Judgment LOK NATH PRASAD and O.N.ASTHANA JJ. 1. Crl. Appeal Nos. 315 of 1994, 320 of 1994 and No. 320 of 1994, 320 of 1994 had arisen from the common judgment of conviction dated 15-6-1994 passed by Shri S.M.I.I.F. Alam, Sessions Judge, Begusarai in Sessions Case No. 160 of 1992, through which all the appellants except Manoj Singh were convicted and sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and appellant Manoj Singh was convicted and sentenced under Section 302 of the Indian Penal Code and further appellant Manoj Singh was convicted under Section 452 of the Indian Penal Code and Section 27 of the Arms Act and similarly appellant Kaushal Kishore Singh was further convicted and sentenced under Section 452 of the Indian Penal Code but no separate sentence was awarded under this count. 2. In Crl. Appeal No. 315 of 1994 the appellant is Manoj Singh, whereas in Crl. Appeal No. 320 of 1994 Parmanand Singh is the appellant and in Crl. Appeal No. 323 of 1994 Kaushal Kishore Singh is the appellant. 3. The fact in short giving rise to these three appeals is that Hare Ram Singh got his house in village Maharathpur within Begusarai (M) P.S.Similarly, Rajendra Singh, who was the friend of Hare Ram Singh also got his house in the same village and in the morning of 12-7-1991 Yasoda Devi, first wife of Hare Ram Singh alleged before the S.I. attached to Sighaul O.P. that in the night of 11/12-7-1991 she along with her husband were sleeping in their house then at about 1.30 a.m. on 12-7-1991 both of them got up as three persons scaled the wall and entered in their house and they were identified as appellant Manoj Singh, appellant Kaushal Kishore Singh and one Jhotha Singh and they were armed with country-made pistol and at that time a lantern was also burning in the courtyard. It is also the prosecution case that the appellant Manoj Singh first of all fixed his fire arm on the chest of Hare Ram Singh and Jhotha Singh apprehended the informant, the wife Hare Ram Singh and gagged her mouth by her Sari and Kaushal Kishore Singh the other appellant entered in the room in search of her daughter Ram Devi, but she could not be found there and so disclosed that Rama Devi is not available, then the appellant Manoj Singh fired from close range hitting on the chest of the husband of the informant Hare Ram Singh and due to that he died on the spot and all the three accused persons escaped away. After some time, the informant also heard another firing sound and with some difficulty when the informant united herself and raised alarm, then some of the villagers also came and she narrated the entire incident to them and they in turn also disclosed that the same set of accused persons also committed murder of Rajendra Singh, a friend of the deceased Hare Ram Singh. 4. The motive for the entire occurrence has also been alleged by the informant by alleging therein that from her the deceased had no issue and with her consent, her husband married for the second time with Neelam Devi from whom they got a daughter Rama Devi aged about 17 years or so and her husband was contemplating to give her in marriage but the accused persons, who are their agnates, were claiming share of land they had intention to eradicate Rama Devi, the sole heir of the deceased so that they could get the land due to extinction of their daughter. Similarly, Rajendra Singh was subject of target only for the reason that he used to support her husband against the accused persons. 5. The S. I. of Police after recording farbeyan i.e. Ext.-3 in the early morning of 12-7-1991 also visited the residential hut of another deceased Rajendra Singh and prepared inquest of both the deceased and the statement of some of the witnesses were recorded and the dead bodies of both the deceased were sent for autopsy. After completing investigation, charge-sheet was submitted as against these three appellant and also against one Jhotaha Singh, who was declared as juvenile and as such his trial was separated from these appellants. 6. After completing investigation, charge-sheet was submitted as against these three appellant and also against one Jhotaha Singh, who was declared as juvenile and as such his trial was separated from these appellants. 6. All the accused persons claimed themselves innocent and thought the factum of murder as alleged has not been denied but it appears that their defence is that both the deceased were done to death by some other persons, might be a different place, and they had been implicated only out of previous enmity. 7. The trial court found these appellants guilty for committing the murder of the deceased Hare Ram Singh and Rajendra Singh. Besides some other minor offences. So far the murder of the deceased Hare Ram Singh and Rajendra Singh is concerned, this much can be said that the defence has not challenged their homicidal death in the night of 12-7-1991 and only they had denied that actually the murders were not committed in the P.O. village. Moreover, all the witnesses had found the dead bodies of these two deceased and the 1.0. also prepared inquest, i.e. Ext-5 and 5/1, so the factum of murder of the deceassd Hare Ram Singh and Rajendra Singh is well proved. 