Babadeen Alias Babai vs State of U.P.

Surendra Kumar, J.—The appellant Babadeen alias Babai, son of Sri Gayadeen has approached this Court in its appellate jurisdiction provided u/s 374 (2) of the Criminal Procedure Code, 1973 (hereinafter referred to as the ''Code''), against the judgment and order of conviction dated 3.3.1983 recorded by the IIIrd Additional Sessions Judge, Allahabad in Session Trial No. 366 of 1979. State v. Babadeen and others, relating to Crime No. 41 of 1979, Police Station Puramufti, District Allahabad, by which the appellant on being held guilty u/s 302 of the Indian Penal Code (in short I.P.C.) was convicted and sentenced to undergo imprisonment for life u/s 302, I.P.C. Briefly narrated prosecution version against the appellant as was scribed in the written report, Ex. Ka-1 by Bhola, (son of Jagdish) was that two accused persons namely Chhedi Lal and Bhai Lal (who were by the impugned judgment acquitted by giving benefit of doubt) are the real brothers. The third accused (appellant herein) is said to be their friend. A suit for partition of land was going on between Smt. Jitani (deceased) aged about 50 years, wife of Lala Kurmi and one Sudhana Kurmi of the same village. The three accused persons namely Babadeen, Bhai Lal and Chhedi Lal were on the side of Sudhana and they used to do pairvi in the case on his behalf. For quite some time, Smt. Jitani (deceased) had been living in the house of the first informant/complainant, Bhola P.W. 1. Smt. Jitani possessed about 8-1/2 bighas of land which was cultivated by Bhola on Adhiya/Batai. This Bhola used to give half of the produce to the deceased Smt. Jitani. The date fixed in the partition suit was 15.1.1979. However, no evidence was recorded on this date and the next date fixed was 30.1.1979, on which date the statement of the deceased Smt. Jitani was to be recorded. Smt. Jitani on 24.1.1979 around 5.00 p.m. was sitting in the outer northern room of Bhola''s house. Bhola and his wife were sitting at the door of the adjoining room. The aforesaid three accused persons including the appellant then appeared on the scene--Babadeen carrying a gun and Chhedi Lal and Bhai Lal each having lathi. Seeing them Smt. Jitani tried to escape but Chhedi Lal and Bhai Lal exhorted the appellant Babadeen that no better opportunity would be found and she should be killed. Smt. Jitani could not even get up when Babadeen fired his gun at her. Smt. Jitani sustained the gunshot and died almost instantaneously. On alarm and also on hearing the loud sound of the gunshot, the witnesses Mewa Lal and Doodh Nath P.W. 2 also arrived there. The three accused persons then ran away towards the east. The accused persons were not chased by the witnesses out of fear. Smt. Jitani had been shot on left side of the chest and some of the pellets after piercing the body had got embedded in the wall and Chaukhat of the house. It was the first informant Bhola P.W. 1 who dictated the report of the incident Ext. Ka-1 at his house and the same was scribed by Ganga Prasad on 24.1.1979. Leaving the dead body of Smt. Jitani on the place of murder, Bhola P.W. 1 went to the police station and gave the written report Ext. Ka-1, where the F.I.R. Ext. Ka-14, of the murder was lodged on 24.1.1979 itself at 9.30 p.m. Thus, the F.I.R. of the murder was lodged by Bhola within 4-1/2 hours of the said murder after covering the distance of 8 kilometers from the place of occurrence on foot.

A case was registered and Shri Dharmvir Singh Malik S.O. (P.W. 5) commenced the investigation. He recorded the statement of Bhola u/s 161. Cr. P.C. at the police station and then proceeded to the spot. He reached there at about 11.00 p.m. and conducted the inquest on the dead body of Smt. Jitani. He prepared the inquest report Ext. Ka-4. He prepared the other documents concerning the dead body and then despatched it for post-mortem examination duly sealed. The dead body was taken by constables Phool Singh and Anant Ram. The Investigating Officer made a spot inspection and prepared the site plan Ext, Ka-16 giving therein the factual details noticed by him. He recovered blood stained and simple earth from the spot and prepared the memo Ext. Ka-3. He found three pellets embedded in the wall and one pellet in the Chaukhat of the house. He took into possession these pellets and prepared the recovery memo Ext. Ka-2. He also recorded the statements of the other witnesses u/s 161. Cr. P.C.

Sri Dharmvir Singh Malik, Investigating Officer. P.W. 5 after recording the statements of the witnesses and collecting evidence, submitted charge-sheet, Ext. Ka-17 against three accused persons including the appellant on 11.3.1979 u/s 302 read with 34, I.P.C.

Autopsy on the dead body of Smt. Jitani was performed by P.W. 3 Dr. L. K. Bhargava, M.O., Motilal Nehru Hospital on 26.1.1979 at 3.00 p.m. The death had occurred two days back. Rigor mortis was absent. The doctor found the following ante-mortem injuries on the person of the deceased:

(1) Lacerated wound 2-1/2 cm. x 2-1/2 cm. on the upper part of the left side breast, chest cavity deep directed downwards and backwards, margins inverted, blackening present (wound of entry).

(2) Six lacerated wounds each 1/2 cm. x 1/2 cm. on the left side of back, 3" below the lower angle of scapula in an area of 7-1/2 cm. x 7-1/2 cm. up to chest cavity deep.

(3) On internal examination the 2nd and 3rd ribs on the left side were found to have been fractured under injury No. 1. The left side lung was lacerated at many places under Injury No. 1 and about a pint of blood was found in the chest cavity. The heart was found to be lacerated on the left side. There was partially digested food in the stomach. The small intestines were empty but there was faecal matter and gas in the larger intestines. One piece of wadding was removed from the body.

