S. Rangarajan, J.
(1) This judgment will also dispose of Cr. Appeal 136 of 1973 filed by Hukam Chand and Jai Chand. who will hereafter be called the appellants. The appellants arc brothers. Their brother Bishan Chand, who was also an accused in this case, is said to be absconding and is not available for arrest.
(2) This is a case of quadruple murder in village Mahipal Pur; the facts alleged by the prosecution are briefly as follows.
(3) Kishan Chand alias Billoo, brother of the appellants, was murdered some time in July, 1970. In that connection Rajbir son of Chhote Lal (one of the four deceased in this case) and Shri Bhagwan (another deceased) son of Jagdish Chander (P. W. 16) were convicted by the Sessions Court and each of them awarded life imprisonment on 30-4-1971. Before the appeal in that case was decided (it is stated to have been subsequently set aside by this Court) the present occurrence took place on account of the aforesaid enmity.
(4) Two days earlier to the present occurrence Shri Bhagwan deceased wanted to purchase a motor cycle. He had brought it for trial on 8-1-1972. The day following (9-1-1972) being a Sunday his bro- thers wanted the motor cycle to be brought again for trial. Though it was a Sunday their father (Jagdish Chandar, P. W. 16) had gone for work as he was doing over-time duty and returned only at about 5.30 p.m. Meantime at about 3 or 3.30 p.m. Shri Bhagwan and his younger brother Suresh Kumar (P.W.I) drove the motor cycle up to Mehrauli twice and then left the same with a mechanic at the corner of the road leading to Mahipal Pur where there is a petrol pump. When deceased Shri Bhagwan and Suresh Kumar (P.W.I) passed in front of the petrol pump the appellants, who were standing near the wall of the petrol pump glared at them. Nonetheless, they proceeded homewards; when they were a little ahead of the field of 'Pranu Lambardar the appellants came on their cycles and shouted to them to stop threatening to finish them and their family that day. At that time two persons (Ishwar and Albel) were coming on a motor cycle from the direction of the village. The appellants shouted to them asking to surround those Pandits (both of them being Pandits). They felt nervous and proceeded towards the field of Pranu Lambardar. The appellants placed their cycles on the road outside the field and followed Shri Bhagwan deceased. P. W. I saw Jai Chand hitting Shri Bhagwan with a stone (said to be Ex. P. 31, weighing about 8 to 10 killos) which was handed over to him by yet another standing inside a ditch nearby; that person had his face muffled with a white sheet of cloth Public Witness I ran for about a mile in the direction of village Rang Puri, but without actually going into that village; he then retraced his steps and reached his house through the lane behind it, reaching there via some fields. His sister Km. Mitlesh (P. W. 5) opened the door when he knocked and pulled him inside.
(5) The occurrence in the field of Pranu Lamberdar was also witnessed by the son and daughter of Chhote Lal deceased (MahabirSingh, P. W. 2 and Km. Kamla. P. W. 3, respectively), who were also returning home; they told their mother Smt. Chandro (P. W. 20) about what they saw. She naturally became concerned about the safety of her husband who was then at his shop in the village bazar and thereforee asked Mahabir Singh to bring him back home after closing the shop. Mahabir Singh went to the shop via the house of Jagdish Chander (P. W. 16) where he met his daughter (Km. Mitlesh, P. W. 5) and told her also about what was happening to Shri Bhagwan. P. W. 5 ran to her mother who had gone to her aunt's house nearby to bring her to her mother also both Mahabir Singh and Km. Mitlesh narrated what was happening to Shri Bhagwan.
(6) Though the appellants were unarmed when they were at the field of Pranu Lamberdar they seem to have armed themselves with Pharshas and rifle, the person with the muffled face, stated to bs Bishan Chand the appellants' brother, was having a rifle and the rest Pharshas. Nathu Singh (P.W. 7) brother of Smt. Chandro (P.W. 20) who had come to Mahipal Pur for making a present to her for Shankrant, happened to be at the shop of Chhote Lal along with him. The man with the mufiled face fired the first shot which struck Chhote Lal and he fell down. Jai Chand then took the rifle from Bishan Chand and fired again saying that he would finish the whole family of Chhote Lal. Even after Chhote Lal fell down Hukam Chand dealt a Pharsha blow on Chhote Lal. When Public Witness 7 came out of the shop he saw Public Witness 2 and Naubat Singh, brother of Chhote Lal. He asked Public Witness 2 to rush to the Police Station not only to make a report but to save himself also. P. W. 2 went to the Mehrauli Police Station and made a statement (marked both as Ex. Public Witness 2/B and Ex. Public Witness 30/A) which the S.H.O. Shri B. K. Mehta (P.W. 3UJ commenced to record at 5.15 p.m. and completed by 5.30 p.m. Since Mahabir Singh did not then know about the murder of Laxmi Devi and Anil Kumar (wife and young son aged about 12 of .jgdish Chander, Public Witness 16) there was no reference to it in the said report. Naubat Singh had also given a telephonic message to the Police Control Room about his brother having been shot.
(7) Meantime when Smt. Laxmi Devi proceeded towards the field I from her house on hearing about what was stated to be happening to her son Shri Bhagwan; her little son Anil Kumar, who was playing with a top, refused to stay behind despite herself and Public Witness 5 trying to restrain him. When both of them had gone some distance and were near the house of Mukhtiar master the appellants came A there; Jai Cliand had a rifle and Hukam Chand a Pharsha. The latter dealt a blow on Smt. Laxi Dcvi with Pharsha while Jai Chand hit her with the butt of the gun and she fell down. Thereafter Hukam Chand dealt a blow with Pharsha on Anil Kumar and Jai Chand hit him also with the butt of t^e rifle. In addition to Public Witness 5, this was witnessed by Smt. Kanta (P.W. 6) widow of Shri Bhagwan, who was washing her clothes on the first floor. Public Witness 5 got inside the house on being asked by Public Witness 6 to get into the house. Even there- after the appellants knocked at the door in vain. Public Witness 16 returned home from work only at about 5.30 p.m. to hear of the day's happening.
