S.H.S. Abidi, J.
1. Appellant, Satish Sah has been convicted for offence under Section 302, of the Indian Penal Code (for short IPC) and sentenced to undergo rigorous imprisonment for life. Appellants, Ambika Sah and Sahdeo Sah have been convicted for the offence under Section 302/34, IPC and sentenced to undergo rigorous imprisonment for life. Appellant, Satish sah has been acquitted of the charge under Section 27 of the Arms Act.
2. A first Information Report (Ext.3) was lodged on 4-2-1987 at 9 A. M. by informant, Khantar Sah (p.w.7) father of the deceased Janardan Sah. In the report, it has beeen said that on the night of 3/4 of February,' 1987, at about 8 p.m., the (informant), his son Janardan Sah and one co-villager, Ram Kishore Kapri (p.w.2) had gone to guard his pumping set situated in Bahiar. Towards east of the pumping set after putting two cots for protection from the cold and after spreading pual beneath the cots, they slept there. The informant was sleeping towards, the east and Ram kishore Kapri was in the west and in betweeen them, the deceased Janardan Sah was sleeping. It was at about 1.30 PM the night that four persons came there and put the both cots on them and pressed them on account of which, the informant, his son and the co-villager woke up. All the miscreants began to assault them, upon which the informant said them as to why they are beating them by the hurra of lathies up on which, the three appellants asked the informant to keep quiet otherewise, he will be killed. Satish Sah fired a shot on Janardan Sah hitting in his right temporal region above the year. Then all the four persons ran away after the assault was over. They were resident of village Nonihari and so, the informant identified them by their voice and also in the light of lantern which was burning on the spot from before. Out of four of the miscreants, one person could not be identified who was about 5 ft. in height. The motive for offence was that about three months earlier than the occurrence, there was a dispute about all (boundary) of the field with the accused and for that reason, they had killed Janardan Sah by firing. On alarm, many people came to the spot whom, the informant gave out about the occurrence.
3. On the basis of the said first information report, the Investigating Officer reached the spot and found the dead body there. Inquest report was prepared before the witnesses and the dead body was sent for post mortem examination. He also prepared the injury report (Ext.6) of the informant. He inspected the place of occurrence and found the pumping set machine and pual. He found blood on the ground, but did not seize the blood stained earth. He prepared the seizure list (Ext.4 and 4/1) for the pual and blood stained lungi. After completing investigation, he submitted charge sheet against the appellants only, as the fourth accused could not be apprehended.
4. The accused, in defence, denied the prosecution case and alleged that they have been falsely implicatedin this case. They said that they have been implicated as there was theft in which the victim had got injuries. One Shy am Sunder was examined as defence witness who has said that marpit had taken place at a different place.
5. The prosecution, in support of its case, produced ten witnesses. P.W. 1 Md. Shakoor, a Tayeed, has proved the first information report. P.W. 2 Ram Kishore Kapri has deposed as an eye witness as he claimed to be sleeping along with the informant and also the deceased. P.W. 3 Dinesh Prasad Sah, son of the informant and brother of the deceased is s,aid to have come on alarm and seen the accused persons in the torch light. P.W. 4 Sukhdeo Mahto says that he had seen the accused persons running away from the spot, P.W. 5 Prasadi Mandal and P.W. 6 Parmeshwar Mahto are the hearsay witnesses who arrived at the spot on hearing alarm. P.W. 7 Khantar Prasad Sah is the informant himself and also the father of the deceased. He has deposed as an eye witness. P.W. 8 Dr. Devendra Prasad conducted the post mortem on the body of the deceased. Janardan Sah P.W. 9 in Gauri Mohan Mitra, a Tayeed, who has proved some papers. P.W. 10 is Mahendra Prasad Gupta, the Investigating officer of this case, who has submitted the charge sheet against the accused-appellants.
6. The learned trial court, after considering the entire material on record, has convicted and sentenced the appellants as said above.
