Judgment:
P.K. Jain, J.
1. Five persons, appellants Babu Ram and Ragunath and three others, Ajudhi, Smt. Phool Mati and Smt. Champa, were tried by the then II Additional Sessions Judge, Non-Metropolitan Area, Kanpur, in S.T. No. A 231 of 1978. Out of the five accused who stood trial, appellants, Babu Ram and Raghunath, were convicted under Section 302, I.P.C. read with Section 34, I.P.C. and were sentenced to undergo imprisonment for life vide judgment and order-dated 14-11-1979. Other accused, Ajudhi, Smt. Phool Mati and Smt. Champa were acquitted giving them benefit of doubt.
2. The incident is said to have occurred on 8-10-1977 at about 10.00a.m. in village Bahrampur within the local limits of P. S. Bichor, district Kanpur Non-Metropolitan Area, the first information report of the incident was lodged by Sipahi Lal, brother and son respectively of deceased Ram Swarup and Smt. Lachchana. It is alleged that for about 18 years animosity was existing between complainant's party on one side and the accused Babu Ram, Ajudhi and Raghunalh on the other side. Accused Babu Ram etc. were convicted and sentenced for murdering father of the complainant. The accused party had also dismantled the 'Mend' of the field of the complainant and had constructed a new mend encroaching upon the land of the complainant. On the date to the incident complainant's monther, Smt. Lachchanna, brother Ram Swarup had taken withnesses, Sri Krishna and Revati Raidas to the said field to show the position of the 'Mend'. Accused Babu Ram also reached there. Sri Krishan and Revati Raidas found that the accused party had encroached upon the land of the complainant and decided that the 'Mend may be recostructed at its original place. Ram Swarup started construction of the 'Mend' according to the decision of the witnesses which annoyed Babu Ram. He went away thereatening that he will chop off his (Ram Swarup's) head. At about 10.00 a.m. Ram Swarup and Smt. Lachchana were returning to their house. When they were on the chak-road in front of the house of Babu Ram, accused Babu Ram armed with Gandasa, Raghunath armed with Pharsa, Ajudhi armed with knife appeared at the scene of occurrence. Smt. Champa wife of Babu Ram and Smt. Phool Mali wife of Ajudhi also came out of the house and all the five accused accosted Ram Swarup and Smt. Lachchana. Phool Mati and Champa are said to have exhorted to kill them whereupon Babu Ram and Raghunath assaulted Ram Swarup and Smt. Lachchana with their respective weapons causing both of them fatal injuries. Both of them died on the spot. It is alleged that the incident was witnessed by, Sri Krishna Pal, Revati Raidas, Ram Sewak Raidas, Ram Swarup's wife Smt. Ram Beti, complainant's daughter, Shanti Devi and wife Smt. Ramvati.
3. First information report, Ex. Ka-4 was scribed by one Ram Autar at the dictation of Sipahi Lal, first informant and was lodged at police station Bilhoron 8-10-1977 at 12-30 p.m. The police station was seven miles away from the village of occurrence. A case under Sections 147, 148 and 302, I.P.C. was registered and after necessary investigation all the five accused were chargesheeted by the Investigating Officer concerned.
4. Authopsy on the dead-body of Smt. Lachhana and Ram Swarup was performed by P.W. 4, Dr. V.D. Ravi on 9-10-1977 at 12.45 p.m. and 1.25 p.m. respectively.
5. On external examination of the body of Smt. Lachchana the doctor found that rigor mortis was absent in upper limbs, abdomen was distanded with greenish discoloration.
6. The following ante-mortem injuries were found on the person of Smt. Lachchana.
1. Incised wound 25 cm. x 3 cm. x brain deep, on the left parito-occipital region 14 cm. above left (compound fracture).
2. Incised wound 8 cm. x 2 brain deep on the left tempro-mastoid region 6.5 cm. above left tragus (compound fracture).
3. Incised wound 2.8 cm. x 1/2 cm. x muscle deep on the front of the right thumb.
7. On internal examination the doctor found that the skull bones were clean cut under injury Nos. 1 and 2. The membrance of brain were also cut under the injuries and brain tissues were also cut. Fluid and clotted blood were also found. Stomach contained 3 ozs. watery fluid. In the opinion of the doctor the death occurred about one day prior to the postmortem examination and was caused due to head injury Nos. I and 2.
