Full Judgment
Dharnidhar Jha, J.
1. The two appellants were put on trial by the learned IV Additional Sessions Judge, Aligarh by being indicated under Sections 148/302/149 IPC in S.T.No.309 of 1980 and by judgment dated 23.4.1982 the appellants were found guilty of committing the two offences. After being heard under Section 235 Cr.P.C., each of the two appellants were directed to suffer rigorous imprisonment for three years under Section 148 IPC and rigorous imprisonment for life under Sections 302/149 IPC.
2. The appellants have come up before this Court through this appeal to challenge the judgment of conviction and order of sentence passed by the learned trial Judge.
3. The prosecution case is contained in the written report Ext. Ka.2 filed by PW-1 Chhatrapal, who happened to be the grand father of the deceased Ashok. It was stated that the informant along with his daughter-in-law Smt.Ramwati(PW-2),who was the wife of his deceased son Prem Pal and mother of the deceased Ashok, were going to their tubewell. The grandson of PW-1 had also set out with PW-1 and his mother(PW-2)towards west where a pond was situated for attending to the call of nature. When the informant was on the road situated south of the tubewell of one Netra Pal,he heard the shouts of his grandson Ashok and stopped there to look towards the pond and found that the deceased Ashok was coming running by the ridge of the field of the said Netra Pal and was being followed by five persons, out of whom four persons were armed with regular guns and the fifth had a country made gun. They were simultaneously firing shots at the deceased Ashok, who was fleeing for life.
4. It was alleged that the deceased entered into the Nohara of one Netra Pal (Nohara, we were told is an enclosed place, meant to store fodder and agricultural produce where some hut like structures are also situated).Out of five accused persons,PW-1 could identify Chandra Bhan and Bachhan, the two present appellants and he could not identify the remaining three.
5. It was alleged that the people were attracted due to commotion created at the scene of occurrence. However, five accused persons dragged the deceased Ashok out of the Nohara of Netra Pal and brought him in front of the flour mill and fired from their respective regular and country made guns as a result of which Ashok was badly injured. When PW-1 ran to save his grandson, these two appellants also fired at him forcing the informant and his daughterin- law to seek safety behind a wall situated there. It was stated that some villagers had also been attracted to the scene of occurrence. On being challenged by the villagers and the informant, the accused persons ran towards village Basai. The informant stated that he, thereafter, went to his grandson and found that he was bearing gun-shot-injuries and was bleeding from them.
6. As regards the reasons and motive for committing the offence, it was stated that about four years back the present appellants alongwith one Raj Kumar with son of one Mahendra Pradhan had committed the murder of Prem Pal,father of the deceased Ashok and they had been released from prison and were carrying ill-will due to the above reasons and, as such, committed the murder of Ashok after hiring three others from outside the village.
7. It was stated by the informant that he put his injured grandson in a bullock cart, started for the police station with his co-villager Kamal Singh (not examined) and while they were near village Sasni, Ashok breathed his last. The informant stated that the clothes worn by the deceased as also the empty cartridges fired at the deceased were lying near the place of occurrence.
8. The written report was received at the police station by constable/clerk Pooran Singh (PW-4) who drew up the FIR after making general diary entry,which is Ext Ka.3.
9. PW-6, Shyam Singh Yadav was posted in police station Sasni as Subinspector and he came to the place of occurrence and held inquest upon the dead body and prepared the report, Ext.Ka.4 in the presence of the witnesses. After that Om Prakash Tyagi (PW-7) arrived at the place of occurrence and as such PW-5 handed over the charge of investigation to O.P.Tyagi, who conducted investigation, after holding of inquest by PW-5. PW-7 recorded the statements of witnesses and inspected the place of occurrence which is duly indicated by the sketch map,Ext.Ka.6 as per which the deceased was chased from point 1 which was the ridge in between two plots belonging to Netra Pal and which ended at the Nali which was located south of the field of Chhatra Pal. The deceased entered into the Nohara of Netra Pal which has been indicated by 'B' and from there he was dragged out upto place 'C' and was shot dead in front of the Jhopdi in which the flour mill was installed.