7. The learned counsel for the appellants has urged that the order of conviction and sentence passed against the appellants by the trial court, is bad in law as no offence is made out from the materials on record. He has said that the manner of occurrence as given out in the first information report and also in the evidence of the witnesses is improbable and unbelievable as by pressing two cots upon three persons by sitting on the cots and pressing their chests, killing is not possible and there are material contradictions in the eye witnesses account. Further, it is also improbable that the appellant Satish Sah would kill the victim by sitting on his chest before his father. The prosecution has not examined the witnesses on the material facts specially one Tino Laiya for whom, the defence has said that he was beaten in the same night while guarding the pumping set of Ram Charan Mahto. Further, there was no means of identification. There is delay of 7 1/2 hours in the filing of the first information report. Appellant Satish Sah has been acquitted of the charge under Section 27, of the Arms Act and so, the case under Section 302, IPC is not made out. To appreciate these contentions of the learned counsel for the appellants, the evidence will have to be scrutinised with care and caution.
8. Out of ten witnesses, there are two eye witnesses, p.ws.2 and 7 p.ws.3 and 4 had seen the accused running away with the pistol and lathis and they along with p.ws.5 and 6 had reached the spot and there was immediate disclosure.
9. P.W.7 is the informant himself who has said that on the fateful night, he at about 8 p.m. after taking food, had gone to sleep along with his son Janardan Sah and one co-villager, Ram Kishore Kapri (p.w.2) and to escape dew, he had set up two cots and spread pual beenath them on the ground near the pumping set. He was sleeping towards east while Kapri was sleeping towards west and in between them, the deceased Janardan Sah was sleeping. At about 1-30 A.M.., four persons came and in the light of the lantern, three of the accused could be identified and fourth one could not be identified. Accused Satish Sah is also called as Chhagri Sah. The four persons pulled down the cots and then threw them aside. Satish Sah removed the lantern which was hanging by the pawa of the cot and then Satish Sah got upon him. Sahdeo Sah pressed him and Ambika Sah pressed Kishore Kapri and Satish Sah got upon the victim Janardan Sah. Sahdeo Sah gave him two hurras of lathhi blows. Satish Sah fired at his son on the right side of the head in, the temporal region on account of which, he died. The accused persons, thinking that the victim has died, ran towards west. He, therefore, raised alarm whereupon, many people came from village to whom, he and Ram Kishore Kapri said about the occurrence and also said that Satish Sah had killed his son by pistol fire. On account of fear, he did not go to the police station at that time but next day, they went to the police station and lodged the first information report at about 9 A.M. upon which, the Investigating Officer came with them to whom, the place of occurrence was shown. Crop was standing in the field. From before the occurrence, the accused wanted to cany his bullock cart up to his house through the field of the informant which was refused and so, they had killed his son Janardan Sah. When the villagers came they told the informant that they had seen four persons in the way with lathi and danda and thus, three accused persons were identilled by them. He was medically examined in the hospital. Witnesses, Bhola Mandal and Ramcharan Malito have colluded with the accused persons and so, they did not want to give their evidence. In cross-examination, he has pid that even prior to the occurrence, he had been going to sleep at the pumping set. His younger son had not gone to sleep there. Both the cots were kept there. P.W. 2 Ram Kishore Kapri had gone to sleep there on the night of the occurrence alone. They had not taken the Bichhawan but they had spread pual. He had got chader while his son had got Sozni. He had seen the firing from a close range. He had not tried to see by using his hand as to whether his son had been killed. He was lying there for three minutes. He had seen the accused persons in the light of the lantern which was burning there from before.