The death was due to shock and haemorrhage as a result of these ante-mortem injuries which, in the opinion of the doctor were sufficient in the ordinary course of nature to cause death. The doctor further opined that the death could have occurred on 24.1.1979 at 5.00 p.m.

The plea of the accused was a denial simpliciter and one of not guilty. At the close of the prosecution evidence they were examined u/s 313, Cr. P.C. wherein it was admitted by them that a litigation regarding land was going on between Smt. Jitani and Sudhana. They however denied that they were doing ''pairvi'' on behalf of Sudhana. They expressed ignorance about the fact that the statement of Smt. Jitani was to be recorded on 30.1.1979. They also denied that Smt. Jitani used to reside at the house of Bhola. They expressed ignorance about the report lodged by Bhola and about everything that was done by the Investigating Officer. They were questioned if they had to state anything in detail to which they replied in the negative.

The prosecution examined five witnesses in all. Bhola P.W. 1 and Doodhnath P.W. 2 deposed about the actual occurrence claiming themselves to be eye-witnesses of the said occurrence. Dr. L.K. Bhargava P.W. 3 had conducted the post-mortem on the dead body of Smt. Jitani and proved it as Ext. Ka-5. Sri K.C. Bajpai, advocate P.W. 4 deposed about the litigation between Smt. Jitani (deceased) and Sudhana. Sri Dharmvir Singh Malik. P.W. 5 investigated the case.

We have heard Sri P. K. Singh, learned counsel for the appellant and learned A.G.A. for the State.

The direct evidence consists of the testimony of Bhola P.W. 1 and Doodh Nath P.W. 2, it is very necessary to discuss their evidence recorded by the trial court.

Bhola P.W. 1 is the person at whose house the incident occurred. According to the evidence of this witness, two accused persons namely Chhedi Lal and Bhai Lal are the real brothers and that the appellant Babadeen is their friend. They all belong to his village. 5-6 years prior to the incident, Smt. Jitani had been living in the front room of his house and a litigation/suit for partition was going on between Smt. Jitani and Sudhana and the accused persons were doing pairvi on behalf of Sudhana in that case. In the partition suit, date fixed was 15.1.1979 and no progress was made in that partition suit and the next date fixed was 30.1.1979 when the statement of the deceased Smt. Jitani was to be recorded. On the day of murder of Smt. Jitani namely on 24.1.1979 around 5.00 p.m. Smt. Jitani was sitting near threshold in the northern room of the house of the witness. The witness and his wife were at that time in the adjoining room when darkness had not set in. Both these rooms were interconnected through door. The accused Babadeen armed with gun and remaining accused persons Chhedi Lal and Bhai Lal each armed with lathi came there. Chhedi Lal and Bhai Lal exhorted that such an opportunity would never be available and as such Smt. Jitani should be killed. Seeing the accused persons armed, Smt. Jitani tried to run inside but before she could get up for running, it was the appellant Babadeen who fired his gun at the deceased-Smt. Jitani and the gun shot hit In her left chest. On receiving the gunshot, she fell down and died within half a minute. At the time of incident, Doodh Nath P.W. 2 and one Mewa Lal had also reached there and saw the occurrence. The pellets of the gun shot had been embedded in the wall and Chaukhat/frame of the door also. It is further evident from the testimony of this P.W. 1 that the room of the witness as well as of the deceased Smt. Jitani, both faced north and their doors opened on the northern side. Immediately after the incident he got the report scribed at his house by Ganga Prasad and then put his thumb impression on it. The witness took the written report Ex. Ka-1 to the police station and handed it over there. After the report was lodged, Darogaji met the witness at the police station and recorded the statement of the witness.

To be precise, this P.W. 1 Bhola has clearly deposed in his deposition that gun shot was fired from northern side of the door of the house of the deceased Smt. Jitani.

It emerges from the cross-examination of Bhola P.W. 1 that one Lala was the husband of Smt. Jitani, Lala and aforesaid Sudhana were step brothers having same father. Indal is son of Lala. Smt. Jitani had already executed a Will in favour of the witness and the fact of execution of Will came to the knowledge of the witness after about two months of the murder of Smt. Jitani. This Will was executed in favour of one Chhedi Up Sabhapati, this witness and Ram Nath, brother of the witness, jointly. Thus, this Will had been executed one and half years before the murder of Smt. Jitani. This witness used to cultivate the agricultural land of the deceased Smt. Jitani on Batai/sharing and he used to give half of the produce to the deceased. The deceased used to meet her expenses including clothing etc, out of that share of the agricultural produce given by the witness to her. Smt. Jitani had 8-1/2 bighas of agricultural land which was given on Batai to the witness. Two accused persons Chhedi Lal and Bhai Lal are cousin brothers/khandani of Sudhana. This P.W. 1 has during cross-examination clearly deposed that the witness had reached the police station at 9.30 p.m. and Darogaji met the witness only after the witness had lodged the report. After lodging the F.I.R. of this murder case, the witness left the police station at 11.30 p.m. When the witness went to the police station for lodging the report, he was accompanied by one Chhedi Pradhan and the duo went to the police station on foot. The witness reached the police station in about three and half hours by going on foot. The dead body of the deceased Smt. Jitani was sent from the village at 1.00 p.m. through horse-tonga/horse cart (Ekka). It has further come in the cross-examination of P.W. 1 that when the gun shot was fired, the distance of barrel of the gun was about 1-1/2 feet from Smt. Jitani. The person who fired gun shot was standing just one step away from the doorsill/Dehari where the deceased was sitting at the time of occurrence. The witness has specifically deposed that the gun shot was fired only from the distance of one step at the deceased and pointing the barrel of the gun towards deceased gun shot was fired. Some of the pellets from the gun shot hit the wall and some of the pellets also hit in the Chaukhat/door frame of the room. The witness has candidly admitted that a case u/s 107/117, Cr. P.C. was contested between the parties but the witness exactly could not tell whether the case was started before the incident or after the incident. The witness has further admitted that the accused Chhedi Lal lodged a report against the witness on 15.11.1978 for having set fire to the Khalihan of the accused Chhedi Lal. The witness however, expressed his ignorance about the fact that Babadeen and Bhai Lal were the witnesses against him in that case. The witness also admitted that the witness used to do pairvi on behalf of Smt. Jitani in the partition suit. The witness has denied the suggestion put to him by the defence side that murder of. Smt. Jitani was not committed in the manner as alleged by him. This witness was put one question from the defence side to the effect that the deceased Smt. Jitani resided in the northern room of the house of the witness but this fact was not mentioned in the written report of the witness. On this point, the witness has clearly deposed that he narrated this fact in his written report. A perusal of the written report Ext. Ka-1 makes it evident that it is clearly mentioned therein that the deceased Smt. Jitani was helpless without any shelter and due to fear of the accused persons, she was residing in the house of the witness and on the date and time of the incident, she was sitting in the outer northern room of the house of the witness. Thus, the witness has completely and satisfactorily explained this point in his cross-examination. The witness has been cross-examined on the point of time of death after being hit by gun shot in the chest. The witness has clearly deposed that the deceased Smt. Jitani groaned for about 1-1-1/2 minutes after sustaining gun shot injury and then she succumbed to the injury immediately thereafter. At the time of her death, she was wearing Dhoti and Blouse. The witness was put a suggestion by defence side that he was not present at the time of incident and the incident of murder did not take place as alleged by him and the F.I.R. of the incident was prepared at the police station after consultation. All these suggestions have been denied by the witness. It was also suggested to the witness by defence side that he was deposing against the accused persons on account of old enmity of the case of setting fire to the Khalihan of the accused side and he has falsely roped in the accused persons in collusion with the police. These suggestions have also been denied by the witness.

