Rajbir and Others (In Jail) vs State of U.P.

Vishnu Sahai, J.—Criminal Appeal No. 4393 of 2002 has been preferred by Rajbir and Manphool against the judgment and order dated 1.10.2002 passed by the Additional Sessions Judge (Court No. 1), Muzaffarnagar, in Sessions'' Trial No. 168 of 2001, whereby they have been convicted and sentenced in the manner stated hereinafter:

Manphool:

Under Section 302, I.P.C. to imprisonment for life.

Rajbir:

(i) u/s 302, I.P.C. to death ; and

(ii) u/s 307, I.P.C. to one year''s R.I.

The sentences of Rajbir, on both the counts, have been directed to run concurrently.

Capital Sentence Reference No. 8 of 2002 arises from the reference made by the learned Additional Sessions Judge to this Court, u/s 366(1), Cr. P.C. for confirmation of the death sentence of Rajbir.

It is pertinent to mention that along with the two Appellants, a third accused, namely, Risal alias Risal Singh was also tried, but he has been acquitted vide the impugned judgment and Criminal Misc. Application No. 5694 of 2002 has been preferred by the State of U. P. against the acquittal of Risal.

We would like to mention that Criminal Misc. Application No. 5694 of 2002 was not listed before us but on the joint request of learned Counsel for the parties, which has been recorded by us in a separate order passed today, we summoned it from the office and also heard it.

Since all these three matters arise out of a common factual matrix and impugned judgment we are disposing them off by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Vikas Kumar P.W. 2 is the son of Ishwar Chand P.W. 1., the brother of deceased Sonu, the grandson of deceased Chauhal Singh, the nephew of deceased Suresh, the son of deceased Kamlesh alias Kamla, and the nephew of the deceased Harpal. At the time of the incident, the informant along with the said persons was living in village Kanahahedi within the limits of Police Station, Charthawal in District Muzaffarnagar. At that time the Appellants Rajbir and Manphool and Respondent Risal were also living in village Kanahahedi.

It is pertinent to mention that Appellants Rajbir and Manphool are closely related to the informant and the deceased. Appellant Manphool is the real brother of deceased Chauhal Singh, the father of Ishwar Chand, who is the father of the informant. Appellant Rajbir being the son of Manphool is the first cousin of Ishwar Chand and uncle of the informant.

At the time of the incident, a dispute pertaining to a drain was pending between Ishwar Chand on one hand and Manphool and Rajbir on the other. A day before the incident, i.e., on 25.8.2000 at about 9.00 a.m., Appellant Rajbir had come to the house of the informant and tried to molest his mother (deceased Kamlesh). He also assaulted her. Kamlesh informed Ishwar Chand about it, who also got her medically examined at Muzaffarnagar.

On 26.8.2000, at about 6.30 a.m., while the informant was present at his house, Appellant Rajbir and Respondent Risal Singh armed with licensed guns and Appellant Manphool armed with a lathi came. Rajbir and others were saying that they would finish the entire family. Rajbir fired on Sonu, who died instantaneously. Thereafter, Rajbir and others entered inside the house, where the family members were present. Rajbir and Risal fired on Suresh, who died immediately. Rajbir also fired on Kamlesh, who died instantaneously as a result thereof. At that time, Chauhal Singh and Harpal were coming from their field and when they had reached in front the house of Parmal, Appellant Manphool assaulted Chauhal Singh with a lathi and Rajbir fired on Harpal. They also died instantaneously.

Apart from the informant, this incident was also seen by his father Ishwar Chand.

When Rajbir and others rushed towards Ishwar Chand he, along with his son Sanjeev Kumar (Sandeep), ran and hid in a sugarcane field. Thereafter, the informant along with Wahid and Pt. Jadav Ram proceeded to Police Station Charthawal. At a tea-stall situated just outside the police station, the informant got his F.I.R. scribed by Pt. Jadav Ram. He then lodged it at Police Station Charthawal, District Muzaffarnagar.

The evidence of Head Constable Chatar Lal Sharma P.W. 6 shows that on 26.8.2000, at 8.15 a.m., he registered a case under Sections 302/307/452/504/506, I.P.C. on the F.I.R. lodged by the informant Vikas Kumar P.W. 2. A perusal of the F.I.R. shows that therein Appellants Rajbir and Manphool and Respondent Risal are named.

The evidence of Chatar Lal Sharma also shows that he prepared the chik F.I.R., a perusal of which shows that the distance between the place of incident and Police Station Charthawal was nine kilometres.

