(Mrs.) M. Chaudhary, J.:— Criminal Appeal No. 814 of 1981 Sarvajit Singh @ Sobha v. State having arisen out of judgment and order passed in Sessions Trial No. 228 of 1979 State v. Sarvajit Singh @ Sobhu and Criminal Appeal No. 815 of 1981 Harihar Singh v. State from judgment and order passed in Sessions Trial No. 164 of 1979 State v. Harihar Singh both the Sessions Trials decided by common judgment dated 12th of March, 1981 by Sessions Judge, Ghazipur latter being the leading case both the appeals have been heard together and are being disposed of by common judgment.

2. In Sessions Trial No. 164 of 1979 State v. Harihar Singh accused Harihar Singh and Sheo Shankar Singh and in Sessions Trial No. 228 of 1979 State v. Sarvajit Singh @ Sobha accused Sarvajit Singh faced trial for the offence punishable under section 302 read with section 34 IPC and accused Sheo Shankar Singh and Sarvajit Singh also under section 379 IPC and all of them were held guilty of the charge levelled against them and convicted accordingly and each of them sentenced to undergo imprisonment for life under section 302 read with section 34 IPC and accused Sheo Shankar Singh and Sarvajit Singh to undergo rigorous imprisonment for two years under section 379 IPC.

3. Since accused Harihar Singh has been reported having died his appeal stood abated vide order dated 11th of February, 2002.

4. Prosecution case in nutshell is that at about 3.30 P.M on 13th of June, 1979 Rakesh Kumar was going on his motor cycle no UTH 1287 from his house to Badhwa Chau Muhani on kachcha road by the side of the godown of Irrigation Department and his father Lorick was sitting on the pillion seat and as they reached near the hovel of Vinod, Ranjit Singh alongwith his father Harihar Singh, brother Sarvajit Singh @ Sobhu and cousin Sheo Shankar Singh emerged from the hovel and pounced for making the motor cycle stop by catching hold of its carrier but Rakesh Kumar tired to drive fast. Then Harihar Singh exhorted his associates to kill and immediately Ranjit Singh fired a shot hitting Lorick at his back and receiving the injury Lorick jumped from the motor cycle and ran shouting for his life. As Lorick jumped from the motor cycle Rakesh Kumar lost the balance and fell down with the motor cycle receiving injury at his left leg. Then Ranjit Singh armed with revolver and the remaining three with country made pistols chasing Lorick fired at him with their respective weapons and receiving the injuries he fell down a few paces ahead. Then Ranjit Singh again fired at Lorick and he succumbed to the fatal injuries sustained by him instantaneously. Immediately Ranjit Singh alongwith his brother Sarvajit Singh and cousin Sheo Shankar ran away on the motor cycle of Rakesh Kumar lying there, and Harihar Singh fled away. On hearing the hue and cry Ramjit and Shyam Raj uncles of Rakesh Kumar and one Sheo Narain and some others reached the scene of occurrence and witnessed the incident.

5. Immediately Rakesh Kumar, son of the deceased lodged an FIR of the said occurrence at police station, Ghazipur Kotwali situate at a distance of about one mile from the place of occurrence at 4.00 P.M the same evening (Ext Ka-1). The police registered a crime and made entry regarding registration of the crime in the general diary (Exts. ka-12 and ka-13).

6. SI Kamta Nath Ojha to whom investigation of the crime was entrusted went to the placed of occurrence and drew inquest proceedings on the dead body of Lorick. He prepared the inquest report (Ext. ka-14) and other necessary papers (Exts. ka-15 to ka-17), and handed-over the dead body in a sealed cover alongwith the necessary papers to constable Ram Bilas and another to be taken for its postmortem. The investigating officer inspected the site and prepared its site plan map (Ext. ka-19). He also recorded statements of the witnesses and did other necessary things.

7. Autopsy conducted on the dead body of Lorick by Dr. Virendra Srivastava, bone Specialist District Hospital, Ghazipur on 14.6.79 at about 12.45 noon revealed (ix) following ante mortem injuries:

(i) Lacerated wound 8 cm. × 3 cm. just above right ear including upper ⅓ of right ear pinna horizontally placed with piece of skin loosely attached to the anterior end, irregular in shape with uneven surface, right mastoid bone fractured in three irregular pieces and clot of blood present in meanings and in the brain at the site of fracture.