8. On external examination on the body of Ram Swarup rigor mortis was found absent in the upper extremities and was passing off in lower limbs. Abdomen was distanded with greeninsh discolouration. Following ante-mortem injuries were found :-
1. Incise wound 10 cm. x 3 cm. x bone deep. Fracture of verticle rameous of the left mandible 2 cm. below lobule of left ear.
2. Incised wound 7 cm, x 2 cm. x muscle deep on the back of neck on left side in middle third.
3. Incised wound 11 cm. x 5 cm. bone deep cutting 5th cervical vertebra and spinal cord through and through on the left side neck in the lower third on back.
4. Abrasion 4 cm. x 4 cm. on back of left shoulder. Injuries Nos. 1, 2 and 3 are horizontally oblique.
5. Lacerated wounds on the right eye-brow.
6. Lacerated wound 1.3 cm. x 07 x skin deep on the right eye-brow slightly away from injury No. 5.
9. The doctor opined that the death was caused about one day prior to the postmortem examination due to shock and haemorrhage as a result of ante-mortem injuries.
10. On the above material the trial co-accused Ajudhi appellants, Babu Ram and Raghunath and co-accused Ajudhi under Section 148, I.P.C. and 302, I.P.C. and in the alternative under Section 302, I.P.C. read with Section 149, I.P.C. Co-accused Smt. Phool Mati and Smt. Champa were charged under Sections 147 and 302 read with Section 149, I.P.C.
11. All the accused including the appellants denied the charges framed against them.
12. Appellant, Babu Ram stated that he was in the house and when he came out for going to ease himself, he had seen mother and son dead and he has been falsely implicated due to enmity.
13. Raghunath appellant denied his presence at the scene of occurrence.
14. Prosecution in support of its case examined P. W. 1 Sipahi Lal, P. W. 2 Sri Krishna, Smt. Ram Beti (widow of Ram Swarup deceased) as eyewitnesses. P. W. 4 Dr. V.D. Ravi had held authopsy on two dead-bodies. P.W. 7 Ram Bahal Pandey was the Head Moharrir who scribed check report, Ex. Ka-4 and G. D. entry copy of which is Ex. Ka-5. P.W. 8 S.I. Mahendra Singh was the Investigating Officer. Besides examining the aforesaid withnesses the prosecution also filed affidavits of constables Wall Mohammad and Ram Narain Tripathi who are formal witnesses.
15. The appellants did not adduce any evidence in their defence.
16. The trial Court doubted the presence of P.W. 1 and P.W. 2 at the scene of occurrence and consequently rejected their testimony. However, the testimony of P.W. 3 Smt. Ram Beti was believed by the trial Court as regards the participation of appellants, Babu Ram and Raghunath and consequently the trial Court convicted and sentenced them as stated above.
17. We have heard Sri P. N. Misra, learned counsel for the appellants and learned A.G.A.
18. The sole question raised by the learned counsel for the appellants is whether it is a fit case in which solitary testimony of P.W. 3 should have been accepted by the Court below or not. It is contended that when the presence of P.W. 1 and P.W.,. was held to be doubtful by the trial Court, testimony of Ram Beti, (P.W. 3), who claims that Sipahi Lal (P.W. 1) and Sri Krishan (P.W. 2) were also present, cannot be accepted. In is also contended that Smt. Ram Beti claims that she had reached the scene of occurrence on hearing hue and cry and saw her husband, Ram Swarup, being assaulted yet she did not attempt to rescue her husband and this conduct of her is unnatural and makes her presence at the scene of occurrence doubtful. Learned A.G.A. contends that the testimony of an eye-witness cannot be rejected on the sole ground that the presence of other witnesses has been doubted by the Court and the witness whose testimony is believed states about the presence of such witnesses. It is also contended that the house of deceased, Ram Swarup, was hardly few paces away from the place of occurrence, therefore, Smt. Ram Beti was the most natural witness. Mere fact that she did not attempt to rescue her husband cannot be a sufficient ground to reject her testimony. Even with regard to P.W. 1 it is contended that his testimony has been wrongly rejected by the trial Court.