10. PW-7 found blood stained earth and empty cartridges at place 'C' and accordingly, prepared seizure memo, Ext.Ka.7 and Ext.Ka.8 respectively. The direction in which the accused persons chased the deceased is well indicated by a line of arrows and the investigating officer had also indicated the distance between different points which have been shown in the sketch map, Ext.Ka.6 by letters A, B, C and D as per which the distance which was covered by the deceased while he was running to reach the Nohara of Netra Pal, was about 150 steps. The distance between Nohara from where the deceased was dragged out to the point 'C' where he was finally shot dead, was about 25 steps and which point has been indicated separately by writing Pokhar which was at a distance of about 200 steps from the place indicated by letter 'C' where the deceased was shot dead. The distance between the real place of occurrence and the place where the mother of the deceased was standing to see her son being chased and killed, was about 50 steps away from the point 'C' the real place of occurrence. It further appears from the sketch map that except a single Jhopdi and few structures inside the Nohara of Netra Pal there were no intervening structures in between or around the area which could have obstructed vision.
11. It appears from the evidence of PW-6 itself that he also sent the dead body with the dead-body-challan through Constable Yakub Ali (PW-5) and Laxman Das for post mortem examination which was conducted by Dr.N.K.Maheshwari.
12. On completion of the investigation the appellants were sent up for trial which ended in the impugned judgment.
13. The defence of the appellants was that on account of being implicated falsely earlier in the case for the alleged murder of Prem Pal, the son of PW-1 and father of the deceased Ashok and the trial having ended in the acquittal of the appellants, the informant was attempting yet another time to implicate the two appellants in a false charge.
14. We have already pointed out that there are only two eye witnesses i.e. PW- 1 Chhatra Pal, the informant of the case and PW-2 Smt. Ramwati, the mother of the deceased, who was the widow of Prem Pal, the son of the informant.
15. The evidence of PW-3, Dr.N.K.Maheshwari indicates that there were 9 injuries found by him on the dead body. They were all ante-mortem wounds and except injury no.9, all injuries were gun shot wounds; out of whom two were wounds of entry indicating as if two shots had hit the deceased causing as many number of entry wounds. It is better to enlist the wounds which were found by PW-3 on the dead body of the deceased. They are as follows:-
i) Gun shot wound of entry " x " on the left side of chest on its upper part.
ii. Gun shot wound of entry 3" x 3" on the dorsum of left hand.
iii. Gun shot wound of exit 2" x 1" on the dorsum aspect of left hand.
iv. Gun shot wound of entry 1" x " on the medial side of right knee.
v. Gun shot of entry 1" x 1" on the outer upper part of upper left thigh fracturing femur bone.
vi. Five gun shot wounds of exit on medial side of right upper thigh in an area of 3" x 3".
vii. Three gun shot wounds of entry " x 4" on the front of right forearm .
viii. One gun shot wound of entry " x " on the medial side of left clavicle.
ix. Multiple abrasions 2" x 2" on the right knee joint.
It may appear from the above wounds that multiple shots were fired, one after the other. Ext.Ka.1 which is the post mortem examination report further indicates as if some shots were fired in the back of the deceased also as one of the pellets was recovered from the back of the chest where it was found lodged in the muscle. So far as injury no.9 is concerned it was a multiple abrasion in an area of 2" x 2" on the right knee joint which clearly indicates that the deceased had been dragged out by being picked up by his killers by his hands. The opinion of PW-3 Dr.M.K.Maheshwari which was recorded in his deposition was that the above ante mortem wounds were the cause of death of Ashok, which had occurred on account of haemorrhage and shock. Thus, it appears from the evidence of PW-3 that the deceased was definitely dragged out by the culprits and he was fired from all sides, also from his back.
16. So far as the evidence of PWs-1 and 2 is concerned, both the witnesses have stated that they had set out from their house together towards the tubewell while the son of PW-1, Ashok had started towards the west for attending to the call of nature. When both PWs-1 and 2 reached near the tubewell of one Netra Pal, they heard the cries of Ashok who was coming shouting "Bachao, Bachao". He was being chased by five gun trotting criminals, who, while following him, were also firing shots at him from their respective guns till Ashok had entered inside the campus (Nohara) of Netra Pal. The two witnesses identified the two appellants out of band of five persons. They came to the campus(Nohara)of Netra Pal and dragged Ashok out of it upto and in front of the door of Chakki and fired at him to injure him. Both the witnesses stated that Ashok was lying for some time and he was taken to police station Asasi but he died on way to the police station.
