Kaptan Singh vs State Of U.P. on 7 February, 2020

[Cites 49, Cited by 5]

Allahabad High Court

Kaptan Singh vs State Of U.P. on 7 February, 2020

(Delivered by Hon'ble Naheed Ara Moonis,J.) The appellants Kaptan Singh and Deshraj have preferred the present appeals bearing Criminal Appeal Nos.4639 of 2009 & 4404 of 2009 respectively against their conviction in Sessions Trial No.129 of 1995. All the above named accused appellants were convicted by the judgment and order dated 22.7.2009 passed by the learned Additional Sessions Judge, Court No.2, Farrukhabad and each were directed to undergo rigorous imprisonment for life and also to pay fine of Rs.15,000/- under Section 302 IPC and three years rigorous imprisonment for the offence punishable under Section 148 IPC. Both the sentences were directed to run concurrently and in case of default of payment of fine they were further directed to undergo simple imprisonment of six months.

The prosecution was launched against seven accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh (sons of Pyare Lal), Phulwari S/o Vijay, Mansha Ram S/o Shankar, Kaptan Singh and Deshraj (sons of Babu Ram) in pursuance of the FIR lodged against them by Bahaar Singh registered as Case Crime No.158 of 1985, under Sections 147,148,149,302 IPC at police station Kayamganj, District Farrukhabad on 18.5.1985 at 6.50 P.M. The Sessions Trial No.327 of 1989 pertains to the trial of accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari. The aforesaid trial of accused Sughar Singh was separated at the fag end on his plea of juvenility who was acquitted by the court below.

The aforesaid accused persons, namely, Atar Singh, Mansha Ram and Phulwari as well as Nawab Singh have preferred separate appeals bearing Criminal Appeal No.4576 of 2009 & Criminal Appeal No.4664 of 2009 against their conviction in Sessions Trial No.327 of 1989.

The prosecution case in short conspectus is that the First Information Report was lodged on 18.5.1985 at 6.50 P.M. by Bahaar Singh S/o Ram Sahay in respect of an incident occurred on the same day at 4.30 P.M. which was registered as Case Crime No.158 of 1985, under Sections 147,148,149,302,201 IPC at police Kayamganj, District Farrukhabad. He divulged in the FIR that his father Ram Sahay was Pradhan of his village Lakhanpur for about 35 years. In the last election, Chandrakali, the wife of Kaptan Singh @ Kamta Prasad S/o Babu Ram Yadav had contested election against his father. His father had lost the election for which a petition was filed which is pending. About two & half years ago a dacoity had been committed in the house of Saudan Singh, who had named Atar Singh S/o Pyarey Lal and Mansha Ram and two others of which the case is pending. Besides this, two years ago a case under Section 396 IPC was filed by Sohan Lal Nuner of village Lakhanpur in which two persons were killed by dacoits. In the said case, Mansha Ram, Atar Singh and Deshraj, the brother of Kaptan Singh were named in the FIR by Sohan Lal. Atar Singh and Kaptan Singh were under the impression that the complainant's father has implicated them in the case of dacoity. About two years ago, Kaptan Singh, Mansha Ram and Atar Singh had fired upon his father and his brother Tahar Singh with intent to kill them but luckily they had escaped from there. In this case all the three accused persons were challaned by the police. On account of the above reasons, Kaptan Singh and Atar Singh were bearing enmity with his father. Two and half months ago family member of Kaptan Singh was murdered in the village in which Kali Charan S/o Ram Naresh Yadav had filed a false report against Vijayee and Mansha Ram along with Tahar Singh who is the brother of the complainant at the instance of Kaptan Singh and on account of which, his brother is in jail. After 2-4 days, the dead body of Nahar Singh, the elder brother of Atar Singh was found in a well in which Atar Singh had implicated the complainant, his father, Nanhey, Rajendra, Tejram etc. of his village in the case, on the basis of mere suspicion that they had committed murder of Nahar Singh. A case under Section 107 IPC was also filed by Kaptan Singh and others, which is still continuing and on account of these reasons Atar Singh and Kaptan Singh were inimical with his father Ram Sahay.

Today (on 18.5.1985) in the evening at about 4.30 P.M. his father Ram Sahay was sitting on a cot on the platform situated in front of his baithak. Atar Singh, his younger brother Sughar Singh, elder brother Nawab Singh, Phulwari and Mansha Ram of his village as well as Kaptan Singh and Deshraj emerged out from the house of Atar Singh and passed through the baithak of Rajju and reached at the platform. Atar Singh, Phulwari and Mansha Ram were armed with rifle, Sughar Singh, Kaptan Singh and Deshraj having double barrel gun and Nawab Singh was armed with countrymade pistol came over chabootra. As soon as his father saw them he got up and tried to run towards baithak, at this Atar Singh, Mansha Ram and Kaptan Singh had fired upon his father. After receiving gun shot injury his father ran towards baithak and fell down there. Sughar Singh, Nawab Singh and Phulwari went behind him and entered in the baithak. There too, they had again fired upon him. Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately outside which had created reign of terror. His father had succumbed to the injuries in the baithak. All the accused persons thereafter dragged the dead body of his father from baithak and put him on the heap of wood of Arhar kept in an open vacant land of Sahab Singh. Atar Singh and Deshraj exerted that "Sale Ko Jalakar Rakh Kar Do" (burn him to ashes) and set the heap of wood of Arhar on fire. Other persons put dry leaves (patai) of sugarcane on fire. Thereafter they went towards the house of Kaptan Singh unleashing reign of terror by firing. This incident was witnessed by his mother who was standing at the door he himself, Sahab Singh S/o Bhawani Singh of his village and Brijender Singh who is the son of his brother's 'Sarhu' Soney Lal who resides there but they all were helpless seeing the murder of his father due to fear of accused persons armed with rifles and guns. The dead body of his father burnt to some extent has been lying on the spot, hence action be taken by lodging the FIR.

On the basis of the aforesaid FIR lodged by Bahaar Singh S/o Ram Sahai, police swung into action. A case was registered against Atar Singh, Sughar Singh, Nawab Singh, Phulwari, Mansha Ram, Kaptan Singh and Deshraj under Sections 147,148,149,302,201 IPC as Case Crime No.158 of 1985 on 18.5.1985 at police station Kayamganj, which was written by Constable Clerk Babu Ram marked as Ext. Ka-8 & Ext. Ka-9. S.S. Yadav, Inspector (C.B.C.I.D.) posted as Sub-Inspector at police station Kayamganj on 19.5.1985 had been entrusted to investigate the case. He along with in charge Inspector Jagdamba Prasad Mishra and SSI K.L. Verma with police force reached at the place of occurrence where the deceased Ram Sahay was done to death by firing upon him and his body was burned by the accused persons which was kept on the wood of Arhar. The inquest of the deceased was conducted in the presence of the witnesses and the inquest report was marked as Paper No.16-A/1,16-A/2, 16-A/3. It was duly signed by the Sub-Inspector S.S. Yadav who proved his signature and the same was marked as Ext. Ka-3. Thereafter the dead body was sealed, of which sample seal was prepared. He had further prepared papers of challan nash, police form no.13, letter to Chief Medical Officer, I/C Fatehgarh, letter to R.I., photo nash, chik FIR, copy of GD, site plan, memo of empty cartridges, memo of ashes of heap of Arhar, memo regarding search and arrest of accused persons, recovery of illegal firearm, memo of plain & blood stained earth, which were marked as Ext. Ka-4 to Ext. Ka-17. The recovery memos as mentioned above were made in the presence of Sahab Singh and Soney Lal which were signed by them.

The statement of the complainant and other witnesses were recorded under Section 161 Cr.P.C. The papers relating to the inquest of the deceased were handed over to Constable Lal Mani and Constable Balram along with the dead body and sent to the District Hospital for autopsy of the deceased. After conducting the investigation by SSI K.L. Verma, the charge sheet was submitted on 30.6.1985 against the accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari, under Sections 147,148,149,302,201 IPC. The charge sheet was marked as Ext. Ka-18. The charge sheet had been submitted separately on 13.2.1986 against Kaptan Singh and Deshraj by SSI Bhanwar Pal Singh, under Sections 147,148,149,302,201 IPC, which was marked as Ext. Ka-20.

On submission of charge sheet, as usual the cognizance was taken by the concerned Magistrate and after compliance of provisions of Section 207 Cr.P.C. the case was committed to the court of sessions. The case was transferred to the Special Judge/Additional Sessions Judge, Farrukhabad. The charges were framed against Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari on 30.6.1990, under Sections 148,302/34 IPC in Sessions Trial No.327 of 1989.

Against accused appellant Kaptan Singh and Deshraj the charges were framed on 29.9.1995 by the Second Additional Sessions Judge, Farrukhabad under Sections 147/148/302/149 & 201 IPC in Sessions Trial No.129 of 1995. Both the trials were consolidated on 17.9.1998.

The charges were read over to the above mentioned accused appellants who abjured the charges and claimed to be tried. Even though the accused appellants Kaptan Singh and Deshraj in Sessions Trial no.129 of 1995 were appearing intermittently in Sessions Trial No.327 of 1989. but the prosecution witness P.W-1 was again cross-examined in Sessions Trial no.129 of 1995. The accused persons were on trial for murder hence there was no justification to have a criminal trial pending for so long even when charges were already framed against them.