(ii) Gun shot wound of entry 1 cm. × .5 cm. on left side chest in the line of anterior axillary fold 5 cm. below the anterior end of axillary fold with inverted and irregular margins. Direction on probe in right and lateral and slightly lower down. No tattooing or singeing. Rib on left side fractured.

(iii) Wound of exit 2.5 cm. × 1 cm. on right chest wall semi circular in shape 2.5 cm. lateral to right nipple with everted and lacerated margins.

(iv) Elliptical wound of exit 2.5 cm. × 1 cm. on right side thigh vertically placed 3 cm. above right greater trochanter with everted margins (communicating to injury No. 5).

(v) Gun shot wound of entry 1 cm. × 1 cm. in the middle of right back 6 cm. above right hip bone with inverted margins (communicating to injury No. (4).

(vi) Gun shot wound of entry 1 cm. × 0.5 cm. at the back and outer aspect of right wrist just above the wrist with inverted margins, no tattooing.

(vii) Wound of exit 1.5 cm. × 1.5 cm. on middle and anterior aspect of right wrist 3 cm. above the joint line with irregular margins (communicating to injury No. 6).

(viii) Gun shot wound of entry 1 cm. × 1 cm. on middle and anterior aspect of left wrist with inverted margins. On dissection the doctor removed a big metallic pellet embedded in the fractured bone.

(X) Abrasion ¼ cm. × ¼ cm. on the medial aspect of back lower end of the scapula with irregular margins. Abraded contusion 4 cm. × 3 cm. just below the left knee with irregular margins.

8. On an internal examination dot was found present in the brain and haomotoma at the site of the injury. One rib on left side was found fractured. Both the lungs were found perforated and pericardium and heart punctured. Stomach was empty and both the intestines semi full. The doctor opined that death was caused due to haemorrhage and shock as a result of reputed heat and ante mortem injuries about one day ago.

9. After completing the investigation the police submitted charge-sheet against the accused.

10. It appears that blood stained clothes and earth were sent to the Scientific Laboratory for the Serologist's opinion. According to the Serologist's report the blood stained clothes towel, vest and ‘kurta’ contained human blood of ‘B’ Gropu and blood stains on soil and underwear were found disintegrated (Exts. ka-32 andka-33).

11. After framing of charge against the accused the prosecution examined Rakesh Kumar, son of the deceased and the first informant (FW-1) and Ramjit, brother of the deceased (PW-3) as eye-witnesses of the occurrence. Evidence of the remaining witnesses is more or less of formal nature. PW-2 Dr. P.N Tandon, Medical Officer District Hospital, Ghazipur who medically examined injured Rakesh Kumar on 13.6.79 ait about 4.30 P.M has proved the injury report (Ext. ka-4). PW-4 Dr. Virendra Srivastava, Bone Specialist District Hospital, Ghazipur who conducted autopsy on the dead body of Lorick has proved the postmortem report (Ext. ka-11) stating that ante mortem injuries found on the dead body were sufficient to cause death in the ordinary course. PW-5 Constable Ram Bilas is one of the two constables to whom dead body of Lorick alongwith necessary papers was entrusted to be taken for postmortem. PW-6 HM Lalta Yadav who prepared the check report and made entry regarding registration of the crime in the GD has proved these papers (Exts. ka-12 and ka-13), PW-7 SI Kamta Nath Ojha who investigated the crime has proved the police papers. PW-8 Nem Narain Rai from whom Lorick had purchased motor cycle UTH 1287 has proved the receipt (Ext. Ka-29).

12. The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were implicated in the case falsely on account of enmity. Accused Sheo Shankar Singh also stated that the alleged day of occurrence he had gone to attend the marriage at the house of Kan-haiya Singh at village Singheri within the limits of police station Nandganj, District Ghazipur.