19. We have been taken through the evidence of the three eye-witnesses. So far as the presence of Ram Beti (P.W. 3) is concerned, on consideration of her evidence we are not inclined to accept the argument of the learned counsel for the appellants that this witness was not present at the scene of accurrence. The Investigating Officer had inspected the place of occurrence and had prepared site plan Ex. Ka-18. P.W. 8, S. I. Mahendra Singh, who investigated the case has proved the site plan and has categorically stated that the site plain is correct according to the situation of the place of occurrence. There is no cross-examination with regard to the correctness of the site plan. There is mere suggestion that the site plan was not prepared at the scene of occurrence. The incident had taken place on the Rasta towards west of the house of appellant Babu Ram. The house of first informant and deceased is shown towards south-east of the house of appellant Babu Ram. P.W. 3 has categorically stated that on hearing hue and cry she came out of the house and reached the Chak-road and from there she saw the occurrence. The place of her witnessing the incident has been shown by the Investigating Officer by letter 'E' which is around 22 paces towards south of the place where two victims were being assaulted. She has claimed during her cross-examination that her house is situated only 15-20 paces away from the place of occurrence. The existence of her house near the scene of occurrence is not challenged. She would have, therefore, been most natural witness and would have been attracted by the hue and cry of the victims.
20. As regards the argument of the learned counsel for the appellants that her conduct was highly unnatural in as much as she did not attempt to rescue her husband and, therefore, her presence was doubtful, in our opinion there does not appear to be any substance in this argument. It is not always true that a Hindu wife would rush to rescue her husband when he is being assaulted. Different persons react differently in given circumstances. Some muster the courage and may attempt to rescue the victims while others feel afraid of ground towards the assailants. Therefore, from the mere fact that Smt. Ram Beti did not attempt to rescue her husband it cannot be concluded that she was not present at the time of the occurrence. The testimony with regard to the manner of assault upon the two victims and the weapons used by the assailants, is fully corroborated by the medical evidence and other circumstances and no material infirmity has been pointed out to us. We are, therefore, not inclined to accept the argument that the conduct of Smt. Ram Beti was such which creates doubt about her presence at the scene of occurrence.
21. Another ground on which learned counsel for the appellants contends that evidence of P. W. 3 cannot be accepted is that she speaks also of the presence of P.W. 1 Sipahi Lal and P.W. 2 Sri Krishna but their presence has been doubted by the Court below and if still the witness states about their presence then her testimony is not free from falsehood. It is, of course, not disputed that conviction can be based on solitary testimony if the evidence of such witness inspires confidence. The well recognized principle is that the evidence has to be qualitative and not be counted. There may be three types of evidence, (1) evidence wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. If the case falls within the first category, then there can be no difficulty for the Court in arriving at its conclusion either way. In the second category of cases where the evidence is wholly unrealiable, no amount of corroboration could improve otherwise unreliable evidence. It is in the third category of cases that the Court has to look for corroboration in material particulars by reliable testimony. After perusing the evidence of P.W. 3 we are not inclined to hold that the evidence of P.W. 3 falls in category (2) or (3). Her evidence, in our view, falls in cagtegory (1) and therefore, there is no need of seeking corroboration. It is true that in the case of Bhagwan Das v. State 1957 Cr LJ 889 : AIR 1957 SC 589 the Supreme Court has held that if a witness named another as a person present on the spot and the presence of this second man is dubtful, it would be dangerous to accept his testimony and base conviction thereupon. That was a case in ' which the High Court while setting aside the judgment and order of acquittal passed by the trial Court observed that 'it seems to us that Hazari had said this because the prosecution was producing Bega, and he must-have been asked to say that Bega was also present.' Commenting on this observation of this High Court the Supreme Court observed 'if as observed by the learned Judges of the High Court, Hazari had mentioned the presence of Bega merely because the latter was to be produced as a prosecution witness and because he (Hazari) had been asked to mention it, then it would detract so materially from his reliability that it would be dangerous to accept his testimony as being of any great value which is still more diminished by the finding as to the innocence of Mt. Rameshwari.' It is evidence from the observations of the Hon'ble Supreme Court that the above observation was made in the special circumstances that the High Court had observed that Hazari witness must have been asked to say that Bega was also present. In a number of cases testimony of a single witness has been accepted while rejecting the testimony of other witnesses whose presence is claimed by the witness whose testimony had been accepted. In our view, there cannot be hard and fast rule to hold that the testimony of a witness who is sought to be believed without corroboration should not be accepted if a witness goes to the extent of mentioning another as an eye-witness whose presence the Court finds to be doubtful. As already pointed out above no material infirmity has been pointed out in the testimony of P.W. 3. Hence, she cannot be discredited merely on the ground that she speaks about the presence of Sipahi Lal and Sri Krishna whose presence has been found to be doubtful by the trial Court. We are not pursuaded by the argument advanced, by the learned counsel for the appellants.