10. P.W. 2 Ram Kishore Kapri is the other eye witness who too has supported the version of p. w. 7 about going to sleep in the night and the cot being set up as a protection and lantern hanging by the pawa of the cot and then at 1-30 A.M., for accused persons coming there out of whom, three persons being identified, Satish Sah removing lantern from the pawa and keeping at a distance of 2 fts., the cots being set aside, Ambika and Sahdeo covering him and informant and Satish sitting on the chest, firing from his pistol at the right side of the head in the temporal region of Janardan Sah and the accused running away. P.W.7 began to weep and cry. He also raised alarm. On hearing our cries, Dinesh Sah, the son of the informant, reached at the spot and on his enquiry, we told him the entire thing about the occurrence. Immediately after the occurrence, many villagers reached the spot to whom they said about the occurrence and also about the names of the accused persons. He and others had been on the place of occurrence for the whole night and next day, they went to police station. The Investigating officer came to the spot and prepared the inquest report which was signed by him. From the spot, one pair of old shoes, one lathi of 2 or 2 1/2 hands long were seized. The Investigating Officer also seized blood stained earth and blood stained lungi of the victim for which too seizure list was prepared which were signed by him and one Mukeshwar Sah. He had go this field irrigated by the pump of p.w. 7. From before the occurrence, the accused wanted to take their carts through the land of the victim which was not allowed by him. In cross examination, he has said that he and others were sleeping on the floor after spreading pual. When there was firing, he was sleeping. One acccused had over-powered him and so, p.w. 7 was over-powered and one sat on the chest of Janardan. Earlier the accused got pressed them by the cots which they threw away. They had not raised alarm when they were being pressed by the cot. P.W. 7 was given a lathi blpw when he was sleeping. Satish fired by sitting on the chest of the victim. His face was about one hand upwards when he fired. He had fired by right hand but not in a sitting pose. After the going away of the accused, he did not find blood on the spot. The lantern was shown to the Investigating officer but the same was not seized although papers had been prepared by the Investigating Officer. Water pump belongs to p.w. 7. He did not remember if he had told the Investigating Officer or not that he had slept at the pumping set of Khantar Sah as in the next morning, he had to irrigate his field from the pump of Khantar Sah. There is a pucca road up to Banka. The pumping set machine was being guarded on account of thieves. He denied the suggestion that the victim had been killed on account of some theft.
11. Besides these eye witnesses, there are other witnesses who had reached the spot on alarm. P.W. 3 Dinesh Sah, son of the informant and brother of the deceased, has said that on that day, there was Sarswati pooja. At about 1-30 A.M. when he was sleeping in his house, he heard gun fire and alarm of his father from the boring side and so, he went to see with a torch and in the way, in the light of the said torch, he saw four persons running away from east to west and so, he identified appellants 1 & 2 as they were of the same village. He also saw in the torch light that Satish Sah had got pistol and there was also lathi with others. He went to his pumping set where he found his brother lying dead having fire-arm injury in the right temporal region which was bleeding and his father was weeping. They said that they had identifed three of the accused persons in the lantern light and one of them could not be identified. They also said that Sahdeo had pressed his father, Ambika had pressed Ram Kishore Papri and Satish Sah had pressed Janardan and after sitting on his chest, he fired from his pistol which hit in the temporal region of the head of Janardan Sah due to which he died. The accused wanted them to give way for their carts from before the occurrence for which, his brother was not ready and so, he had been killed. The appellants are brothers interse. In cross-examination, this witness has said that the temporal region of Janardan was not tied by cloth. He was not taken to hospital as he was dead. He had not seen the pulse of his brother nor had put his hand on the neck. On enquiry from the father, he learnt that brother has died. When he reached there, the, victim was bleeding. He did not ask his father as to why he had not tied the bleeding wound by any cloth. His pumping set is towards east of his house. Many people had collected butnone was ready to go to the police station in the night due to fear. His house is in Ward No. 9 of Banka Municipality. He had in talking terms with the accused from before the occurrence. While he was going to the pumping set, he had not enquired from the accused as to who had fired. His father and Ram Kishore Kapri were sleeping at the spot after spreading pual. Blood was there on the clothes of the victim. He had not given his torch to the Investigating Officer. He had reached the place of occurrence first and then, within 15 minutes, many people had came. The house of Ram Kishore Kapri was just south of the house of the witness. He has got 8-9 bighas of land. He did not know that on the pumping set of Ramcharan Mahto, Tino who is said to be watching the machine, was beaten by thieves. Tino Naiya has died long ago. It was not correct that he had not seen the accused persons in the night of the occurrence and that he has said so on account of enmity.