After the case had been registered, the informant Vikas Kumar, along with a chitthi mazroobi (letter of request for medical examination) was sent to Primary Health Centre, Charthawal, where he was medically examined, the same day, at 11.30 a.m. by Dr. Shailesh Jain P.W. 3 who found on his person the following injuries:

(i) An abrasion over back of left forearm 0.5 cm. x 0.5 cm. in size 6 cm. below left elbow joint.

(ii) A lacerated wound over front of left forearm 12 cm. below left elbow joint. 0.5 cm. x 0.5 cm. swelling is also present underneath.

In the opinion of Dr. Jain, Injury No. 1 was simple in nature and for Injury No. 2, which was kept under observation, Dr. Jain advised X-ray. In the opinion of Dr. Jain, the injuries were fresh.

The evidence of informant, Vikas Kumar shows that after he had been medically examined by Dr. Shailesh Jain, he was sent for X-ray examination to Muzaffarnagar.

6A. The evidence of Dr. M. H. Agrawal P.W. 5 shows that on 26.8.2000 (the date of incident) he was posted as Radiologist in District Hospital, Muzaffarnagar and under his supervision X-ray of left forearm of Vikas Kumar was conducted. It is pertinent to mention that a perusal of the X-ray report shows the presence of a single rounded radio opaque shadow of metallic density in upper half under skin. It also shows that no bone injury was present.

The evidence of Achal Singh Yadav P.W. 8, in short, shows:

On 26.8.2000, he was posted as Station Officer at Police Station Charthawal, District Muzaffarnagar and in his presence the F.I.R. was lodged. He immediately commenced the investigation. He proceeded to the place of the incident, along with S.I. Om Prakash Singh P.W. 7 and other police personnel, where he performed the inquest on the corpse of the deceased persons. He seized a lathi and plain and blood stained earth under recovery memos. The same day, he arrested Appellant Manphool and Respondent Risal and seized from the former a D.B.B.L. gun and four cartridges of 12 bore and from the latter a D.B.B.L. gun and six cartridges of 12 bore. He made the said seizure under recovery memo. He, thereafter, inspected the place of incident and prepared the site-plan (Ex-Ka-41). He then recorded the statement of informant Vikas Kumar. On 1.9.2000, he got a warrant of arrest from the Court for the arrest of Appellant Rajbir and thereafter arrested him.

Pursuant to an application for transferring the investigation made by Rajendra-son of Respondent Risal, on 2.11.2000, the investigation was transferred to Inspector Rajvir Singh P.W. 9 of C.B., C.I.D. His evidence shows:

On 2.11.2000, he interrogated Appellants Rajbir and Manphool and Respondent Risal in jail and recorded the statements of Ishwar Chand and Sanjeev and also of witnesses of inquest and Dr. Shailesh Jain. On 14.11.2000, he recorded the statement of autopsy surgeon Dr. Arvind Kumar Agrawal. On 15.11.2000, he recorded the statement of S.O. Achal Singh Yadav P.W. 8. On 23.11.2000, he submitted the charge-sheet against Appellants Rajbir and Manphool and Respondent Risal.

Going backwards, the autopsy on the dead bodies of Sonu, Harpal, Chauhal Singh, Suresh and Smt. Kamlesh (Kamla) were conducted on 26.8.2000 by Dr. Arvind Kumar Agrawal P.W. 4.

On the person of Sonu, Dr. Arvind Kumar Agrawal found the injuries enumerated hereinafter:

enumerated hereinafter:

(i) Lacerated wound 4 cm. x 1.5 cm. x muscle deep on left side back on neck 2.5 cm. below and behind left ear.

(ii) Abraded contusion 10 cm. x 4 cm. on left side face 1.5 cm. in front of left ear.

(iii) Lacerated wound 2 cm. x 1/2 cm. x muscle deep left side chin.

(iv) Fire-arm wound of entry 2.5 cm. x 1.5 cm. x muscle deep on left side of neck 5 cm. above left clavicle. No blackening and tattooing present margins inverted and lacerated. Six metallic pellets recovered from wound.

(v) Firearm wound of exit 5 cm. x 4 cm. x muscle deep corresponding to injury.

On the person of Harpal, Dr. Agarwal found the injuries mentioned below:

Multiple fire-arm wound of entry 18 cm. x 8 cm. x superficial chest cavity deep varying in sizes from 1/4 cm. x 1/4 cm. to 1/2 cm. present on right side front of chest upper part, 1st rib is fractured underneath. No blackening and tattooing present.

