JUDGMENT [ENTITY], J.
1. The three appellants named above stand convicted for the offence punishable under [SECTION] of [ACT] and the appellant [ENTITY] In addition to this charge, is also convicted for the offence under [SECTION] and [SECTION] of the [ACT] and all the three appellants have been sentenced to suffer life imprisonment with fine of Rs. 200/- and in default of payment of fine to suffer additional R. I. for one month under [SECTION] of [ACT] [ENTITY] has been, in addition to this, sentenced to suffer R. I. for three years and to pay a fine of Rs. 100/-, in default of payment of fine, to suffer additional R. I. for one month. The substantive jail sentences of accused [ENTITY] have been directed to run concurrently. Being aggrieved by the aforesaid judgment of conviction and sentence passed by the learned 1st Additional Sessions Judge, Ratlam in [CASE NUMBER] on 31-10-01, the appellants have preferred this appeal.
2. Briefly stated, the facts of the prosecution case are that on 24-1-01 at about 8.00 p.m. when deceased [ENTITY], after making a telephone call from the house of [ENTITY], situated in front of the house of [ENTITY] (deceased), was returning back to his house along with his son [ENTITY], his wife was waiting for him at the platform of her house. At that Juncture, the accused persons came there armed with gun and swords. They assaulted [ENTITY] by sword on his head, chest, hands and back. [ENTITY] fired his gun (country-made pistol) at the back of [ENTITY], Despite cry being made by the wife of the deceased, accused persons did not stop and continued to assault [ENTITY] whereupon the wife of [ENTITY] went to her brother-in-laws and brought them along with her. By that time, the appellants had fled away. The complainant [ENTITY] and her brother-in-laws found [ENTITY] lying in severely injured condition. A telephone message in regard to this incident was sent at Police Station Alote by village Chowkidar and when Police reached at the place of occurrence, [ENTITY] had already breathed his last. On the very night of 24-1 -01, the Station House Officer of P. S. Alote registered [ENTITY], P/1 at the instance of [ENTITY]. He recorded information Ex. P/17 and prepared spot map Ex. P/2. He also seized controlled and blood-stained earth from the spot. A handle of sword was also seized vide Panchnama Ex. P/22. Panchnama of dead body Ex. P/5 (wrongly mentioned as Ex. P/ 4 in the impugned Judgment) was also prepared. Thereafter, the dead body was sent for postmortem examination vide requisition Ex. P/20. Clothes of deceased were seized and sealed vide panchnama Ex. P/23. The accused persons were arrested and from accused [ENTITY] a country-made pistol was seized vide Ex. P/14. The memorandum statements of the appellants were recorded by the Investigating Officer vide Ex. P/11, P/12 and P/13 and in pursuance thereof, from accused [ENTITY] and [ENTITY] two swords were seized vide Panchnamas Ex. P/15 and P/16. [ENTITY] identified the accused persons in an identification parade conducted by the Executive Magistrate Shri [ENTITY] as the assailants of her husband deceased [ENTITY]. The blood-stained earth and controlled earth, country-made pistol and the swords were sent to the F. S. L. Sagar wherefrom the reports Ex. P/25, and P/[SECTION] were received. Ex. P/6 is the sanction for prosecuting the accused [ENTITY] for being found in illegal possession of the country-made pistol. After due investigation, the accused persons, were charge-sheeted.
3. The accused persons denied the charges. In the statements recorded under [SECTION] of the [ACT] the accused pleaded that the elder brother of [ENTITY] named [ENTITY] who is also in relation of other accused persons, was murdered by deceased [ENTITY] and in that case [ENTITY] was convicted and sentenced and because of that enmity, the complainant party has falsely implicated the present appellants/accused persons in this case.
4. We have heard Shri [ENTITY], learned Counsel for the appellants and Shri [ENTITY], learned Dy. Advocate General, appearing for the State and perused the entire evidentiary material available on record.