To bring home guilt of the accused appellants, the prosecution has examined Bahaar Singh, informant S/o Ram Sahay as P.W-1, Dr. C.N. Bhalla who conducted the autopsy of the deceased Ram Sahay as P.W-2 who was examined as P.W-3 in Sessions Trial No.327 of 1989, S.S. Yadav (Retired Inspector), CBCID as P.W-3. Phool Chandra, Pairokar who was examined as P.W-5 in Sessions Trial No.327 of 1989 has not been examined in the present case.

Bahaar Singh, the son of the deceased was examined on oath as P.W-1 on 20.5.2004. He deposed that the incident had taken place 19 years ago. It was about 4.30 P.M. in the evening, at that time, he was present at some distance in front of his house in gher. His father Ram Sahay was sitting on a cot over the platform (chabootra). At that moment Atar Singh (since deceased), Sughar Singh, Nawab Singh, Phulwari, Mansha Ram, Kaptan Singh and Deshraj emerged together from the house of Atar Singh (since deceased) and passed through the baithak of Ragghu reached at the platform of his house. Atar Singh (since deceased), Phulwari, Mansha Ram were having rifle, Kaptan Singh, Deshraj and Sughar were armed with gun and Nawab Singh was having Katta. When they came over the platform his father seeing them tried to run inside baithak. At the same time, Atar Singh (since deceased), Mansha Ram and Kaptan Singh fired upon his father which hit him. His father received shots. His father fell down inside baithak. Thereafter Phulwari, Nawab Singh and Sughar Singh entered into the baithak and they had also fired there. He could not count the number of fire made by them. On account of firing the people were under the grip of terror. His father had died on the spot in baithak. Thereafter all the accused persons dragged the dead body of his father towards the open place of Sahab Singh. Piles of wood of Arhar was kept there. They had put the dead body on the wood. Atar Singh (since deceased) and Deshraj had put the fire on the heap of woods of Arhar. Atar Singh (since deceased) and Deshraj had challenged "Sale ko jalakar rakh kar do". All the accused persons thereafter moved towards the house of Kaptan Singh making fire. This incident was witnessed beside him his mother Nisar Devi who was standing at the door at the time of incident. This incident was also witnessed by Sahab Singh and Brijendra Singh as the accused persons were armed with rifle and gun, they could not go near to them. After dousing the fire he left the dead body and went to the police station to lodge the report. He went to police station Kayamganj to lodge the report. The witness accepted that the FIR (Ext. Ka-1) was written by him after the death of his father and was handed over at the police station Kayamganj. On the basis of which, the FIR was registered. He further deposed that on account of old enmity his father was done to death by the accused persons. Detail account of enmity has been given in the report.

P.W-1 Bahaar Singh was cross-examined on behalf of the appellants Kaptan Singh and Deshraj. He deposed that the opening door of the baithak of Ram Sahay was towards east. The platform is in front of the door. The length of baithak is 8-10 hand in length. Platform is equal to baithak in length but its width is about 8-9 f feet. Two trees of gulmohar were at the platform which were a little inside on eastern corner of the platform and about a ft or two inside. The main door of his house and Ragghu's towards north of baithak of house and his baithak is adjacent to the northern side of his house and main door. In this house, Ragghu and his son Munna and many females were residing, but no one lives in baithak. On the northern side of Ragghu's house, house of Faujdar is situated. The family of Faujdar resides therein. In front of house of Faujdar in north side there is a village consisting of 25-30 houses.

P.W-1 Bahaar Singh deposed on further cross-examination that at the time of incident his mother and wives of his two brothers were residing in the same house. His brother Tahar Singh was in jail on the day of incident in connection with the murder of Ram Naresh. Elder brother of Ram Sahay was Bhawani. Sahab Singh, who is the son of Bhawani, is witness in the present case. Brijendra Singh is the son of 'Sarhu' of his brother Tahar Singh. House of Sahab Singh is adjacent to his house. House of Sahab Singh is towards southern side of his house adjacent to the houses of Soney Lal and Ram Prakash who live along with their family member in their houses. Akhunpur is a part of Mauza of Lakhanpur. His father was Pradhan of Lakhanpur for 35 years. Village of Master Kaptan Singh Nagla Akhunpur is away from his village.

It is wrong to say that a distance of 500 mtr. Is between the two Akhunpur. Kaptan Singh is a Teacher. He has no knowledge whether he has degree of M.A. or not. He is not aware since when Kaptan Singh was Teacher prior to the date of incident. Accused Deshraj is the brother of Kaptan Singh. Deceased Ram Naresh of Nagla Akhunpur was in the family of Kaptan Singh. Kali Charan is the son of Ram Naresh. Kali Charan had named his brother Tahar Singh and others in the murder of Ram Naresh. He is not aware whether Kali Charan had got the FIR in respect of murder of Ram Naresh by accused Kaptan Singh. He is also not aware that in the case of murder of Ram Naresh his brother Tahar Singh was convicted for life imprisonment. He never went to Kutchehry to do the pairvi in the case of Tahar Singh. He is not aware as to who was doing pairvi in his case. In the case of murder of Ram Naresh, Kali Charan had named his brother Tahar Singh and not Kaptan Singh. His father Ram Sahay had lost the election of Pradhan prior to his murder. Wife of Kaptan had won the election. He is not aware that his father Ram Sahay had given land of Mauza Lakhanpur in favour of National Inter College, Rampur. He has no knowledge whether any objection was raised with regard to the lease. It is wrong to say that said Arazi was sold in his and his brother Tahar Singh's favour. He is not aware as to whether any lease was cancelled which was given in favour of the college. It is wrong to say that Chandrakali had given a notice under Section 120-B for his eviction and fine was imposed upon him or on his brother. It is wrong to say that on account of eviction they had bearing enmity with Kaptan Singh and his family member. His father had never taken any contract of liquor in Kayamganj. He had never heard about that his father taken contract of liquor in Kayamganj. He had no knowledge that his father had taken any shop in share. He had never seen Ram Sahay running shop of liquor or grocery shop in Kayamganj. He is not aware that his father had various cases in Kayamganj. Bhawani, father of Ram Sahay had died prior to his birth. He is not aware that Bhawani was murdered while committing dacoity at the house of Raja Ram Gupta of Kayamganj. He is not aware about how much land belonged to Ram Sahay at the time of incident. After the death of his father the land was devolved upon him and his brother.

P.W-1 was cross-examined in great detail with respect to the location of the field of Ram Sahay, Soney Lal and Saudan Singh. He further deposed that he was at his home and had not gone to Kayamganj. His father used to go Kayamganj prior to the incident. On the day of incident, his father was at his house. He (P.W-1) had witnessed the incident from the gher, if the same has not been mentioned in the report he could not say the reason. He had written in the report that his mother had witnessed the incident from the door. He has not written about himself as he had seen the incident from the gher. He could not notice as such he did not mention his place from where he had seen the incident. Near the field of Soney Lal he and Brijendra Singh remained there for about 20 minutes. The place where his father was sitting was about 20-25 meters south east where they were sitting. Prior to sitting in gher he had come from the field of muskmelon. After returning from the field of muskmelon he and Brijendra Singh were sitting 20-25 minutes in gher. Thereafter incident had taken place. His statement has already been recorded in connection with the present case in the same court relating to Atar Singh (since deceased) and other accused persons. The witness was confronted with his statement recorded on 17.1.2001 in the case of State Vs. Atar Singh and others as P.W-1. He had admitted that he had given the statement in the said trial that he had seen the entire incident from 20-25 mtr. southern side from the place where his father was sitting. He was there last 15 -20 minutes prior to that he was at his house. Prior to the incident Brijendra was with him. He was cross-examined by the defence counsel in that case that he was not at his house and Brijendra was at Jasrathpur. Hence he had deposed the above statement. He denied that he has been tutored while giving above clarification. He was never asked in this regard hence he did not disclosed that he had gone to the field of muskmelon. The police had enquired from him at the police station. He does not remember about disclosing to the police that he was returning from the field of muskmelon he could not disclose about the reason if the same is not mentioned. When he saw the accused persons then they had not reached near to the cot of his father rather they had come upto the platform. The cot was lying on the southern side of the platform. The cot was 4-5 ft away from the door of the house. It was towards the south of door. The corner of the chabootra in the south from the door is about 7-8 ft.

After his cross-examination on 20.5.2004 he was again recalled and cross-examined on 16.6.2004. He deposed that his father was sitting on the cot which was lying 3-4 ft towards the south door of baithak. On seeing accused persons his father tried to run to enter into baithak. His father was shot dead by the miscreants as he got up and after receiving firearm injury his father fell down in the baithak. Miscreants could not stop his father as he entered in the baithak.

He could not say that as to in which year the witness Brijendra had admitted in school in Rampur, but he knows that he was studying prior to 2-3 years of the incident. Accused Kaptan Singh and Deshraj are not related to his family. His agriculture, house and business has no share with accused Kaptan Singh. It is wrong to say that he was not in his village on the day of incident and had not seen any incident. It is wrong to say that he had falsely named the accused Kaptan Singh and Deshraj as his brother Tahar Singh was named in the murder of Ram Naresh. It is also wrong to say that on account of enmity he is giving false statement today.

Dr. C.N. Bhalla has been examined as P.W-2 on 16.7.2009 in the present Sessions Trial bearing No.129 of 1995 (State Vs. Kaptan Singh and another) who was earlier examined as P.W-3 in Sessions Trial No.327 of 1989 (State Vs. Atar Singh & others) on 18.11.2002.