On the person of Chauhal Singh, Dr. Agarwal found the injuries mentioned below:

(i) Lacerated wound 3 cm. x 1 cm. x bone deep on left side head 6.5 cm. above middle of left eye-brow.

(ii) Lacerated wound 2.5 cm. x 1 cm. x scalp deep on left side head just behind left ear pinna.

(iii) Traumatic swelling 16 cm. x 9 cm. on left side head. Left temporal and left parietal bones are fractured.

On the person of Suresh, Dr. Agarwal found the injuries enumerated below:

(i) Fire-arm wound of entry 1 cm. x 1/2 cm. x chest cavity deep on right side of chest 7 cm. lateral to right nipple at 9 O''clock position. Margins inverted and lacerated. No blackening and tattooing present.

(ii) Fire-arm wound of exit 4 cm. x 3.5 cm. (paper torn) chest cavity deep on front of chest 5 cm. medial to (paper torn) right nipple at 3 O''clock position. Wound ...... sic...... corresponds to (paper torn) Injury No. 1.

(iii) Fire-arm wound of entry 1.5 cm. x (paper torn) cm. x chest cavity deep on right (paper torn) chest 4 cm. away from right nipple at 8 O''clock position. Margins inverted and lacerated. No blackening and tattooing present.

(iv) Fire-arm wound of exit 3.5 cm. x 3 cm. x chest cavity deep on left side (paper torn) chest on left axillary line 12 cm. lateral to left nipple at 3 O''clock position. Wound corresponds to Injury No. 3 (wound of entry). Margins everted and lacerated.

On the person of Kamlesh (Kamla), Dr. Agarwal found the injuries mentioned below:

(i) Fire-arm wound of entry 4 cm. x 2 cm. x chest cavity deep on left side chest 4 cm. lateral to left nipple at 5 O''clock position. Margins inverted and lacerated. No blackening and tattooing present, 5th rib fractured underneath.

(ii) Fire-arm wound of exit 10 cm. x 8 cm. x abdominal cavity deep on right side front of abdomen 2.5 cm. lateral to umbilicus at 9 O''clock position. Loop of intestines coming out of wound. Margins everted and lacerated. Right diaphram is lacerated.

In his deposition in the trial court Dr. Agrawal stated that the five deceased persons could have been done to death on 26.8.2000 at 6.30 a.m. His deposition also shows that Chauhal Singh had sustained blunt weapon injuries and the two lacerated wounds and solitary abraded contusion sustained by Sonu could have been the result of contact with some hard object and the remaining injuries of Sonu and deceased persons, other than Chauhal Singh, were attributable to fire-arm.

The case was committed to the Court of Session in the usual manner, where after being charged Appellants Rajbir and Manphool and Respondent Risal were put up for trial. Their defence was of denial.

During trial, in all, the prosecution examined, ten witnesses. Two of them, namely, Ishwar Chand P.W. 1 and Vikas Kumar P.W. 2 (father and son inter-se) were examined as eye-witnesses. The learned trial Judge believed their evidence vis-a-vis Appellants Rajbir and Manphool and convicted and sentenced them in the manner stated in paragraph 1. He, however, acquitted Respondent Risal.

Aggrieved by their convictions and sentences Rajbir and Manphool have preferred Criminal Appeal No. 4393 of 2002. Aggrieved by the acquittal of Risal the State of U. P. has preferred Criminal Misc. Application No. 5694 of 2002. It is pertinent to mention that the learned trial Judge has also made a reference u/s 366(1), Cr. P.C. to this Court for confirmation of the death sentence of Rajbir and Capital Sentence Reference No. 8 of 2002 arises out of the said reference.

As mentioned earlier, since all these three matters arise out of a common factual matrix and impugned judgment we are disposing them off by one judgment.

We have heard learned Counsel for the parties and perused the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants Rajbir and Manphool and of Respondent Risal recorded u/s 313, Cr. P.C. and the impugned judgment. In our judgment, whereas Criminal Appeal No. 4393 of 2002 deserves to be partly allowed, inasmuch as in place of death sentence Appellant Rajbir deserves the sentence of imprisonment for life, Capital Sentence Reference No. 8 of 2002 and Criminal Misc. Application No. 5694 of 2002 warrant to be dismissed.