This P.W. 1 has been subjected to lengthy and detailed cross-examination on different aspects of the case but nothing has been extracted therefrom so as to create any kind of material discrepancy or material contradiction in his testimony. The witness has candidly sated that since the husband of the deceased and aforesaid Sudhana were step brothers and a case for partition was going on between them and the deceased was quite helpless having no shelter, hence the deceased gave her agricultural land on Batai to the witness and the witness considering her pitiable condition, gave one room to her to reside. The deceased was residing in the aforesaid room of the house of the witness and was meeting out her daily expenses by agricultural produce which was given to her by the witness. Not only this, the Will had been executed by the deceased Smt. Jitani in favour of the witness, brother of the witness Ram Nath and one Chhedi Up Sabhapati 1-1/2 years before the murder of Smt. Jitani and the witness came to know of this Will two months after the murder of Smt. Jitani. Thus, the witness had no direct interest in the agricultural land of the deceased Smt. Jitani. Since the deceased Smt. Jitani after death of her husband wanted to reside in the said village and it was the step brother of her husband who created hurdles in the way of her living and cultivating her land, the deceased was left with no option other than to give her agricultural land on Batai to the witness and the witness agreed to allow her to reside in his house. This witness cannot be called an interested witness or chance witness just on the ground that he had taken the agricultural land of the deceased Smt. Jitani on Batai. Thus, the murder of Smt. Jitani was committed at the doorsill/doorstep of the northern room of house of the witness and the witness at the relevant time of murder alongwith his wife was sitting in the adjoining room having interconnected door between two rooms. Thus, this witness is a natural witness and his presence on the place, date and time of murder is well proved and established on record. Nothing adverse during cross-examination or during arguments had been brought out by the defence side so as to create any doubt or suspicion regarding creditworthiness of the witness.

Doodh Nath @ Sipahi Lal P.W. 2 is the resident of same village. He deposed that Smt. Jitani used to reside in one room of the house of Bhola at the time of incident. On the date of incident, it was around 5 O''clock in the evening when the sun was going to set and there was sufficient light of the setting sun. When this witness was standing at the door of Mewa Lal and was talking to Mewalal, then the accused Babadeen armed with gun and Bhai Lal and Chhedi Lal each armed with lathi came at the door of Bhola. Chhedi Lal and Bhai Lal exhorted Babadeen to kill as such opportunity would never be available and it was at the exhortation of the duo that Babadeen fired gun shot from his gun at the deceased Smt. Jitani and gun shot hit on the left side of chest of Smt. Jitani, accused persons thereafter ran towards east. After being hit by gun shot on her chest, Smt. Jitani immediately died and blood fell on the place of murder. Some pellets of the gun shot had got stuck in the wall as well as in the Chaukhat. The pellets from wall and Chaukhat/frame of the door were taken into possession by the police by preparing recovery memo, Ext. Ka-2. The Investigating Officer also collected blood stained and plain earth from the place of murder through memo Ext. Ka-3, on which signatures of this witness were obtained. This P.W. 2 was also the witness to the inquest report of the deceased and proved the inquest report as Ext. Ka-4 identifying his signatures thereon. This witness clearly denied any kind of enmity or ill-will with the accused persons.