13. Accused Sheo Shankar Singh examined Kandaiya Singh (DW-1) in his support. He stated that there was marriage of his daughter on 12.6.79 and marriage party had gone back on 14.6.79 and that Sheo Shankar Singh attended the marriage at his house and he was at his house also on 13th of June, 79. He also stated that Ghazipur city is situate at a distance of about ten miles from his house.

14. On an appraisal of the parties' evidence and after hearing the parties' Counsel learned Sessions Judge found the accused guilty of the charge levelled against them and they were convicted and sentenced as stated above by the impugned judgment and order.

15. Feeling aggrieved by the impugned judgment and order the accused preferred these appeal for redress.

16. We have heard learned Counsel for the appellants and the learned AGA for the State and also gone through the record.

17. Though in the case of direct evidence motive is not of much significance, still in the instant case there was strong motive on the part of the accused appellant to commit the murder of Lorick. All the four accused are closely related with each other as accused Ranjit Singh and Sarvajit Singh are sons of accused Harihar Singh and accused Sheo Shankar Singh is the son of Harihar Singh's real sister. Harihar Singh happened to be the real maternal uncle of Sheo Shankar Singh. Admittedly there was deep rooted enmity between the parties. PW-3 Ramjit, brother of the deceased stated that Raja Ausanganj was a Zamindar who owned huge properties; that Mukh Chand, father of Lorick was employed by him as a gardener and being pleased with the services rendered by Mukh Chand, Raja Saheb gave him land for raising constructions; that subsequently he could not pay the salary to Mukh Chand and he allowed him to cut six bighas of land from his Forests in lieu thereof and cultivate the same; that Mukh Chand cleared off six bighas of land from the Forests for himself and started cultivating the same and after his death his son Basu started working with Raja Saheb; that subsequently prices of the land shot up and Raja Saheb wanted to get the said land back to him and the litigation went on between them but Raja Saheb could not succeed in his mission and then he engaged accused Harihar Singh who was a known ‘gunda’ as his ‘Qarinda’. He further stated that as Harihar Singh ‘Qarinda’ of Raja Saheb threatened Lorick, brother of Basu and his family members to give up the land aforesaid, now and then quarrel took place and not words exchanged between them and Lorick and his brother Ram Deo gave several applications to the Higher Authorities complaining about the activities of Harihar Singh threatening Lorick with dire consequences if he and his family members did not give up their claim over six bighas of land and seeking protection of their person and property. It has also come in evidence that feeling harassed on 13th of August 1974 Lorick alongwith his associates beat Harihar Singh, and on the FIR lodged by Harihar Singh criminal case was launched against Lorick and others and when that Sessions trial was pending the said incident occurred. In our view that constituted sufficient motive for Harihar Singh and his associates for committing the murder of Lorick.

18. Now coming to the arguments advanced by the appellants' learned Counsel, it has first been argued by the appellant's learned Counsel that the FIR is ante timed and it was framed document prepared next day of the occurrence. His argument on the point is two fold (i) there is no mention of crime number, names of the accused etc. at the top in the inquest report and (ii) copy of the check report alongwith the papers was not sent to the doctor conducting autopsy on the dead body; and that from these two circumstances the appellants' learned Counsel wanted that it should be concluded that the FIR is ante, timed. No doubt crime number and names of the accused are not mentioned at the top of the inquest report and PW-7 SI Kamta Nath Ojha admitted that copy of the check report was not sent alongwith other papers of the inquest to the doctor though with the qualification that it was not necessary to send copy of the check report alongwith other papers. In our opinion from the above it is not possible to conclude that the FIR is ante timed. The incident took place on 13th of June, 1979 at about 3.30 P.M and FIR of the occurrence was lodged at police station Ghazipur Kotwali situate at a distance of about one mile from the place of occurrence at about 4.00 P.M and accused Harihar Singh was arrested by the investigating agency and interrogated by the investigating officer the same evening. In view of this very circumstance the said argument advanced by the learned Counsel for the appellants has got no substance. Further, the police got injured Rakesh Kumar medically examined at District Hospital, Ghazipur where he was medically examined by Dr. P.N Tandon at about 4.30 P.M the same evening. This medical examination of the injured at the District Hospital at about 4.30 P.M completely dislodges the plea that the FIR was ante timed. The injured could be got medically examined by the police only after the FIR came into existence. Thus, the argument advanced by the learned defence Counsel that the FIR is ante timed holds no water and is liable to be rejected.

