation of the accused in the occurrence. P.W. 1 implicated all the 18 accused persons as having been present at the time of the occurrence. P.W. 2 implicated only  the nine  appellants, namely  A-1 to 4,6,12 and 16 to 18 as those who entered the house and attacked her and her  husband and  committed dacoity.  P.W. 7, implicated fourteen accused,  namely Anoop  Singh (A-2), Raj Narain (A- 4), Bhoop  Narain (A-5), Chandra Prakash (A-6), Virendra (A- 7), Ramadhin  (A-8), Ranjeet  (A-9), Chhote alias Ram Swarup

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(A-10), Chunni  Lal (A-11), Mool Chand (A-12), Bhanu Prakash (A-13),Dhani Ram  (A-14), Ram Gopal (A-15) and Rampal (A-17) as some  of the  miscreants who were present at the house of P.W. 2. P.W. 8 also implicated these nine appellants besides Virendra (A-7) and Ranjit (A-8).      The learned Sessions Judge found that the FIR (Exh. ka- 1) had  been  lodged  at  the  Police  Station  without  any inordinate delay and that there was nothing on the record to show that  there was  any oblique  motive for  concocting  a false story  of the  occurrence. But  he was  of the opinion that the  evidence  of  P.Ws.  1  and  7  does  not  inspire confidence,  that  it  could  not  be  believed  beyond  all reasonable doubt  that those  two  witnesses  had  seen  the occurrence, that  P.W. 1  would have been fired at if he had been present  at the  chappar as claimed by him and that the probability is  that as soon as P.W. 7 received the six gun- shot injuries  in front  of Narbada’s  house, he  would have either fallen  down there  or returned  to his house. He was further of  the opinion that in any case P.Ws. 1 and 7 could not have had sufficient "glimpse of the miscreants" so as to be able to identify them. He rejected the evidence of P.W. 8 about the participation of Virendra (A-7) and Ramadhin (A-8) in the  occurrence as not inspired sufficient confidence and was of the opinion that the evidence 572 Of P.Ws. 1, 7 and 8 about the participation of the acquitted accused 5,  7 to  11 and  13 to  15 in  the  crime  was  not acceptable. As  regards the  participation of the appellants in the  crime he accepted the evidence of P.Ws. 2 and 8. The evidence of  P.W. 2  is that  she saw  the appellants in the light of the lantern that was hanging in the eastern wall of the eastern kotha as soon as they entered her kotha and also while they  were attacking  her husband and causing injuries to her  and carrying away the properties from the house. The evidence of  P.W. 8  is that he saw Om Prakash (A-1) when he was escaping from the tin shed where he was sleeping earlier to the  western kotha  and that  he saw the other appellants from behind  the door  of the  western kotha  when they were attacking deceased  and P.W.  2 and  looting the  properties from the  house. The  learned Sessions  Judge  accepted  the evidence of  P.Ws. 2 and 8 about their presence in the house at the  time of  the occurrence, and also the fact that they received the  injuries at  the hands  of the  miscreants and could see  what had  taken place in the light of the lantern as well as of the moon. Accordingly, he acquitted accused 5, 7 to  11 and  13 to  15 and  convicted  the  appellants  and sentenced them as mentioned above.      The learned  Judges of  the High  Court agreed with the trial court  in not relying upon the evidence of P.Ws. 1 and 7. They were not prepared to doubt the presence of P.W. 8 in the tin shed of the house of the deceased Mauji Lal and P.W. 2 in  view of  the fact that he has received injuries at the hands of  the miscreants.  But they  found it  difficult  to believe that on finding an opportunity to move away from the tin-shed, he  would have entered the house and taken shelter there when  the miscreants were in the house and beating the deceased and  P.W. 2.  They were  of the opinion that P.W. 8 could   have been  of more  help to  his sister  P.W.  2  by running to the village abadi for help so that on the arrival of the  villagers the  offenders may  run away and not cause undue havoc in the house. P.W. 2 had not mentioned P.W. 8 as one of  the persons  who  came  into  the  kotha  after  the miscreants left the place though, he had mentioned the names of many  other persons who came into the kotha. According to the learned  Judges, P.W. 8 could have seen only some of the