22. Having gone through the evidence of F.W. 1 and the reasoning given by the trial Court for disbelieving the presence of P.W. 1, we are satisfied that the testimony of P. W. 1 has not been rejected on sound reasoning. P.W. 1 Sipahi Lal is the first-informant and brother of deceased, Ram Swarup and son of deceased Smt. Lachchana. While discussing the evidence of P.W. 1 the Court below observed as follows :-
The perusal of the F.I.R. shows that Sri Sipahi Lal had not been there but he deposed that he also reached there. He did not depose, as averred in the F.I.R. the Ram Swarup and Lachchana, both had taken...Sri Krishna and Reeti, to the field. According to his statement when he reached the field Srimati Lachchana was also there. It is not the prosecution case that accused Raghunath was also in the field at the time of this earlier incident but this man deposed about it. He deposed that from the field he went to take a dip in the Ganges, that half an hour after he returned from the Ganges and found his mother and brother proceeding towards the village and that he along with Sri Krishna and Ram Sewak followed them. He did not aver in the F.I.R. that he himself had reached the field, that from there he proceeded to the Ganges for bath and that he returned to threshing floor and from there followed his brother and mother. About the reason for such omissions, he could give none. He did not dictate in the F.I.R. and tell the I.O. that Raghunath was also in the field and that he had extended that threat that one who would touch the Mend, his head would be chopped off. When asked the reason for omission, he stated that it was due to forgetfulness. Had this been a fact Sri Krishan would have deposed that Raghunath had also been there but according to Sri Krishna only Babu Ram was there and it was he who had left after extending the threat.
23. It appears from the above that the trial Court disbelieved the testimony of' P.W. 1 because of some omissions in the first information report and some exaggerations in his deposition before the Court. The Court below has failed to take into consideration the fact that ghastly murder of brother and mother of the first information was committed in day light and after such an incident the first informant cannot be expected to give minute details of the incident. The broad features of the prosecution story have been mentioned in the first information report. There is avement about dismantling of the 'Mend' of the field of Ram Swarup, presence of Ram Swarup and Smt. Lachchana at the field prior to the incident and reconstruction of the 'Mend' by Ram Swarup after removing the encroachment made by appellants Babu Ram and others. Mere omission, to make a mention of the name of Raghunath at the field would not be enough to held that P.W. 1 was not present at the field when threat to chop off the head was extended. There may be an exaggeration in stating about the presence of Raghunath at that stage. In a recent case Ram Kishore v. State of M.P. 1996 33 ACC 849 : 1997 Cri LJ 207 the Supreme Court observed that except drawing our attention to some contradictions which are in the nature of omissions, the learned counsel could not point out any serious infirmity in the evidence of any other witness. Those omissions would have achieved some importance if it had become necessary to consider the role played by each accused to find out which offence was committed by him individually.
24. While going through the evidence of P.W. 1 we do not find any infirmity as regards the place of occurrence, the manner of assault and the weapons assigned to the assailants. His evidence is consistent so far as the basic features of the prosecution case are concerned and his evidence is corroborated by medical evidence as well as by the prompt first information report. Some minor contradictions in the testimony of P.W. 1 with the statement of P.W. 2 have also been mentioned while appreciating the evidence of P.W. 1. When the presence of P.W. 2 was being disbelieved by the trial Court, such contradictions could not have been taken into consideration for disbelieving the testimony of P.W. 1. On careful consideration of the evidence of P.W. 1 we are inclined to accept the argument of learned A.G.A. that presence of P.W. 1 has been wrongly disbelieved or doubted by the trial Court. We hold that P.W. 1 was a natural witness and there is no material infirmity in his testimony so as to doubt his presence at the scene of occurrence or discredit his testimony.
25. As regards P.W. 2 Sri Krishna we are inclined to hold that this witness is a stock witness who has been appearing from the complainant's side in some cases and he has been cited as a witness in this case also for this reason. P.W. 1 has admitted during cross-examination that his father was murdered by appellants and others prior to the present incident and Sri Krishna had appeared as a witness in that case. He was also a witness on behalf of the complainant in a case under Sections 107/177, Cr.P.C. Sri Krishna is thus being cited as a witness in every incident which is happening in the complainant's party.
26. In view of the discussions, made above, we come to the conclusion that the appeal fails and consequently deserves to be dismissed.
27. The appeal is hereby dismissed. The trial Court judgment and order convicting the appellants and sentencing them to undergo imprisonment for life under Section 302 read with Section 34 I.P.C. is upheld. The appellants are on bail. They will surrender forthwith to serve out the sentence awarded to them by the trial Court.