It would become manifest from the above that the learned trial Judge has founded the conviction of Appellants Rajbir and Manphool on the ocular account furnished by Ishwar Chand P.W. 1 and his son Vikas Kumar P.W. 2. In our judgment, the evidence of both these witnesses inspires confidence.

We now propose furnishing our reasons for reaching the said conclusion.

Since Ishwar Chand P.W. 1 and Vikas Kumar P.W. 2, who are father and son inter-se, at the time of the incident lived together and in respect of broad particulars have almost given the same version of incident, we propose examining their evidence together.

Before we propose analyzing the evidence of Ishwar Chand and Vikas Kumar, we wish to emphasize that their evidence has to be examined in the perspective that they were very close relations of Appellants Rajbir and Manphool and hence it is not expected that they would have falsely implicated them. It is pertinent to mention that Ishwar Chand is the real nephew of Manphool, inasmuch as his father deceased Chauhal Singh was the real brother of Manphool and since Appellant Rajbir is the son of Appellant Manphool he is the first cousin of Ishwar Chand. Since Vikas Kumar is Ishwar Chand''s son he is grandson of Appellant Manphool and the nephew of Appellant Rajbir.

We now propose examining the statements of Ishwar Chand and Vikas Kumar. Since in paragraph 4 we have set out the prosecution story on the basis of recitals contained in their examination-in-chief we do not want to burden our judgment by reiterating the details.

In short, their evidence shows:

Appellant Manphool was the real brother of deceased Chauhal Singh (the father of Ishwar Chand) and Appellant Rajbir being the son of Manphool was the real nephew of Chauhal Singh and the first cousin of Ishwar Chand. Manphool and Rajbir were the grandfather and uncle respectively of Vikas Kumar. There was a dispute pertaining to a drain between Ishwar Chand on one hand and Appellants Manphool and Rajbir on the other. A day before the incident, i.e., on 25.8.2000 Appellant Rajbir had tried to molest the deceased Smt. Kamlesh (Kamla), wife of Ishwar Chand, and had also assaulted her. Ishwar Chand got his wife medically examined at Muzaffarnagar, the same day.

On 26.8.2000 at 6.30 a.m. they saw that Appellant Rajbir armed with his father''s licensed gun, Respondent Risal with a licensed gun and Appellant Manphool with a lathi came to their house. They were saying that they would finish the entire family. Rajbir fired on Sonu, who died instantaneously. Thereafter they entered inside the house. Risal Singh and Rajbir fired on Suresh, who fell down dead. Rajbir fired on Kamlesh (Kamla), who also fell down dead. In the meantime, Chauhal Singh and Harpal, who were returning from field, reached in front of the house of Parmal. There Manphool assaulted Chauhal Singh with a lathi and Rajbir fired on Harpal. Chauhal Singh and Harpal fell down dead. Thereafter they proceeded towards Ishwar Chand, who along with his son Sanjeev (Sandeep) ran and hid in the sugarcane field. Thereafter Appellants Rajbir and Manphool and Respondent Risal ran away. Then Vikas Kumar along with Chowkidar Wahid and Pt. Jadav Ram proceeded to Police Station Charthawal and outside the said police station, at a tea-stall, Vikas got his F.I.R. scribed by Pt. Jadav Ram. He thereafter lodged it at Police Station Charthawal.

We have gone through the evidence of Ishwar Chand and Vikas and make no bones in observing that we find it to be implicitly credible. In the first place, they have explained their presence on the place of the incident, which was their own house. It is perfectly understandable that they were present at their house on the date of the incident (26.8.2000) at 6.30 a.m., the time when the incident took place.

Secondly, the manner of assault as furnished by them is corroborated by medical evidence. They stated that Appellant Rajbir fired on the deceased Sonu and we have earlier seen that the autopsy surgeon found on Sonu''s person one fire-arm wound of entry and one fire-arm wound of exit. He also found thereon two lacerated wounds and one abraded contusion, which, as per his deposition in the trial court, could be caused as a result of friction with some hard object. Looking to the dimensions of the lacerated wounds and the abraded contusion, the opinion of autopsy surgeon appears to be perfectly tenable. In our view, they were caused as a result of Sonu falling down, after sustaining fire-arm injury. They stated that Appellant Rajbir and Respondent Risal fired on Suresh and we have seen that the autopsy surgeon found two fire-arm wounds of entry and two fire-arm wounds of exit on the person of Suresh. They stated that Appellant Rajbir fired on Kamlesh (Kamla) and we have seen that the autopsy surgeon found one fire-arm wound of entry and one fire-arm wound of exit on Kamla. They stated that Appellant Manphool assaulted Chauhal Singh with a lathi and we have seen that the autopsy surgeon found two lacerated wounds and one traumatic swelling on the person of Chauhal Singh. We have seen that they stated that Appellant Rajbir fired on Harpal and the autopsy surgeon found one multiple fire arm wound of entry on Harpal''s person.