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offenders but  he has intentionally made improvements in his version. For  these reasons  the learned  Judges of the High Court thought  it not  safe to  rely  on  any  part  of  the evidence of  P.W. 8.  But they  were of the opinion that the incident could  have been  witnessed only by P.W. 2. and her children and  that there  is no  substance in  the criticism that independent  witnesses have  not been  called to depose about the  occurrence as  eye-witnesses. They  were  of  the opinion that P.W.2 573 has given  straight-forward evidence  without any attempt at making any  improvement to  fit in with the testimony of the other prosecution  witnesses. They  accepted the evidence of P.W. 2  as wholly  reliable and confirmed the convictions of the  appellants   and  the  sentence  awarded  to  them  and dismissed the appeals.      The learned  counsel for  the appellants submitted that the F.I.R. Exh. Ka-1 is ante-timed. He drew our attention to section 157  of the Code of Criminal Procedure and submitted that the  time of despatch of Exh. Ka-1 is not entered there on. Section  157 only  states  that  the  first  information report should  be despatched forthwith and does not say that the time  of despatch  must be  noted thereon.  The  learned Sessions Judge  has observed  in his  judgment that Exh Ka-1 seems to  have been lodged at the Police Station without any inordinate dely  and that there is nothing on record to show that there  was any  oblique motive  for concocting  a false story of  the occurrence  itself in  that first  information report. The  learned counsel  for the appellants invited our attention  to  the  evidence  of  Shiv  Poojan  Tiwari  Sub- Inspector  of  Moosa  Nagar  Police  Station  who  had  been examined as  C.W. 1.  The evidence of CW. 1 is that while he was raiding  Numain Purwa  village in  a murder  case of his Police Station  at about  2.00 A.M. in the night of 16/17-2- 1968 he heard noise coming from the side of Makhauli village situate 3 miles north of Numain Purwa village and went there along with  some armed  police guard  at about 4.00 A.M. and was informed  that Mauji  Lal had been murdered in his house and property  had been  looted from his house by dacoits and that his  brother and  certain other persons had gone to the police station for lodging a report. He has also stated that he went  to the  house of  Mauji Lal and found his dead body lying inside  the house  and that  he stayed  in the village until the  Sub Inspector  of the  Police  Station  concerned (P.W. 11) arrived at the spot and started investigation. The learned counsel for the appellants commented on the basis of the evidence  of C.W.  1 that  he had not noted the names of the assailants in the general diary entry made by him in his police station  that the  names of  the 18 accused including those of  the appellants  have been  mentioned in  the first information report  Exh. Ka-1  only as an after thought. The relevant portion  of Exh.  Ka-1 may be extracted in order to appreciate the  contention of  the learned  counsel for  the appellants. P.W.  1 the  author of exhibit Ka 1 who does not claim to  have seen  the incident  which took  place in  the eastern kotha  of the  house of  the deceased  has stated in that report thus :- 574           "Today my  brother Mauji  Lal was  sleeping inside      his house  in the night as usual. A lantern was burning      in the  house. Smt.  Ram Shree (P.W. 2) was also inside      the house.  Shri Ram  Shankar s/o Manni Lal (P.W.8) was      sleeping under  the tin-shed.  In the night intervening      between 16th  and 17th  of February 1968, at about 1.00      O’ clock,  the accused persons, having armed themselves

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    with kantas,  ballams, lathis,  axes, guns  and pistols      came and  surrounded the house of my brother Mauji Lal.      They cut  open the  door and  entered the  house.  They      inflicted injuries upon my brother Mauji Lal and caused      his instantaneous  death. They  also caused injuries to      my bhabhi. My bhabhi raised alarm. Ram Shankar was also      assaulted with lathis. He too, raised alarm. On hearing      the shouts  and the  sounds of  guns and  pistols I and      Prasu Ram  s/o Hira Lal (P.W. 7), Ram Adhar, Ram Kumar,      Ram Prasad  Sachan, Banwari  Lal s/o Ram Lal, residents      of my  village, Beta  Lal  Sachan  of  Damodarpur,  and      several  other  persons,  reached  the  spot,  saw  the      occurrence, and  challanged the  accused persons.  They      recognised them  in the  light of the moon. My bhabhiji      and  Ram  Shankar  have  also  recognised  the  accused      persons in  the light  of the  moon and lantern. Parasu      Ram has  also received  injuries from  the shots of the      gun. There  are several  injuries on  the person  of my      brother. After  committing  the  assault,  the  accused      persons looted  away the  articles kept in the boxes in      the house, ornaments, clothes and cash etc. The accused      persons kept coming and going outside inside and on the      roof. Out  of the accused persons, Anup Singh was armed      with an  axe, Dr.  