The record discloses that this P.W. 2 had on 21.5.1979 sworn an affidavit to the effect that he had not seen any occurrence. This affidavit was filed in the Court on 25.5.1979. At the trial, this witness was confronted with the affidavit. The witness tried to wriggle out by stating that out of fear he had sworn the affidavit. The defence side has examined Sri Gend Lal, advocate as D.W. 1 who was the Oath Commissioner before whom this affidavit had been sworn. This D.W. 1 stated that he read over the contents of the affidavit to the deponent. This P.W. 2 first supported the prosecution story in his examination-in-chief and subsequently out of fear of the accused persons when he was confronted with the aforesaid affidavit, he deposed that this affidavit was got forcibly signed by the accused persons and due to fear of the accused persons, he had sworn the affidavit. When the witness was contradicted to the contents of the affidavit in the trial court when his evidence was being recorded, the witness replied that his statement recorded in the Court is correct and he had witnessed the incident of murder. The contents of the affidavit are wrong because the contents of the affidavit were not read over and explained to him by D.W. 1. The witness completely showed his ignorance about the contents of the affidavit admitting his signatures Exts. Kha-1, Kha-2 and Kha-3, affixed on the affidavit. This witness has clearly deposed that at the command of the accused Babadeen, he had to put his signatures on the said affidavit out of their fear and consternation. This P.W. 2 has clearly deposed that Darogaji obtained his signatures on some blank papers and Darogaji came to village with blank papers and Darogaji called him as witness (P.W. 2) at mid night in the village by sending some person of the village. The Darogaji remained in the village since mid night to 3.30 a.m. and the dead body in a sealed condition was sent from the village around 3.00 a.m. in a Horse-tonga/Horse cart.

The cross-examination of P.W. 2 makes it evident that only one fire was shot at Smt. Jitani and fireman was about at the distance of one foot from the deceased Smt. Jitani. The gun shot hit in the left side of chest of the deceased Smt. Jitani, At the time of hit of the gun shot, the deceased Smt. Jitani was neither in sitting position nor in standing position but in the process of trying to stand up/rise. This witness remained present at the place of incident for about one hour and he left the place of incident after the first informant Bhola had left for the police station. This witness has denied that he had not witnessed the incident. He has further denied to have deposed under pressure of police and Bhola P.W. 1.

The following contentions have been raised by the learned counsel for the appellant during course of arguments of this appeal:

(a) That the scribe of the F.I.R. namely Ganga Prasad had not been examined by the prosecution to prove the written report (Ext. Ka-1) of the incident at the dictation of Bhola P.W. 1.

(b) That the wife of Bhola P.W. 1 had not been examined as a witness though she was eyewitness to the incident of murder. Apart from it, no independent witness had been examined by the prosecution.

(c) That since the testimony of Doodh Nath P.W. 2 was disbelieved by the trial court and there is ocular testimony of only Bhola P.W. 1, the testimony of Bhola P.W. 1 has many contradictions, hence its corroboration is required in this case.

(d) That no recovery of the said firearm/gun was made from the appellant by the Investigating Officer, hence the appellant cannot legally be connected with the murder of Smt. Jitani.

(e) That the appellant had no concern with the deceased Smt. Jitani, hence there was no motive of the said murder by the appellant.

(f) That the deceased Smt. Jitani had executed a Will in favour of Bhola P.W. 1 prior to her murder, partition suit between Sudhana and Lala, step brother of Sudhana was pending in the revenue court and Bhola P.W. 1 was doing pairvi in that suit. Bhola P.W. 1 is an interested or partisan witness and his evidence cannot be relied upon for conviction of the appellant.

(g) That since this was a case of single gun shot allegedly made by the appellant, there was no intention of the appellant to commit murder of the deceased Smt. Jitani.

(h) That the deceased Smt. Jitani had two married daughters and in spite of having two married daughters, she did not execute the Will of her agricultural land in favour of her married daughters but preferred to execute the Will in favour of Bhola P.W. 1.

(i) That on commission of murder of Smt. Jitani, the appellant could not be the beneficiary namely getting her land. The beneficiary could be Bhola P.W. 1 or married daughters of the deceased, Smt. Jitani.

(j) That there are some contradictions between the statements of the eye-witnesses and site plan and there is contradiction between eye-witness account and medical evidence.

(k) That there was delay in lodging the F.I.R. and the F.I.R. was ante-timed.

(l) That the murder took place around 5.00 p.m. The postmortem was conducted on the dead body of the deceased Smt. Jitani on 26.1.1979 and at the time of post-mortem, semi digested food was found. According to Dr. L. K. Bhargava, P.W. 3, the death of Smt. Jitani would have possibly been caused within four hours of taking meal. On this ground, time of occurrence has been assailed by the learned counsel for the appellant.

(m) That the bloodstained clothes of the deceased or bloodstained earth taken from the place of occurrence, pellets and wadding found during postmortem of the deceased were not sent for chemical examination.

We have deeply and cautiously considered the contentions raised by the learned counsel for the appellant and collated the same with the evidence on record.

In this case of murder, it is clearly established on record that the statement of Bhola P.W. 1, who had gone to lodge the F.I.R. at the police station, was recorded just after lodging of the F.I.R. Bhola was interrogated by the Investigating Officer while Bhola was leaving the police station. Only after recording his statement u/s 161, Cr. P.C., the Investigating Officer proceeded to the spot for inspection of place of murder immediately thereafter. It is also established on record that the statements of other eye-witnesses including Doodh Nath P.W. 2 u/s 161, Cr. P.C. were also promptly recorded by the Investigating Officer P.W. 5 and the Investigating Officer after recording statements, promptly inspected the place of occurrence and prepared site plan at the instance of the eyewitnesses without any kind of delay. Blood was found on the place of murder, the Investigating Officer took blood stained earth and simple earth by preparing the memo and sealed each kind of earth in separate pot. The pellets found stuck in the wall situated just at a very short distance from the deceased and also in the Chaukhat were also taken out by the Investigating Officer and taken into custody by preparing a memo. Thus, in this case there was no delay on the part of the Investigating Officer in recording statements of the eyewitnesses, in making spot inspection, preparing site plan and collecting other evidence and investigation was complete, impartial and effective. The Investigating Officer was not cross-examined on any relevant fact by the defence side during the trial. Thus, the testimony of the Investigating Officer is quite unshaken and uncontroverted. No material discrepancy or contradiction has been tried to be created by defence side in the testimony of Investigating Officer P.W. 5, hence the investigation in this case can by no stretch of imagination be said to be defective or faulty. Thus, in this case of gun shot, fatal injury, blood, pellets etc. were recovered on the place of occurrence by the Investigating Officer P.W. 5 and inspection of the place of occurrence was made by him in presence of the witnesses namely Bhola P.W. 1 and others. The incident of murder took place in one room of the house of Bhola P.W. 1 in his presence and since the place of murder was the house of P.W. 1, his presence at the time of murder of Smt. Jitani in his house is quite natural and probable in the facts and circumstances of this murder case. Nothing has been extracted from the testimony of P.W. 1 Bhola so as to create his presence at the relevant time and place doubtful. In this case, the death of Smt. Jitani on 24.1.1979 at 5.00 p.m. at the house of Bhola P.W. 1 is fully established and there is no reason to doubt about it.