In his examination-in-chief, Dr. C.N. Bhalla, P.W-2 deposed on oath that he was posted as Pediatrician in District Hospital, Fatehgarh on 19.5.1985. On that day at about 5 P.M. he had conducted the postmortem of the dead body of Ram Sahay S/o Umrao, resident of village Akhunpur. He was aged about 60 years. The dead body was brought by Constable Lal Mani and Constable Balram. The dead body was received by him in a sealed condition and had identified the dead body. Ram Sahay died one day ago. Body was of average built. The dead body was burned 4-6 degree. Head was partially burned. Muscles were visible. Muscles on his body and under neath bones were seen burnt and visible. At some places, body was severely in burned condition.

P.W-2 further deposed that from head two wadding pieces; one from chest and one from abdomen, three tikli from the brain were extracted. Four tiklis from abdomen and two tikli from chest were recovered. 78 pellets were recovered from brain, chest and abdomen.

The following ante-mortem injuries were found:

1. Lacerated wound 3cm x 2.5cm x chest cavity in the left side 14cm below left ribs. Direction front to back;

2. Lacerated wound 3cm x 2.5cm x abdomen cavity subcortal margin in M.C.L. just below the right ribs. Direction front to back obliquely;

3. Lacerated wound 3cm x 2.5cm x chest cavity left side of back below 8cm of scapula. Direction back to front;

4. Lacerated wound 8cm x 5cm x depth of skull. Skull was cracked. Brain matter and blood was coming out. Right ear was lacerated. Direction right to left.

On Internal Examination: Except frontal bone of head all other bones were broken. Brain and its membranes were lacerated and the brain was coming out from injury. Left part of 4th and 5th ribs of the chest were broken. Both lever and its membranes were lacerated. Blood was filled in both parts of chest. Stomach, small intestine, large intestine and gall bladder, both kidneys and spleen were lacerated.

He deposed that in his opinion, the death of Ram Sahay was due to excessive bleeding from head and on account of ante mortem injuries. He opined that death could have occurred on account of the injuries received on 18.5.1985 at about 4.30 P.M. in evening. Firstly he was done to death by causing injury with firing and thereafter he was burned. He proved the postmortem report prepared and signed by him, which was marked as Ext. Ka-2. He further deposed that the instant postmortem has also been included in the Sessions Trial No.327 of 1989; State Vs. Atar Singh & others.

In his cross-examination on behalf of the accused appellants, namely, Kaptan Singh and Deshraj, he deposed that while conducting autopsy he found four injuries. The description of which has been given in the postmortem report. He had not shown any injury of any gun shot as the body was burnt and lacerated wound was found due to firing. The length and width of injury nos.1, 2 & 3 on the body of the deceased were equal and same. This injury could have been caused by one or more than one firearm weapon. If the fire is shot from one place from different distance then the dimension of the injuries would be different. It is always not necessary that when the fire is shot from close range wadding and tikli would not be found in the body, if the fire is shot from the distance of 4 ft tikli would travel into the body. He could not say as to whether firing from within a distance of 4 ft wadding would travel into the body or not. He has no knowledge if the fire is made in contact with the body, the wadding would pierce in the body. It is not known to him that on firing wadding would enter into the body. wadding and tikli were found in all the four injuries of the deceased only due to this, it could not be said that there is a great possibility that the firing was done from close range as the dead body was burnt lacerated wound is found always when firing is made. This witness was put to a question as what he means about wadding, he answered wadding is a part of tikli. At this moment, tikli shots and wadding which were recovered from the body of the deceased were not before him. There could be possibility of 4-5 hours difference about death and the deceased would have died in the night around at 10-11 P.M. S.S. Yadav, Inspector CBCID has been examined on 10.2.2009 as P.W-3 in the present Sessions Trial bearing No.129 of 1995 (State Vs. Kaptan Singh and another) who was examined as P.W-4 in Sessions Trial No.327 of 1989 (State Vs. Atar Singh & others) on 26.5.2003. The defence had sought adjournment on 26.5.2003 to cross-examine him on the next date. Thereafter the case was adjourned incessantly by the defence and on 10.2.2009 he was again summoned and was re-examined with the permission of the court on behalf of all the accused persons of both the sessions trial separately.

S.S. Yadav, P.W-3 who was retired as Inspector, CBCID was summoned and was granted permission for examination-in-chief again. He deposed on oath that the Constable Clerk Babu Lal and SSI K.L. Verma were posted along with him at the police station. He knew their writing and signature. The chik FIR paper no.4-A-1 and copy of GD no.21-A-1 were written and signed by Constable Clerk Babu Lal. It was marked as Ext. Ka-8 & Ext. Ka-9. He further deposed that paper no.8-A site plan, paper no.9-A (memo of recovery of empty cartridges), paper nos.9-A-2 & 9-A-4 relating to memo of raid and arrest in recovery of arms and paper no.9-A-5,9-A-6 & 9-A-7 were prepared and signed by SSI K.L. Verma. The above papers were marked as Ext. Ka-10 to Ka-17. Paper no.3-A is the charge sheet against accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari under Sections 147,148,149,302,201 IPC which was written and prepared by SSI K.L. Verma on 30.6.1985. The charge sheet was marked as Ext. Ka-18. He deposed that SSI K.L. Verma had retired in 1998 since then his whereabout is not known nor he ever met with him.

In his cross-examination he deposed that SSI K.L. Verma reached to the superannuation in 1998. He is not aware about to which place he belongs. He had gone at the place of occurrence in this case. At what time, he reached on 18.5.1985 he could not remember as the incident is quite old. When he reached on 18.5.1985 it was dark. He did not make any arrangement of any light to conduct the autopsy. He did not mention in the inquest report that light was not available. He does not remember whether he read the FIR prior to filling the inquest report. He had mentioned on the last paper of the inquest report about the papers which is at serial no.3 one page copy of chik report. He had not done any overwriting over the number of two in nakal rapat. It is wrong to say that in place of one two figure has been made. Copy of chik report is in two pages. It is wrong to say that nakal rapat was in two pages rather it was in three pages. He had mentioned in the inquest report about the weapon, but he did not mention the nature of weapon used in the incident. In the inquest report at the top he had not made any overwriting in number 8 of case crime no.158. It is also wrong to say that in the inquest report Sections 147,148,149 IPC were added subsequently. On the back of first page of inquest case crime number is not mentioned. It is also wrong to say that on the first page of inquest report, case crime number was mentioned later on.

It is wrong to say that at the time of preparing inquest report, chik FIR was not in existence. It is also wrong to say that an oral information was given with respect to the murder of Ram Sahay on 19.5.1985 and then the police official reached at the place of incident. The inquest report bears his signature. He has not mentioned in the inquest report that under the direction of IO K.L. Verma, he has prepared inquest report, but he has mentioned the presence of SHO and SSI K.L. Verma. Recovery of weapon was not before him. Border of police station Campell is adjacent to Etah and Budaun. Various gangs of miscreant were active in the border area in which several big gangs were involved. At the time of incident gang of Sultan Dhanuk was active in that area. He is not aware whether females were also resided along with miscreants in the gang. he is not aware that Rajjo Devi is concubine of Sultan. He has no knowledge as to whether member of the gang of Sultan used to take shelter at the place of deceased Ram Sahay. It is also not known to him that Ram Sahay was a man of criminal nature. In the charge sheet criminal history of Ram Sahay is not described. He has no knowledge whether any criminal history of Ram Sahay is at the police station.

This witness was cross-examined by the counsel of the accused appellants Kaptan Singh and Deshraj. He deposed that he is not aware at what time they had departed from the police station to the place of incident. SHO and SSI had accompanied him. He is not aware about other police personnel. They had gone on the official jeep. He does not remember that at what time they reached at the place of incident. He went along with them at the place of occurrence. He does not remember as to what action was taken by SSI K.L. Verma and Inspector. He does not remember as to whose statements were recorded by the Inspector and SSI K.L. Verma. He also not remember as to which place they had raided. He could not say as to what distance from the deceased was lying from his house. His dead body was lying at the outside the village. He has not written mark of fire in the inquest report. He had mentioned about that the dead body was burnt. He has no knowledge that village Akhunpur and Nagla Akhunpur are two separate villages.

Constable Phool Chandra Pairokar of Police Station Kotwali, Farrukhabad was examined on 5.5.2009 as P.W-5. This witness deposed that he knew Babu Lal, Constable Clerk and SSI Bhanwarpal Singh. He was posted along with them and used to see their reading and writing. He knows about their writing and signature. He proved the paper no.4-A/1, 24-A/3, chik FIR and paper no.21-A/1, copy of GD prepared by Constable Clerk Babu Lal which were marked as Ext. Ka-9. Paper no.3-A (charge sheet) in respect of Kaptan Singh and another of Sessions Trial No.129 of 1995 was written by SSI Bhanwarpal Singh was proved by him and the same was marked as Ext. Ka-20. He further deposed that Constable Clerk Babu Lal and SSI Bhanwarpal Singh have been transferred. Since then he had not met with them.

This witness was cross-examined by the defence on the same day. He deposed that it is wrong to say that he was never posted along with Constable Clerk Babu Lal and SSI Bhanwarpal Singh and that no proceeding of this case had taken place before him. He also denied that as a mere formality he is deposing falsely under pressure.

After examining the witnesses of fact and formal witnesses, the accused appellants were examined under Section 313 Cr.P.C. on 14.5.2009 and 18.7.2009. Accused appellant Deshraj was also examined under Section 313 Cr.P.C. on 14.5.2009 and 18.7.2009. Both the appellants had denied the oral and documentary evidence and stated that they are innocent and they have falsely been implicated.