8. The only question of enquiry before us is if these appellants in furtherance of their common intention committed the murder of the deceased Hare Ram Singh and Rajendra Singh in their respective houses as alleged. Admittedly, both the murders were committed at the different places and from the evidence of the I.O. and that of PW 5 Yashoda Devi, it can be said that there is distance of 100 yards or so between both the houses and according to the prosecution first of all murder of Hare Ram Singh was committed then again the same set of accused persons subsequently had gone to the house of Rajendra Singh and committed his murder there. For proper appreciation and for convenience, we scrutinised the evidence on the record in order to fasten guilt of the appellants separately in respect of each murder. 9. So far first murder of Hare Ram Singh is concerned, no doubt, the prosecution had examined as many as 12 witnesses of them PW 9 and PW 11 are the doctors and PW 12 is a formal witness and PW 10 is the I.O. himself. 9. So far first murder of Hare Ram Singh is concerned, no doubt, the prosecution had examined as many as 12 witnesses of them PW 9 and PW 11 are the doctors and PW 12 is a formal witness and PW 10 is the I.O. himself. Peculiar feature of this case is that all the other independent witnesses, namely, PW 1 Suresh Singh, PW 3 Remagya Singh, PW 4 Kishundeo Singh PW 8 Ram Ratan Singh had not fully supported the prosecution case and so they were declared hostile. So, the most material and important witness to prove the murder of Hare Ram Singh is PW 5 Yashoda Devi, who is admittedly his wife. 10. PW 5 Yashoda Devi had stated that on the relevant night she was with her husband were sleeping separately. Her husband was on the cot and she was on the ground but she got up at about 1.30 a.m. or so as three persons, to whom she identified as Manoj Singh, Kaushal Kishore Singh, who are appellants here, and one Jhotaha Singh, who was declared as juvenile and facing trial separately and they were armed with fire-arm and Manoj Singh pointed his pistol on the chest of her husband whereas Jhotaha gagged her and apprehended her and Kaushal Kishore Singh entered in the room and said after search that Rama Devi is not available and immediately Manoj Singh fired from close range on the chest leading to the death of the deceased instantaneously. This witness had further stated that after some time she heard another firing sound and somehow or the other, she had been able to remove the cloths from her mouth and raised alarm, then some witnesses arrived and disclosed about the occurrence and the witnesses in turn also stated that Rajendra Singh, who was close friend of the deceased was also murdered. This witness had further stated that her husband married for the second time to have a child with Neelam and from her a female child was born, namely, Rama Devi, who was aged about 17 years or so at the time of occurrence and prior to occurrence these appellants including Parmanand were pressing her husband for giving at least two bighas of land each to the co-sharer. On the other hand, her husband was not willing to give any land of his share because he wanted that his entire land would go to his daughter. 11. The evidence of this witness so far motive and other features are concerned, find support and corroboration from the evidence of another widow, namely, Neelam Devi, who had figured as PW 7. This witness had stated that in the night of occurrence she was in her Naihar with her daughter Rama Devi and on gettirg information, came to her house in P. O. village at about 10.00 a.m. and she learnt from Yashoda Devi that these appellants committed murder of their husband. She had further stated that the appellants, who are agnates, were pressing her for giving some land to them. On the other hand, her husband was not willing to spare any land and he had specifically told his agnates that his entire property will go to the daughter, the sole heir and so threatening was given to her husband of dire consequences. 12. The evidence of PW 5 also finds corroboration from the evidence of PW 11 Dr. Anand Kumar Sharma, who held autopsy on the dead body of Hare Ram Singh on the date of occurrence, i.e. on 19-7-1291 and found a circular wound charred with inverted margin on the chest and according to the doctor this very injury was sufficient to cause death in ordinary course and prepared post-mortem report i.e. Ext. 5 and it is also the opinion of the doctor that the death of the deceased took place within 24 hours or so. So, from the evidence of the doctor, this much can be said that the deceased was fired by pistol from close range on the chest some time in the night of 12-7-1991 which caused instantaneous death. 