Now we deal with the contentions raised by the learned counsel for the appellant one by one.

The contention that scribe of the F.I.R. namely Ganga Prasad had not been examined by the prosecution to prove the written report Ext. Ka-1 of the incident on the dictation of Bhola P.W. 1 is not acceptable to us because non-examination of the scribe cannot in any manner affect the prosecution case and no prosecution witness was cross-examined on the point of scribe.

In Dalbir Singh alias Beera Vs. State of Punjab, , it was held that if the F.I.R. is not proved in a case u/s 302, I.P.C., it would not be ground of acquittal since the case would depend upon the evidence laid by prosecution and non-examination of the informant cannot in any manner affect the prosecution case when the evidence put forward by prosecution is natural and corroborating with medical evidence.

In Krishna Mochi and Others Vs. State of Bihar, , it was held that non-examination of informant would not be a ground of acquittal of accused even though F.I.R. was not admissible in evidence.

So far as the contention of the learned counsel for the appellant regarding non-examination of wife of Bhola P.W. 1 and also independent witness is concerned, no benefit of the same can be given to the appellant for the simple reason that the Court is bound carefully scrutinise and analyse the evidence of the prosecution witnesses examined in its support. The prosecution is free to examine any eye-witness and multiplicity of the witnesses is not necessary in each and every case of murder, Bhola P.W. 1 cannot be said to be interested witness as he had no interest in the conviction or acquittal of the appellant or any of the accused persons. He was a natural witness to this incident of murder and his presence at the relevant time of murder at his house was quite probable and natural.

Doodh Nath P.W. 2 though not relied upon by the trial court can be said to independent witness. He first supported the prosecution version in the trial court during his examination-in-chief and when he apprehended danger to his life at the hands of the appellant, he had to sign some blank papers on which his affidavit was got prepared by the appellant and this Doodh Nath P.W. 2 could not resist the appellant due to fear of his life and being left with no other alternative, he had to affix his signatures on the so called sworn affidavit. This P.W. 2 in his evidence in the trial court clarified the circumstances under which his affidavit in favour of the appellant was obtained at the instance of the accused persons including the appellant. The witness clearly deposed that his statement recorded in the trial court was true and correct and whatever he had witnessed, he deposed the same in the trial court, P.W. 2 clearly denied the contents of the affidavit saying that the same was not read over and explained to him and he was made to sign the same under life threat given by the appellant. This P.W. 2 clearly denied the defence suggestion to the effect that he had not witnessed the incident and he deposed under pressure of Bhola and police. A close scrutiny of the whole testimony of Doodh Nath P.W. 2 makes it quite evident that no suggestion as to any interestedness or relationship with the victim family was put to the witness. In the absence of such suggestion, Doodh Nath P.W. 2 can be said to be an independent witness. The kind of pressure said to be exerted upon P.W. 2 was not made clear by defence side during cross-examination.

It is further evident from the perusal of evidence of Doodh Nath P.W. 2 that his evidence was partly recorded on 4.5.1981 and remaining cross-examination was recorded on 18.6.1981. The learned trial court disbelieved the testimony of Doodh Nath P.W. 2 simply on the ground that the witness had not stated before the Investigating Officer that he was talking to Mewa Lal at that time and this was very important and affected the credibility of his testimony. The trial court further at page 14 of the impugned judgment has remarked that P.W. 2 claimed to have signed the recovery memo Ext. Ka-2 and Ext. Ka-3 and inquest report but his signatures are not found on these papers. The learned trial court appears to have ignored this relevant aspect because P.W. 2 Doodh Nath has one more name i.e., Sipahi Lal. It means P.W. 2 is Doodh Nath alias Sipahi Lal. The signatures of P.W. 2 on both these memos and inquest report as Sipahi Lal are present. The evidence of any independent or natural witness cannot be discredited just on the ground that the witness did not depose before the Investigating Officer that while being present near the place of occurrence he was talking to Mewa Lal. This P.W. 2 clearly testified that because of fear of accused persons including the appellant, he did not disclose the fact of his being present near the place of murder and the fact of talking to Mew Lal at the house of Mewa Lal at the relevant time and also the fact of having sworn affidavit in favour of the appellant. Thus, this contention of the learned counsel for the appellant has no substance and benefit thereof cannot be given to the appellant.

Thus, this is not a case of solitary evidence of Bhola P.W. 1. The testimony of Bhola P.W. 1 has been substantially supported by testimony of Doodh Nath alias Sipahi Lal P.W. 2. Both these witnesses are natural witnesses and can be said to be independent witnesses. The testimony of P.W. 2 cannot be said to be uncredit worthy just on the ground that at one stage of trial he had filed affidavit in favour of the appellant denying to have witnessed the incident. P.W. 2 has clearly explained the circumstances under which so called affidavit was got prepared at the behest of the appellant. P.W. 2 has supported the prosecution version in his evidence.