5. The learned defence counsel has not challenged the homicidal death of deceased [ENTITY]. Even otherwise the same is positively established by the prosecution in view of the statement of Medical Expert PW-6 Dr. [ENTITY] who had conducted the autopsy on the body of the deceased. He proved his postmortem examination report Ex. P/ 7. On external examination, he found incised wounds on head, right palm, chest, upper side hip on lumbar region. In total six incised injuries were caused by sharp edged weapon. They were ante mortem in nature. The doctor also found a gun-shot injury on the thorasic region of left scapula region. On internal examination, the doctor noted a fracture and cut of parietal bone and brain membrane congested. Fractures of 6th, 7th and 8th rib bones of left side and fractures of back rib-bones 6th, 7th and 8th of left side were also noted. There was a cut of left lung which was congested and bleeding. Chest was full of blood. Stomach was also damaged. Spleen was ruptured. According to this witness, all the injuries were an-temortem in nature and deceased died because of severe bleeding from the above mentioned external and internal injuries. He preserved and sealed the muffler, full-sleeve shirt, baniyan, under-wear stained with blood and handed over the same to the Constable of [ENTITY].
6. Learned Counsel for the appellants has assailed the impugned Judgment on the ground that the eye-witnesses account of PW-1 [ENTITY] and PW-3 [ENTITY], wife and son of the deceased respectively is not worth for placing reliance. They are the interested and partisan witnesses and that in fact they had not seen the incident. It is also submitted that after arrival of the police in the village, a story has been concocted against the appellants and because of previous enmity a [ENTITY]. P/1 was brought into existence. It is also contended that the eye-witnesses did not raise alarm and try to take the deceased to the hospital. No empty cartridges were found on or near the scene of occurrence and the pellets are foreign matters were not also found inside the body of the deceased. There was no blackening or charring present around the wound. Learned Counsel has also submitted that the [ENTITY]. P/1 said to have been recorded in the village on which Crime Number was not mentioned, but the map Ex. P/2 prepared before registration of the crime at the Police Station is containing crime number as 24/2001. This shows that the FIR was prepared in ante date and ante time and that independent witnesses who were present on or near the scene of occurrence were not examined, and there was no source of light to identify the assailants by the eye-witnesses. The eye-witnesses had also not given the description of the personality and feature of unknown assailants and that no evidence is led by the prosecution that after arrest, the appellants No. 2 and 3 were kept BAPARDA. Therefore, their identification in the test-identification parade by eye-witness PW1 [ENTITY], wife of [ENTITY] is also not above board. Learned Counsel has placed reliance in support of his contention on the Judgments passed In [PRECEDENT]. [ENTITY] v. State of Punjab 2004 SCC (Cri) Supp. 252, [PRECEDENT], [PRECEDENT], [PRECEDENT], [ENTITY] and Ors. v. State of M.P. 2005(3) MPHT 41 (DB), [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and so on.
7. Learned Counsel further contended that the statements of the prosecution witnesses are full of contradictions and improvements rendering their testimony unreliable.
8. On the other hand, learned Dy. Advocate General Shri [ENTITY] has supported the Judgment and finding of the trial Court. According to him, the incident occurred Just in front of the house of the deceased the night at about 8.00 p.m. The place of incident was a residential locality of the village. Therefore, the presence of eye-witnesses and identification of the assailants by them, cannot be doubted. He has further submitted that if the FIR was brought into existence in ante date and ante time, the eye-witnesses did not witness the incident, in such circumstances in the FIR, the names of the assailant could have been mentioned easily. Non-mention of the names of the appellants Nos. 2 and 3 clearly goes to indicate that the [ENTITY] was recorded in the village by the Station House Officer PW-11 [ENTITY].
9. On overall assessment of the evidence of the prosecution witnesses, we find that there is no dispute regarding inimical terms of the deceased with appellant No. 1 [ENTITY]. The deceased was convicted for commission of murder of the brother of appellant [ENTITY] and was released on parole. Therefore, because of inimical terms with the appellant and his associate relations appellants Nos. 2 and 3 were having sufficient motive for commission of murder of deceased and relations of the deceased could also implicate the appellants because of inimical terms. Thus, the strained relationship in the instant case is a double edged weapon which may cut both sides. Therefore, we have to appreciate and evaluate the evidence of the eye-witnesses PW-1 [ENTITY] and PW-3 [ENTITY] with due care and caution.