It is pertinent to mention that both Ishwar Chand and Vikas stated that the latter sustained fire arm injuries. We have seen that the injuries of Vikas were examined on the date of the incident itself at 11.30 a.m. (within five hours of the incident) by Dr. Shailesh Jain P.W. 3, who found on his person an abrasion and a lacerated wound, the duration of which was fresh, and advised X-ray in respect of the lacerated wound. It is pertinent to mention that the X-ray was conducted under the supervision of Dr. M. H. Agarwal P.W. 5 and the X-ray report reveals the presence of a single rounded radio opaque shadow of metallic density in upper half under skin on left forearm. It is common knowledge that the presence of radio opaque shadow of metallic density connotes a fire-arm injury.

It is significant to mention that although Ishwar Chand and Vikas Kumar were extensively cross-examined but nothing could be extracted there-from which could belie their presence on the place of the incident.

It is pertinent to mention that Vikas Kumar P.W. 2 is an injured witness of the incident and his injuries fit in with the time of the incident and the manner in which they were caused as deposed to by him and his father Ishwar Chand. In our judgment, his injuries lend a seal of assurance to his presence on the place of the incident. It should be borne in mind that at the time of the incident he was aged about 13 years and in view of his tender age we are not prepared to believe that prosecution would have got his injury manufactured by getting a pellet embedded in his left forearm.

In our judgment, the solitary statement of Vikas is itself sufficient to bring home the guilt of the Appellants.

For the said reasons, in our judgment, the evidence of Ishwar Chand and Vikas Kumar inspires confidence and is sufficient to sustain the conviction of Appellants Rajbir and Manphool.

Assurance to the ocular account furnished by Vikas and Ishwar Chand is forthcoming by the prompt F.I.R. of the incident, which was lodged by the former. We have seen that the incident took place on 26.8.2000, at about 6.30 a.m. and at 8.15 a.m., i.e., within one hour and forty five minutes, Vikas lodged the written F.I.R. of the incident at Police Station Charthawal, which was situated at a distance of nine kilometers from the place of the incident. It is significant to point out that in this prompt F.I.R. of the incident the essential features of the prosecution case, including the time of the incident ; the place of the incident ; the names of the accused persons ; the weapons in the hands of the accused persons ; the names of the deceased persons ; the manner of assault ; the name of eye-witnesses Ishwar Chand and Vikas ; and the factum of Vikas receiving injuries, have all been mentioned.

Criminal courts attach great importance to the lodging of a prompt F.I.R. because the same substantially eliminates the chances of concoctions and embellishments creeping in the prosecution case. In our judgment, this prompt F.I.R. of the incident is an additional guarantee of the truthfulness of the prosecution case vis-a-vis Appellants Rajbir and Manphool.

For the aforesaid reasons, we are of the judgment that the learned trial Judge acted correctly in convicting the Appellant Rajbir for the offence punishable under Sections 302, I.P.C. and 307, I.P.C. and Appellant Manphool for that punishable u/s 302, I.P.C.

There can be no manner of doubt that the offence punishable u/s 302, I.P.C. has been made out against both the Appellants. It is pertinent to mention that Appellant Manphool has been convicted thereunder for causing injuries to Chauhal Singh with a lathi. The evidence of the autopsy surgeon Dr. Arvind Kumar P.W. 4 shows that he sustained two lacerated wounds and one traumatic swelling on the left side of head. A perusal of the post-mortem report shows that the left temporal and left parietal bones of Chauhal Singh were fractured. It is pertinent to mention that Dr. Arvind Kumar P.W. 4 in his deposition in the trial court has stated that the injuries of Chauhal Singh could have been caused by a lathi and were sufficient in the ordinary course of nature to cause death. In our view, the act of Appellant Manphool would be squarely covered by clause thirdly of Section 300, I.P.C., the breach of which is punishable u/s 302, I.P.C. A perusal of the said clause would make it manifest that two pre-requisites have to be satisfied before it can be invoked ; they being: (a) there should be intention to cause the injuries caused, in contradistinction to their being accidentally caused ; and (b) the injuries caused should be sufficient in the ordinary course of nature to cause death.