On the point of interested witnesses, the Hon''ble Supreme Court In State of U.P. Vs. Jagdeo and Others, , observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eyewitnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

In Harisingh M. Vasava Vs. State of Gujarat, , it was observed by the Hon''ble Apex Court that mere relationship between complainant/tenant and deceased/landlord cannot be stressed to hold that the complainant was interested witness in the case of murder of landlord. The murder took place in the house of the complainant, a tenant of deceased and the F.I.R. was lodged promptly by the complainant. The evidence of complainant, who was eye-witness and natural witness, which was corroborated by medical evidence, the other witnesses present on the place of occurrence were declared hostile. This fact would not render the testimony of complainant inadmissible. Further his failure to intervene to save life of the deceased cannot be a ground to discard his testimony particularly, when he was not asked as to what restrained or refrained from his intervening. The conviction of accused in the case in the circumstances was not interfered by the Hon''ble Apex Court.

In Mst. Dalbir Kaur and Others Vs. State of Punjab, , following observations were made:

(i) Interested witness.-- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.

The term ''interested'' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.

(ii) Witness gained over by accused not examined by the prosecution--held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the court for examining such witnesses.

(iii) witness who gives details with absolute accuracy is trustworthy.

Thus, non-examination of wife of Bhola P.W. 1 or any other independent witness has no adverse impact on the veracity of the prosecution case.

The contention of the learned counsel for the appellant that there are many contradictions in the testimony of Bhola P.W. 1, his testimony requires corroboration is also not acceptable to us as no major contradictions or discrepancies have neither been pointed out in the statements of Bhola P.W. 1 nor disclosed during arguments of this appeal. Some discrepancies, if any, they are minor discrepancies regarding some irrelevant facts in the statement of this witness u/s 161, Cr. P.C. Minor discrepancies or contradictions are bound to come in the statement of every truthful, natural and reliable witness. Every eye-witness narrates the details of the Incident in his own way some times in general or common way. Thus, the presence of Bhola P.W. 1 at the relevant time is clearly established and proved on record and he is a natural witness. His testimony is found wholly reliable, creditworthy and acceptable. There is no reason to disbelieve the testimony of Bhola P.W. 1.

In Yakub Ismailbhai Patel Vs. State of Gujarat, and also : 2004 Cr LJ 3118 : 2004 (3) ACR 2517 (SC), it was observed by the Hon''ble Supreme Court that human behaviour or conduct of a witness depends upon facts and circumstances of each given case and there is no set rule of natural reaction. The evidence of any eye-witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation. In Yakub Ismail Bhai Patel''s case, the accused inflicted injuries on vital organs of the deceased, eye-witnesses, friends of the deceased present on the spot did not go forward to help deceased at the time of incident and did not stop the accused. The Hon''ble Supreme Court observed that these cannot the circumstances to disbelieve testimony of the said witnesses, particularly when rest of testimony of the witnesses is tested with cross-examination.

In State of Rajasthan Vs. Smt. Kalki and Another, , it was held that in the depositions of witnesses, there are always normal discrepancies however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and the like material discrepancies are those which are not normal and not expected of a normal person.

In State of U.P. Vs. Anil Singh, , it was held that a witness figured as an eye-witness in the F.I.R. cannot be categorised as chance witness if his evidence is also corroborated by other eye-witness.

Regarding conduct of prosecution witness, the Hon''ble Supreme Court in Rana Partap and Others Vs. State of Haryana, , observed that to doubt the presence of witnesses because they did not go to rescue the deceased was unnatural because no set rule of natural reaction is made. Every witness reacts in his own special way.

In Chand Khan and another Vs. State of Uttar Pradesh, , it was observed that minor discrepancies in evidence of eye-witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye-witnesses.

The evidence of Bhola P.W. 1 is corroborated by the testimony of Doodh Nath P.W. 2 and further supported by recovery of pellets, blood etc. from the scene of murder and also by medical evidence.

The contention of the learned counsel for the appellant that no recovery of the weapon of offence namely gun was made from the appellant by the Investigating Officer, hence the appellant cannot be connected with this murder, is also not acceptable to us after scrutiny of the whole evidence available on record. No murderer can be acquitted simply on the ground of non-recovery of weapon of offence, particularly, when there is clinching, trustworthy and reliable evidence of the eyewitnesses leaving no room of doubt about presence of the witness at the relevant time.

The Hon''ble Apex Court in State of Rajasthan Vs. Arjun Singh and Others etc., , has recently observed that non-recovery of pistol or cartridge namely crime incriminating material or other articles does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes etc. cannot be taken or construed as no such occurrence had taken place. In this case law, regarding motive, it has been observed that motive for doing a criminal act is generally a difficult area for the prosecution to prove since one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Even in the absence of specific evidence as to motive, in view of the fact that in the case on hand, two persons have been killed and one sustained injuries due to firearms, the case of the prosecution cannot be thrown out on this ground. It has further been observed in this case that the testimony of interested witnesses should not be rejected merely because witnesses are related to the deceased. Their testimonies have to be carefully analysed because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable.