Om Prakash with a pistol, Raj Narian      and Mool  Chand with  kantas, Ram  Gopal and  Dhani Ram      with guns  and Bhoop  Narain and  Ranjeet with ballams.      The remaining persons were armed with lathis."      The actual  part played by either any of the appellants or any  of the  acquitted accused  has not been mentioned in this report.  It must  be remembered in this connection that while P.W.  1 has named all the 18 accused mentioned in Exh. Ka-1. P.W.  2 has  named only  the 9  appellants, P.W. 7 has named the  9 appellants  as also  accused 7 and 8 and P.W. 8 has named 14 accused persons. If Exh. Ka-1 was ante-timed as submitted by  the learned  counsel for  the appellants it is not probable that the police would have obtained that report from 575 P.W. 1  who was  not one  of the  residents of  the house of Mauji Lal  where the  occurrence had  taken  place  but  was admittedly living  in his own house situate at some distance from the  house of the deceased and was admittedly attracted to the  scene of occurrence only by shouts and the sounds of guns and  pistols. If  the police  had intended  to obtain a concocted first  information report  it is not probable that instead of obtaining it from P.W. 8 who was indisputably one of the  residents of  the house  in which the occurrence had taken place  they would  have obtained  it from  P.W. 1. The evidence shows  that on  the basis of this first information report a  formal F.I.R.  was recorded  to the Police Station situate six  miles away from the scene of occurrence at 6.05 A.M. on  17.2.1968. The  evidence of  P.W. 1 is that he left for the  police station  about 1  or 11/2  hours  after  the culprits left the place and gave the report which he had got written by  one Shankar  Singh. The Sub-Inspector of Police, P.W. 11 has stated that he thereafter took up investigations of the  case and  reached the village at 8.00 A.M. and found the dead body of Mauji Lal in the eastern kotha and obtained a list  of the  looted properties  from  P.W.  2.  In  these circumstances we  are of  the opinion that the submission of the learned  counsel  for  the  appellants  that  the  first information report  Exh. Ka-1  is  ante-timed  is  not  well founded.      The learned  counsel for  the appellants next submitted that having  regard to  the size of the eastern kotha of the

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house of  the deceased  it is  not  probable  that  these  9 appellants with  arms such  as guns, pistols, axe and lathis could have  been in  the kotha  together at the same time at the time  of the  occurrence. The evidence of P.W. 2 is that the kotha  is 19  or 20 cubits north-south, 41/2 cubits east west and  10’ in  height The  evidence of P.W. 11 shows that the eastern  kotha is  7 1/2, in height. It is stated in the first information  report Exh.  Ka-1 that  the culprits were moving in  and out  of the house of the deceased at the time of the  occurrence. Therefore, it is quite not unlikely that all the  9 appellants were in the eastern kotha of the house at the  same time  and  it  is  not  improbable  that  these appellants were seen by P.W. 2 at different times during the occurrence which  must have  gone on for some length of time during which P.W. 2 has received as many as 19 injuries. The deceased and  P.W. 8  also received injuries, and P.W. 7 who was near  about the house of the deceased at the time of the occurrence has also received as many as 6 gun shot injuries. In these  circumstances we  are  of  the  opinion  that  the submission of  the learned  counsel for  the appellants that having regard  to the  size of  the eastern  kotha it is not probable that 576 the appellants  armed with  various weapons  could not  have been present in that kotha is not acceptable.      The learned  counsel for  the appellants next submitted that Dr.  Mukherjee who  was in charge of the Primary Health Centre, Ghatampur  on 17-2-1968  and had examined P. Ws. 2,7 and 8 on that day and issued the wound certificates Exh. Ka- 18 to  Ka-20, has  not  been  examined  and  that  only  the compounder of  that Primary  Health Centre, P.W. 13 has been called to  prove those certificates. The reason given by the prosecution for the non-examination of Dr. Mukherjee is that he was  not available  and could  not  be  examined  without difficulty. The  explanation for  the non-examination of Dr. Mukherjee is  no doubt  not quite  satisfactory. The learned Public Prosecutor  should have  taken steps  to procure  the attendance of  Dr. Mukherjee  for giving  evidence about the injuries noted  by him  as per  Exh. Ka-18  to Ka-20  on the persons of  P.Ws. 2,7  and 8.  