10. PW-1 [ENTITY] has deposed that in the evening at 8.00 p.m. her husband deceased [ENTITY] went to make a call on telephone instructing her to prepare tea in the meantime. She was standing on the platform in front of her house with tea and her husband was returning back. Her husband was standing near the platform. At that juncture, the appellants reached over there. Appellant [ENTITY] was having a revolver and No. 2 and 3 were possessing swords. Appellant No. 1 [ENTITY] exhorted appellants Nos. 2 and 3 and also caused a gun shot injury on the back portion i.e. scapula region of the deceased and appellants Nos. 2 and 3 also caused injuries by swords on the head, back portion and other parts of the body of deceased [ENTITY]. She immediately rushed to the house of her brothers-in-law PW-2 [ENTITY] and informed [ENTITY], other brother-in-laws [ENTITY] and [ENTITY] were also informed about the incident, When they all reached on or near the place of occurrence, the appellants had already fled away from there and deceased was lying on the ground. He was put on stairs and after about half an hour he died. She has further stated that the police reached on the spot and recorded her report Ex. P/1 on which she put her thumb-impression. She has also identified all the accused persons in the Court correctly. According to her, she was knowing the appellant [ENTITY] from before the date of incident and she had seen for the first time the appellant Nos. 2 and 3 on the date of incident itself. She has also stated that the spot map Ex. P/2 was prepared by the Police in her presence. According to her, she identified the appellants Nos. 2 and 3 after about eight days in the jail in a test-identification parade and the memorandum of test-identification parade was prepared in her presence vide Ex. P/3. She has also deposed that because of previous enmity with appellant No. 1 [ENTITY], the appellants assaulted her husband.
11. In cross-examination, she admitted that the deceased [ENTITY] was convicted for commission of murder of [ENTITY], the brother of appellant No. 1 [ENTITY] and on the date of incident, he was present in the village after his release on bail by the Court. She has denied about the criminal history and involvement of deceased in some other criminal cases. She admitted that at the time of incident in front of the place of incident, some persons were preparing mawa {pith of milk). This shows that there must be some arrangement and source of light wherein those persons were preparing sweets. Seeing the incident those persons had disappeared from there. It has also come in the statement of PW-1 and PW-3 [ENTITY] and [ENTITY] respectively that the deceased had gone to make a call on telephone at the house of [ENTITY] (PW-8) at about 7.30 p.m. along with his son eye-witness PW-3 [ENTITY], The house of [ENTITY] (PW-8) was situated infront of the house of deceased and place of incident. PW-8 [ENTITY] has also admitted this factual position. She was having a STD booth at her house. The distance between the house of the deceased and [ENTITY] was about 20 paces as stated in cross-examination of PW-1 para 11. These circumstances are sufficient to draw inference that there must be sufficient source of light in the said vicinity which is a locality of the villagers.
12. Apart from this, in cross-examination of the eye-witnesses as well as the Investigation Officer PW-11 [ENTITY], there was no challenge that there was no source of light and because of darkness, witnesses could not identify the assailants. The eye-witnesses saw the incident from a close proximity. The appellant No. 1 was well known to them and the appellants Nos. 2 and 3 were seen while causing injuries by swords. Even if their descriptions were not mentioned in the FIR, the same would not corrode the prosecution case because, after arrest, they were put for identification immediately within a short span of time i.e. on 12-2-2001. They were arrested on 3-1-2001 and during this short period of incident, there was no possibility of failing of memory in the mind of eye-witnesses so that the image of the appellants Nos. 2 and 3 could disappear. PW-1 [ENTITY] has also stated that in front of her house, some villagers were sitting near coal oven, but because of fear, those villagers did not come to the scene of occurrence.