13. Learned counsel for the appellants first of all rall raised his objection about the credibility of the sole witness on the point of occurrence, i.e. PW 5, more for the reason that it has come in evidence that there was illrelation between the appellants and the deceased. At the very outset, it can be said that only on this score the evidence of interested witness or the witness inimical is not to be rejected straightway and the Court is required to go deeper and to make scrutiny for satisfaction if the witness is worth reliable. At the very outset, it can be said that only on this score the evidence of interested witness or the witness inimical is not to be rejected straightway and the Court is required to go deeper and to make scrutiny for satisfaction if the witness is worth reliable. It can be said that the cause of annoyance was definitely with the agnates, i.e. Manoj Singh and Kaushal Kishore Singh and admittedly they are agnates, Manoj Singh being the son of Ramanuj, the brother of the deceased and Kaushal Kishore Singh being the grandson of another brother of the deceased Vishwanath because they wanted some share over the land of the deceased and they were not liking that the entire lands should go to the daughter of the deceased and so it appears very natural that the appellants came with the intention to apprehend the daughter Rama Devi to eliminate her and if they would have succeeded, they could have eliminated the line of succession of the deceased. 14. Further the wife is expected to live with her husband and it is not expected that only for the reason that there was some dispute between the agnates, she will implicate her agnates and will allow the main culprits, i.e. killer of her husband to go scot-free. Our this finding further finds support for the reason that the occurrence took place in the late night some time at 2.00 a.m. and in the early morning near about 6.00 a.m. the PW 10, the I.O. of this case came to the P.O. village on getting rumour of some incident and at the same time the fardbeyan was recorded, i.e. Ext. 3. So, virtually there was no time between the occurrence and recording of fardbeyan to give some breathing time to a rustic lady for consultation and to lodge fardbeyan implicating some other than the actual assailants. 15. Learned counsel for the appellants strongly submitted that in fact the alleged occurrence had not taken place in the P.O. village and Rajendra Singh and Hare Ram Singh both having some criminal antecedent might have been done to death by some other criminals at a different place and taking advantage of their murder, subsequently the dead body of both the deceased were brought to their respective houses and then this false case was instituted implicating the appellants. Learned counsel in order to substantiate his submission, drawn our attention towards the cross-examinatian of PW 1 and that of PW 4 to show that actually PW 5, the wife of the deceased was not present in the O.P. village and she along with Neelam and Rama Devi had gone to the Naihar of Neelam situate in village Malapur. No doubt, PW 1, who had been declared hostile and some other witnesses, who had also been declared hostile had stated in the cross-examination that actually no body was present in the house of Hare Ram Singh and after the commission of murder, PW 5 and PW 7 were brought from village Malapur and so they had not seen the occurrence. PW 1 and other witnesses, who were declared hostile, had actually not stated before the I.O. all these facts rather this witness had stated before the I.O. and in the statement under Section 164 of the CrPC before the Magistrate that in fact they got up at about 2.00 a.m. or so on hearing firing sound and rushed to the house of the deceased Hare Ram Singh and even of Rajendra Singh and found them dead and the wife of Hare Ram Singh narrated the entire incident in which the appellants were named. So, the statement made in the court for the first time by some of the hostile witnesses that the wife of Hare Ram Singh was not present in the house when they had gone there and had seen the dead body only in unacceptable and is not finding corroboration from the evidence of any other witness on the record. No doubt, now it is more or less settled principle of law that the entire evidence of the hostile witnesses will not be set off the record completely and those portions of the statement of such hostile witnesses are to be accepted if they are acceptable to the court and find corroboration from the other evidence on the record. No doubt, now it is more or less settled principle of law that the entire evidence of the hostile witnesses will not be set off the record completely and those portions of the statement of such hostile witnesses are to be accepted if they are acceptable to the court and find corroboration from the other evidence on the record. In that view of the matter, the statement of some of the hostile witnesses that had gone to the house of Hare Ram Singh, they had seen the dead body of Hare Ram Singh and his wife was not present is not to be accepted because such statements were not made earlier either before the I.O. or in their statements under Section 164 of CrPC on the other hand, we find that these hostile witnesses had clearly stated before the I.O. that in the night at about 2.00 a.m. they heard firing sound and had gone to the house of Hare Ram Singh and found his wife there, who narrated the entire incident to them. PW 8 had also stated that he got up at about 2.00 a.m. in the night due to firing sound in the village and immediately rushed to the house of Hare Ram Singh and Rajendra Singh and both them were dead with the injuries and the wife of Hare Ram Singh was present. 