17. PW-1 stated that at the time of occurrence Netra Pal and Kamal Singh were also present there. But we find that none of them came forward to support the case. PW-1 stated that he or his daughter-in-law did not make any effort for saving Ashok and had merely shouted at the incident. PW-1 also stated as did PW-2, that Prem Pal the son of PW-1 and husband of PW-2 was murdered by the present appellants and others and the appellants were tried for that murder but, were acquitted and, as such, they had committed the murder of Ashok.
18. So far as non-examination of Kamal Singh is concerned PW-1 stated that he was a vagabond as the landed property of his family had been sold in execution of a decree in the year 1933 and his elder brother Durga Pal was issue-less. Because, Kamal Singh did not have any source of sustenance, he was leading a vagrant life. What I find from the perusal of the evidence of PWs-1 and 2 is that it was only PW-1 who was put to cross-examination as regards the material parts of the occurrence. He was put to question as to from what distance he had seen Ashok for the first time. The witnesses replied that it was a distance of about 100 steps that he had seen the deceased coming running and being chased and fired at by the appellants and others. He further stated that he could not say as to how many shots were fired by the assailants before Ashok had reached the Nohara of Netra Pal only because he was simply concentrating as to how Ashok was running to save himself. The witness stated that he did not move towards his grand son, rather shouted only in SOS to seek help from the villagers. However, no one from the village which was inhabited by 400 persons came out in help of PW-1. As regards the sifting of Ashok to police station, PW-1 stated that he picked up a bullock cart which was lying at the house of Netra Pal and yoked the bullocks to the cart and put Ashok on it and started for the police station. PW-1 stated that the assailants of Ashok had seen him standing and shouting there but none of them asked the other two appellants to kill him.
19. So far as PW-2 is concerned she had stated that she had not taken the meals on that day before leaving her house and that Ashok had drank milk only before coming out of the house. Ashok had taken meals half an hour prior to the occurrence and further stated that she ran into the direction from which the cries of her son emanating. She was also accompanied by her father-in-law, PW-1. She stated that her son was at a distance of 8-10 steps from both PWs-1 and 2 when he was shot and killed. The culprits did not fire at her or her father-in-law and that the accused persons had run away thereafter. The villagers had come there. Her son was put on a bullock cart and was taken away when she came back to her some from the side of occurrence.
20. Sri Dharmendra Singhal,the learned counsel for the appellants was submitting that there was no immediate motive for the appellants to commit the murder of the grand son of PW-1 after they had been acquitted of the charge of murdering the father of Ashok. It was further contended that both PWs-1 and 2 were chance witnesses and it might not be safe to place reliance upon their evidence, specially when there was the background of previous enmity between the parties. The next contention was that the house of the informant and the appellants were separated by a common wall and the appellants always had the opportunity of killing Ashok at any time, but why should they commit the offence in such fashion as to demonstrate it to the general public, does not come to reason.
21. In reply to the above submissions learned A.G.A. Sri A.K.Srivastava urged that the appellants had strong motive for committing the offence as they wanted to eliminate the only heir of PWs-1 and 2 and thus put the family of PWs-1 and 2 to extinction. It was contended that injury no.9 was in the form of multiple abrasions on the right knee joint of the deceased was indicative of the fact that he was dragged out from the place where he had hidden to be killed. It was contended that PWs-1 and 2 were natural witnesses.
22. Chance witness is a witness who appears at the place of occurrence per chance and the presence of whom may not be natural in context to the occurrence. But, that principle on branding a witness a chance witness has undergone a transformation. It is no longer a proposition which could be universally applicable to all such cases where the appearance of a person at or around the place of occurrence could be accidental. It now stands resolved since long that no one could be said to be a chance witness merely because he was purposelessly appearing roaming in or around a place where he happened to witness any offecne being committed by some set of persons. We Indians have no set norms and habits of spending time and we may often be found roaming around aimlessly at any place at any moment of time. If a person who aimlessly or even purposely was at such a place that he had seen the occurrence being committed in his presence,he could not be said to be a chance witness. Moreover, the possibility of a person being a chance witness may not be inferred merely on asking; facts of the case have to be considered before any finding regarding a person being a chance witness is recorded.