Both these requirements have been satisfied. The evidence of both the eye-witnesses shows that Appellant Manphool intentionally inflicted injuries on the person of Chauhal Singh and that of the autopsy surgeon shows that the said injuries were sufficient in the ordinary course of nature to cause death.

In our judgment, the offence punishable u/s 302, I.P.C. would also be made out against the Appellant Rajbir. He caused fire-arm injuries to the other four deceased persons, namely, Sonu, Suresh, Harpal and Kamlesh (Kamla). It is pertinent to mention that the evidence of the autopsy surgeon also shows that their injuries were sufficient in the ordinary course of nature to cause death and that of the eye-witnesses shows that Rajbir intentionally caused fire-arm injuries on their person. In these circumstances, Rajbir''s act would also be covered by clause thirdly of Section 300, I.P.C., the breach of which is punishable u/s 302, I.P.C.

This leaves us with the question of sentence. Mr. G. S. Chaturvedi, learned Counsel for the Appellants, emphatically urged that the instant case cannot be classified in the category of "rarest of rare" and the learned trial Judge erred in sentencing Appellant Rajbir to death. In his contention, a sentence of imprisonment for life would meet the ends of justice.

We make no bones in observing that on the first blush we were not inclined to accept his submission because in a very brutal manner Appellant Rajbir did to death four very close relations of his. However, on a deeper reflection, we felt that three considerations warrant that he be sentenced to imprisonment for life. The first is that the evidence is he participated in the incident along with his father Manphool. In our judgment, the probability of his participating under the morale influence/ domination of his father cannot be ruled out.

The Supreme Court in paragraphs 206 and 207 of the oft quoted case of Bachan Singh Vs. State of Punjab, , has considered the circumstance of an accused acting under the duress or domination of another person as a mitigating circumstance for imposing a sentence of imprisonment for life.

The second consideration is that although Appellant Rajbir is alleged to have murdered his close kith and kin, in our view, imposition of sentence of death on him would only aggravate the bitterness between the two families. We feel that a sentence of imprisonment for life may tape off the bitterness between the two families.

The third consideration is that the learned trial Judge has sentenced him to death on 1.10.2002. This means that the sentence of death has been hanging on his head for more than one year.

We wish to make it clear that none of these considerations individually would have prompted us to reduce his sentence to life.

We are not oblivious to the fact that this is a case of five murders but in our judgment, ipso-facto that would not be a ground for confirming the death sentence of Appellant Rajbir. Recently, the Apex Court in the case of Ram Pal v. State of U. P. (47) 2003 ACC 567, for reasons mentioned in paragraphs 8 and 9 of the judgment reduced the sentence of Ram Pal from death to life imprisonment, despite the fact that 21 persons were murdered in the incident.

Considering the over-all circumstances, we are of the view that a sentence of imprisonment for life to Appellant Rajbir would meet the ends of justice.

This brings us to Criminal Misc. Application No. 5694 of 2002, which has been preferred by the State of U. P. against the acquittal of Respondent Risal. In our judgment, there is no merit in this application and no case for granting of leave to appeal against the said Respondent is made out. A perusal of paragraph 38 of the impugned judgment would show that the learned trial Judge was prompted to acquit Risal for the reasons enumerated hereinafter:

(a) He was aged about 78 years and wore glasses of heavy lenses at the time of the incident and therefore, it was improbable that he participated in the incident ;

(b) His conduct of sitting at the police station on the date of the incident itself at 5.00 p.m. was incompatible with his guilt ;

(c) The report of the ballistic expert shows that the licensed gun, which he is alleged to have used in the incident and which was recovered from him on the date of incident itself, was not in working condition ; and

(d) There was no motive for him to have participated in the incident. On the converse, there was motive for the informant and Ishwar Chand to falsely implicate him because in the election of Gram Pradhan, which was contested by Ishwar Chand, he blatantly refused to support him on the ground that he was not a man of good character.

It is well-settled that in an appeal against acquittal this Court does not interfere if the view of acquittal could have been reasonably arrived at, despite the fact that had it been the trial court it would have taken a different view [see Khedu Mohton and Others Vs. State of Bihar, and Tota Singh and Another Vs. State of Punjab, . In our judgment the view of acquittal of Risal was certainly a reasonable view and warrants no interference.