13. The main criticism has been made by the learned Counsel that immediately after the incident, eye witnesses PW-1 [ENTITY] and PW-3 [ENTITY] did not disclose the incident to the villagers, but this does not appear to be correct. PW-1 immediately rushed to the house of her in-laws PW-2 [ENTITY] and PW-4 [ENTITY] and informed them about the incident. They reached at the spot. In cross examination para 13, she has also stated that she disclosed about the incident to village Chowkidar named [ENTITY] and [ENTITY]. In para 16 of her cross examination, she deposed that because of death of her husband, she was perplexed and in the same night, police after reaching in the village, interrogated her son and her brothers in law. She has also admitted that in presence of her brothers-in-law, she narrated the incident to police on which [ENTITY] (Ex. P/1) was recorded. She has also deposed in the same para that she identified the appellants Nos. 2 and 3 in the jail on the basis of their features and eyes. She had touched them and also pulled their blankets by which their bodies were covered. From perusal of the statement of eye-witness PW-1 [ENTITY] and PW-3 [ENTITY], we do not find any substantive material to discard their version about witnessing the incident and identification of the appellants. The incident occurred in front of their house. Therefore, their presence was also natural and usual. The incident also did not take place in the dead hours of night, The time was between 7.30 p.m. and 8.00 p.m. PW-8 [ENTITY] has also corroborated the version of PW-1 [ENTITY] and PW-3 [ENTITY] about arrival of deceased [ENTITY] and [ENTITY] at her PCO booth for making a call on telephone. In cross examination, she has admitted that the deceased was offenly visiting her PCO booth for the purposes of making calls on telephone. On that day, [ENTITY] had paid Rs. 2/- to her and PW-3 [ENTITY] (his son) was accompanying him.
14. Learned Counsel for the appellants pointed out some contradictions in the statement of PW-1 [ENTITY] with her version in the First Information Report regarding mentioning of fact that she rushed towards her son [ENTITY] and brought him. She admitted this fact mentioned in the [ENTITY] (Ex. P/1). The mention of this fact in [ENTITY] does establish that [ENTITY] was present on or near the scene of occurrence. In cross-examination para 10, she denied the defence suggestion that she was inside her house when her son raised alarm that her husband was being beaten or assaulted. This defence suggestion is also showing that PW-1 [ENTITY] and PW-3 [ENTITY] were present. In cross-examination, both the eye-witnesses namely [ENTITY] (PW-1) and [ENTITY] (PW-3) firmly stuck to their stand of their presence and witnessing the incident. The defence could not make any such dent to their testimony which may attach venerability casting reasonable doubt about their presence and witnessing the incident. The version of both the eye-witnesses is fully corroborated by medical evidence of Dr. PW-6 [ENTITY] who found in total seven injuries out of which six were caused by sharp edged weapon and injury No. 6 was caused by fire-arm. The injury was oval in shape.
15. The learned Counsel submitted that because of absence of charring and blackening around the wound, it could not be said that the same was caused by fire-arm. We are not impressed by this argument. The presence of blackening, charring is dependant upon the distance from where the fire was shot. Apart from this, the FSL Reports Ex. P/25 and P/[SECTION] received covering letters Ex. P/26 and P/28 is clearly showing that on the shirt and baniyan of the deceased there was a hole present of 1.5 cm x 0.4 cm on the back portion of the shirt and baniyan. Near this hole mark of blackening of powder was present. There was presence of lead and nitrate. The report of the FSL is also showing that the hole found on the shirt and baniyan could be caused by gun-shot. The non-availability of blackening and charring around the gun shot injury can very well be understood that because before entrance of the pellet, the pellet came into contact with shirt and baniyan first and these clothes of the deceased absorbed the gun powder and lead which could be available around the wound if deceased would have not worn the shirt and baniyan.
16. PW-1 [ENTITY] has deposed that the blood of the deceased also fell on her clothes when she put the head of the deceased in her lap. But these clothes were not seized by the Police. The non seizure of these clothes in the present case would not corrode the prosecution case because from the spot, blood stained and controlled earth was seized. The deceased also fell on the ground and on the same place [ENTITY] (PW-1) put his head in her lap. The seizure memo is Ex. P/22 duly proved by PW-11 [ENTITY]. By this seizure memo one handle of iron sword was also seized from the spot. The blood stained earth was sent along with clothes and other articles, to the F. S. L. Blood stains were found in the report of FSL Ex. P./29.