(8) In the course of investigation Hukam Chand is said to have made a disclosure statement after his arrest on. 17-1-1972 that he had kept the Pharsha concealed in a bush near the dwalior Pottery and that he could take the Police to that spot to help its recovery; in pur- suance of the same he is stated to have taken the Police party to the said bush and produced the Pharsha (Ex. P. 7), which is said to contain human blood of the Group A, the blood of Smt. Laxmi deceased and Anil Kumar deceased being stated to be of that group; the blood group of the other two deceased could not be determined as the results of the tests were inconclusive. Jai Chand, who seems to have been taken into Police custody on 9-1-1972 itself is also alleged to have made a disclosure statement on 13-1-1972 staling that he had packed the rifle and some cartridges in a gunny and thrown it inside the Hodewate well which he would point out; he is also alleged to have pointed out the said well out of which the gun (Ex. P. 18) and cartridges (Ext. P. 19 to 22) were taken out of the gunny bag. The Ballistic Expert, Dr. O. P. Chug (P.W. 8) was also present at the time when the rifle and cartidges were taken out of the well so that without any further loss of time after the same was taken out of the well in order to prevent further rusting the same could be chemi- cally examined to ascertain the time at which the shots were dis- charged from the said weapons. Despite all these precautions it was H not possible for the expert to say when the discharge from the weapon had taken place.
(9) Jai Chand only admitted that Kishan Chand alias Billu was murdered in the year 1970 and that Rajbir son of Chhote Lal (deceased) and Shri Bhagwan (deceased) son of Jagdish Chander (P.W. 16) who were tried for murder and sentenced to undergo impri- sonment for life by the Sessions Court, were later acquitted by this Court. The Police came to his house on 9-1-72, his house was searched and he was taken to the Police Station where he was detained up to 13-1-72. Inproof of his being kept at the Police Station from 9-1-72 he referred to the following three events: (1) a hippy came to the Police Station at about 8 a.m. on 10-1-1972 for lodging a report in connection with the loss of his passport; (2) a bus conductor (Jagbir) came to the Police Station at about 9.30 a.m. on 12-1-1972 to report about a quarrel in which his money had been snatched ; and (3) one Smt. Kamla Devi reported about a watering dispute at about 9 a.m. on 13-1-1972. According to Jai Chand, the present witnesses for the prosecution, deposed against him owing to enmity arising out of the case relating to the murder of Kishan Chand alias Billoo. It may be noticed in this connection that S. 1. Ram Singh of Mehrauli Police Station had conducted a personal search of Jai Chand even on 9-1-1972 (Ex. D. D.) and nothing was recovered from him.
(10) Hukam Chand, who also denied the prosecution case in toto, stated that after finishing his duties as an Orderly under Shri S. Katoch (P.W. 27, the then D.S.P., Anti Corruption Branch), he left at 6.30 p.m. on 9-1-1972 for district Rohtak where his younger son was lying ill. When he came baels to Delhi 3 or 4 days later he learnt that he had been falsely implicated in this case and surrendered before the Police on 14-1-1972.
(11) This holocaust was without doubt the result of bitter feud between t he families of the two deceased and of the assailants; otherwise even an innocent woman and child would not have been among those who were brutally murdered. Both the appellants and their brother Bishan Chand (absconder) were without doubt put out by the murder of their brother Kishan Chand alias Billoo in July, 1970, though it has not been stated that there was any other immediate provocation. Hari Chand, yet another brother of the appellants. had a license for a .12 bore gun in lieu of which he had obtained a .44 bore rifle after the murder of his brother. There is overwhelming evidence, to which reference will be made later, that the appellants were threatening to ennihilate the families of the deceased pursons. The entire evidence of the prosecution has to be viewed against this background.
(12) More than ordinary care is necessary to guard against the shocking nature of the crime affecting dispassionate judicial scrutiny (vide Kashmira Singh v. State of Madhya Pradesh, : 1952CriLJ839 ). We have also to bear in mind the caution uttered so often (vide Wilayat Khan v. State of U. P., : AIR1953SC122 that open hostility between the two parties is as much a ground of motive for the murder as it is for the fabrication of a false. case against enemies.
(13) The evidence pertaining to the three incidents may now be analysed. P. Ws. I to 3 (Suresh Kumar, Mahabir Singh and Km. Kamla, respectively) have given evidence about the murder of Shri Bhagwan deceased (son of Jagdish Chander P. W. 16). Suresh Kumar had gone with Shri Bhagwan to purchase a motor cycle and had brought it back, left it with the mechanic near the petrol pump at the corner of the road leading to village Mahipal Pur and both of them were returning home. Suresh Kumar (P. W. 1) saw the appellants placing their cycles on the road outside the field of Pranu Lamberdar, obviously because there were Arhar crops on the field. It may be noticed that even though a ground (No. 16) has been raised contending that there were no crops in the field, Shri D. Mukherjee, who argued the case for the appellants, preferred to rely on the prosecution version in this regard, namely, that there was such crop, as a factor which should have affected the visibility and hence identification. Suresh Kumar ran for about a minute or two and then came back on the road. P. W. I saw Hukam Chand catching hold of Shri Bhagwan and pressing his body downwards while there was another person in a ditch nearby with his face muffled with white sheet handing over a big stone to Jai Chand. It is stated that Jai Chand hit Shri Bhagwan with a stone weighing about 8 to 10 kilos. Curiously this big stone, said to contain blood stains, was not even sent for serological examination and there has been no Explanationn concerning it. Suresh Kumar saw Jai Chand hitting Shri Bhagwan with that stone. It was specifically not put to the doctor who conducted the autopsy of Shri Bhagwan (Dr. Bharat Singh, P. W. 4) that the concerned injuries were possible by hitting with stone, but it was elicited from him that all the injuries including the injury on the head were ante-mortem and 'were possible by blunt object'. A stone is also a blunt object. Injuries on the head were described as injuries I and 7 in the medico legal report (Ex. P. W. 4/D) :
'1.One irregular lacerated wound over the right side of skull of parietal area 3 above the right ear size 1-3/4XI/2X cranial cavity deep. Margins showed abrasions. There was no singing of skull hair. * * *
(14) On reflecting the scalp there was dark red staining of under surface of scalp in an area of 4' X 2' below injury No. 1. There was no hole in the bone but there was a depressed irregular fracture of right parietal, right side of front and right temporal bones. Bonny pieces were dipping down in the cranial cavity. Meninges were bruished underlying brain tissue was lacerated on the surface. No track of bullet was seen in the cranial cavity. Cranial cavity conained blood clot.
