Vijay Lakshmi, J.
1. This criminal appeal is directed against the judgment and order dated 8.4.1983 passed by learned III Additional Sessions Judge, Muzaffarnagar in Session Trial No. 328 of 1979 convicting the appellants and sentencing them to life imprisonment u/s 302/34 I.P.C. Accused Appellant Bedu @ Ved Prakash died during pendency of appeal, hence vide order dated 16.5.2012 the appeal of Bedu @ Ved Prakash got abated. The appeal of Nepal Singh only survives which is before us.
2. We have heard learned Counsel for the appellant-Nepal Singh and learned A.G.A. on behalf of the State.
3. The appellant has questioned the correctness of the impugned judgment averring that the conviction being against the weight of evidence on record, is contrary to law and the sentence being too severe is also bad in law.
4. For the purpose of consideration of rival contentions urged in this appeal and with a view to find out whether this Court is required to interfere with the impugned judgment of the learned Lower Court, the necessary facts as unfolded during trial are briefly stated hereunder:
On 24.5.1979 at 12.30 p.m. an F.I.R. was lodged at the Police Station Thana Bhawan, Muzaffarnagar, by the informant Mustakeem mentioning therein that there is a cloth shop in partnership of Ram Gopal and his brother Meharban in the main market of Qasba Thana Bhawan, District Muzaffarnagar. Mustakeem often used to sit on that cloth shop in the absence of Ram Gopal and Meharban on behalf of his brother. On 24.5.1979 at about mid-day when Mustakeem was sitting at this shop, Harpal and Bhagmal came to the shop to purchase cloth. While they were selecting the cloth, Meharban, Mamchand, Sardara and Om Prakash (the deceased victim) also arrived at the shop. At that time, accused Nepal and Bedu along-with two others all armed with pistols reached there. Nepal and Bedu dragged out Om Prakash from the shop and in no time they opened fires on Om Prakash with their pistols. Receiving the gun shots, Om Prakas
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h fell down on the ground. In the meantime accused Tek Chand, (who was one among the two unnamed accused) also opened a fire on Om Prakash. After that all the assailants ran away towards the market. The witnesses and public which had gathered there hearing the noise, gave them a chase. During the course of chase, the fourth accused opened fire towards the chasing crowd which injured one Jagpal, who was also chasing the accused persons. At the spur of moment Constable Veer Singh and Constable Rajendra Singh who were coming from the opposite side arrested one of the accused namely Tek Chand at a distance of 50 paces from the place of occurrence. The other three accused persons made their escape good. A country made pistol-Ext. 1 and two cartridges-Ext. 2 and Ext. 3 were recovered from Tek Chand. Om Prakash being badly injured by gun shots died on the spot. The written report of the occurrence-Ext. Ka. 2 was prepared and was given at the police station on the basis of which the case was registered at G.D. No. 16 on 24.5.1979. S.I. Ashutosh Gautam-P.W.-6 went on the spot and prepared the inquest report Ext. Ka 5 and other connected police papers. The injured Jagpal also arrived at the police station and he was medically examined on 24.5.1979 at 3.30 p.m. by Dr. Akhtar Ali-P.W. 5. The investigation was assigned to S.I. D.S. Tyagi P.W.-8 on 28.5.1979 who after conclusion of investigation submitted charge-sheets Ext. Ka. 11 against four accused persons Nepal Singh, Bedu, Tekchand and Jaipal under sections 302 and 307 of I.P.C. and another charge-sheet Ext. Ka. 20 u/s 25 Arms Act against accused Tek Chand only. Later on accused Jaipal absconded so his trial was separated from rest of the accused persons vide order dated 15.1.1982 of Sessions Court. The case being exclusively triable by the Court of Sessions, it was committed to the Court of Sessions Court for trial.
5. Before the Court of Sessions the prosecution in order to prove its case produced 11 witnesses in all, out of which 4 witnesses P.W.-1, P.W.-3, P.W.-4 and P.W.-8 were witnesses of fact and the rest were of formal nature. The brief description of the witnesses is as follows:--
1. P.W. 1 Dr. S.C. Gupta - who conducted the post-mortem.
2. P.W. 2 Mustkeem - informant/eye-witness.
3. P.W. 3 Harpal - eye-witness.
4. P.W. 4 Mam Chand - eyewitness.
5. P.W. 5 Dr. Akhtar Ali - who had medically examined injured Jagpal on 24.5.1979.
6. P.W.-6 S.O. Ashutosh Gautam - who conducted the inquest proceedings.
7. P.W. 7 Constable Dharam Singh - who took the dead body for post-mortem.
8. P.W. 8 Constable Veer Singh is the policeman who is said to have captured the accused Tek Chand with pistol and who took him and injured Jagpal to the police station.