12. P. W. 4 is Sukhdeo Mahto who reached the spot immediately after the occurrence. He has said that at the same night of the occurrence. He was sleeping in his house and when he woke-up to urinate, he heard gun fire from east and so, he went to the spot with a torch and in the light of the said torch, he saw four persons out of whom, he identified three persons and one person could not be identified. He saw Satish Sah with pistol, Ambika with a small danda and Sahdeo Sah with lathi. He went to the pumping set where lantern was burning. He found the victim lying dead with a fire-arm injury on his head in the temporal region and p.ws. 2,3, and 7 were also present. They said that the accused had killed Janardan. In cross-examination, he has said that the place of occurrence is 200 yards from his house. Others houses are there. He had said to p.w. 7 that in the way, he had seen four persons out of whom he identified three appellants. He had shown the torch to the Investigating Officer. He had identified the accused persons in the way. Many people had collected there on hearing alarm. He saw the dead body of Jandardan in the lights of the lantern and also his torch. The dead body was lying on its right side. No blood was found on the clothes of p.w. 7. Some blood was on the chadar of Ram Kishore Kapri. There are pumping sets of other villagers also. He had not heard that the thieves had come to steal other pumping sets. There was no rickshaw in the village and no body asked to take the dead body to the hospital. He had not advised any one to go to the police station.
13. P.W. 5, Prasadi Mandal has also said that while he was sleeping at his house, he got up to urinate. He went to the place of occurrence with torch but he could not identitfy anyone. The victim had injuries on his head P. Ws.2 and 7 said to him that four accused had came. Out of the accused persons, appellant No. 1, Satish Sah had got up on the chest of the victim. The accused wanted a passage for carrying their bullock cart through the victim's field and on refusal by the victim, he has been killed. In cross-examination, he has said that the victim did not allow the accused persons to have a way for the bullock cart. The place of occurrence was visible from his house. He had not asked for going to the police station. The informant and others were sleeping on the Pual and not on Bichhawan. The victim had died on the spot, there were one pair of shoe, one small lathi etc. Sukhdeo Mahto has got leprosy. It was not correct that he had not said to the police that he had reached the place of occurrence and Dinesh Sah was not there. He had found injuries on the person of Janardan.
14. P.W.6, Parmeshwar Mahto is also a hearsay witness who claimed to have reached the spot at the relevant time i.e. 1-30 A.M. He was sleeping in his house and on alarm, reached the spot. People were going towards pumping set and on reaching there, he found the victim lying dead and Khantar Sah (p.w.7) was weeping. A lantern was burning. P. W. 2 said to him that four accused had came and out of whom, three were identified in the lantern light and Satish was with pistol from which he had fired. All this was also said to him by p.w. 7. In the temporal region of the head, he found injuries which were bleeding and the victim was lying dead.
In cross-examination, he said that he was in position to see in the night. Pual was on the spot, spread on the ground and the dead body was lying there.
15. Besides this witness and also the eye witnesses, and the witnesses reaching the spot, is p.w. 8 Dr. Devendra Prasad who conducted the post mortem examination on the body of the deceased Janardan Sah, on 4-2-1987 at about 4-30 p.m. and prepared the post mortem report (Ext.2) and submitted his report which gives out the following injuries :--
(i) Wound of entrance - there was one circular wound over right temporal region of face'. The diametre of the wound was 1/2. The margin of the wound was lacerated and inverted underline skull bone was fractured and there was a hole in the skull bone. The brain matter was extensively lacerated.
(ii) Wound of exit : There was a lacerated wound over upper portion of head on the left side of the head. The size of wound was 4'x2'. The skull bone over there was fractured in many pieces and there was a big hole in the skull bone. The brain matter was draining outside.
In the doctor's opinion, the death had been caused due to shock and haemorrhage due to the abovenoted injuries. The injuries had been caused by some fire-arm which might by the bullet of a pistol. The fire-arm might have been fired from more than four feet distance. The direction of the projectile was from right side to left side diverted upward. Time elapsed since death was within 24 hours. The injuries were sufficient to cause death in ordinary course of nature. Semi digested food articles were also found in the stomach of the deceased. The blood contained urine. The deceased had sustained injuries by one shot. The wound of entry might have been above the ear. Injury No. 1 could not have been caused from the front.
16. PW,9 Gauri Mohan Mitra has proved the signature of the Investigating officer, Mahendra Prasad Gupta on the F.I.R. and has said that the signature is of the Officer-in-charge, Banka whose signature, which he identified. He has further said in his cross-examination, that the above signature was not-made before him.