23. In the present case, in my opinion, neither PW-1 nor PW-2 could be said to be a chance witness. They have specifically stated the purpose for which they had come out of their house at that particular moment of time when the occurrence had taken place. Both of them had stated that they had started from their house for their tubewell. This appears not unusual. The only son of PW-1 named Prem Pal had been murdered a few years back by the appellants. As such an old man of 65 years like the informant was forced with the widow of his deceased son to venture out for carrying out the agricultural operations so as to sustaining themselves in the daily rut of life. The reason for their come out of their house does not appear unusual to me. Likewise, the submission that no person could be going out to attend the call of nature at 10.30 a.m. of a day also does not hold good as there could not be any fixed time frame for all persons to attend to the call of nature. There may be different reason for every person to attend to his daily routine and if it was a child of 16 years, like, Ashok whose age has been pointed out by the most competent person PW-2, his mother, then we could be sure about it that he could not have been punctual in his habits. PW-1 has stated that the deceased was going to attend to the call of nature towards west because the pond was situated towards that direction. I have made a reference to the site plan and the situation of different structures and fields. On perusal of the site plan, Ext.Ka.6 what is indicated is that the investigating officer had also found the pond towards west of the field of Netra Pal. PW-7, the investigating officer has stated in his cross-examination that he had found water in the pond. Thus, the reason for the presence of PWs-1 and 2 as also for the deceased to go out of his house appears to me acceptable.
24. As regards the argument on the absence of immediate motive for commission of the offence, one has always to keep in mind the fact that the two appellants had been tried for the murder of the father of Ashok. The appellants had come out a year ago from jail on account of being acquitted which fact is admitted by both PWs-1 and 2. Sri Singhal was submitting that if the appellants were anguished on account of being prosecuted then they could have committed the murder of Ashok or the informant himself just after being release from prison. The argument may be lucrative, but one can not really read the minds of accused persons as to what, infact, had persuaded or forced them to indulge in such act of committing the murder and that too of a developing young child. Possibility may be that the appellants were buying out time so that they could have argument available to them as was furthered before this Court by Sri Senghal. The other aspect could be that they could have bought time and were probably more catalyzed to commit the murder of the last heir to the properties of PWs-1 and 2 and thus, as was rightly submitted by the learned AGA, to put the family of PWs-1 and 2 to extinction.
25. Crime,as was pointed by Hon. Justice H.R.Khanna was 'a real event in life'. It probably could sum up as to what event-value crime could carry. It may change the life of the family members of the deceased and at the same time, it may also drastically affect the life of the accused and his dependents. The realness of the event may also be gathered from the fact that it could simply put the family of the victim into deep peril and extinction as appears in the case in hand. When someone is amidst the flames of hatred and is impelled on that account to a situation of do or die then in that case one should always expect the worst like the present one. These are the reasons which I gather from the circumstances of the case. When the accused persons had always the motive lying in their minds so as to put the family of PWs-1 and 2 to extinction, the mode of commission of the offence and its manner might be tradition or ancient, appears to me of no substance. I find that accused persons were really weighing more upon the end than on the ways and means they had to chose to achieve it.
26. As appears from the evidence of PW-1, the houses of the appellants and that of PWs-1 and 2 were separated by a single wall and it might have been also possible that the appellants could have picked up arms and fired the shots across to kill any one of the family of PW-1. But, again is it not a fact that the course of crime is never determined by a wall which may be existing to separate the two warring families, rather the same is determined by the purpose and goal which might have been set up by the accused persons to be achieved through the act. They might have blended their final role with the terror they wanted to unleash by demonstrating their acts of savagery. It appears the probable reason to me as to why the appellants were coming out with their guns to chase a developing child on the ridge of the field upto the structure situated at about 200 paces away and during which course he was shot at also. Not only that, when he had hidden himself, he was dragged out and brutally shot and killed. Evidence of dragging, I have already noted, is available by virtue of description of injury no.9 by PW-3 which was found on the dead body of Ashok. The child of 16 years probably was picked up by his killers by his hand and was dragged out of the Jhopdi to be shot at and killed. The two witnesses PWs-1 and 2 have also stated that Ashok was dragged out of the house, that he had injured after being chased by the appellants and his companions.
27. On perusal of the evidence of witnesses and circumstances appearing therefrom I am fully convinced that the charges were duly established by the evidence which was acceptable and trustworthy. The learned trial Judge was fully justified in recording the verdict of guilt against the two appellants and sentencing them as I have noticed in the first paragraph of this judgment. What I find from the above discussions is that the appeal is merit less and as such the same is hereby dismissed. Appellants are on bail. Their bonds are cancelled. They surrender to serve out the sentence imposed upon them by the learned trial Court.