17. On the basis of the disclosure statement made by appellant No. l [ENTITY], appellant No. 2 [ENTITY] and No. 3 [ENTITY], one country made pistol, sword without handle and another sword were seized. Their statements were duly proved by PW-11 [ENTITY] and Panch-wit-ness [ENTITY] (PW-10) vide Ex. P/l 1, P/12 and P/13. The country made pistol was thereafter seized on production by appellant [ENTITY] from inside his house, hidden in the iron drum. The sword without handle was seized from appellant [ENTITY] on his production after taking it out from a grain drum from inside his house and another intact sword was seized from appellant No. 3 [ENTITY] on production by him from underneath the heap of grass lying in the court-yard of his house. The seizure memos are Ex. P/l4, P/l5 and P/16. The handle of the sword and the sword without handle seized from [ENTITY] were sent for examination to the expert and according to the report of FSL Ex. P/[SECTION], proved by PW-11 [ENTITY] the handle was properly fixed in sword (Article-E) and it was the part of seized sword [SECTION] seized from appellant [ENTITY]. The country made pistol was also sent for examination and the same was found to be in working condition. According to the expert's report, it was fired recently but exact time could not be opined. The expert has also given opinion that on the shirt Article C-1 and baniyan Article C-2, at place H-1, the holes were caused by gunshot and around the hole blackening and powder marks were present. These holes could be caused by fire-arm (seized 12 bore gun/pistol Article A-l from appellant No. 1 [ENTITY]). The reports vide Ex. P/[SECTION], P/ 28 and P/29 are duly corroborating the version of the eye-witnesses. The articles were duly sealed at the time of seizure and received in sealed condition by the authority of FSL Sagar. The seals were tallying with the specimen seals sent to the expert.
18. Learned Counsel for the appellants has vehemently argued that on medical requisition from Ex. P/20 regarding postmortem on the dead body of the deceased, name of the appellant No. 1 [ENTITY] was not mentioned. This shows that up to that time, his name was not known to the police. We do not find any substance in this argument because it is not obligatory on the part of the Investigating Officer under the provisions of any law to mention the name of the assailant in the medical requisition form and inquest memo etc. have not been pointed out by the learned Counsel. He also placed much emphasis on presence of crime number on spot map Ex. P/2 though by that time, crime was not registered. The crime was registered at the Police Station on 24-1-2001 at 5.00 a.m. vide Ex. P/19 proved by PW-11 [ENTITY] and the same was registered on the basis of [ENTITY]. P/1. We have perused these documents and according to us, mention of crime number in the spot map Ex. P/2 would not cause any dent to the prosecution case because of question was put to the I. O. as to when Crime Number was mentioned on the spot-map Ex. P/2 and seizure memo of blood stained and controlled earth Ex. P/22 and P/23, without affording an opportunity to explain the same by the I. O., the defence could not get any benefit. The possibility of mentioning of crime number on these documents after registration of crime could not be ruled out. Apart from this, this infirmity in the investigation would not be sufficient to discard the eye-witnesses' account and lodging of the report Ex. P/1 in the village by eye-witness PW-1 [ENTITY]. The Supreme Court has considered this aspect in the case of [PRECEDENT]. These legal propositions are applicable in facts and circumstances of the instant case.