But the fact that these three witnesses had  sustained injuries  during the  occurrence in this case was not and could not be disputed. Those witnesses have stated  in their  evidence that they sustained injuries during the occurrence. Therefore, the non-examination of Dr. Mukherjee for  proving the  injuries noticed  by him  on the bodies of  P.Ws. 2,  7 and  8 as  per the wound certificates Exh. Ka-18 to Ka-20 is not fatal to the prosecution.      The learned  counsel for  the appellants next submitted that no property out of the properties looted from the house of the  deceased and  P,W. 2  has been recovered from any of the appellants  and that it is, therefore, not probable that any of  these appellants  was responsible for the occurrence in this  case. But,  as stated  earlier, the fact that Mauji Lal was  murdered and  property from his house was looted on the night of 16/17-2-1968 and in that occurrence Mauji Lal’s wife P.W.  2 and  his brother-in-law  P.W, 8 were injured in the house  and P.W.  7 sustained 6 gun shot injuries when he was standing  near the  scene of  occurrence  had  not  been disputed before  the learned  Sessions Judge  by the learned counsel for the defendants. The suggestion made on behalf of the accused  was that  an  unknown  armed  gang  of  dacoits committed the  crime and  that the accused have been falsely implicated in  this case on account of enmity. Having regard to the  availability of other incriminating evidence against the appellants, it is not possible to agree with the learned

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counsel for the appellants that from the mere fact that none of the  looted properties has been recovered from any of the appellants it  could be held that the appellants are not the culprits in this case. 577      The learned  counsel for  the appellants next submitted that the  lantern material  Exh. III  has not been put to or identified by  P.W. 2  as the  one which  was burning in the eastern kotha  at the  time of the occurrence. Here again it is unfortunate  that the  learned Public  Prosecutor has not got the  lantern identified  by P.W. 2. But Sub-Inspector of Police P.W. 11 who had seized that lantern has stated in his evidence that  it was  found hanging on a peg on the eastern wall of  the eastern  kotha of the house of the deceased and P.W. 2 and that it was in working condition. The presence of the lantern  in  the  eastern  kotha  at  the  time  of  the occurrence as  well as  of moon  light at  the time  of  the occurrence has  been  mentioned  in  the  first  information report Exh.  Ka-1 by P.W. 1 who is a brother of the deceased Mauji Lal  and a  resident of  the same village and could be naturally expected  to have  gone  into  the  house  of  the deceased soon  after the culprits left the place. P.W. 2 has stated in  her evidence  that it  was moon-lit night and the lantern was  burying in  the eastern kotha where it had been hung on a peg fixed at a height of 6’ from the ground on the eastern wall  and that  when she  heard the  sound  of  some persons in  the court-yard she got up immediately and raised the wick  of the  lantern which  was until  then giving  dim light. She  has stated  in her  cross-examination  that  the lantern used  to be  hung daily  on the same peg, that there was no  blackness on  the wall near the peg and that she had scratched it  off about  8 days  prior to  the date  of  her examination in  the Court. It is significant to note that it has not  been suggested  to P.W. 2 that there was no lantern at all  in the  room in  which she  was  sleeping  with  her children and  that her husband Mauji Lal whose dead body was found by  the Sub-Inspector  P.W. 11  in that  kotha had not come to  that kotha at all. It is seen from the almanac that the night of 16/17.2.1968 was the third night after the full moon and  that the  moon arose at Delhi at 8.43 P.M. on that day. It  has not  been suggested  to P.M. 2 or P.W. 7 or any other witness examined by the prosecution that the night was cloudy and visibility was poor for that or any other reason. It is  not improbable  that the  lantern was  burning in the eastern kotha  where P.W.  2 and  her children were sleeping during the  night and that P.W. 2 had raised the wick of the lantern when  she heard  some commotion in the court-yard of her house before the culprits broke open the eastern door of her kotha  and entered  the same. Therefore, there must have been sufficient  light in  the eastern  kotha for  P.W. 2 to note the  presence of  the appellants who belong to the same village and  were not  strangers and for P.W. 8 also to note the presence of the culprits. 