17. P.W. 10. Mahendra Prasad Gupta is the Investigating Officer of this case who wrote the first information report and registered the case. He examined the informant and Ram Kishore Kapri. He inspected the spot at 10 A.M. and found there pumping set and pual. He prepared two seizure lists (Exts 4 and 4/1) in respect of pual, blood stained earth, lungi, Shoes and piece of bamboo. He prepared the inquest report (Ext.5) and sent the dead body for post mortem examination. He also prepared the injury report of the informant, being Ext.6. After completing the investigation, the charge sheet was submitted by him.
18. The defence has examined one witness, D. W. 1. Shyam Sundar Kapri who has said that Ram Chandra Mahto of his village has got a pumping set which was being guarded by one Tunni and that some thieves had come to steal the same. Alarm was raised, upon which he along with others went to the spot where Tunni Lehiaya told them that thieves had come to steal the machine on which, after raising alarm, they had gathered and then the thieves were beaten but they fled away. Thereafter, on the same night, when there was again hulla of chor-chor, they went at the pumping set of Khantar Sah situated at Bahiar. On enquiry, Khantar Sah told him that the miscreants had come to steal his machine and so, he raised alarm up on which the miscreants fired at his son Janardan, On his asking, Khantar Sah had told him that he had not identified any of the miscreant. His statement was taken by the police. In cross-examination, he has said that after this case, Khantar Sah had filed a case against him under Section 107 Cr. P.C. His statement was recorded by the Investigating Officer just after 8-10 days of the occurrence. He has further said that there was mar-pit and after that, miscreants ran away. In the same night, again thieves came and on the alarm, he and others went to the Bahiar at the machine as said above. He did not know the name of Tunno Lehia who was given lathi blow. The thieves could not take away the machine of Ramcharan Mahto and so, Ramchandran did not lodge any case. On hearing alarm, many people had gone to the pumping set. His house is 10-12' after the houses of Khantar Sah and others and his house is about 2 km. away from the place of where Janardan had received fire arm injury. Khantar Sah had filed a, case under Section 107 Cr. P.C. against him. After this case, the case under Section 107, Cr. P.C. was filed. He was examined after 8-10 days of the occurrence by the police. During that time, he was at his house. It was not correct that he was a man of the informant and so, he has falsely implicated the accused persons.
19. Thus, from all these evidence, it is made out that on the fateful night at about 8 p.m. after taking food, the informant (p.w.7) along with the deceased son Janardan Sah and co-villager Ram Kishore Kapri (p.w.2), had come to the field to guard his tube well. To escape the fury of the cold in the night, two cots were set up and Pual was spread beneath them, upon which they were sleeping and a lantern was also burning. At about 1-30 A.M., four accused persons, out of whom the three appellants could be identified, came there, the cots were pulled down, lantern was removed and the light remained there continuously. The victims were covered up by the accused. Satish Sah and Sahdeo Sah gave two hurra by lathis and Satish Sah fired at the deceased on the right side of the head in the temporal region causing his death and the accused ran away towards west. On alarm, persons from the village came and the accused were seen and they were also identified. It is also made out that there was no question of any earlier theft and the thieves had not fired at the victim. The evidence of these two eye witnesses P.Ws. 2 and 7 and the evidence of p.ws.3 and 4 who had seen the appellants running away with pistol and lathis and also the evidence of p.ws.5 and 6 who had reached at the spot on hearing alarm, does not suffer from any infirmity or contradiction. The evidence of p.w.2 does not appear to be interested against the appellants nor any enmity has been suggested to him for made out from his evidence.
20. Another contention is that in the first information report, it has been said that when the p.w.2 & p.w.7 estende(sic) were sleeping, the four accused came and the cots were pressed by them upon the three persons but in the evidence in court, the witnesses have said that they were not sleeping when the four accused came and further in the first information report, they are saying that the lantern was removed and, so, they identified the accused, so the evidence of these witnesses is contradictory on material points. As to this contention, first a reference may be made to the observations of the Supreme Court from time to time, out of which specially the following, in the case of State of U.P. v. M. K. Anthony AIR 1985 SC 48 at page 54 : 1985 Cri. LJ 493 at p.498 (para 10) which will suffice.:
While appreciating the evidence of witnesses the approach must be whether the evidence of witnesses read as a whole appears to have a ring of truth. Once that impression is formed it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses, and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit the rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court, which had not this benefit will here to attach due weight to the appreciation of evidence by the trial court and unless there are necessary weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction is an unequal duel between a rustic and refined lawyer.