(15) 7. There was dark red staining of the under surface of the scalp on the left parieto temporal zone. Size 4' X 2' and fracture of left temporal and parietal bones (multiple depressed). There was subdural and extra-dural haemotoma. Brain tissue was lacerated in an area of 6' X 4'.'
(16) Having regard to the nature of these injuries it seems evident that they could have resulted by hitting Shri Bhagwan with a stone as big as the one produced (Ex. P. 31) weighing about 8 to 10 kilos. This stone (which P. W. I identified) was seized by the Police from the place of occurrence under Ex. P. W. 16/A on the 9th January, 72 itself by the S.H.O. (Shri B. K. Mchta, P. W. 30). Though Public Witness 30 said that the stone was blood stained it may be recalled that it was not sent for serological examination. Suresh Kumar (P. W. 1) ran, in panic, towards Rang Puri village but he did not actually go into the village which was at a distance of a mile from the road. He then managed to return to his house through the fields and behind his house. When he knocked at the door of the house his sister (Km. Mitlesh, Public Witness 5) opened the door, pulled him inside the house and bolted it. He told her about what he had seen in the field of Pranu Lamberdar and her sister told him, at about the same time that the appellants had killed their mother (Smt. Laxmi Devi) and brother (Anil Kumar), whose bodies were lying in the street. He also saw those bodies from the balcony; to how they were killed we will revert later.
(17) Mahabir Singh (P.W. 2) and his sister Km. Kamla (P.W. 3), who also saw Shri Bhagwan being belaboured by the appellants, became afraid and ran towards their house where they told their mother, Smt. Chandra (P.W. 20), about what they saw. On her suggestion Mahabir Singh went to his father's shop in the bazar informing Km. Mitlesh (P.W. 5) on the way about what was happening to Shri Bhagwan in Pranu's field. He witnessed the appellants with Pharshas in their hands and the absconding accused Bishan Chand with a rifle. Bishan Chand threatened that they were going to finish both the families that 'day and fired with his gun. All the three of them entered the shop even after which firings were heard inside the shop. Mahabir Singh's maternal uncle Nathu Singh (P.W. 7) who happened to be sitting inside the shop along with Chhote Lal was seen by Mahabir Singh standing outside, Nathu Singh saw Jai Chand taking the rifle from a person who had muffled his face with white sheet of cloth and shooting at Chhote Lal. who fell down, Hukam Chand appellant thereupon gave a Pharsha blow on his body. Nathu Singh, who had come out of the shop, withnessed what happened outside the shop. He also informed Mahabir Singh about his father having been killed and asked him to rush to the Police Station lest they kill him also.
(18) KM. Mitlesh (P.W. 5), who had been told about what was happening to Shri Bhagwan in the field of Pranu Lamberdar, went to call her mother (Smt. Laxmi Devi) in her aunt's house. Her mother immediately came home and ascertained what was happening to Shri Bhagwan from Mahabir Singh (P.W. 2), who left thereafter. When she proceeded to Pranu's field the appellants came there-Hukam Chand with a Pharsha and Jai Chand with a gun. The former gave a blow with a Pharsha to Smt- Laxmi Devi and the latter hit her with the butt of the gun. She fell down immediately. Thereafter Hukam Chand gave a Pharsha blow to her son Anil Kumar. who could not be prevented from following her; Jai Chand also gave blows with the butt of the gun to him. Smt. Kanta widow of Chhote Lal (P.W.6), who was washing clothes on the roof of her house also witnessed the occurrence. It was at her instance that Km. Mitlesh went inside the house after which Smt. Kanta bolted the house and refused to open it when the appellants ranted to get inside. Jagdish Chander (P.W. 16), who had gone out for work, returned at about 5.30 p.m. when Km. Mitlesh and Smt. Kanta narrated to him what had happened.
(19) Mahabir Singh went to the Police Station Mehrauli and lodged a report Ex. Public Witness 2/A at about 5.15 p.m. The distance between the Police Station and the scene of occurrence is stated to be 5 miles. Since Mahabir Singh had not then known about the murders of Smt. Laxmi Devi and Anil Kumar, there was naturally no reference to it in the report which he gave. It was recorded by Shri B. K. Mehta (P.W. 30), who then left for the scene of occurrence along with S.I. Ghanisham Das (P.W. 29) and others.
(20) Not only was information telephonically given by Naubat Singh to the Police, Mahabir Singh (P.W. 2) had also reached Police Station, Mehrauli before 5.15 p.m. The relevant entries made at the Control Room in relation to the messages received pertaining to this occurrence have been translated (vide Ex. P. W. 22/B and Ex. P.W.22/C, printed pages 190 to 193). Entries pertaining to this case have been made from 5.29 p.m. onwards, the earlier information having been given by Naubat Singh (vide Ex. Public Witness 22/C, printed page 191). There is a further entry concerning what was flashed from the van at the scene to the Control Room, which was marked a Ex. Public Witness 22/B, during the cross-examination of Shri Harbha)an Singh, Sub Inspector (P.W. 22) at the Police Control, after he was directed to produce the record of messages received from the vans ai the scene. Ex. Public Witness 22/B (translation) reads as follows :
'SHRINiranjan Singh, S.I. told that both i.e. the son of Chhote Lal Jat, and the son of Laxmi Devi Brahmin had previously committed a murder, for which both of them artundergoing imprisonment. Because of that enmity the other party has first of all murdered Chhote Lal Jat and thereafter Laxmi Devi, Brahmin along with her two sons namely Anil aged 14/15 yrs. and Shri Bhagwan aged 22/23 years is lying murdered in a field near the well and Laxmi Devi along with his child Anil is lying dead in the Gali. The accused absconded'.