578 There was sufficient moon light for P.W. 1 and P.W. 7 to see the culprits  who are  stated to have been moving in and out of the deceased and P.W. 2 during the occurrence. Therefore, it could  not be  stated that  P.Ws 1,  2, 7 and 8 could not have been in a position to identify any of the culprits.      The learned  counsel for  the  appellants  invited  our attention to  the fact  that the  learned Sessions Judge has disbelieved the  evidence of  P. Ws  1 and 7 and the learned Judges of  the High Court have not relied on the evidence of P.W. 8  and submitted that P.W. 2 has modulated her evidence to fit in with the case of prosecution and that the evidence

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of P.W.  2 should  not, therefore, be relied upon for basing the conviction of the appellants in this case. We were taken through the  evidence of  P.W. 2  by the learned counsel for the  appellants,   and  we  are  of  the  opinion  that  the submission that  P.W. 2 has modulated her evidence to fit in with the case of the prosecution is not well founded. P.W. 2 has stated thus in her evidence :-      "Raj Narain  (A-4), Om Parkash (A-1), Mool Chand (A-6),      Anup Singh (A-3), Ram Pal (A-7), Beni Singh (A-9), Raja      Ram (A-8),  Shiv Gopal  (A-2) and Chandra Prakash (A-5)      cut the  northern door  of my Kotha with small hatchets      and immediately came in my kotha. I saw and indentified      them in  the light of lantern. I know them from before.      All of  them were  armed with kanta and spears etc. Out      of them  Rampal (A-7), Beni Singh (A-9), Lajjar Ram (A-      8),  Shiv   Gopal  (A-2)   and  Chandra  Prakash  (A-5)      assaulted me  with  lathis  as  a  result  of  which  I      received several  injuries. My  husband Mauji  Lal  had      come in  my kotha  before the  entery  of  the  accused      persons. The  aforesaid  accused  persons  carried  out      brutal assault on Mauji Lal with lathis, small hatchets      and kanta  so much  so that  he expired. My brother Ram      Shankar (P.W.  8) was sleeping in a verandah having the      tin-shed. Some  persons had reached there as well. They      were assaulting him. His voice was audible at my kotha.      The nine  accused persons  who  entered  my  kotha  had      started looting  my articles  and they  looted  several      ornaments and  clothes belonging  to me.  After  having      stayed for  about 15-20 minutes inside the house of the      accused persons  went away outside through the northern      door of my kotha. During the mur- 579      der and  loot I  did not hear any alarm from the maidan      outside from  the  atari  on  the  upper  storey.  Some      accused person  fired a  gunshot also  inside my  kotha      from a  hole of  the door  before cutting the same. The      pellet of  that shot hit the wall but it did not hit me      or my  husband. Om  Prakash (A-1)  had a  pistol in his      hand.      *    *    *    *    *    *    *    *           A sufficiently  loud noise came out as a result of      firing shots  with a  gun and a pistol.......... 2 or 3      minutes after  the accused  persons went away, My Dewar      (husband’s brother)  Baijnath (P.W.1)  came in my kotha      first of  all and  along with  him Ramadhar, Ram Kumar,      Banwari and Parasuram (P.W. 7) also came".      P.W.2 has  denied the  suggestion that  unknown persons came to  commit dacoity  inside the  house and  that she has falsely implicated  the appellants  because  she  could  not recognise the  real culprits.  We  do  not  see  any  reason whatsoever for  not accepting  the  evidence  of  P.W.2  who undoubtedly was  in the eastern kotha where the main part of the occurrence  has taken place and must have had sufficient opportunity to indentify, with the help of the lantern which was burning, the appellants who were previously known to her and not  strangers and  she  has  received  as  many  as  19 injuries during  the course of the occurrence which had gone on for about 15-20 minutes.      The noise  created during  the occurrence had attracted the attention  of the  Sub-Inspector  of  police  C.W.1  who belonged to  some other  police station  and was  in another village situate a couple of miles away from the one in which the scene  of occurrence  is situate.  It is, therefore, not improbable that  P.Ws. 1,7  and others had got up on hearing the noise  and that  P.W.1 had moved near about the house of