Therefore, taking in view these observations, the evidence of the eye witnesses should not be discarded on minor and immaterial discrepancies and deficiencies, as they are found to be in the evidence of natural and real witnesses. After reading the evidence as a whole, if it is found that there is no trulls at all and there are material contradictions going to the root of the matter, then the evidence should not be accepted. Here the witness are clear in giving out that they had gone to sleep at the field and after putting up the cots as a shelter against the cold in the night spreading the pual beneath, they were sleeping and then the accused came. The cots were pulled, down, thus pressing them and so they got awake and they could see the accused in the light of lantern. All this is not improbable and has been given out by the witnesses without any contradiction. As such, their evidence is not contradictory.
20. A It has also been said that the evidence of these witnesses is a photographic description of the events, which is not possible to give out in such situation and so the evidence of these witnesses is a get up narration. As to this, how an evidence is a dramatic and photographic description of the events, has been given out by the Supreme Court in the case of Dalbir Kuar v. State of Punjab 1976 SCC (Cri) 527 at p. 543 (Para 25) : AIR 1977 SC 472 at p. 487 : 1977 CriLJ 273 at p. 288 (Para 27) in the following words:
It was also argued that the evidence of p.ws. 3 and 4 should be disbelieved because they have given graphic description of the occurrence by detailing the nature of the injuries and the parts of the body where they were inflicted. Such a photogenic (sic) description smacks of the evidence being a tainted one according to the counsel for the appellants. Reliance was placed on a decision of this court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 Cri. LJ 1783 : 1973 (2) SCC 793 : 1973 SCC (Cri.) 1033 where this court observed thus:
(SCC P. 807 : SCC (Cri.) P. 1047 at PP 1794-95 of (Cri. LJ) para 18:
Some attempt was made to show that the injuries found on the person of the deceased and the manner of their infliction as deposed to by the eye-witnesses do not tally. There is no doubt that substantially the wounds and the weapons and the manner of causation run congruous. Photographic picturisation of blows and kicks and hits and strikes in art attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Efforts to harmonise humdrum details betrary police tutoring not rugged truthfulness.
The observations made by this court were made having regard to the peculiar facts of that case and cannnot be taken to lay down a rule of universal application. In the instant case the witnesses watched the occurrence from a close distance in an electric light. The assault was no dastardly and gruesome that it musfhave made a definite and lasting impact on the memory of the witnesses that made them remember the assault with its grotesque details. Human memory is like a camera which takes snapshots of striking incidents and then transmits the same through word of mouth faithfully with absolute accuracy and precision. Moreover, it is not a question of giving photographic details at all, but the witnesses have merely described what they actually saw. It is manifest that in view of the electric bulb burning, the witnesses were bound to observe the weapons with which the accused were armed, the main parts of the body where the blows were given and the like. As the accused were fully known to the informant Jaswant Kumar, there is nothing unusual if she gave the names and parentage of all the accused persons in the F.I.R: In these circumstances, the comment of learned Counsel for the appellants is without substance and must be overruled.' In the case of Sevi v. State of Tamil Nadu AIR 1981 SC 1230: 1981 Cri LJ 736, it has been observed at page 1232 of AIR at P. 738 of Cri. LJ (Para 3) that: 'According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by the different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. /But the witnesses themselves admit in cross-examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else.
Here, the evidence of the witnesses is not of a dramatic type. The three victims were together at the spot and light was there. The accused were known from before and whatever they did, could be seen by the two eye witnesses without any hinderance as they were close to each other. The act of the two, appellants in pressing p.ws.2 and 7 and thereafter firing by the third accused, was a sequence of event which could not be missed and it could be noticed and described in detail. It was not a large gathering where it is difficut to give out the detailed account of the actions and overt acts of the accused individually and that too vividly. So, the observation of the Supreme Court do not apply in this case and the evidence of the witnesses who had opportunity to see the events, closely and minutely could not be brushed aside as a photographic and dramatic description.