19. Secondly, it has been argued by the appellants learned Counsel that according to the prosecution case Lorick was fired at by all the four accused with firearms and accused Sarvajit Singh fired several shots at him but the firearm injuries received by him do not commensurate thereto. In our view, the said argument advanced by the appellants' a learned Counsel has not got much substance in it as PW-1 Rakesh Kumar son of the deceased stated that in-all 8-9 shots were fired at Lorick and the postmortem revealed as many as nine ante modern gun shot injuries on the dead body including three gun shot wounds of exit. It is not necessary that each and every shot fired at the running person must have hit him. Apart from it, in view of the facts and circumstances of the case the entire incident would have occurred within a minute or so and it would be impossible for any of the witnesses to remember with absolute precision and accuracy the number of shots inflicted. In fact, there is no real inconsistency between the ocular and medical evidence to render the prosecution case unbelievable and unacceptable.

20. Thirdly the appellants' learned Counsel has laid much emphasis upon the fact that as stated by PW-7 SI Kamta Nath Ojha, the investigating officer accused Sheo Shankar Singh did not make any effort to evade his arrest by the police when he visited his house and it should be presumed that he was innocent. In our view the said argument is fallacious as it differs from person to person as to how one behaves in a set of certain circumstances. Having no option accused Sheo Shankar Singh would have considered best course to surrender before the investigating officer with dignity. But it would never mean that if an accused person surrendered before the investigating officer quietly he was innocent. The said argument has therefore got no merit.

21. Lastly, the appellants' learned Counsel emphatically argued that the said incident occurred in the broad day light at the place where several offices were situate and several persons were present there in the office hours and the murder was witnessed by many of them but no independent witness entered the witness box to support the prosecution case. No doubt it would have been better if the prosecution would have examined any of the independent witnesses but if any of them could not be examined by the prosecution in its support it would not affect the prosecution case adversely because it is a matter of common knowledge that generally the people keep themselves away from the Courts unless it is inevitable. It is unfortunate but it is everywhere there in the villages, towns or cities. We cannot ignore this handicap with which the investigating agency has to discharge its duty.

22. It is true that PW-1 Rakesh Kumar being son of the deceased and PW-3 Ramjit, brother of the deceased both are related witnesses but on that score alone their sown testimony cannot be thrown over board if on a close and careful scrutiny their testimony is found to be above reproach of suspicion. Both these witnesses were subjected to searching and gruelling cross-examination but nothing useful to the accused could be elicited therefrom. Both these witnesses had given a truthful and honest account of the occurrence witnessed by them; and once the evidence of these two witnesses is believed non-examination of independent witness would not go to demolish or introduce an element of doubt in the prosecution case.

23. Plea of ‘alibi’ taken by accused Sheo Shankar has been rightly repelled by the learned Trial Court for obvious reasons.

24. After considering carefully all the arguments advanced on behalf of the appellants in the light of evidence and the circumstances attending the case, we do not find any merit in any of them. It was a broad day light murder and the FIR was lodged promptly. The accused had strong motive to commit the crime. Both the eyewitnesses have given a truthful and honest account of the occurrence witnessed by than and the learned Trial Judge has given cogent and convincing reasons for finding the accused guilty of the charge levelled against them and we are in complete agreement with the findings recorded by the Trial Court against the accused appellants. Both the appeals are devoid of any substance and are liable to be dismissed.

25. Both the appeals are hereby dismissed. The conviction of the accused appellants under section 302 read with section 34 IPC and section 379 IPC and the sentence of imprisonment for life and rigorous imprisonment of two years respectively thereunder are maintained, Both the sentences shall run concurrently. Both the appellants are on bail. They shall be arrested and lodged in the Jail to serve out the sentences passed against them.

26. A certified copy of the judgment and record of the case be transmitted to the Court below for compliance under intimation to this Court within two months.