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his brother Mauji Lal where the occurrence was taking place. P.W. 1  has named all the 18 accused in his evidence as well as in the first information report Exh. Ka-1 given by him at the police  station at  about 6.05  A.M  on  17.2.1968.  The suggestion made  to P.W.1  in cross  examination is  that as soon as  Parsuram  (P.W.7)  received  injuries  they  became afraid and  did not  advance ahead and that he did not reach the spot and did not see the occurrence with his own eye. He had  emphatically   denied  that   suggestion.  The  learned Sessions Judge  has rejected  the evidence  of P.W. 1 mainly because he had not mentioned the name of 580 any of  the accused  to any of the villagers who entered the house of  the deceased  soon after  the miscreants  left the place and  also because  he has not sustained any injury and he would  not have  been left  unharmed by the accused if he was anywhere  near the  scene of  occurrence. Merely because P.W.1 had not sustained any injury during the occurrence and had not  mentioned the  name of  any of the accused to other villagers who  entered the  house of the deceased soon after the culprits left the place it is not possible to reject the evidence of P.W.1 altogether.      The learned  Sessions Judge disbelieved the evidence of P.W.7 having regard to the fact that it is admitted by P.W.1 that P.W.7 belonged to the party of the deceased and that it was "doubtful"  whether P.W.7  could have  had a  sufficient "glimpse" of  the miscreants  so as  to be  in a position to identify  them.  The  learned  Sessions  Judge  has  further observed that  as soon  as P.W.7  received the  six gun shot injuries in  front of  Narbada’s house  he would have either fallen down  there or  returned  to  his  house.  There  was sufficient moon  light at  the time of the occurrence and it is not  improbable that  P.W.7 who had undoubtedly come near the scene  of occurrence would have seen any of the culprits and could  not identify  them. Therefore, it is not possible to agree  with the  learned Sessions  Judge that no reliance could be  placed on  the evidence  of P.Ws.  1  and  7.  The learned judges  of the  High Court  have observed  in  their judgement that  P.W. 8  who was  undoubtedly present  in the house in  the tin-shed  at the  time of the occurrence could have seen  some of the offenders and that his evidence could not  be  relied  upon  because  he  has  intentionally  made improvements in  his version about the occurrence. They have also observed  that P.W.8 would have helped his sister P.W.2 better if  he had  run into  the abadi  and  informed  other villagers. We  are of  the opinion that the reasons given by the learned  Judges of  the High  Court  for  rejecting  the evidence of  P.W.8 altogether  are not  convincing.  We  are further of  the opinion  that there  is no reason whatsoever for rejecting  the evidence  of P.W.s.  1, 7  and 8  of whom P.Ws.7 and  8 are injured witnesses to the extent that their evidence is  corroborated by  the evidence of P.W. 2 who has been believed  by not  only the  learned Sessions  Judge but also by  the learned  Judges of the High Court. The evidence of P.Ws.  1, 7  and 8  in so  far as  it goes  to prove  the presence of  the appellants  lends assurance to the evidence of  P.W.  2  that  the  appellants  entered  the  house  and assaulted her  husband fatally  and that some of them caused injuries to  her and committed dacoity by looting properties worth about Rs 2,700/-from her house. 581      Thus on  consideration of  the evidence of P.W.2 and of P.Ws.1, 7  and 8  to the  extent that  it is corroborated by evidence of  P.W.2 and  the other circumstances of the case, namely that  the door  of the  eastern kotha of the house of

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the deceased  was found  broken open,  that the dead body of Mauji Lal  was found lying in the eastern kotha of the house and that  the boxes had been found broken open and the locks were found lying nearby in the verandah of the house, we are of the  opinion that prosecution has proved the case against the appellants  satisfactorily  and  beyond  all  reasonable doubt and  that the  conviction of  the appellants  for  the offence under section 396 I.P.C. and the sentence awarded to them by  the learned  Sessions Judge  and confirmed  by  the learned Judges of the High Court are correct. We accordingly confirm the conviction and sentence and dismiss the appeals. P.B.R.                                    Appeals dismissed. 582