21. As regards the contention about contradictions between the medical and oral evidence, the witnesses, p.ws.2 and 7 say that the deceased was fired by Satish Sah while sitting on the chest of me deceased, but the doctor has given opinion that the distance of firing could be from more than 4 ft. distance. The evidence of the witnesses is that firing was done by Satish while sitting on the chest of the victim Janardan Sah. The firing had been done by a country made pistol and not from a standard weapon. As such, it could not be said with exactitude the distance of firing. The evidence of the doctoris only an opinion whereas the oral evidence is a positive evidence. Specially p.w. 2 who said that firing was from a distance of one cubic i.e. two feet. The doctor is not sure that the firing was done from a distance of four feet as he says that it might have been fired from more than four feet distance. The medical evidence establishes that the victim had died of fire arms injuries and as such, it cannot be said that there is contradiction between the medical and oral evidence. The witnesses had full opportunity to see the occurrence from a very close distance in the lantern light and further the appellants were already known to the witnesses, so there was no mistaken identity of the appellants. In the case of Karnail Singh v. State of Punjab AIR 1971 SC 2119 : 1971 Cri.LJ 1463 the Supreme Court has observed at page 2123 of AIR at P. 1467 of Cri. LJ (para 19):
Before this Court it was argued that judging from the area of spread, the gunshots were probably fired from a distance of 36 yards which would make the prosection story inconsistent with the above theory. But this is a case where eye-witnesses gave direct evidence of the crime., In view of what has been said about light, identification was not in doubt. That being so, the question of distance loses much of its strength, we see no substance in this argument.
Again in the case of State of U.P. v. Sughar Singh AIR.1978 SC 191 : 1978 Cri. LJ 141 their lordships following the earlier case of Karnail Singh (Supra), observed at Page 200 of AIR at P. 150 of Cri. LJ (para 12).:
In view of such direct evidence of eye witnesses of the firing being available on record some inconsistency relating to the distance from which the gun shots were fired between the evidence of medical expert and the eye witnesses would be of no significance whatsoever vide Karnail Singh v. State of Punjab AIR 1971 SC 2119 : 1971 Cri. LJ 1463. However, as stated above, we are clearly of the view that the prosecution evidence pertaining to the assault by guns and pistol substantially tallies with the medical evidence available on the record.
22. As regards the contention about the delay in lodging the first information report, no doubt, the occurrence is of the night at 1 -30 and the first information report was registred at 9 A.M. at aj distance of about 2 Kms. but the informant had i lost his son and he was also a victim of assault and it was a night between 3rd/4th of November, so he could not be expected to go to lodge the report in the night leaving his son there. In the morning he went and lodged the report. P.W. 3 has clearly said that on account of fear, none wasready to go to the police station in the night. In the circumstances, it cannot be said that it is delayed first information report.
23. As regards the means of identification, it appears that the lantern was there as said by the witnesses and nothing has come out to show that the lantern was removed or was put off. Further, the accused were known to the witnesses from before. As such, there was no question of mistaken identity of the accused persons.
24. As to the contention as to why the accused had spared the father (p.w.7) and killed his son, it has come in evidence that the deceased was not allowing the accused persons to take their bullock cart through his joint family land and so the main role of opposing to the efforts of the acused persons, was to the victim alone and so, he was the main target and so he has been killed. If, for the reasons best known to the accused, they did not kill the father also, the prosecution is not expected to give out any reason for the same. In the case of Molu v. State of Haryana AIR 1976 SC 2499 : 1976 Cri. LJ 1895 it has been said at Page 2504 of AIR : at P. 1899 of Cri LJ (para 9):
P.W.9 Suraj Bhan who was a young boy of 15-16 years has been disbelieved by the learned Sessions Judge merely on the ground that he did not receive any injuries and if he had been present at the spot he should have also received injuries like others. This reasoning of the learned Sessions Judge is based on pure speculation. Various persons react differently in similar circumstances and it is difficult to probe in the minds of the accused as to how they act in a particular way. In the present case, the accused had already assaulted tw6 persons with various weapons as also two ladies and they may have thought that it would be enough and in view of the young age of Suraj Bhan they might have spared him.
25. The main role of killing has been given out to appellant Satish Sah which is fully made out by oral evidence and is supported by medical evidence also and so, the case under Section 302, of the Indian Penal Code, is well made out against him.