9. P.W. 9 S.I. D.S. Tyagi is the second Investigating Officer.
10. P.W. 10 H.C. 69 C.P. Mahavir Singh - who prepared the check report.
11. P.W. 11 S.I. Bhanwar Singh is the first Investigating Officer.
6. The list of documentary evidence adduced by the prosecution is as follows:-
7. In this case the injured Jagpal was summoned and examined by the Sessions Court as Court Witness (C.W. 1).
8. A brief description of the statement of material witnesses is as under:--
(i) P.W. 1 Mustakeem (informant) who is said to be the eye witness has stated that at the time of occurrence, he was sitting at the cloth shop of Ram Gopal. At that time his brother Meharban and deceased Om Prakash along with Mam Chand and Sardar reached at the shop. When they were purchasing cloth, the accused Nepal Singh and Bedu along with two others came there. All the four had pistols with them. Nepal and Bedu caught hold of the hand of Om Prakash and dragged him outside the shop and thereafter both of them opened fire on him. One, out of the two unknown accused, also inflicted gun shot injury on Om Prakash by his pistol. Thereafter all of them ran away from the spot. Hearing the sound of fire, the people gathered at the spot who chased the culprits. During their chase, one unknown culprit again opened fire causing gun shot injury to one Jag Pal, who was present among the crowd chasing the assailants. Two police men who were coming from opposite side, caught one of the unknown miscreants who told his name as Tek Chand. The police recovered a pistol and two cartridges from him.
(ii) P.W. 2 is Dr. S.C. Gupta who had conducted post-mortem examination of the dead body of Om Prakash on 25.5.1979 at 11:30 a.m. has proved the post mortem report prepared by him and has deposed about the following ante-mortem injuries he had found on the body of deceased Om Prakash.
1. Gun shot wound of entry 1.2" x 1" x cavity in the left axilla 2" below the axillary pit, margins inverted, blackening and tattooing present around the margins directed upwards and to the right. One wad and pieces of card board disc recovered from wound. The wound is reaching upto superior mediastinum.
2. Gun shot wound of entry 1" x 1" bone on outer aspect of right shoulder 2" below tip of right shoulder. Margins inverted blackening present around the margin located to the left. Pieces of card board present in the wound communicated fracture of the upper end of right humerus underneath. 39 slightly bigger metallic pellets recovered from the muscles and fractured upper end of right humerus underneath the injury.
3. Gun shot wound 1" x 1" cavity on front of chest more to the right of midline and 1" below supra sternal notch. Margins inverted, blackening present around the margins directed backwards upwards and slightly to the right. Pieces of card board disc recovered from the wound. Manubrium sterni is perforated under the wound.
4. Gun shot wound of exit 1" x 1" through and through with injury No. 3 on back of right side foot of neck. Margins averted fracture of 3rd right rib posteriorly present underneath of the wound. 1st and 2nd ribs under injury No. 1 were fractured.
(iii) P.W. 3 Harpal and P.W. 4 Mam Chand are said to be present at the shop at the time of occurrence. Both these witnesses corroborated the facts mentioned in the F.I.R. And as by P.W. 1. Both of them have been cross examined at length by learned defence Counsel but nothing could have been elicited in their statements to cast a shadow of doubt on their narrated depositions. Their statements also find corroboration with each other and the documentary evidence available on record.
(iv) P.W. 5 is Dr. Akhtar Ali who has examined and has stated about the following injuries of Jagpal which he has found on 24.5.1979 during his medical examination:--
1. 0.5 c.m. Diameter lacerated wound on fore head just above the hair line 5 c.m. Above the eye brow right side. Fresh blood clot present. No blackening or smoke at or around the wound.
2. A solid rounded body is palpable 2.5 c.m. above the 1st injury. Tenderness present.
(v) P.W. 6 and P.W. 7 are the police personnels who prepared the inquest report and sent the body for post-mortem.
(vi) P.W. 8 is the policeman who has arrested the accused Tek Chand from the spot along with his pistol. The time and place of occurrence finds corroboration with his statement.