(21) The entries made at the Control Room between 5.41 p.m. and 6.05 p.m. (page 192) show the details of steps taken by the Police and the developments. The Police found the corpse of Chhote Lal at 5.50 p.m., those of a lady and a boy (Smt. Laxmi Devi and Anil Kumar) at 6. p.m. and one more corpse (of Shri Bhagwan) near the well in the field at 6.05 p.m. The report (translation of which is Ex. Public Witness 26/A, printed page 195 was scribed by Constable Balbir Singh (P.W. 26), who produced the original Roznamcha. of the Mehrauli Police Station. It shows that a telephonic message had been received at 5.30 p.m. at the Police Station, the same having been relayed by Public Witness 22 from the Control Room (This was on the basis of Naubat Singh's telephonic message). It was also mentioned therein that a report had been lodged as per receipt of the telephonic mass age (given by Public Witness 2) and that the S.H.O. (P.W. 30) along with other staff were going to the place of occurrence in Government vau. A Sub Inspector of the Station, Ghanisham Das (P.W. 29) had made a summary of the report given by Public Witness 2 in the Daily Diary of the Mehrauli Police Station (separately translated and marked as Ex. P.W. 26/B, printed page 195) ; it shows that the recording of the F.I.R. in this case commenced at 5.15 p.m.; it related to the murder of his father at Mahipal Pur disclosing the commission of an offence under section 302 read with section 34 Indian Penal Code . Though the names of the accused or even their number have not been recorded, reference to the offence under section 302 read with section 34 Indian Penal Code . does indicate a plurality of accused persons. Yet another report, similarly made by Public Witness 29 (separately translated and marked as Ex. P. W. 26/C, printed page 196) refers to the completion of the formal F.I.R. and the departure of another Police party at 5.38 p.m.-this refers to a Police party (led by Public Witness 30) having left earlier for the place of occurrence with arms and ammunition.
(22) It is not at all possible to distrust the various entries made in the Control Room which were made in quick succession as and when information was being given either by private parties or the concerned Police officials from the vans at the scene.
(23) In addition to the above entries made at the Control Room we have also the reports entered in the Daily Diary of the Mehraiili Police Station on the basis of both the messages relayed from the Control Room as well as the report made by Mahabir Singh (P.W. 2). These not only give us an idea as to what was reported from time to time, but more important, also the time when these reports were made. These reports show that even though Naubat Singh had only referred to the bare fact of the murder of his brother Chhote Lal, the information, though meagre, available to the Police soon after the incident was to the effect that this carnage was the result of the enmity owing to the murder said to have been committed by the son of Smt. Laxmi Devi and son of Chhote Lal; even though the names of the accused had not been mentioned reference was made to 'the other party having committed the above said four murders' and the offence disclosed being one under section 302/34 Indian Penal Code . These reports are no doubt not to be read as substantive evidence but they are sufficient for showing that Mahabir Singh had reported about the occurrence which was recorded between 5.15 and 5.30 p.m. at the Police Station, Mehraiili.
(24) Shri D. Mukerjee still urged that the report given by Mahabir Singh may not have been given in its present form (Ex. Public Witness 2/B and Ex. Public Witness 30/A). We are unable to find any force in the submission for the reason that it appears to be an un-varnished account, one which even leaves out the murders of Smt. Laxmi Devi and Anil Kumar of which he was not aware at that stage. It contains a succinct account of how Shri Bhagwan was belaboured (there is no indication even of his death) at the fields of Pranu Lamberdar and to his sister Km. Kamla (P.W. 3) also returning to their house (with him) from the field, Public Witness 2 did not then know that Shri Bhagwan was killed or Public Witness I had witnessed it. The presence of Bishan Chand (absconding accused) along with the appellants has also been referred to; according to this report it was Bishan Chand who had a gun and the appellants had Pharshas. Mahabir Singh did not know that Jai Chand also fired, a fact which was known to Nathu Singh (P.W. 7). There was not much time for Public Witness 7 to tell Public Witness 2 about the details. Thereafter the appellants had gone to the village threatening to finish the families of Chhote Lal and Jagdish Chander (P.W. 16). Mahabir Singh had also referred to the presence of his maternal uncle (Nathu Singh) and paternal uncle (Naubat Singh) when Chhote Lal was murdered. The report also significantly mentions not only the threats which the appellants and their brothers are stated to have uttered concerning the extermination of both the families involved in the murder of their brother Kishan Chand alias Billoo, but also the fact of the appellants' brother Bishan Chand keeping a gun with him after the murder of said Kishan Chand. The report. thereforee, contains certain intrinsic evidence of the same having been given promptly by Mahabir Singh without any body else's intervention and without adding to what he had himself known. There was not much time for concoction; the very events seem to preclude the theory of such concoction.
(25) The manner in which the Police themselves discovered the dead bodies of Chhote Lal first, of Smt. Laxmi Devi and Anil Kumar later and of Shri Bhagwan last only show the natural way in which the occurrence unfolded itself to the investigating agency. It does not seem to us that the fact of Mahabir Singh and his sister Km. Kamla having seen Shri Bhagwan being belaboured in the field can be seriously doubted; they corroborated each other and her presence with him has been referred to in his earliest report. The evidence of Public Witness I cannot be distrusted for the reason that he did not report because he became panicky when his brother was belaboured in that manner and ran for some distance and then sneaked into his house which remained bolted thereafter till his father (P.W. 16) returned home.