Learned trial court after taking into account the entire documentary and oral evidence of the prosecution witnesses arrived at the conclusion that the prosecution has proved its case against the accused appellants, namely, Kaptan Singh and Deshraj who had motive and shared common intention with other accused persons who were armed with deadly weapon had committed ghastly murder of complainant's father Ram Sahay, hence guilty of the offence punishable under Sections 148,302/34 IPC. It was further held that as the prosecution has not proved the case that the appellants had tried to destroy the evidence of murder, the charge of offence under Section 201 IPC is not proved beyond doubt and hence reached to the conclusion that they deserve acquittal under Section 201 IPC.

Learned trial court had found that the offence punishable under Sections 302/34 & 148 IPC is proved to the hilt , hence they were convicted for life imprisonment with a fine of Rs.15,000/- and three years rigorous imprisonment and both the sentences were directed to run concurrently and in case of default, further simple imprisonment of six months.

We have heard S/Sri Rajrshi Gupta, Rizwan Ahmad and Rajeev Kumar, learned counsel appearing on behalf of appellants Deshraj and Kaptan Singh in both the abovementioned connected appeals and learned A.G.A. Shri Ashwini Prakash Tripathi appearing on behalf of the State and have gone through the record.

Learned counsel Shri Rajrshi Gupta has also filed written submission in support of his arguments advanced on behalf of the appellants, namely, Kaptan Singh and Deshraj.

Learned counsel for the appellants has vehemently argued that the FIR lodged against the appellants and other accused persons with an elaborate narration of previous individual enmity of the first informant with different accused persons which gives rise of suspicion that the FIR has been lodged after due deliberation that too with so promptitude. Not only this, the FIR has been lodged at Kayamganj within 2 hours and 20 minutes of the alleged incident which is about 4 Km. from the police station. It was unnatural on the part of the first informant who is the son of the deceased Ram Sahay to narrate the previous history with regard to the dispute and cases pending between the parties in place of narrating actual incident with respect to killing of his father. It is also very unusual on the part of the police to mention the sections of IPC in the chik FIR which are in variance with the sections mentioned in the inquest report of the deceased. This gives reasonable inference that initially the panchayatnama was done by mentioning sections 302/201 IPC and after the FIR was lodged nominating more than five persons by adding Sections 147,148,149 IPC which was subsequently added. The last page of the panchayatnama of the deceased in the list of documents which were sent to the mortuary enclosed with the report the FIR is mentioned to contain one page and thereafter by interpolating "2" in place of 1 has been mentioned which shows that another FIR was registered under Sections 302 & 201 IPC and subsequently, it was suppressed by the prosecution by introducing the FIR named different person as accused with whom the first informant was inimical. Hence it can very well be said that the FIR was ante-timed and anti-dated which has been lodged by suppressing the genesis of the occurrence. The appellants have been implicated on account of previous enmity merely on suspicion by the first informant.

Learned counsel has made further submission that the cases which have been mentioned in the FIR showing previous enmity with the accused appellants, other accused persons with the deceased or with the family of first informant but neither any case crime number or exact date of alleged incident have been mentioned nor any evidence has come forth during trial. The motive has not been established by the prosecution against the accused appellants. In some cases family of the first informant were accused in which appellants and other accused persons were witnesses, as such there was motive to the first informant to falsely implicate the accused appellants and other accused persons in the present case. There is every chance of false implication of the accused appellants, namely, Kaptan Singh and his brother Deshraj. In a case of murder of Ram Naresh, the brother of the first informant Tahar Singh was in jail and was convicted in which the appellant Kaptan Singh was also a witness. Similarly, the complainant's father Ram Sahay, the deceased was an accused in the murder of Nahar Singh who was real brother of co-accused Atar Singh (since deceased), Sughar Singh and Nawab Singh. Hence this might have given motive to the first informant to falsely implicate those persons, namely, Atar Singh (since deceased), Sughar Singh and Nawab Singh in the murder of Ram Sahay.

Learned counsel has further submitted that the manner in which the incident has been described in the FIR is contrary to the ocular testimony, medical evidence and the site plan. It has been disclosed in the FIR that the P.W-1 Bahaar Singh and P.W-2 Brijendra Singh had witnessed the incident. It was narrated that all the accused persons armed with different firearm weapons from north side came to the house of the deceased Ram Sahay, out of whom three accused persons, Atar Singh (since deceased), Mansha Ram and Kaptan Singh, the present appellant started firing. The fire hit to the deceased when he was sitting at the platform and he made an effort to enter into the baithak wherein three other accused persons, namely, Sughar Singh, Phulwari and Nawab Singh had entered and made fire therein. The postmortem report prepared by the Doctor gives narration of four gun shots wound found on the person of the deceased and all the injuries had wadding and tikli of the cartridges lodged in the body and according to Medico Legal and Ballistic finding, it is clear indicative of the fact that the firearm weapon shots were made as a contact shot which belies the ocular version stated by the two witnesses that the firearm wound was sustained by the deceased while he was sitting on his chabootra from a distance of 3-4 ft. As such it creates serious shadow of doubt on the veracity and truthfulness of the ocular testimony of the prosecution witnesses. The dimension of injury nos.1, 2 & 3 has been recorded by the Doctor who had conducted the autopsy of the deceased as 3cm x 2.5cm which further goes to show that these three wounds being contact shots were made by single fire weapon. Further more it is alleged that Ram Sahay was done to death and was dragged about a distance of 50-60 mtr. in an open land in an attempt to hide his dead body which was set to fire under the leaf and wood. When the person has already been killed by the accused persons who were armed with deadly weapon there was no reason to drag him in open place to hide in the presence of the son and wife of the deceased and also other relatives and the P.W-1 had deposed that he was standing 20-25 meter away from the place of incident. It is highly improbable that the accused persons had not caused any harm to him or any other witnesses. During the entire episode no person had made any effort to utter any word or try to stop the accused persons from making any indiscriminate firing and if they were apprehending of any harm to themselves they did not even fled away from the place of incident. This unusual or unreasonable conduct especially on the part of the son of the deceased who is said to be present during entire episode does not pass the test of commonsense and reasonableness or natural human conduct and hence creates doubt about the presence of the witnesses and the veracity of their testimony regarding incident.

The Doctor has also opined while conducting postmortem of the deceased that the incident could have taken place during night hours i.e. about 11 P.M., hence the incident could have been carried out in the dark night and no person actually seen the incident. which has been suppressed by the prosecution. When on the next day of the incident, the dead body of the deceased was discovered from the place where it was hidden, prosecution story has been concocted with a view to falsely implicate the persons against whom, the first informant was inimical.

The site plan was prepared by the investigating officer SSI K.L. Verma who has not been produced by the prosecution as a witness. The site plan and the memo of recovery of blood from the place of incident prepared by the investigating officer are highly contentious document worthy of no credence and unreliable in view of the fact that the investigating officer was not produced by the prosecution to give an opportunity to the defence to cross-examine him on material points.

Similarly, the two witnesses of recovery, namely, Soney Lal and Sahab Singh were not produced by the prosecution. In the recovery memo of blood it is mentioned that blood stained earth and plain earth were recovered from jaiwaqua place of incident without specifying as to from which place, the said recovery of blood stained and plain earth have been made i.e. whether from baithak or from chabootra or the place where the dead body was dragged for a distance of about 60 meters or the place where the dead body was found in hiding. The testimony of P.W-1 and P.W-2 shows that there was blood at the baithak where the deceased fell down after receiving shot on the cot. The blood was also found on the cot where he was sitting, but the site plan only mentioned blood inside baithak and mark of blood as a result of dragging in the site plan which goes to show that the prosecution is unable to point out the place from where the blood was actually collected. Due to non-examination of the investigating officer or the witnesses of the recovery memos to clarify site plan and the recovery memos, such contentious document are unworthy to place any reliance particularly that when the defence has no opportunity to cross-examine the investigating officer, who was not produced during the course of trial. The examination of the prosecution witnesses of fact alone cannot be made basis to accept that the prosecution has established its case beyond reasonable doubt.

According to the prosecution case, all the accused persons named in the FIR came together and had killed the deceased (Ram Sahay). There are two sets of accused persons who are not inter se related one set of accused persons, namely, Nawab Singh, Atar Singh (since deceased) and Sughar Singh who are real brothers and another set Phulwari and Mansha Ram. Hence Kaptan Singh and Deshraj have no concern with the other two sets of accused persons. The prosecution has utterly failed to prove that two separate sets of people had come with common object and intention to carry out the said crime. Individually the informant might have separate reason against each sets of accused persons, but to take revenge he had nominated his detractors in the present case. Except this nothing has been elicited by the prosecution that all the heterogeneous element of accused persons came together on the fateful day to carry the incident against the deceased.

P.W-1 who is the son of the deceased is an interested and partisan witness and had sufficient reason to falsely implicated the appellants along with other accused persons. There are material contradiction and improvement in his deposition from his previous statement recorded under Section 161 Cr.P.C. Hence the learned trial court has committed manifest error in ignoring the material contradiction. The evidence of the prosecution witnesses is also in contradiction with the medical evidence which does not pass the test of reasonableness and ordinary prudence to rely upon the entire story of firing and dragging of the dead body and an attempt to destroy by putting on fire and concealing it under the leaves and wood in an open place. Furthermore the conduct of the P.W-1 during the entire episode from the evidence on record that he was present at the time of alleged occurrence. He alleged himself to be standing at about 20-25 meters from the place of alleged assault of his father and during the entire episode he did not raise single hue and cry. Even he did not make any effort himself by fleeing away or by calling person of the vicinity or by the neighbours to make an attempt to save his father. The reason for which the assailant could have attacked upon the deceased when P.W-1 was standing in front of the assailant they left the place without harming him or any one. In the statement of P.W-1 it has not been mentioned by him that Atar Singh, Mansha Ram and Kaptan Singh had fired upon his father in a close contact which also goes to show that no one was present at the time of incident who had seen the assailants firing at the deceased.