(vii) P.W. 9 S.I. D.S. Tyagi was the second Investigating Officer who has submitted charge-sheet against accused persons while P.W. 11 Bhawar Singh is the first Investigating Officer. P.W. 10 is Head Constable who has prepared check report.
9. After conclusion of prosecution evidence, the statements of accused persons u/s 313 Cr.P.C. were recorded in which all of them pleaded not guilty and alleged their false implication due to enmity. Accused Nepal and Bedu stated that they were not present on the spot at the time of occurrence.
10. Learned Counsel for the appellant has assailed the credibility of the prosecution case on the following grounds:
1. All the prosecution witnesses are interested witnesses. No independent witness has been examined.
2. The presence of witnesses at the time and place of occurrence is doubtful.
3. There is inordinate delay in recording the statements of witnesses u/s 161 Cr.P.C. by the I.O.
4. Two currency notes of Rs. 10/- have been found by the police lying on the road by the side of the dead body of the deceased, which fact belies the whole prosecution story that the deceased had gone to shop to purchase cloth and was purchasing cloth when he was shot down. Learned Counsel for the appellants has argued that no person going to purchase cloth would have only Rs. 20/- with him.
5. The place of occurrence is a crowded market but no public witness or no other shopkeeper has been produced.
6. Co-accused Tek Chand, who was caught on the spot alongwith pistols and cartridges, has been acquitted by the Trial Court whereas the present appellant having lesser role has been convicted by the Trial Court so he is also entitled to be acquitted.
11. On behalf of the prosecution side the learned A.G.A. has contended that in the present case the F.I.R. has been lodged promptly without any consultation, so only truthful version of the incident has been narrated by the informant. The date and time of occurrence i.e. 24.5.1979 at 12.00 noon has been fully established by the statements of witnesses and also finds corroboration with the time mentioned in injury report of Jagpal and post-mortem report. The recovery of cartridges and blood stained earth from the place of occurrence corroborates the place of occurrence i.e. in front of cloth shop in the main market of Qasba Thana Bhawan.
12. The presence of P.W. 2 Mustakeem is natural, he being real brother of partner of the cloth shop, Meharban. Hence his presence on the cloth shop cannot be doubted. No suggestion whatsoever regarding any enmity between the accused persons and P.W. 2 Mustakeem has been given to the P.W. 2. Therefore, there was no occasion for P.W. 2 Mustakeem to falsely implicate the accused persons in place of real culprits. Similarly, P.W. 3 and P.W. 4 and two other eye-witnesses of the occurrence, have duly explained their presence at the place of occurrence. They were present on the cloth shop for purchasing the cloth. There is no evidence of enmity between the accused and P.W. 3 and P.W. 4 so it cannot be assumed that P.W. 3 and P.W. 4 would falsely implicate the appellants while exonerating the real culprits.
13. Learned A.G.A. has further contended that so far as the delay on the part of I.O. in recording the statements u/s 161 Cr.P.C. of P.W. 3 and P.W. 4 is concerned, the I.O. has duly explained it. Admittedly these witnesses are residents of other villages and the I.O. has stated that he had called the witnesses twice for recording their statements but they could not come so there was delay in recording their statements. Moreover, the names of P.W. 3 and P.W. 4 is duly mentioned in the First Information Report, lodged promptly after the incident. So their statements before the Court cannot be doubted only on the ground that their statements u/s 161 Cr.P.C. were recorded by the I.O. after two months.
14. All the witnesses produced by the prosecution were not related to the deceased. They are all independent witnesses. The medical evidence available on record fully supports the prosecution version. The nature and dimension of ante-mortem injuries fully corroborate the manner of assault as stated by the eye witnesses. Mere acquittal of one of the accused will not frustrate the case of the prosecution.
15. After a careful perusal of entire evidence available on record, we are of the view that so far as the credibility of witnesses in the present case is concerned all the 3 eye-witnesses Mustakeem, Harpal Singh and Mam Chand produced by the prosecution appear reliable and trustworthy. All of them are throughout cogent and consistent in their testimonies and their appears no such material contradiction, embellishment or omission in their statements to cast a shadow on doubt of their credibility. All these witnesses have been cross-examined at length by the defence side but no such fact has been elicited to show that they are not stating the true facts. The presence of P.W. 2 Mustakeem at the place of occurrence appears natural. The owners of the shop were Ram Gopal and Meharban. P.W. 2 Mustakeem being real brother of Meharban, it was quite natural for him to sit on the shop in absence of his brother. Two other eye-witnesses Harpal Singh and Mam Chand have stated that they had gone to the shop to purchase the cloth. Both these witnesses have faced lengthy cross-examination but the defence has not been able to shake their credibility. The statements of prosecution witnesses find corroboration with the documentary evidence available on record.