26. As regards the conviction of the appellants, Ambika Sah and Sahdeo Sah under Section 302/34, of the Indian Penal Code, the evidence of p.ws. 2 and 7 who had seen them on the spot and at the dead of night along with appellant Satish Sah when they removed the cots and sat upon the chest and gave hurra blows to the informant, goes to show that they have actively participated in the occurrence. They had come together in the night and from the very beginning till the final causing death, they were seen there. Each had got his own role and so, by their acts, p.ws. 2 and 7 were unable to help the deceased and so, the act of Salish Sah in killing, was made easy. Prior concert or prior plan of the accused has to be judged from the facts and circumstances of the case as the direct evidence in respect thereof is difficult to give. Only the acts of the parties will make out the intention and so, this factual aspect is to be inferred from the facts and circumstances. All of them took part together. They came together and after achieving the object, they went away together. Common intention can develop even on the spur of the moment. So, the attending circumstances can be a good evidence for coming to the conclusion. In the case of Ramaswami Ayyengar v. State of Tamil Nadu 1976 SCC (Cri.) 518 : 1976 Cri. LJ 1563 the Supreme Court has held at page 522 of SCC (Cri.LJ) at. P. 1567-68 of Cri. LJ (para 12) as under
Section 34 is to be read along with the preceding Section 33, which made it clear that the 'Act' spoken of in Section 34, includes a series of Acts as a single act. It follows that the words 'when a criminal act is done by several persons' in Section 34, may be construed to mean 'when criminal acts are done by several persons.'. The acts committed by different confederation in the criminal action may be different but all must in one way or the other participate and engage in criminal enterprise, for instance one may only stand guard to prevent any person coming to the relief of the victim, or many otherwise facilitate the execution of the common danger. Such a person also commit an act as much as his coparticipants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34, that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common danger, is itself tantamount to actual participation is the criminal act. The essence of Section 34, is the simultaneous consensus of the minds of persons participating in the criminal action to bring a particular result. Such consensus can be developed at, the spot and thereby intended by all of them. In the case before us, A-2 obviously was acting in concert with A-3 and A-4 in causing the murder of the deceased when he prevented p.w. 1 from going to the relief of the deceased. Section 34, was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased. Under these circumstances we think that the High Court was justified in convicting A-2 for the offence of murder of Kaliaperumal with the aid of Section 34, of the Penal Code. There was absolutely no difficulty in maintaining the connections of A-3 and A-4 for the murder of Kaliaperumal with the aid of Section 34, because both had mercilessly assaulted him with aruvals on the vital parts of the body. In the case of A-2 also it is quite legitimate to told that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliaperumal.
In the case of State of Punjab v. Surjeet Singh AIR 1987 SC 1045 : (1987 Cri. LJ 845, the Supreme Court has observed at page 1049 of AIR : at p. 848 of Cri. LJ (para 14) as follows :--
The High Court is also in error in taking the view that a person convicted under Section 302 read with Section 34, IPC stands on a very different footing from a person convicted under Section 302, IPC. The High Court has failed to see that when an offence is committed in furtherance of the common intention of two or more accused: then any one of them is as much guilty as the other and it is not necessary that every one of them should have participated in the commission of the offence to the same extent and degree as the other person or persons accused of the offence had acted. Even if injuries 1 and 2 while on the fatal injuries had been inflicted by accused No. 1 and not by No. 2, the latter would be as much guilty of the offence of murder as the former because of the common intention forged btweeen the two.
In the case of Barthi v. State of Punjab AIR 1991 SC 319 : 1991 Cri. LJ 402 the Supreme court has observed at page 325 (of AIR) at p. 409 of Cri. LJ (para 15) as follows :
Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. The essential constituent of vacarious criminal liability prescribed by Section 34, is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the Criminal offence charge, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common effect is of the features of the unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.
As such, their conviction under Section 302/34 of the Indian Penal Code is well made out beyond reasonable doubt and, the prosecution has been able to prove its case.
27. In the result, this appeal is dismissed. Appellant Satish Sah is in jail. Appellants, Ambika Sah and Sahdeo Sah are on bail, and so, their bail bonds are hereby cancelled and accordingly, they are ordered to be taken into custody to serve out their remaining period of sentence.
Lok Nath Prasad, J.
28.1 agree.