Learned counsel has further pointed out that there was no recovery of weapon or incriminating article from the accused persons also creates doubt about their presence at the time of incident to connect them with the crime. The circumstance also points out towards the innocence and false implication of the accused persons in the present case due to previous enmity as the appellant Kaptan Singh was a witness in the case of murder of Ram Naresh and the appellant Deshraj who happens to be the brother of Kaptan Singh have also been falsely implicated along with other accused persons.

Learned counsel for the appellants has further argued that the statement of P.W-2 C.N. Bhalla is not reliable as he did not know that wadding will enter into the body or not, if firing caused from a distance of less than 4 ft. He has also deposed that there is no difference between tikli and wadding, hence his statement cannot be accepted as unless the fire is shot in contact of the body wadding cannot enter into the body. The Doctor has admitted that dimension of injury nos.1, 2 & 3 is same which goes to show that all the injuries were caused by same person by using single weapon. The blackening, tattooing and scorching around wounds were not found while conducting autopsy. The Doctor has also deposed that injury nos.1, 2 & 3 may be caused by one or more than one firearm which may be caused by several weapons depending upon the distance, thus it is not ascertainable as to whose fire was hit to the various parts of the deceased.

It is further submitted that in view of the contradiction between oral evidence, medical evidence and delay in recording the statement by the investigating officer, non-availability of proper site plan and in the absence of any ballistic expert with regard to the fire, the ocular testimony makes the entire testimony improbable. This is a case where there are material exaggerations and contradictions, which raises reasonable doubt that the appellants were not involved in the commission of offence.

Learned counsel while relying upon in the case of Mahavir Singh v. State of Madhya Pradesh, reported in (2016) 1 SCC (Cri.) 45 has submitted that the Hon'ble Apex Court relying upon the decision of Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 held that where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

Further relying upon the judgment of this Court in Criminal Appeal No.4623 of 2011 (Rameshwar Vs. State of U.P.) connected with Criminal Appeal No.2941 of 2012 (Vinod and others Vs. State of U.P.) decided on 13.8.2019, learned counsel has submitted that in the said case two persons were armed with gun; one was armed with shotgun and another was armed with axe. On the exhortation of one accused who was armed with axe that the deceased would not be spared they fired upon the brother of the complainant at about 6.30 P.M. on the fateful day, of which the FIR was registered on 17.2.2006 at 8.15 hours. The deceased was done to death by firing. They had fired upon the complainant's brother who died on the spot. The accused persons were acquitted as the prosecution has failed to prove the motive for the crime.There was delay in recording the statement of the witnesses under Section 161 Cr.P.C. Some of the witnesses introduced as an eyewitness after 8 months by P.W-8 and 2 who reached at the spot when nobody was there. While considering the pros & cons, the accused persons were acquitted by the co-ordinate Bench of this Court.

Lastly, it has been argued by the learned counsel for the appellants that the prosecution suffers from fatal error and omissions and as such it cannot be said that the prosecution has proved its case beyond reasonable doubt against all the accused persons including the appellants. Looking into the evidence in its entirety, there is reasonable doubt about the involvement of the accused appellants along with other accused. Learned counsel for the appellants has laid stress that the trial court only relying upon the ocular testimony of highly partisan witness had erred in arriving at the conclusion that the accused appellants had common intention to kill Ram Sahay and convicted them for the offence under Sections 148,302/34 IPC for maximum sentence of life imprisonment hence the appellants are entitled to be acquitted of the charge mentioned hereinabove.

Per contra, leaned A.G.A. Shri Ashwini Prakash Tripathi appearing for the State has refuted the submissions advanced by the learned counsel for the appellants while supporting the findings recorded by the learned trial court. He has submitted that both the appellants along with other accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh, Phulwari and Mansha Ram have been named in the FIR, in respect of the incident, by the son of the deceased Bahaar Singh who has also been examined as P.W-1. On account of previous enmity, which has already been divulged in the FIR in great detail, the appellants and other accused persons were bearing grudge with the father of the deceased, Ram Sahay. On the fateful day on 18.5.1985 at about 4.30 P.M. all the accused persons came armed with lethal weapon and fired with their respective firearms without giving any opportunity to Ram Sahay who was sitting at the chabootra on a cot he received firearm injuries in order to save himself, he ran towards baithak few paces away from the cot, when again received firearm injury over his head Ram Sahay fell down inside baithak. It is the specific case of the prosecution that three accused persons, namely, Atar Singh (since deceased), Mansha Ram and Kaptan Singh fired firstly when Ram Sahay was sitting at the chabootra and thereafter three other accused persons, namely, Phulwari, Nawab Singh and Sughar Singh fired when he fell down inside baithak. The incident was witnessed by the complainant and his distant relative Brijendra Singh who was examined as P.W-2. Their statement does not find any material contradiction with respect to firing upon Ram Sahay, who was not only murdered by firing he was further mercilessly dragged 40-50 meter away by them. Atar Singh and co-accused Deshraj had exhorted and instigated that Ram Sahay be set on fire and they had lit the fire. In committing such a ghastly incident by all the accused persons, the complainant and other persons who are witnessing the incident could not muster courage to move forward to save his father as they were unarmed.

To prop up his submission, learned A.G.A. has relied upon the decision of Hon'ble the Apex Court passed in Criminal Appeal No.1479 of 2015 (Moti Ram Padu Joshi & others Vs. State of Maharashtra) wherein the Apex Court relied upon Rana Pratap; Vs. State of Haryana (1983) 3 SCC 327 and observed in reference to reaction of a witness of an occurrence, as under:

"Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

In the present case Brijendra Singh who is the relative of P.W-1 was not examined due to the reason he was an eyewitness and who supported P.W-1 in connected trial. Yet it is being tried to create doubt about his presence at the place of incident. The credibility of witness would not be effected merely on the score of relationship. In the case of Mohabbat & Ors vs State Of M.P (2009) 13 SCC 630 the Hon'ble Apex Court has held as under:

"12. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version."

13. ''5. ... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

....................................

To the same effect are the decisions in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] (SCC pp. 81-82, paras 5-9) and Gangadhar Behera v.State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32] ."

The above position was also highlighted in Babulal Bhagwan Khandare v. State of Maharashtra [(2005) 10 SCC 404 : 2005 SCC (Cri) 1553] , Salim Sahab v. State of M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] and Sonelal v. State of M.P.[(2008) 14 SCC 692 : (2009) 3 SCC (Cri) 417] (SCC pp. 695-97, paras 12-13).

In view of the catena of decisions it would be unreasonable that the evidence given by related witness should be discarded. It is further submitted that all the accused persons have been specifically named in the FIR and the name of eyewitnesses has also been mentioned in the FIR. Merely because all the witnesses have not been examined would not be fatal to the prosecution as in this particular case the trial proceeding remained pending for a long period and several witnesses who were mentioned in the FIR had died and others refused to depose on account of the pressure of the accused persons they were discharged, hence the evidence of witnesses of fact cannot be termed as highly partisan and interested witnesses or chance witnesses. On the contrary their evidence is consistent and credit worthy.

Learned A.G.A. has further relied upon the decision of this Court passed in Criminal Appeal No.668 of 2002 (Abhilakh Singh Vs. State of U.P.) and contended that in the aforesaid case, the investigating officer was not examined and it was the case of the defence that since the investigating officer has not been examined, it has caused great prejudice to the defence. While relying upon the various decisions of the Hon'ble Apex Court in the said case it was observed that it is always desirable for the prosecution to examine the IO. Non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of the otherwise trustworthy testimony of the eye witnesses. If the presence of the eye-witnesses on the spot is established and the guilt of the accused is also proved by their trustworthy testimony, non-examination of I.O. would not be fatal to the case of prosecution. In that case despite the two investigating officers were retired the trial court has taken all efforts to procure their attendance but they could not be examined.

In the present case also in the absence of the examination of investigating officer as he had retired, the trial court has proceeded to decide the case on the basis of reliable evidence available on record.

The FIR was promptly lodged within two hours of the incident. There was strong motive for the accused persons to kill Ram Sahay which has already been given in detail in the FIR. There is no reason for the P.W.-1 being the son of the deceased to falsely implicate the innocent persons leaving behind the actual culprit. The incident had taken place in broad-day-light in a dare devil manner. The charge sheet was submitted in two parts as the accused persons, namely, Kaptan Singh and Deshraj were absconding against whom the process u/S 82/83 Cr.P.C. was initiated. Ultimately the charge sheet was submitted against Atar Singh (since deceased), Nawab Singh and Sughar Singh on 1.6.1985 who had surrendered on 30.6.1985 and Kaptan Singh and Deshraj surrendered on 18.6.1985 who were absconding against whom proceeding u/S 82/83 Cr.P.C. were initiated against them. Thereafter the case was successively adjourned for a long period of ten years when the charges were framed against five accused persons on 30.6.1990 and against the present appellants Kaptan Singh and Deshraj on 29.9.1995. Two separate trials were proceeded as Sessions Trial No.327 of 1989 & Sessions Trial No.129 of 1995. P.W-1 was firstly examined on 17.1.2001 and thereafter on 20.5.2004 again in the aforesaid trials separately.