(26) The entire prosecution evidence has to be viewed in the background of the presence of a very strong motivation on the part of appellants and the members of his family to avenge the death of Kishan Chand alias Billoo. Mahabir Singh (P.W. 2) and Jagdish Chander (P.W. 16) have spoken about the threat uttered by the appellants and tlieir brothers to annihilate both their families. While P.W. 16 spoke of his having mentioned this to the other villagers who told him that they were themselves scared of the appellants and their brothers and thereforee did not have the courage to speak to them, Public Witness 2 said that he had complained about such threats to the Mehrauli Police Station three or four times but since the then S.H.O. (Shri Bhim Singh) was friendly with Hari Chand, brother of the appellants, he did not take any action and did not record his complaints. P.W. 2 did not, however, report this to the higher officers about this. It may be noted in this connection that Shri Bhim Singh, S.H.O. had stated on Hari Chand's application for license for a gun, namely, that 'he was a helper of the Police and also useful to the administration.' The license for .44 bore rifle (No. 361833) Model 1891 Vinchester, recovered in this case from the well (said to been a disclosure, statement made by Jai Chand) was issued to Hari Chand brother of Jai Chand (stated to be some time in July, 1971) after the murder of Kishan Chand alias Billoo in substitution for a .12 bore gun for which he held a license previously. The above may have been a recommendation made in the usual course, but when Hari Chand obtained a gun, after the previous murder, on the recommendation of the S.H.O. Shri Bhim Singh there is nothing strange, however, in the villagers thinking that the appellants' family had the support of the Police. It may be recalled that the sons of P.W. 16 and of the deceased Chhote Lal had also been convicted in the murder case on 30-4-1971.
(27) The above aspects have an important bearing on how no other villager not related to the family of the two deceased, has been examined as a witness in this case. It has been admitted by Public Witness I that when he saw the dead body of his mother and brother lying in the street from his house top the street was full of men and women. Mahabir Singh also had admitted that many persons of the neighbouring shop had collected when Bishan Chand had fired the first shot outside the shop and that his father's shop was surrounded by about 35 shops in addition to there being an electricity office and a cooperative society office nearby. It is also admitted by Km. Mitlesh (P.W. 5) that many persons of the locality had collected in the street when her mother and brother were murdered and that they had asked the accused that not to kill the children who were absolutely innocent. inspire of these admissions it seems obvious that these villagers have not come forward to give evidence in this uase because they did not obviously wish to be involved in such a bitter and even deadly feud between the family of the appellants on the one side and of the two families of the deceased on the other. When Shri B. K. Mehta (P.W. 30) was being crossexamined about not summoning the owner of the well from which the gun was recovered he stated that he did not summon the owner of that well for the reason that he 'was dead sure that villagers would not come out to speak against accused persons'. It may be noticed that this answer was elicited during the crossexamination of Public Witness 30: he was not pursued further.
(28) Shri D. Mukherjee relied upon section 114(g) of the Evidence Act and urged that we must draw an inference adverse to the prosecution from the non-examination of any other person of that village except the relations who have been examined and hold that if those other persons had been examined they would not support the prosecution case. In this connection he also referred to the observations of Lord Roche in Stephen Seneviratne v. The King A.I.R. 1936 PC 289 to the following effect:
'WITNESSESessential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution'.
(29) The legal position as understood by the courts in India is now fairly clear. There is no need to examine a large number of witnesses, of a merely repetitive nature. The prosecutor, whose duty is to assist the Court in reaching a proper conclusion, can make a selection of witnesses if the number in his view is large, but such selection must be honest and fair not giving room for the impression that he is keeping back witness who will not support the prosecution. An adverse inference can be drawn only if those who had witnessed the occurrence are deliberately kept back (vide the observations of Shelat, J. in Karnesh Kumar Singh v. State of U.P., : 1968CriLJ1655 ) where the previous decision in Darya Singh v. State of Punjab, : [1964]3SCR397 was referred to and explained). The adverse inference can be drawn even if the Explanationn given for examining certain important witnesses is found to be unsatisfactory (Dhirendra Nath v. State, : AIR1952Cal621 ).
(30) Reference may also be usefully made to the following observations of Gajendragadkar, C.J. in Masalti and others v. The State of Uttar Pradesh : [1964]8SCR133
'IT is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be un sound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised'.
(31) It is instructive to refer to yet another decision of the Supreme Court in State of U.P. v. Paras Nath Singh (1973) 79 Cri. L.J. 850,. While observing that there is no rule that even straight forward evidence of relations of the deceased needs corroboration for sustaining conviction if they happen to be naturally able to identity the assailants and in the absence of the circumstances showing any inclination to falsely involve the accused the Supreme Court set aside the judgment of acquittal by the High Court (when the trial court had found the accused guilty) on the basis of the testimony of two eye witnesses who were the son and daughter of the deceased. The High Court had observed that even though they found nothing improper in the statements of those two eye witnesses it thought it proper not to act on their uncorroborated testimony. In addition to those eye witnesses an application was made under section 540 Criminal Procedure Code . to examine four more persons before the trial court which after summoning them discharged them without examining them. The High Court examined these four witnesses and found that they were untrustworthy; their evidence had even gone in favor of the accused in some respects. Dua, J., speaking for the Supreme Court, chose to act upon the evidence of those two eye witnesses, who were seen to be trustworthy witnesses, and observed as follows:
'THEfact that the other persons who were present at the spot and had witnessed the occurrence have, without any good reason and, perhaps with oblique motive, chosen not to state the truth in court and thereby to obstruct the course of justice would, in our opinion provide a sound reason for accepting the testimony of P.Ws. I and 2 for sustaining the conviction of the accused persons. To decline to act upon the testimony of lhese witnesses merely because of the absence of other witnesses to corroborate them in court is to defeat the cause of justice in this case'.