We would be failing in our fairness if before proceeding to the operative part of the judgment we do not refer to the main submissions canvassed by Mr. G. S. Chaturvedi, learned Counsel for the Appellants.

29A. Mr. Chaturvedi emphatically assailed the evidence of Ishwar Chand and Vikas on the ground that they attributed specific overt act of firing on deceased persons to Respondent Risal and since the learned trial Judge has found that Risal has been falsely implicated their evidence cannot be accepted vis-a-vis Appellants Rajbir and Manphool.

We have considered the said submission and do not find any merit in it. In paragraph 28, we have mentioned the reasons, which weighed with the learned trial Judge for acquitting Risal. In our judgment, on their basis the learned trial Judge should have given him the benefit of doubt, but not concluded that he has been falsely implicated. It is well-settled that this Court is not bound by the findings of the trial court and can reappraise their correctness. True to his customary fairness, Mr. G. S. Chaturvedi, learned Counsel for the Appellants, does not dispute this legal position. In our view, even if for argument''s sake it is accepted that the aforesaid two eye-witnesses have falsely implicated Risal it does not mean that they have also falsely implicated Appellants Rajbir and Manphool. It is pertinent to mention that right from the F.I.R. specific overt acts in relation to assault on individual deceased persons have been assigned to them. Both the witnesses in their substantive evidence have also assigned to them the said acts. The Apex Court times out of number has held that the principle falsus uno falsus omnibus is not a rule applicable to our country.

For the said reasons, in our view, it is open for us to accept the testimony of Ishwar Chand and Vikas against the Appellants.

Hence, this submission fails.

29B. Mr. Chaturvedi secondly contended that it would be extremely hazardous to accept the testimony of Vikas Kumar P.W. 2, despite the prosecution claim that he is an injured witness. He urged that the injuries suffered by him could have been manufactured. He also contended that his claim that the F.I.R. was lodged the same day, i.e., on 26.8.2000 at 8.15 a.m. is unacceptable. He pointed out that in his cross-examination he admitted that two minutes after lodging of the F.I.R. he left for hospital. Mr. Chaturvedi contended that had this been so he would have been medically examined sometimes around about 8.30 a.m. and 8.45 a.m. and not at 11.30 a.m. In this connection, Mr. Chaturvedi invited our attention to the evidence of Dr. Shailesh Jain P.W. 3, who medically examined him. Mr. Chaturvedi pointed out that in his cross-examination Dr. Jain has admitted that on 26.8.2000 his duty was between 8.00 a.m. and 2.00 p.m. and during the said time he was in hospital. Mr. Chaturvedi contended that had Vikas reached the hospital within two-four minutes of lodging the F.I.R. Dr. Jain would have examined him around 8.30-8.45 a.m.

We have given our anxious consideration to the submission of Mr. Chaturvedi and in our judgment from the circumstance that Vikas was medically examined at 11.30 a.m. it cannot be inferred that the F.I.R. is ante-timed. It is pertinent to mention that in his cross-examination he admitted that in hospital he waited for three hours before he was medically examined. We are inclined to believe his statement. Since he did not have any serious injury and had only sustained a pellet injury in left forearm the staff of the hospital may have felt that there was no urgency in giving him medical treatment. We find no good reason to reject Vikas''s evidence that he waited at the hospital for three hours. It is common knowledge that people, who do not have influence and connections often have to wait for hours before they are medically examined by the doctor at a Government hospital. Consequently, in our judgment, it cannot be said that Vikas is not speaking the truth when he says that the F.I.R. was lodged on 26.8.2000 at 8.15 a.m.

29C. Mr. Chaturvedi thirdly urged that Vikas at the time of the incident was aged about 13 years and it is extremely improbable that after such a gruesome incident, wherein five very close members of his family had been killed, he could have mustered courage to lodge a flawless F.I.R.

We have considered the said submission and make no bones in observing that we do not find any merit in it. The evidence of Vikas is that immediately after the incident he along with the village chowkidar Wahid and Pt. Jadav Ram proceeded for Police Station Charthawal and near the said police station, at a tea-stall, got the F.I.R. scribed by Jadav Ram. In our view, had Vikas gone alone to the police station there certainly would have been some merit in this submission.

29D. Mr. Chaturvedi fourthly urged that we should not be obsessed with the injuries of Vikas because he only sustained a pellet in his left forearm. He contended that in the melee the pellet may have struck him.