Thus minor discrepancies are bound to occur in the statement of the witnesses due to lapse of period. The testimony of P.W-1 and P.W-2 in the present case is consistent which is fully corroborated by the postmortem report, according to which firing had taken place from close range and internal parts of the body were extensively damage muscles and burnt bones were visible and on some places body was highly scorched. No blackening and tattooing found by the Doctor as the body was burnt. The site plan also shows that the blood was recovered from the platform where Ram Sahay was initially sitting on the cot and when he trying to save himself he was fired at from a very close range which hit him over his head and thereafter he fell down inside baithak. This vivid description given by the two witnesses has proved beyond doubt that Ram Sahay was killed by the accused appellants, who died on the spot on account of indiscriminate firing by Atar Singh, Kaptan Singh and Mansha Ram. It could be difficult to say with certainty as to whose firearm hit the deceased first, but the nature of injuries received by the deceased clearly shows that the fire was made by DBBL Gun as 78 tikli were recovered through the shots which were recovered from different parts of the deceased's body.

The Doctor had recovered all the wadding tikli from the body which was sealed by him. The investigating officer had also recovered 8 empty cartridges of 315 bore from the place of incident and inside baithak which shows that all the weapons were used in firing indiscriminately. As such the learned trial court has rightly held that all the accused persons who were armed with deadly weapon arrived at the spot and had fired with a common object to kill Ram Sahay.

Accused Sughar Singh whose trial was separated as he had raised his plea of being juvenile at the fag end of the trial and was later on acquitted. The prosecution has proved the guilt of the other accused persons to the hilt. Hence the surviving accused appellants, namely, Nawab Singh, Mansha Ram and Phulwari along with the present appellants Kaptan Singh and Deshraj have rightly been convicted by the learned trial court. Their conviction deserves to be maintained.

We have given anxious consideration to the arguments advanced by the learned counsel for the appellants and the learned A.G.A.

Every effort has been made to doubt about the presence of P.W-1 Bahaar Singh at the time of incident. In the statement recorded under Section 313 Cr.P.C. the appellant Kaptan Singh deposed that the complainant was not present at the time of incident as he had lodged the report on the next day. Plea of alibi must be proved with absolute certainty so as to exclude the presence of person concerned from the place of occurrence.

It has been contended that the appellants had no immediate motive to commit the murder of Ram Sahay even the suggestions made by the prosecution that wife of appellant Kaptan Singh had won the election of Pradhan against Ram Sahay prior to two years of the alleged incident, remained unsubstantiated. Where the positive evidence against the accused is clear and cogent, omission of motive is of no importance. It is always an impossible task for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended as held in this connection by the Hon'ble Apex Court in the case of State of Himanchal Pradesh Vs. Jeet Singh 1999 (38) ACC 50 Supreme Court observing that "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution."

On the bare perusal of the First Information Report lodged against the accused persons, namely, Atar Singh, Mansha Ram, Phuwari, Nawab Singh, Deshraj and Kaptan Singh on 18.5.1985 at 6 P.M. relating to the incident occurred at 4.30 P.M. on the same day, the complainant Bahaar Singh who is the son of the deceased Ram Sahay has mentioned about the previous cases pending between the parties to show their animosity with the deceased which prompted them to reach at the spot together in a pre-planned manner to execute their evil design.

In our opinion, there was nothing unusual on the part of the complainant to narrate the previous animosity and ill-will of the accused persons who were involved individually and collectively in the cases mentioned therein.

It was argued that no detail of any case has been mentioned in the FIR as to when such crime had taken place or what was the case crime number and what was the sessions trial number. It was highly impossible for a person to give such details soon after an incident which had occurred suddenly and executed in a barbarous manner, not only shooting the deceased with their respective firearm weapons by the accused appellants, he was dragged by them in a most diabolic manner in broad-day-light up to 50-60 meters away from the actual place of incident which had occurred in front of house of the deceased and was kept on the heap of wood and was set on fire in order to efface the dead body. The entire episode which had occurred in a few minutes it could not have been possible for the son of the deceased who had lodged the FIR to depose the case crime number or the sessions trial number or the dates of incident in which the accused appellants were involved jointly or individually. However, he has broadly narrated the reasons for committing the murder of his father by the accused appellants. In these circumstances, it cannot be said that the FIR has been registered after due deliberation developing false story on the basis of misconceived facts. Nothing has occurred in the cross-examination of P.W-1 to discredit this witness as untrustworthy.

It has also been argued that the FIR was lodged after conducting the inquest of the deceased as the crime number as well as Sections of IPC have not been mentioned in sequence.

We are again not impressed by such arguments of the learned counsel for the appellants as the FIR has promptly been lodged, of which detail account has been given in the FIR and on this point P.W-1 Bahaar Singh had also articulated in examination-in-chief in the witness box has narrated and has also with stood lengthy cross-examination. It has also been specifically mentioned by the Inspector S.S. Yadav, who was examined as P.W-4 that the police personnel arrived on the spot on 18.5.1985 but due to darkness, the inquest was started on 19.5.1985. It started at 6 A.M. on the next day and prepared in three hours and concluded at about 9 A.M. The inquest report shows that there is no addition or alternation in the section mentioned in it which has been prepared on 19.5.1985 as it could not be prepared on 18.5.1985 due to darkness. It was prepared in the same hand writing by the same person. The other police personnel who had accompanied after lodging the FIR has also been mentioned in the inquest memo. Hence it cannot be said that the FIR was ante-timed. Mere description of the Sections 302,201 along with Sections 147,148,149 IPC in particular manner , it cannot be said that the said FIR was lodged after great delay or ante-timed as it was in existence when inquest was conducted.

Learned counsel has pointed out infirmity in the statement of the complainant P.W-1 Bahaar Singh to doubt about his presence that if he claims himself to be the eyewitness of the incident and the place from where the first informant seen the incident but it has not been mentioned in the FIR nor it has been mentioned that the mother of the complainant had also seen the incident which has been developed during trial. A witness's testimony need not be disbelieved only because certain facts did not find mention in the FIR. Suffice is to say that an FIR is not an encyclopedia of the case.

There is no material omission in the statement of the prosecution witnesses as regards the firing by the appellants or other accused persons on the deceased. It has to be borne in mind that some discrepancies in the ocular account of a witness, unless they are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in the evidence in this regard, it is not sufficient to impair the credibility of the witness. It is only when the discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence.

Minor discrepancy in the statement of the witnesses is not necessarily a false evidence. Such evidence is subject to close scrutiny. No evidence should be at once discarded simply because it came from the interested parties like P.W-1 Bahaar Singh being the son of the deceased Ram Sahay whose evidence cannot be discarded which is natural and trustworthy.

Even in the absence of actual assault of members by the unlawful assembly they can be held vicariously liable as there was common object to commit a crime. Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the act of each and every other in execution and furtherance of their common object, as the purpose is common so must be the responsibility The prosecution cannot perform miracles and it is not always possible to adduce clinching evidence as to the common bond between or amongst culprits of a particular crime. The prosecution case could not suffer a setback simply because all accused are not related to each other.

In Nathuni Yadav and others Vs. State of Bihar; 1997 (34) ACC 576 Supreme Court it was held that motive for doing criminal act is very difficult area for prosecution as one cannot see into the mind of another.

The P.W-1 and another witness Brijendra Singh who was examined in connected sessions trial have stated that they had witnessed the incident together from the gher. Merely because P.W-1 has not explained that he was coming along with P.W-2 from the field of muskmelon, it can not be presumed that his presence is doubtful as the same was also not put during the course of cross-examination from him that at that time from where he was coming. Their presence has been amply shown in the site plan prepared by the investigating officer which has been indicated as southern of gher of Soney Lal. They were standing at a distance of 20-22 ft when the accused persons reached at the chabootra (platform) where the deceased Ram Sahay was sitting on a cot facing towards east. The cot was at a distance of 3-4 ft from the baithak. The accused Atar Singh and Mansha Ram having armed with rifle and Kaptan Singh having DBBL gun fired at Ram Sahay, the father of the P.W-1 when they reached on the platform. As soon as his father had seen them he at once got up to run inside baithak at that time Atar Singh, Mansha Ram and Kaptan Singh had fired from their respective firearm. Then another shot was fired upon him which hit to his father and he fell down inside his baithak. Exact mathematical calculation with respect to distance between the assailants and the deceased would not be possible to arrive at the conclusion that the presence of witnesses is doubtful. When the accused persons arrived near the cot then the distance from which they had fired would be in close contact with the body of the deceased because of the length of the barrel and hence there was no occasion that when the shot was made aiming towards from close distance the wads would fall down and would not pierce in the body rather wads and powder blast had caused laceration penetrating in the organs of the body. The shape of the abrasion of the entrance wounds also varies either circular or oval according to the angle the bullet strike at the body. The question regarding the direction of fire where from right to left or to back, it is necessary to ascertain the position of the victim at the time of the discharge of the bullet when the wound of entrance is present wad would lodge in the body. Wadding pieces, tikli and shots were found lodged in the body. No blackening or tattooing detected by the Doctor as the body was burn 4-6 degree.

The injury was hit to the deceased on his forehead when he turned around he made an attempt to save himself by entering into baithak. The Doctor had found two wadding pieces and five tiklis from brain; one wadding and two tiklis from chest and one wad and four tiklis from abdomen. Besides this, 78 small pellets were found from brain, abdomen and chest. The Doctor has only given an opinion with regard to entering of the wadding into the body and had given approximate distance of firing from less than 4 ft. The wadding pieces which had entered into the body of the deceased clearly goes to show that the fire was made from very close range. It's barrel may or may not be touching the body of the victim while firing indiscriminately at the deceased. It is not necessary that the fire made by all the three accused persons would have hit to the deceased. The nature of injury goes to show that firing made by rifle might have deflected owing to the fact that it was not fired at an immobile object. Some fire missed hence empty cartridges were found at platform as well as inside the baithak.