(32) Shri Mukherjee next contended that the omission to record the substance of the complaint given by Public Witness I in the Dailv Diary of the Police Station throws doubt on the same having been recorded between 5.15 and 5.30 p.m. on the day of occurrence itself. Shri Mukherjee complained that not only was there a breach of the Police Regulations in this regard (Rule 24.) but also of section 154 of the Criminal Procedure Code. It will be sufficient to notice the requirement of section 154 Criminal Procedure Code . since the Police Regulations only seek to give effect to it. Section 154 of the Code requires that every information relating to the commission of a cognizable offence shall be reduced to writing by an officer in charge of the Police Station, or under his direction, if given orally to the officer; the substance of every such information whether given in writing or reduced in writing shall be reduced in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The prescribed book is the Daily Diary of the Police Station or the Roznamcha. The Daily Diary, concerning the report given by Public Witness I (Ex. Public Witness 26/B), already referred to, only mentioning that Public Witness 2's father was murdered and that the offence disclosed was under section 302/34 Indian Penal Code . The question to be considered is whether by reason of not recording the substance of the information given by Public Witness 2 in the Daily Diary any prejudice can be occasioned to the appellants. A prompt report was made by Public Witness 2 and the same was undoubtedly recorded between 5.15 and 5.30 p.m. There is thus sufficient guarantee of the report having been so made. Section 154 Criminal Procedure Code . and the consequent Police Regulation in this regard are only meant to secure assurance in respect of a certain report having been made at a certain time; if these guarantees are otherwise present the omission of the concerned Police officer to record the substance of the report in the Daily Diary can hardly be of any significance. The learned Additional Sessions Judge has observed that he had himself come across such deficiencies in other cases and has referred to what was noticed by M. R. A. Ansari, J. in Purshottam Lal v. State (Cr. Appeal 20 of 1972, decided on 13-12-1972) (8A). We share the Additional Sessions Judge's concern about Police officers not complying with the provisions of section 154 Criminal Procedure Code . and also Rule 24.1 of the Punjab Police Rules Vol. Ill and trust that the higher authorities of the Police Department will, as suggested by the learned Additional Sessions Judge, issue instructions to see that these provisions are duly complied with. for there may be cases where the guarantees that are available in the present case concerning the making of the report may not be available and that may itself furnish a ground for suspicion that the First Information Report was not in fact recorded at the time at which it purports to have been recorded. Having given this aspect our earnest consideration we hold that the omission of the concerned Police officer in this case to record in the Daily Diary the substance of the report made by Public Witness 2 does not justify the criticism that it was not recorded between 5.15 p.m. and 5.30 p.m. or even that it was not made in its present form.
(33) It was contended before the learned Additional Sessions Judge that the inquest reports do not refer to the names of the eye witnesses and hence this led to an inference that those witnesses were not even thought of at the time when the inquests were held. The in- quest reports, in these cases, have been marked as Ex. Public Witness 2/C in respect of Chhote Lal-Ex. Public Witness 7/A in respect of Smt. Laxmi Devi, Ex. Public Witness 7/B in respect of Anil Kumar and Ex. Public Witness 16/E in respect of Shri Bhagwan. All these inquests were conducted on 9-1-1972 itself by Public Witness 30. There has been detailed cross-examination of this witness concerning the same not mentioning the alleged eye witnesses. The learned Additional Sessions Judge while discussing this aspect has referred to two decisions, among others: (1) Gurdev Singh and others v. State (LXV Punjab Law Reports 409 and (2) Mewalal v. State of U.P. (1966) 2 S.C. W.R. 245,- H. R. Khanna, J. speaking for the Division Bench of the Punjab High Court has made certain observations concerning the importance of the inquest report and how it should be prepared: with these observations, generally, we arc in respectful agreement. What was urged before the learned Additional Sessions Judge, but not so seriously before us, was the comment made concerning eye witnesses not being mentioned in the inquest report. We are unable to read the said decision as laying down any proposition, of universal application, that the names of eye-witnesses, if any, ought to be mentioned in inquest reports. there were other alleged infirmities in addition; the non-mention to the eye-witnesses in the inquest report was stated to be only one of them. The investigation did not disclose the guarantees that the Court sought in that situation. It was in this context that H. R. Khanna, J. stressed the importance of the inquest report being a document of vital importance and the argument based on omission to refer to facts in the inquest report as indicating that the prosecution was at least not being sure till then of the facts omitted to be recorded not being without force. It is easy to conceive of many situations where it may not be practicable or even possible to examine or even mention the eye witnesses during the inquest report. An obvious illustration would be one where the inquest takes place in the hospital which may be far away from the scene of occurrence. In that eventuality the eye-witnesses have to be examined by the investigating officer at the scene of occurrence. They are not usually taken to the hospital from the scene of occurrence or elsewhere for the purposes of examining them at the inquest; nor it would be necessary for them to refer to the fact of certain eye witnesses, if they exist, having been examined at the scene of occurrence. The Police officer holding inquests at the hospital may not even know in several cases that eye witnesses, if any, are being or have been examined by another Police officer at the scene of occurrence. Any discussion concerning the inquest report making reference to any eye witness can only be on the basis of an entry or entries being made pursuant to statement/statements made by such a witness/witnesses. In this eventuality it would be necessary to make those statements a part of the inquest report. One obvious disadvantage of this course would be that if the eye witnesses had been examined separately, independently of the inquest, it would be needless duplication. It is for this, and other reasons which need not be mentioned here, that section 174 Criminal Procedure Code . does not cast the duty upon the Police officer holding the inquest to mention the names of the alleged witnesses in the inquest report.
(34) Section 174 of the Code of Criminal Procedure deals with the holding of inquests by Police officers who shall make 'an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body and staling in what manner, or by what weapons or instrument (if any) such marks appeared to have been inflicted'. Even apart from section 174 not requiring the names of the eye witnesses to be mentioned in the inquest report none of the printed columns, which have been drafted on the basis of long and intense experience, specifically require the names of the eye witnesses to be mentioned. The inquest report itself is admissible only to the extent of showing the apparent cause of death and facts bearing -on it; the other entries will not be admissible in so far as they arc made on the basis of statements made to the Police officer except to the extent provided by section 162 Criminal Procedure Code . for eliciting contradictions from the said witnesses in the course of their crossexamination under section 145 of the Evidence Act or under section 154 of the Evidence Act when such witnesses go back on their previous statements at the inquest when they are subsequently exa mined before the court. Even where the statements are not reduced to writing, it is open to the defense to cross-examine the witnesses who are said to have been examined in relation to those entries to elicit contradictions with regard to them. It is indisputable that any statement contained in inquest report is not substantive evidence and ought not to be relied upon to arrive at a conclusion in favor of the defense or prosecution.
(35) In Mewalal v. State of U.P. (1968) 2 S.C. W.R. 245, an argument was put forward on behalf of the appellant in that case that the evidence of the eye witnesses in that case should not be acted upon for the reason that their names had not been mentioned in the inquest report. Ramaswami, J., speaking for the Supreme Court, negatived this argument relying upon the language and scope of section 174 Criminal Procedure Code .