16. So, the evidence of PW 5 find corrobaration from the statement of the hostile witness also that there was firing sound at about 2.00 a. m. on 12-7-1991 in the P. O. village itself and immediately rushed to the house of Hare Ram Singh and found him dead and his wife PW 5 was present. Moreover, the entire argument of the consent for the appellants that the death of both the deceased were committed elsewhere and dead bodies were brought to P. O. village appears to be without any foundation and without any evidence on the record because no question was put to the I.O. even that both the dececased had criminal antecedent and it is not expected to bring two dead bodies at a time in the village unnoticed. 17. 17. So the evidence on the record clearly indicate that the appellant Manoj Singh and Kaushal Kishore Singh along with one Jhotaha, who was not facing trial, entered in house of the deceased Hare Ram Singh in the late hour of night of 12-7-1991 with full preparation to cause hurt and even a search was made for Rama Devi, the only daughter of the deceased for her elimination and then the appellant Manoj Singh fired with his country-made pistol, from a close range on the chest of the deceased which caused his instanteneous death. No doubt, it was contended on behalf of the appellants by the senior counsel that in the place of occurrence no stain of blood was found by the I. O. It appears that the bed covers were removed and as such the I. O. found the dead body on a cot without any bed sheet and further the inquest report i. e. Ext. 5/1 clearly indicate that the I. O. found that the blood was coming from the mouth, ear etc. which indicate that the injury was fresh in nature. Moreover, in a case in which the heart chamber is damaged or even there is injury on the chest, then there will be internal bleeding and accumulation of blood will be internal. The evidence of the doctor indicate that he found excessive blood accumulation in the right pleural cavity of the deceased Hare Ramh Singh and our this view also finds support from the authority of the Hon ble Supreme Court reported in 1970(2) SCC 101 : 1970 SCC (Cr) 316 Narayan Nathu Naik v. State of Maharashtra. 18. Now the next question for consideration is if the other appellant Parmanand Singh and Kaushal Kishore Singh, are equally guilty under Section 302/34 of the Indian Penal Code regarding commission of murder of Hare Ram Singh. 18. Now the next question for consideration is if the other appellant Parmanand Singh and Kaushal Kishore Singh, are equally guilty under Section 302/34 of the Indian Penal Code regarding commission of murder of Hare Ram Singh. The evidence on the record as fstated by PW 5 clearly indicate that appellant Parmanand Singh was not at all present and he had also not been named and also Parmanand Singh is not one of the agnates of the deceased and so far Kaushal Kishore Singh is concerned, the only evidence against him is that he scaled the wall and entered in the house of the deceased with the main appellan Manoj Singh but it appears from the Fardbeyan and the evidence of PW 5 that their main common intention was to apprehend Rama Devi, the daughter of the deceased to climinate her and so Kaushal Kishore Singh entered and searched for Rama Devi. Kaushal Kishore Singh had not committed any other over act or even instigated the main appellant. In that view of the matter, we are inclined to come to a conclusion that the appellant Kaushal Kishore Singh was not sharing common intention to commit murder of the deceased Hare Ram Singh and he simply committed house tresspass with preparation to commit hurt and also to apprehend Rama Devi. In that view of the matter, the appellant Kaushal Kishore Singh is not guilty of the charges under Section 302/34 of the Indian Penal Cede but he is definitely guilty under Section 452 of the Indian Penal Code. So far appellant Manoj Singh is concerned, he is definitely guilty under Section 302 of the Indian Penal Code and also under Section 452 of the Indian Penal Code and 27 of the Arms Act as found by the trial Court. So far appellant Parmanand Singh is concerned, admittedly, he had not taken part in the first occurrence regarding commission of murder of Hare Ram Singh. 