From the postmortem report it is quite evident that the first shot made from behind at the deceased as he tried to stood up who was sitting on the cot which is injury no.3 as it's direction is from back to front. Injury nos.1 & 2 which were on front of chest and abdomen when the deceased had turned around and his face was towards baithak and the assailants were standing facing towards east the direction is front to back. Injury no.4 was on his head hence direction was from right to left when the deceased tried to ran inside baithak the assailants Atar Singh, Kaptan Singh and Mansha Ram were on his right side near the cot. The description of the abovementioned accused persons, when they fired, has been narrated by P.W-1 which fully supports the injuries described in the postmortem report.

It has been pointed out by the learned counsel for the appellants that it is alleged that Sughar Singh, Phulwari and Nawab Singh entered into the baithak after the deceased fell down and they had also fired, and at the same time, Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately outside to unleash the reign of terror. Though Kaptan Singh did not enter into the baithak but his presence along with other accused persons making fire indiscriminately cannot be doubted.

The Doctor has also opined that the dimension of injury nos.1, 2 & 3 were the same meaning thereby it was fired by the same weapon by one person. Inside the body, one wadding piece was recovered from chest and one from abdomen, four tiklis from abdomen and two from chest and 78 small pellets were found from brain, abdomen and chest. The Doctor has also opined that injury may be caused by several weapons depending upon the distance.

The fact remains that as the body was burnt by the accused persons it was not possible to the Doctor to find blackening, tattooing and scorching. The site plan indicates that after killing the deceased at platform his dead body was dragged from the baithak by the accused persons and was taken to an open land 50 yards away. The trail of blood was found by the investigating officer which has been specifically mentioned in the site plan in red ink, which further corroborates the testimony of the P.W-1 Bahaar Singh and P.W-2 Brijendra Singh showing that the victim Ram Sahay was killed by firing and his dead body was mercilessly dragged by them and was set ablaze. Hence the ocular testimony has greater evidentiary value which cannot be disbelieved. The case cited by the learned counsel Mahavir Singh (Supra) is based upon different facts and circumstances of the case.

In Rameshwar (Supra) relied upon by the learned counsel for the appellants, the Hon'ble Apex Court has set aside the judgment of the High Court whereby the High Court has reversed the finding recorded by the trial court and convicted the accused persons and the appeal was allowed setting at liberty the accused appellants, as such the case cited by the learned counsel would not apply under the circumstances of the present case.

In the present case the incident had taken place in the broad-day-light when all the accused persons in a pre-planned manner emerged out at the place of incident and started firing aiming at the deceased, out of them, two accused persons, namely, Atar Singh and Mansha Ram were armed with rifle and Kaptan Singh was armed with DBBL Gun which was specifically narrated by the complainant in the FIR and in his statement recorded before the trial court. Hence we find that there is no material infirmity in the ocular testimony with the medical evidence and the site plan. The plea of Kaptan Singh in statement under Section 313 Cr.P.C. that P.W-1 was not present at the time of incident cannot be accepted as it has to be proved with absolute certainty so as to exclude his presence anywhere else from the place of incident.

Accused persons, namely, Atar Singh, Nawab Singh, Sughar Singh belonged to one family & Mansha Ram had surrendered on 29.5.1985 while Phulwari had surrendered on 30.6.1985. However, Kaptan Singh and Deshraj absconded from their houses during the raid conducted by the investigating officer and his team at their houses. Neither they were found in the house nor any recovery of weapon could have been made. Thereafter Kaptan Singh and Deshraj had surrendered on 5.2.1986 and 19.2.1986 respectively and were sent to jail when the incident was of 18.5.1985.

There is yet another material aspect of the case with respect to the post trial conduct of the accused appellants when they were held guilty of the crime and convicted for life imprisonment. All the accused persons preferred appeals before this Court with prayer for consideration of bail during pendency of the appeal u/S 389(i) Cr.P.C. It was argued on behalf of Atar Singh, Mansha Ram and Phulwari that they were alleged to be armed with rifle but no rifle injury appears to have been recorded by the Doctor and in addition to this injury nos.3 & 4 had been fired from a very close range, but wads were recovered from chest and abdomen of the deceased which shows that the accused who were allegedly armed with rifle have not fired a shot in other words Ram Sahay died due to gun shot injuries.

Considering the entire facts and circumstances of the case, the co-ordinate Bench of this Court rejected the bail application of all the accused appellants by order dated 19.7.2012 and granted bail to Deshraj as there was no allegation of firing against him. Later on second bail application was moved on behalf of Kaptan Singh. It was argued that the incident had taken place in two parts. There are seven accused persons involved in the present case, out of them, accused Deshraj whose shot did not hit the deceased was granted bail. It was also argued that initially Ram Sahay, the deceased was sitting on a chabootra when all the accused shot at him with their respective weapons. Thereafter Ram Sahay, the deceased ran inside the house to save himself where he was shot dead by co-accused Sughar Singh, who was armed with gun, Nawab Singh, who was armed with countrymade pistol and Phulwari who was armed with rifle. So far as appellant (Kaptan Singh) is concerned though he was armed with gun but he did not enter into the house of the deceased, thus Ram Sahay, the deceased died on account of the injuries caused by rifle as the dimensions of the injuries are same. The appellant was on bail during trial and had not misused the liberty of bail and that he is in jail since 21.7.2009.

On the aforesaid submission on the part of the appellant Kaptan Singh, he obtained bail by clearly shifting responsibility of firing by Sughar Singh who was armed with gun and alleging that Ram Sahay, the deceased died on account of firing inside baithak and Nawab Singh and Phulwari caused injury with rifle as the dimensions of the injujry are same. The arguments which were advanced on behalf of the accused appellants initially that there was no shot of fire with rifle and Ram Sahay, the deceased died due to firing made by DBBL Gun. The appellant Kaptan Singh was having DBBL Gun and the postmortem report clearly corroborates the prosecution that cause of death was the result of firing with gun when the deceased was on his chabootra. Thus only for the purpose of somehow getting bail one set of accused have shifted burden upon others for causing injury with gun and vice versa. But the fact remains that they had shared common intention and the firing had taken place and Ram Sahay, the deceased was done to death on the fateful day. It would be very difficult to fix liability upon one person only i.e. Sughar Singh in the entire episode who had pleaded juvenility and acquitted by the court below. When all of them had come jointly with prior meeting of mind to eliminate Ram Sahay then whose shot of fire was fatal cannot be deciphered. Dragging of dead body from baithak to the field of Sahab Singh where he was put on fire further shows that all the accused persons were having common intention and involved in dragging the dead body as such the contention on behalf of other accused appellants has no substance that they had not fired at the deceased who had suffered homicidal death and the injuries sustained by him were all ante-mortem in nature as a result of firing with gun. It is common experience that in the confusion of the moment the witnesses are prone to make some error when they were seized by some fear.

It has also been argued that according to the site plan, the blood was found at two places; one on the chabootra (platform) and another inside baithak of the deceased but while preparing the recovery memo of blood stained earth, it has not been specified from which place the blood stained earth was collected and has been mentioned that it was found from the place as jaiwaqua.

Failure to mention the exact place from where the blood was collected by the investigating officer cannot be doubted about the place of incident as it has been mentioned in the site plan that the same has been found from place B which has been shown as platform where the deceased was firstly fired at by the accused persons. Thus the argument of the learned counsel for the appellants is unrealistic and far-fetched and the Court cannot draw any inference for such imaginative doubt.

It is further argued that misfired cartridges and fired cartridges were not sent to the Ballistic Expert, Forensic Science Laboratory and the firearm weapon used by the appellants were never seized.

The said lapses on the part of the investigating officer would not necessarily proved fatal to the case of the prosecution where the direct testimony of the two prosecution witnesses is on record.

Learned counsel for the appellants submitted that the investigating officer was not examined in this case which has caused serious prejudice to the accused persons. Non-examination of the investigating officer has deprived them to examine him on material points.

We see no substance as the investigating officer was not an eyewitness.

In Ram Ghulam Chaudhary Vs. State of Bihar; 2001 (43) ACC 929 the Hon'ble Apex Court in paras 25, 26 & 27 has held as under:

"25. In the case of Ram Dev v. State of U.P, reported in [1995] Supp. 1 SCC 547, this Court has held that it is always desirable for the prosecution to examine the Investigating Officer. However, non examination of the Investigation Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses.

26. In the case of Behari Prasad v. State of Bihar, reported in [1996] 2 SCC 317, this Court has held that for non examination of the Investigating Officer the prosecution case need not fail. This Court has held that it would not be correct to contend that if the Investigating Officer is not examined the entire case would fail to the ground as the accused were deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. It was held that the case of prejudice likely to be suffered must depend upon facts of each case and no universal strait- jacket formula should be laid down that non-examination of Investigating Officer per se vitiate the criminal trial.

27. In the case of Ambika Prasad v. State (Delhi Admn.), reported in [2000] 2 SCC 646, it was held that the criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over criminal trial merely to see that no innocent man is punished. It was held that a Judge presides over criminal trial also to see that guilty man does not escape. It was held that both are public duties which the Judge has to perform. It was held that it was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. It was held that this conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of P.Ws. 5 and 7 whose presence on the spot was established beyond any reasonable doubt. It was held that non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses."