The contention of the learned counsel for the appellant is that the appellant had no concern with the deceased Smt. Jitani and there was no motive of the appellant to commit the murder of the deceased Smt. Jitani. It has come in evidence of the eyewitnesses namely Bhola P.W. 1 and Doodh Nath P.W. 2 that two accused persons Chhedi Lal and Bhai Lal are the real brothers and the appellant Babadeen was their friend and Kutumbi. This also shows that the appellant Babadeen was so much connected with the family of acquitted co-accused persons Chhedi Lal and Bhai Lal and that he went to the place of murder armed with gun and on their exhortation, the appellant reached the room where the deceased Smt. Jitani was sitting at the time of murder and then the appellant fired a gun shot in the chest of the deceased Smt. Jitani resulting into her instantaneous death. Not only this, fired shot entered into chest of the deceased and after making cavity deep entry pierced into left side of back, below lower angle of scapula in an area of 7-1/2 cm. x 7-1/2 cm. again chest cavity deep. Thus, the contention of the learned counsel for the appellant that the appellant had no concern with Smt. Jitani cannot legally be accepted on careful analysis of eye-witness account. So far as motive of the appellant in committing the said murder is concerned, in the case of direct evidence, motive pales into insignificance. Thus, the contention that single shot was fired and there was no intention of the appellant to commit the murder of the deceased Smt. Jitani cannot be accepted. The appellant armed with gun reached the house of the deceased and committed her murder in a preplanned manner, hence number of shots made by the appellant is of no consequence.

In State of U.P. Vs. Nawab Singh, , it was observed that in a murder case when there is direct evidence, motive looses its importance. Some omissions in the statement u/s 161, Cr. P.C. are not sufficient to discard the truthful and creditworthy evidence of the witness and also failure of the witness to give direction from which side the accused came caused due to illiteracy or lack of knowledge of the witness.

So far as contention of the learned counsel for the appellant that the deceased Smt. Jitani in spite of having two married daughters executed the Will of her land in favour of Bhola P.W. 1 is concerned, no benefit thereof can be given to the appellant. It is established from the evidence on record that till the murder of Smt. Jitani, execution of the Will in favour of Bhola was not disclosed to anyone and it was not within the knowledge of Bhola P.W. 1 himself. It was after about two months of the murder of Smt. Jitani, Bhola came to know about the said Will In his favour, hence no benefit of this contention can be given to the appellant. The partition suit between Sudhana and Lala, who was husband of the deceased, prior to the said murder, was pending between the parties. It is also established that Sudhana and Lala were step brothers having their common father. This Sudhana was cousin brother of acquitted accused persons Chhedi Lal and Bhai Lal.

The next contention of the learned counsel for the appellant is that there are some contradictions between the statements of P.W. 1 and P.W. 2 in the site plan. We have in detail discussed the complete evidence of both these eye-witnesses inter se. No major or material contradiction or discrepancy in the site plan with regard to the same in ocular evidence has been pointed out during course of arguments of the appeal. The presence of P.W. 1 and P.W. 2 at the date, time and place of murder is well established from their evidence and their testimony is unshaken, natural and trustworthy. It is evident from the eye-witness account that it was the appellant Babadeen who fired gun shot at the deceased Smt. Jitani from a very close range and gun shot fire caused the fatal injury and resulted in the immediate death of the deceased Smt. Jitani. Both these eye-witnesses were cross-examined about the distance from which gun shot fire was allegedly made by the appellant at Smt. Jitani. The gun shot was fired from a distance of about one foot. The same" is strengthened by post-mortem report of the deceased depicting that blackening on the gun shot wound was found. Gun shot wound was the wound of entry on upper part left side of breast, chest cavity deep. Thus, the presence of blackening further strengthens the evidence of eyewitnesses namely P.W. 1 and P.W. 2. Thus, the other contention of the learned counsel for the appellant that there is contradiction between ocular testimony of eye-witnesses and medical evidence is not acceptable. Both conform to each other.

Learned counsel for the appellant has taken us through the evidence at Page 5 of the statement of Dr. L. K. Bhargava P.W. 3, who conducted post-mortem on the body of the deceased. Doctor stated that no tattooing and scorching was found around injury No. 1. The doctor further stated that he could not tell the distance from which gun shot fire was made at the deceased. The doctor could not tell from which side of the deceased, the gun shot would have been fired. The doctor was not ballistic expert and he could not be expected to tell about the distance and side. The presence of tattooing and scorching is not must in every case. This was a gun shot fire which hit the deceased. Blackening around injury No. 1 was found. This injury was lacerated wound of size 2-1/2 cm. x 2-1/2 cm, directed downwards and backwards. This all shows that gun shot fire was made at a very close range possibly about from the distance of one foot from the deceased. Considering the size of lacerated wound and other symptoms found by the doctor P.W. 3, we are of the firm view that ocular evidence is fully corroborated by medical evidence and there is no discrepancy or contradiction of any kind.

In Toran Singh Vs. State of Madhya Pradesh, , and also in Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, , it was observed that in case of two gun shots the doctor who conducted post-mortem, gave two injuries of entry wound and also three of exit, this was not found material contradiction by the Hon''ble Supreme Court observing that this does not go to the root of nature of offence. The Hon''ble Supreme Court also observed that the discrepancies or variations in ocular account of witness unless so vital, cannot affect the credibility of evidence and this type of so called material contradictions with ocular testimony should not render the evidence of eyewitnesses unreliable.

In Anil Rai Vs. State of Bihar, , it was observed by the Hon''ble Supreme Court that reliable direct evidence should not be rejected on hypothetical medical evidence where medical evidence shows two possibilities, one consistent with the reliable direct evidence, should be accepted. If names of some of the prosecution witnesses have not been mentioned in the F.I.R., their testimony does not become unreliable merely because of it. The Hon''ble Supreme Court in the reported judgment regarding hostile witness also observed that merely because of a witness has been declared hostile because of his non-mentioning the name of the accused, his entire evidence cannot be wiped out if his testimony is corroborated by other reliable evidence and then conviction can be based thereon. Regarding inimical witnesses in this case, it was also observed that testimony of inimical witnesses cannot be discarded merely on the ground of enmity, if it is otherwise convincing and consistent and enmity is proved to be the motive of the crime. However, possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case.