19. So far the other murder of Rajendra Singh is concerned, the only evidence on the record to prove this fact is that PW 6 Dinesh Singh, who is brother of the deceased Rajendra. Singh and he claimed that at the relevant night he was sleeping in the same house of the deceased Rajendra Singh along with Devendra any Ravindra but Devendra and Ravindra were not examined in the court below. Singh and he claimed that at the relevant night he was sleeping in the same house of the deceased Rajendra Singh along with Devendra any Ravindra but Devendra and Ravindra were not examined in the court below. This witness Dinesh Singh, though claimed to be witnessed of the occurrence, was also examined for the first time after 17 days or so of the occurrence that too, not by the I. O. but the I O. produced him before the Judicial Magistrate for his statement under Section 164 of Cr. P. C. and from the evidence of the I. O. who has figured as PW 10, it is clear that this witness was not present at the time of occurrence and so he had not recorded his statement rather only the statement of Devendra was recorded. So, the evidence of Devendra who was most important as he was found by the I. 0. but surprisingly Devendra was not examined in the Court without any explanation. The solitary witness Dinesh Singh, was certainly not present when the I. O. visited the house of the deceased Rajendra Singh after the occurrence and he first of all divulged about the occurrence. After seventeen days, and thus learned counsel for the appellants rightly submitted that the evidence of this witness is not reliable and not credibility may be given due to nondisclosure of the occurrence immediately and for the first time disclosed about the occurrenc after seventeen days without any tangible explanation and the learned counsel in support of his contention relied upon a case reported in AIR 1976 SC 2488 State of Orissa v. Brahmanand Nanda. We are also of the view that the evidence of this solitary witness on the point of murder of Rajendra Singh appears to be highly shaky and no credence should be given and as such at least benefit of doubt must be given to the appellants so far the charges levelled agaisnt them regarding murder of Rajendra Singh in the same night. 20. 20. So on careful consideration of the the entire evidence on tbe record and surrounding circumstances, we are of the view the prosecution has been able to prove beyond without any reasonable doubt that in the late hour of night of 12-7-1991 the appellant Manoj Singh, appellant Kaushal Kishore Singh and one another committed murder criminal trespass by entering in the house of the deceased Hare Ram Singh and appellant Manoj Singh alone committed murder of the deceased by a country made pistol causing his instantaneous death. In that view of the matter, appellant Manoj Singh was rightly convicted and sentenced to undergo imprisonment for life under Sections 302 and 452 of the Indian Penal Code and also under Section 27 of the Arms Act. Though Manoj Singh is also given benefit of doubt regarding the allegation that he also committed the murder of Rajendra Singh but as he was found guilty for committing murder of Hare Ram Singh so the Cr. Appeal No. 315 of 1994 preferred by Manoj Singh is hereby dismissed and his conviction and sentence recorded by the trial Court under Section 302 of the Indian Penal Code and also under Section 452 of the Indian Pennl Code and Section 27 the Arms Act is hereby confirmed and maintained. 21. So far appellant Kaushal Kishore Singh is concerned, in view of the findings recorded above, his conviction under Section 302/34 of the Indian Penal Code is hereby set aside but his conviction under Section 452 of the Indian Penal Code is hereby maintained but as the court below also found him guilty under Section 452 of the Indian Penal Code but no separate sentence was awarded only for the reason that he was sentenced to undergo imprisonment for life under Section 302/34 of the I. P. C. and as such we sentence appellant Kaushal Kishore Singh to undergo rigorous imprisonment for three years under Section 452 of the Indian Penal Code and the period of imprisonment undergone during investigation and trial is to be set off towards the period of imprisonment and his bail bond is cancelled and he should surrender in the trial Court for undergoing the remaining part of imprisonment. Accordly, Cr. Appeal No. 323 of 1994 is hereby allowed in part with modification in sentence in the manner indicated above. 22. So for Cr. Accordly, Cr. Appeal No. 323 of 1994 is hereby allowed in part with modification in sentence in the manner indicated above. 22. So for Cr. Appeal No. 320 of 1994 preferred by Parmanand Singh is concerned, it was already held above that this appellant had not participated in the commission of murder of Hare Ram Singh and as such in view of findings recorded above by us, we hold him not guilty of the charges levelled against him and as such he is acquitted and discharged from the liability of his bail bonds. Accordingly, Cr. Appeal No. 320 of 1994 is hereby allowed.