(36) Though the learned Addl. Sessions Judge had observed that in view of the later decision of the Supreme Court the appellants could not seek any assistance from the observations made by H. R. Khanna, J. in the previous case, still the learned Addl. Sessions Judge, probably as a concession to the kind of cross-examination of this kind and the argument which seems to be frequently advanced before courts here, felt obliged to off-set the fact of the names of the eye witnesses not being referred to in the inquest report by relying upon the fact that the eye witnesses in this case had been examined on the night of occurrence and that those statements contained reference to the names of the appellants in this case. This was not permissible; if anything, the remedy adopted by the learned Addl. Sessions Judge was worse than the disease itself. If the statement of witnesses examined at the inquest, on the basis of which entries could be made in the inquest report, are hit by section 162 Criminal Procedure Code . this cannot be made good by making reference to other statements-of those witnesses recorded under section 161 Cr. P.C. We do not, however, consider it necessary to explain what kind of entries should be made in the inquest report; they are suggested by the printed questions themselves. Any other entry in the inquest report not specifically covered by those columns would be made depending on the nature and circumstances of each case, their evaluation also, subject to admissibility, will depend on a variety of circumstances. We are content here to repeat what has been so clearly and unambiguously pointed out by the Supreme Court, namely, that there is no duty cast on the Police officer to mention the names of the alleged eye witnesses in the inquest report.
(37) Shri Mukherjee pointed out that since a fear was entertained that statements made to the Police and the 'Zimnies might be replaced or rewritten an application was made before the learned committing Magistrate to sign them; accordingly, on 9-2-1972. they were produced before the learned committing Magistrate who signed them. It is stated that while the Zimnies for the dates 9-1-1972 and 10-1-1972 contain the signatures of the learned Magistrate, the actual statements of the eye witnesses examined on those dates do not bear his signatures. We need not to say anything more concerning this than what Public Witness 30 himself said in cross-examination, namely, that he had produced the statements of the witnesses recorded by him on 9-1-1972 and 10-1-1972; the names of those witnesses are stated to be Suresh Kumar, Km. Mitlesh. Smt. Kanta, Smt. Chandro, Km. Kamla and S.I. Ram Singh. Public Witness 30 denied the suggestion that he has replaced the original statements and substituted the present statements contained in the Daily Dairy later on. i.e. after 9-1-1972. Public Witness 3C explained that the learned committing Magistrate had signed on 9-1-1972 all the Zimnies from 9-1-1972 to 18-1-1972 and that the Zimnies contain notes of the statements of the witnesses, the detailed statements themselves being recorded separately under section 161 Cr. P.C. We are unable to attach any significance to the omission of the learned Magistrate's signatures on the statements of eye witnesses recorded separately under section 161 Criminal Procedure Code . on 9th and 10th of January, 1972, when he had signed the Zimnies of those dates. Shri Mukherjee urged that the evidence of Public Witness 30 stood discredited for the reason that while he claimed to have arrested Jai Chand only on 13th January, 1972 he had been searched by another Police officer, Shri Raj Singh (not examined) on the 9th itself. When P.W. 30 was questioned about this he candidly admitted the memo prepared by S.I. Raj Singh (translation of which is Ex. D.D., printed page 214) in respect of Jai Chand on 9th itself. Nonetheless, the arrest of Jai Chand is said to have taken place on the 13th, to which we shall advert, when we discuss the evidence relating to the recovery of the gun from the well and the disclosure statement which is said to have been made by Jai Chand to Public Witness 30 resulting in the said recovery it seems to us that Jai Chand was with' the Police from the 9th though he was not arrested till the 13th January. 1972. This does not lend support to the suggestion that Public Witness 30 had gone to the extent of substituting the statements by witnesses examined on the 9th and 10th January, 1972 subsequent to those statements having been signed by the learned Magistrate on 9th January, 1972. It is not likely that any Police officer would normally have the courage to go to this length. We are thus not persuaded that Public Witness 30 had replaced any statement as alleged.
(38) We have been taken through the evidence of those eye witnesses mentioned above and one of the view that the eye witnesses in this case have given evidence in a natural and convincing manner. Their testimony cannot be brushed aside on the ground that they are relations especially when they were the most natural witnesses who could have been in a position to witness these murders. We believe we have said enough to show how in the circumstances of this case we cannot draw any adverse inference against the prosecution under section 114(g) of the Evidence Act.
(39) We have next to consider the evidence pertaining to the disclosure statement, said to have been made by Jai Chand to Public Witness 30 on 13.1.1972. on the basis of which the gun was recovered from the Hodewala well outside the village Mahipal Pur. P. W. Ii (Radha Krishan) and P. W. 13 (Suraj Prakash) are said to have been present when such disclosure statement was made by Jai Chand concerning which a memo was prepared by Public Witness 30 (Ex. Public Witness II/C is the translation of that memo) which both the witnesses attested. Public Witness Ii became hostile to the prosecution and the evidence of Public Witness 13 has been attacked on the ground that he is a stock witness for the prosecution despite his claiming to be the Senior Vice President of the Notified Area Committee, Mehrauli. For the reason that it is seen that Jai Chand was detained by the Police from 9.1.1972 itself but yet arrested only 071 13.1.1972, the disclosure statement which he made could not be safely acted upon. Serious doubts arise about the voluntary nature of that statement when even his arrest was delayed till 13th inspire of his being named in the prompt report given by P. W. 2 to the Police. Jai Chand is alleged to have pointed out the said well to P. W. 30 on 14.1.72; a memo concerning this was also prepared by P. W. 30 (translation of which is Ex. P. W. 11/E). This again has been attested only by Public Witness s Ii and 13. Since the well was full of water P. W. 30 had to get the water pumped out by the Corporation staff from 4 p.m. onwards. Since it become dark at about 5 p.m. itself they could not pump out the water fully on that day. Public Witness 30 again made a requisition through P. W. 29 to the Corporation officials on 15.1.1972 to make arrangements for pumping out the water. Not only was this done but he had also taken some divers to get into the well on 16-1-1972. After about an hour of pumping the divers went inside the well and brought out the gunny bag containing the gun (Ex. P. 18) bearing the same number as mentioned in the license issued to Hari Chand as noticed above; there were also four cartridges kept inside a piece of cloth. The Pallistic Expert, Dr. O. P. Chug (P.W. 8) had also been summoned to be present so that the gun should be examined by him immediately it was taken out of the well. He cleaned the gun and examined it but was unable to give any opinion regarding the time of the discharge of the weapon. It may be noticed in this connection that P. W. 30 had also seized from near the place where the corpses of Smt. Laxmi Devi and Anil Kumar were lying one piece which had come off from the butt of the gun (Ex. P. 34) along with two other similar pieces (Exs. P. 35 and 36) were recovered under a memo (Ex. P. W. 16/D is translation of the same). These pieces were said to be blood stained; among them the broken wooden butt of the rifle the base of which was metallic (separately marked Ex. P. 34), was found on serological examination to contain human blood of Group A, which was the blood group of Smt. Laxmi Devi and Anil Kumar. These pieces tallied with the gun which was taken out of the well. There can be no doubt whatever that the gun was recovered from the well as stated by the prosecution; these pieces had come off the gun in the process of using the butt end of it against Smt. Laxmi Devi and Anil Klimar as stated by P. Ws. 5 and 6.