16. Although learned Counsel for the appellant has tried to shake their credibility by pointing out to some minor contradictions but these are immaterial and appear natural. The Apex Court in a catena of decisions like in Gangadhar Behera and Others Vs. State of Orissa, , Sohrab and Another Vs. The State of Madhya Pradesh, and Amrita alias Amritlal Vs. State of M.P., has held that "the maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars because in India one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.
17. In Yanab Sheikh @ Gagu Vs. State of West Bengal, , the Apex Court has reiterated the law that the number of witnesses examined by the prosecution is not significant. The quality of evidence and not quantity, is to be produced by the prosecution to prove its case beyond reasonable doubt.
18. There appears no material contradictions, embellishment or omission in their statements and their testimony, as a whole, appear trustworthy inspiring confidence. The date and time of occurrence coincides with the time mentioned in the post-mortem report and also with the other documentary evidence. The time of occurrence as mentioned in the F.I.R. is 12.00 noon. The time mentioned in the recovery memo. regarding arrest of co-accused Tek Chand alongwith pistol is 12.05 P.M. The injury report of the injured Jagpal shows that Jagpal was medically examined on 24.5.1979 i.e. on the date of occurrence at 3.30 P.M. The doctor has found firearm injury on his body and has extracted the pellet from the wound. The post-mortem of the deceased Om Prakash was conducted on 25.5.1979 at 11.30 A.M. and according to the doctor the time of death was about one day prior to the post-mortem examination.
19. The manner of occurrence also finds support from the documentary evidence available on the record. The description of ante-mortem injuries in the post-mortem report clearly shows that 3 entry wounds and one exit wound were found by the doctor on vital part i.e. chest and neck of the deceased with blackening and tattooing present around the entry wounds. According to the prosecution case all the 3 assailants, after dragging out the deceased from the shop have fired on him from a close range. The 3 gunshot injuries have been found with blackening and tattooing present on them which clearly show that fire was shot from a close range. Thus, the medical evidence fully corroborates the prosecution story.
20. So far as the acquittal of co-accused Tek Chand by the Trial Court is concerned, we do not find any force in this argument in view of the law laid-down by the Supreme Court in several cases. In Dalbir Singh Vs. State of Haryana, , it has been held that "merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same, does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted."
21. Similarly in Yanob Sheikh @ Gagu's case (supra) it has been held that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. Where the prosecution is able to establish the guilt of the accused by cogent, reliable and trustworthy evidence it would not automatically lead to acquittal of another accused.
22. In the wake of the above stated legal position, the appellants cannot be given any benefit due to reason that co-accused Tek Chand has been wrongly or rightly acquitted by the Trial Court.
23. So far as the motive behind the occurrence is concerned, it is apparently evident in the present case that Sube Singh, the father of the appellant Nepal was murdered in the year 1976. The deceased Om Prakash and his brother were the accused in that murder case but both of them were acquitted by the Court. In these circumstances it was natural for the accused-appellant Nepal to have a grudge against Om Prakash which might have taken an aggravated form after his acquittal by the Court. So the accused had strong motive to kill the deceased. This fact also finds corroboration with the statements of accused (appellant) u/s 313 Cr.P.C. in which they have stated that they have been falsely implicated due to enmity because of murder of Sube Singh, father of Nepal Singh.
24. The delay in recording the statement u/s 161 Cr.P.C. is also immaterial because it has been properly explained by the I.O. The Apex Court in its recent land-mark judgment Santosh Kumar Singh Vs. State thr. CBI, has held that delay in recording the statements of witnesses u/s 161 Cr.P.C. is not fatal to the prosecution if there is proper explanation by the prosecution of such delay.
25. Thus, there appears no infirmity or illegality in the judgment of the learned Trial Court so far as the conviction of the appellant is concerned. The appeal is devoid of merit and is liable to be dismissed.
26. Accordingly, the appeal is dismissed. The appellant Nepal Singh is directed to surrender before the learned Trial Court to serve out the sentence awarded by the Trial Court. Office is directed to send a copy of this judgment forthwith to the learned Trial Court for its immediate compliance.