We have given our anxious consideration to the said submission and do not find any merit in it. According to the prosecution, the incident took place on 26.8.2000 at 6.30 a.m., i.e., in broad day light. It is significant to mention that during cross-examination the eye-witnesses have not been challenged regarding the time of the incident. If the incident took place in broad day light Vikas and Ishwar Chand would have had no difficulty in recognizing the culprits.

29E. Mr. Chaturvedi also assailed the evidence of Ishwar Chand P.W. 1 on a number of counts.

He firstly urged that in his cross-examination he admitted that while he was returning after answering the call of nature he heard the sound of five to seven fires and thereafter saw the incident. He urged that in view of this admission his claim that he saw the entire incident and his claim that Sonu sustained gun shot injury on his person in his presence is untenable.

Mr. Chaturvedi secondly urged that his conduct is extremely unnatural. He pointed out that his cross-examination makes it manifest that at about 4.00 p.m. on the date of the incident he learnt that police had come in the village. He consequently contended that instead of going to the police station he should have gone to his house because five of his family members were filled.

He thirdly contended that he was interrogated u/s 161, Cr. P.C. four days after the incident.

He fourthly contended that in view of the said infirmities, bearing in mind that he is a highly interested witness, it would be unsafe to accept his evidence and claim of having seen the incident.

We have given our anxious consideration to the said submissions and in our judgment it cannot be said that he was not present at the place of the incident.

It is true that while he was returning, after answering the call of nature, he heard the sound of five to seven fires and then saw the incident. It is also true that deceased Sonu was first fired upon and therefore as his statement stands he may not have seen Appellant Rajbir firing upon Sonu. However, it is common knowledge that when heinous offences take place and witnesses give evidence after efflux of time, under the stress of cross-examination they start drawing from their imagination and therefore, every word of their evidence should not be taken as gospel truth.

So far as the conduct of Ishwar Chand in not going to the village despite learning that police had come and going to the police station is concerned, all what we can say is that different people react differently in the same situation and so long as the conduct of a person is not impossible his evidence cannot be rejected. In our view, it would have been a natural conduct if after learning that police had come to his house he would have gone to his house but at the same time we feel that there was nothing unnatural in his conduct if he instead rushed to the police station. We can well imagine that having witnessed five gruesome murders he must have been shell-shocked and therefore, if in such a mental state he decided to go to police station he cannot be faulted.

So far as his belated interrogation u/s 161, Cr. P.C. is concerned, it appears that the first Investigating Officer S.O. Achal Singh Yadav P.W. 8, who recorded his statement, did not conduct the investigation fairly, which is manifest from the fact that the second Investigating Officer Inspector Rajvir Singh P.W. 9 has admitted that the investigation was transferred to him on an application made to the State Government by Rajendra son of Respondent Risal.

So far as Mr. Chaturvedi''s criticism that he is a interested witness is concerned the law only enjoins that the testimony of a interested witness be evaluated with caution and not mechanically rejected. We have exercised that caution and found it to be credible.

For the said reasons, in our view, the evidence of Ishwar Chand inspires confidence.

We feel it pertinent to mention that while criticising the evidence of Ishwar Chand and Vikas, Mr. G. S. Chaturvedi, learned Counsel for the Appellants, seems to have over-looked a basic fact, namely, these witnesses were very close relations of Appellants Rajbir and Manphool, inasmuch as Ishwar Chand was the real nephew of Manphool (his father Chauhal Singh was Manphool''s brother) and the first cousin of Appellant Rajbir, who was the son of Manphool and Vikas Kumar P.W. 2 being the son of Ishwar Chand was the grand son of Manphool and the nephew of Rajbir. In our judgment, on account of this very close relationship, in a broad day light incident, Ishwar Chand and Vikas would not have excluded the real assailants and falsely implicated the Appellants Rajbir and Manphool.

In the result:

A. Criminal Appeal No. 4393 of 2002:

The appeal is partly allowed. We uphold the conviction of Appellant Manphool for the offence punishable u/s 302, I.P.C. and the sentence of imprisonment for life awarded to him thereunder. We also uphold the conviction and sentence of Appellant Rajbir for the offence punishable u/s 307, I.P.C. and his conviction for the offence punishable u/s 302, I.P.C. but we reduce his sentence for the offence punishable u/s 302, I.P.C. from death to imprisonment for life.

Appellants Rajbir and Manphool are in jail and shall serve out their sentence.

B. Capital Sentence Reference No. 8 of 2002:

The reference is rejected.

C. Criminal Misc. Application No. 5694 of 2002:

The application is rejected.