19. Learned Counsel for the appellants has cited a number of authorities mentioned hereinabove and we have perused the same. According to us, these authorities are not helpful to the appellants in the facts and circumstances of the case. In the case of [PRECEDENT] (supra), the accused persons were acquitted by the trial Court. Thereafter, the State went up in appeal and the same was allowed against which the appellant preferred appeal before the Supreme Court and Court while discussing the law regarding appreciation of evidence in appeal against acquittal, held that the trial Court discussed the evidence on record in detail and considered all the circumstances and extended benefit of doubt to the accused persons. There was no justification for reversing the finding of the trial Court. In this case, the trial Court based acquittal discarding the testimony of sole eye-witness who was a [ENTITY] lady. The lady alone was accompanying the deceased taking her to the doctor for treatment though her husband a mother-in-law were available in the house. There was no blood present on the spot where the incident took place i.e. road. The report was also not lodged immediately in the Police Out-Post situated in the same village. There were serious discrepancies noted by the Court in the evidence of recovery of weapons, lodging of complaint by brother of the deceased who was not an eye-witness. In the instant case, the situation is altogether different. The incident occurred in front of the house of the eye-witnesses Nos. 1 and 3 namely [ENTITY] and [ENTITY] respectively. PW-1 [ENTITY] reached immediately to the house of her brothers-in-law PW-2 [ENTITY] and [ENTITY] (PW-4). She disclosed about the incident to them as well as to the chowkidar and other persons. She also lodged the report immediately after arrival of the police who was informed on telephone by village chowkidar and sarpanch of the village.
20. Learned trial Court found the statements of both the eye-witnesses PW-1 [ENTITY] and PW-3 [ENTITY] fully reliable and duly corroborated by the medical evidence and evidence of seizure of weapons of the offence and the FSL Report. We have independently weighed all the evidence and do not find any illegality or perversity committed by the trial Court while appreciating the evidence of the eye-witnesses and other evidence in their support. According to us, there is no ground existing for taking a different view than the view taken by the learned trial Court in convicting the appellants.
21. In the case of [ENTITY] and another (supra), the Supreme Court did not find sufficient motive for the accused persons to plan and made brutal attack on the deceased, there was not only delay in lodging the First Information Report, but though the Police Out Post was situated in the village where the occurrence took place, but information was not lodged there and the informant reached at the police having jurisdiction over the matter on foot, situated 6 to 7 K.ms. away from the village. The prosecution failed to explain this abnormal situation and conduct of the witness. The injured witnesses did not disclose about their injuries to the police and the deceased was bleeding profusely when he lay on PW-5's body. But the clothes of PW-5 were not smeared with blood and the same were also not seized. In all these circumstances coupled with other circumstances discussed in the judgment in detail, the Supreme Court reversed the judgment and finding of conviction of six accused persons out of ten. In the instant case, there is strong evidence of motive as discussed hereinabove and PW-1 [ENTITY] has specifically stated that her clothes were stained with blood when she took the head of the deceased in her lap. The incident occurred just in front of the house of the eye-witnesses and blood stained earth was seized from the spot. There was no delay in lodging the report as well as in recording the statements of the eye-witnesses and other part of investigation. The present case cannot be put at par with the case of [ENTITY] (supra).
22. Learned Counsel has placed reliance on the judgment passed by the Division Bench of the Principal Bench of this High Court in the case of [ENTITY] (supra). In this case, it is held that the First Information Report was prepared in ante date and ante time. This view was taken because of the fact that in FIR, name of the accused No. 3 was mentioned but, in the postmortem requisition form, accused were mentioned as 'unknown persons'. This fact clearly establishes that, if the FIR was written first in point of time, containing the name of one of the accused, and thereafter, medical requisition form was prepared showing the assailants as unknown, the FIR was prepared or brought into existence after writing and sending the postmortem requisition form. Such is not the fact in the instant case. In this case, in medical requisition form, no where it is mentioned that the assailants were "unknown". In the medical requisition form, name of appellant No. 1 [ENTITY] is not mentioned and there is no requirement of law to mention the name of the accused. Therefore, on this basis, it cannot be said that the First Information Report was brought into existence in ante date and time.
23. We have perused the judgments cited by the learned Counsel and we are of the view that on some or the other grounds, the same are not applicable in the facts and circumstances of the present case and it would be an exercise just to make this judgment bulky and lengthy by discussing each and every judgment, Resultantly in the wake of the legal and factual discussion, we fully concur with the judgment and finding of the trial Court.
24. Consequently, this appeal fails and is hereby dismissed.