(40) We feel no difficulty in acting upon the testimony of P. W. 7 that Jai Chand took the gun from Bishan Chand and fired the same despite the fact that there is a reference made by Public Witness 2 in a report given by him to only Bishan Chand having fired the shot at Chhote Lal. As already explained Public Witness 2 had not himself seen Jai Chand taking the gun from Bishan Chand. We also have the .evidence of P. Ws. 5 and 6 that they saw Jai Chand who had the gun with him and who hit both Smt. Laxmi Devi and Anil Kumar with the butt end of the gun. The statement receives sufficient corroboration from the fact that the pieces of the gun had been taken from the scene by Public Witness 30 and that they fit the gun which was recovered only later from the well; one of the pieces was blood stained and that it was also of the blood Group A is still another piece of corroboration.
(41) So far as the disclosure statement made by Hukam Chand is concerned we have found no difficulty in acting upon it. He had been arrested by Public Witness 30 on 15-1-1972. Hukam Chand stated that he himself surrendered to the Police on 14-1-1972. There has been no detention off the record in his case. He was interrogated by Public Witness 30 on 17-1-1972 who prepared a memo concerning the disclosure statement made by him (Ex. Public Witness 13/A is the translation of the same). Though this was attested ^ Public Witness 13 it has also been attested by Public Witness 14 (Kidar Nath) who is a businessman residing in Mehrauli. He lives about one furlong from the Police station and he was present when Public Witness 30 interrogated Hukam Chand. He also swore to the fact of not only Hukam Chand making such a disclosure but his taking the Police party to the place where he said he had kept the Pharsha. The Pharsha (Ex. P. 27) was recovered from inside a bush at a distance of about 5/6 feet from the Kacha pathway about 1-1/2 or two miles from the village Mahipal Pur. A seizure memo was also prepared which he also attested (of which Ex. Public Witness 13/C is the translation). Nothing has been brought out in the cross examination of Public Witness 13 except that his brother is a Police Constable at Mehrauli Police station for the last two years. Merely because he happened to be working at the Congress Committee Office Public Witness 13's evidence could not be distrusted. The same infirmity which arises in regard to the disclosure statement of Jai Chand does not exist in the case of the disclosure statement made by Hukam Chand. The Pharsha also, as already noticed, contained human blood of Group A. It seems superfluous to refer to the recovery of his clothes, pursuant to his own statement.
(42) After carefully scrutinising the evidence of Public Witness s. 2,3,5,6 and 7 to the details of which we have already referred, we have no hesitation in acting on the same. They are natural witnesses who have given evidence in a natural manner. On the. basis of their evidence the fact of the murders of Chhote Lal, Smt. Laxmi Devi and Anil Kumar by the appellants acting in pursuance of their common intention to kill them, arming themselves with lethal weapons, has been fully proved. Regarding the murder of Shri Bhagwan there is the evidence of Public Witness I corroborated by Public Witness s. 2 and 3 concerning the appellants, in pursuance of their common intention to murder Shri Bhagwan, murdering him helped by their brother Bishan Chand, who handed over that heavy stone to Jai Chand. The presence of the Arhar crops on the field was not likely to affect the ability of Public Witness s. I to 3 to see what was happening to Shri Bhagwan and who the assailants were; the assailants were not strangers to them.
(43) The conviction of the appellants in respect of each of the three murders has been under section 302 read with section 34 Indian Penal Code . Even though the murder of Shri Bhagwan might have been committed by surprising him in the field of Pranu lamberdar, when the appellants were not armed with any lethal weapon, Pharsha and gun, still the manner of the attack on Shri Bhagwan in the light of the previous enmity and motivation coupled with how it was only a prelude to the other murders in an obvious effort to exterminate the two families of the deceased persons, there can be no difficulty in invoking section 302 read with section 34 Indian Penal Code . against the appellants in respect of each of the murders including that of Shri Bhagwan. The nature of the injuries inflicted on each of the four murdered persons and the weapons used (rifle, Pharsha and a stone weighing about 8 to 10 kilos) in the background of their common intention to exterminate the two families' of the deceased persons, a member of each of which were at least suggested to be involved in the murder of the appellants' brother, establish conclusively that the offences disclosed in the case of each one of the four murders are one under section 302 read with section 34 Indian Penal Code . The appellants were jointly charged under section 302 read with section 34 Indian Penal Code . on four counts i.e. separately in respect of the murder of each of the four above-said persons. The charge, as it was framed, was rightly held proved by the learned Additional Sessions Judge and we have no difficulty in confirming the said conviction; it is confirmed accordingly.
(44) On the question of sentence we do not consider that there is any extenuating circumstances in favor of both or any of the appellants. The acts of the appellants were deliberate and pre-planned; the manner of execution was gruesome. Even a boy of about 12 years and a lady were not spared. The capital sentence imposed by the learned Additional Sessions Judge on each of the appellants is, thereforee, also confirmed. The Reference is answered accordingly and the Criminal Appeal is dismissed.