In Brij Lal Vs. State of Haryana, , the Hon''ble Apex Court observed that it is difficult to state the exact location where the bullet hit when firing takes place all of sudden. Such a discrepancy/contradiction or exaggeration or embellishments on the other hand only lends assurance to credibility of evidence. This observation was made by the Hon''ble Apex Court while dealing with the discrepancy between ocular and medical evidence of eye-witnesses that the accused fired at the deceased and then one eye-witness further stating that the deceased was hit at back of his head. This version given by the witness was not tallying with the medical evidence. The Hon''ble Apex Court observed that the discrepancy is minor and accused in case of such minor discrepancy is liable to be convicted.

The Hon''ble Apex Court further in case of Ramakant Rai Vs. Madan Rai and Others, , observed that evidence of eye-witnesses is to be tested for its inherent consistency and inherent probability of prosecution story. When eye-witness account is found credible and trustworthy then medical evidence pointing to an alternative possibility is not to be accepted as conclusive.

The Hon''ble Apex Court in Kamaljit Singh Vs. State of Punjab, , it was observed that minor variations between medical evidence and ocular evidence do not take away primacy of latter (ocular evidence).

The Hon''ble Supreme Court in Janak Singh and Another Vs. State of Uttar Pradesh, , while dealing with a murder case also observed that in case of direct evidence of eye-witness that accused committed murder by firing from gun then inconsistency between eyewitness version and medical evidence as to distance from which gun was fired, would be immaterial.

In Gyasuddin Khan @ Md. Gyasuddin Khan Vs. The State of Bihar, , it was observed by the Hon''ble Apex Court that when accused caused death by firing gun shots, it is not reasonable to expect from the eye-witnesses that the scared eye-witnesses would be able to give a meticulous and precise account of details of shots that landed on the deceased.

One more contention raised by learned counsel for the appellant is that the incident of murder took place on 24.1.1979 at 5.00 p.m. and the F.I.R. thereof was lodged at 9.30 p.m. with the delay of 4-1/2 hours. The delay has not been explained.

Learned A.G.A. taking us through the whole evidence on record has replied that the distance between place of occurrence and police station was 8 kilometers and this distance was covered on foot by Bhola P.W. I. There is no delay worth the name in lodging the F.I.R: of murder and the F.I.R. cannot be said to be ante-timed. Moreover, no prosecution witness including the Investigating Officer has been cross-examined on the point of ante-timing of the F.I.R. In the absence of any cross-examination on this relevant fact, the appellant is not entitled to any benefit.

So far as the contention of the learned counsel for the appellant that the murder took place around 5.00 p.m. on 24.1.1979, the post-mortem was conducted on the dead body of the deceased Smt. Jitani on 26.1.1979 and at the time of postmortem, semi digested food was found is concerned, the same is not acceptable to us because no eyewitness particularly, Bhola P.W. 1 in whose house Smt. Jitani was murdered, was cross-examined regarding time of taking meal in the evening or noon time. No such suggestion was given to any other witness also.

The Hon''ble Apex Court in Ram Bali Vs. State of Uttar Pradesh, , while dealing with variance between the ocular version and medical evidence in a murder case observed that the state of contents of stomach found at the time of medical examination is not safe guide for determining time of occurrence in absence of reliable evidence on the question as to when exactly deceased had his last meal and what that meal consisted of. Mere failure or omission or negligence on the part of Investigating Officer cannot affect credibility of prosecution version.

The contention of the learned counsel for the appellant that the bloodstained clothes of the deceased or bloodstained earth taken from the place of occurrence, pellets and wadding found during post-mortem of the deceased were not sent for chemical examination is also not acceptable to us because it would have no adverse impact on the well proved prosecution case.

A Division Bench of this Court in Naurangi Lal (in Jail) Vs. State of U.P., . while dealing with murder case observed that the prosecution story cannot be said to be doubtful merely because no blood was found on the clothes of the witnesses or because the bloodstained earth recovered from the spot was not sent for chemical examination.

In State of Punjab Vs. Hakam Singh, , it was observed that when testimony of eye-witnesses is found truthful and reliable then seizure of firearm, recovering empties and sending them for examination by ballistic expert would have only corroborated the prosecution case but not sending them to ballistic expert is not fatal.

In view of what has been stated above and after scrutinizing and analysing the entire evidence and going through the conclusions arrived at by the trial court, we are of the opinion that the impugned judgment and order dated 3.3.1983 passed by the trial court/IIIrd Additional Sessions Judge, Allahabad does not call for any interference by this Court. The prosecution story has completely and fully been established and proved by evidence of eye-witnesses and further corroborated by medical evidence and other relevant circumstances. There is no possibility even remotely of false implication of the appellant on account of any kind of enmity. Really there was no enmity of the appellant with the deceased Smt. Jitani and it was the appellant who committed murder of Smt. Jitani because he was closely related to the family of the acquitted co-accused persons namely Chhedi Lal and Bhai Lal by firing gun shot in the chest of the deceased, which was fatal and resulted in the instantaneous death of the deceased Smt. Jitani. Thus, the appellant has not been implicated on account of so called enmity but he intentionally committed the murder of the deceased Smt. Jitani. The prosecution story is proved by means of cogent and solid evidence beyond shadow of reasonable doubt. Thus the impugned judgment of conviction and sentence of the appellant is hereby affirmed and the appeal filed by the appellant Babadeen alias Babai is dismissed. Since the appeal is being dismissed, the bail bonds and surety bonds of the appellants are cancelled. The appellant Babadeen alias Babai is directed to surrender before the trial court immediately to serve out the remaining part of the sentence awarded to him. If he fails to surrender, the trial court is directed to get the appellant Babadeen alias Babai arrested and send him to jail for serving out the remaining part of the sentence awarded by the trial court by means of impugned Judgment and order dated 3.3.1983.