In the case of Ram Ghulam Chaudhary (Supra) the prosecution did not examine the investigating officer, however, all the accused persons were convicted by the trial court which was affirmed by Hon'ble the Apex Court.

Learned counsel for the appellant has thus pointed out various infirmities regarding investigation of the case.

Such omissions or lapses in the investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

In Nankaunoo Vs. State of U.P.; 2016(1) SC Cr.R 237 it was held as under:

"Any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise it would shake the confidence of the people not merely in the law enforcing agency, but also in the administration of justice."

In V.K. Mishra and another Vs. State of Uttrakhand and another; 2015(2) SC Cr.R it was held as under:

"The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event any omission on the part of the investigating officer cannot go against the prosecution. The interest of justice demands that such acts or omissions of the investigating officer should not be taken in favour of the accused or otherwise. It would amount to placing a premium upon such omissions."

In Appa Bhai and another Vs. State of Gujarat; 1988 (25) ACC168 Supreme Court had emphasised while appreciating the evidence the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal error of perception or observation should not be given importance. The so called omission of not mentioning exact portion of the body of deceased where the shot had been fired cannot be said to be the significant omission. The evidence of the two witnesses stands corroborated by the medical evidence which clearly goes to show that several shots were received by the deceased and after firing set on fire to the deceased to erase the evidence. The accused appellants and two others fled away after firing in air creating an atmosphere of terror and fear. The post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by every one witnessing such an incident. Different persons would react differently on seeing any serious crime of such a nature and their behaviour and conduct would be different. Therefore, having witnessed a dastardly murdered, it was not unnatural for the son or mother of the deceased to go near to the dead body. Learned trial court was justified in not rejecting the testimony of P.W-1 merely on that score.

In the present case where all the accused persons who were armed with firearm weapons emerged from the house of Atar Singh and started firing resulting in death in such a scenario it could not have been possible to meticulously observe all the action of each and every accused. The trial court cannot expect from the witnesses to depose in a parrot like fashion. The overall evidence of the witnesses appears to be untainted. The improvements, if any, made for the first time before the court ,no doubt need, to be eschewed but that does not mean that the entire evidence of the witnesses should be disbelieved only on the said ground.

It is well settled proposition of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. This Court as well as Hon'ble the Apex Court has endorsed the in applicability of the doctrine falsus in uno, falsus in omnibus, which means "false in one things, false in everything". The Doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". The evidence has to be sifted with care. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration or embellishments. But the Court has to separate the grain from the chaff, truth from false. If after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt, the Courts is bound to give effect to the result flowing from it and not to throw it over board on hypothetical and conjectural ground. Minor variations of the evidence will not effect to the root of the matter. Such minor variations need not be given as major contradiction.

The prosecution is not obliged to prove its case by leading separate evidence with respect to the common object of all the accused persons. Those factors found by the learned trial court on the available evidence on record, hence we have no reason to ignore the same with regard to the ocular testimony vis-a-vis conflict between the ocular testimony and the medical evidence. It is by now well settled that the medical evidence cannot override the evidence of ocular testimony of the witnesses. If there is a conflict between the ocular testimony and medical evidence naturally the ocular testimony prevails.

It has also been argued that very detail account has been given in the FIR with regard to the previous cases but no detail description of the cases have been mentioned in the FIR hence does not prove the immediate motive on the part of the different sets of accused.

The description about the enmity has been made in the FIR by the informant without mentioning the details of the criminal cases. The prosecution case cannot be disbelieved only because it did not find mention in detail. We cannot expect from a grief stricken person to give better particulars of the case. The contents of the FIR has given an exhaustive account by the P.W-1, the son of the deceased as such possibility of inventing a story at that juncture trying to implicate all the accused persons is absolutely ruled out. The investigating officer had gathered material of two cases in which the accused persons were involved; one is Case Crime no.301 of 1983 relating to the FIR under Section 307 IPC pending in the court of IInd Additional District Judge as Sessions Trial No.90 of 1984 pertaining to a case filed by Ram Sahay, the deceased against Kaptan Singh, Mansha Ram and Atar Singh (State Vs. Kaptan Singh & others) and another is Case Crime No.300 of 1983, under Section 396 IPC which was against Nakse, Mansha Ram and Atar Singh pending in the court First Additional Chief Judicial Magistrate as Sessions Trial No.229 of 1983 (State Vs. Nakse & others). In spite of cross-examination of prosecution witnesses nothing fragile surfaced in their statement in this regard. Pre and post conduct of all the accused persons while committing crime has left no room of doubt that they had not formed an unlawful assembly sharing common object to eliminate the victim. The court can visualize the common object of the unlawful assembly from the entire evidence on record. Due to prolong continuation of the trial some embellishments in the testimony of the prosecution witnesses has bound to occur. We notice in this case, that there is sufficient evidence to show that barbaric incident had happened on 18.5.1985. It was the appellants who had formed an unlawful assembly with other accused appellants (of the connected Appeal) the common object of which was to use force and violence against the deceased Ram Sahay with deadly weapons and none others who had committed the crime to satiate their evil design punishable under Section 148 IPC.

There is nothing in the cross-examination of P.W.1, the first informant Bahar Singh that his attention was called to that part of his statement recorded u/s 161 Cr.P.C. in which he had omitted either to describe himself as an eyewitness of the incident or to name the place from where he had witnessed the same. We do not find any reason to disbelieve the evidence of P.W.1. Mere inconsistency in evidence is not sufficient to impair the credit of the witness.

Section 145 of The Indian Evidence Act, 1872 Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

A conjoint reading of the aforesaid provision indicates that any police officer making an investigation under chapter 12 of the Code of Criminal Procedure, 1973 or any police officer making any investigation under this chapter examines any person believed to be acquainted with the facts and circumstances of the case, the police officer may reduce into writing any statement made to him in the course of examination u/s 161 Cr.P.C. and if it is true, he shall make separate entry to record all the statements of such person whose statement he records.

Section 162 (1) of Cr.P.C. stipulates that no statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Proviso to Section 162 (1) of Cr.P.C. mandates that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Section 162 (2) of Cr.P.C. excludes any statement falling within the provisions of clause 2 of the Indian Evidence Act, 1872 and 27 of that Act from the application of the aforesaid proviso.

The object of Section 145 of the Evidence Act is to give a witness a chance of explaining the discrepancy and inconsistency and to clear up the point of ambiguity and dispute.

The Hon'ble Apex Court in the case of Karan Singh & Ors. Vs State of Madhya Pradesh, Judgement Today 2003, Suppl. Vol. 2 SC 261, has held that when a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement, it does not amount to any admission and if it is to be proved that he had given such a statement, the attention of the witness must be drawn to that statement. The object behind this provision is to give a witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute.

The question of contradicting the evidence and the requirements of compliance in Section 145 of the Evidence Act has been considered by the Apex Court in the case of Tahsildar Singh and Another Vs The State of Uttar Pradesh, 1959 SCR Supl. (2) 875. The Apex Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it was also indicated as to how a witness can be contradicted in respect of his former statement by drawing his attention to that portion of the former statement.

This question was again considered in the case of Binay Kumar Singh Vs The State of Bihar, 1997 Vol. 1 SCC 283. The Apex Court taking note of the earlier decision in Bhagwan Singh Vs The State of Punjab, 1952 AIR 214, explained away the same with the observation that on the facts of that case, there could not be a dispute with the proposition laid down therein. But while elaborating the second limb of Section 145 of the Evidence Act, it was held that if it is intended to contradict a witness, his attention must be called to those part of his writings of his earlier statements which are intended to be used for the purpose of contradicting him. It was further held that if the witness denies having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145 of the Evidence Act.

Hence, the procedure prescribed u/s 145 of the Evidence Act if having not been complied, we do not find any reason to discredit the evidence of P.W.1 informant or to hold either that he is not a fully reliable witness or he had not seen the occurrence. The statement of the first informant, P.W-1 stands fully corroborated from the facts deposed by witness Brijendra Singh his examination-in-chief, who was examined as P.W-2 in connected Sessions Trial No.327 of 1989. Thus in view of the legal principles propounded hereinabove by the Apex Court, we are not inclined to reject the evidence of P.W.-1. There is no law which lays down that a conviction cannot be recorded on the basis of the evidence of solitary witness.

The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only it is the right of the accused to shake the credit of a witness, but it is also the duty of the court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule.

In our opinion, relevant and material omissions amount to vital contradiction which can be established by cross-examination and confronting the witness with his previous statement. The alleged omissions in the statement of the witnesses to the police could not have made their evidences in court unreliable with respect to material particular concerning the occurrence or identifying the accused. In the present case, there is ample evidence in the shape of oral testimony of P.W-1 Bahaar Singh who is the son of the deceased and P.W-2 Brijendra Singh examined in connected sessions trial, on the basis of which, the conclusion has rightly been drawn by the learned trial court that the witnesses had in fact seen the accused persons and their devilish act, hence we are in full agreement which does not require any interference.

We are of the opinion in a case like the present one the relatives and friends of the deceased would not spare the real culprits and falsely implicate others. We are of the considered view that the relationship is not a factor to affect the credibility of the aforesaid eye witnesses.

In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

In the case of Veer Singh and others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held as under:-

"Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but-quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section-134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."

Learned counsel Shri Rajrshi Gupta appearing on behalf of the appellants, namely, Kaptan Singh and Deshraj has made fervent plea on behalf of the appellant Deshraj that his role is distinguishable from the other accused persons who had fired at the deceased. Deshraj has been made an accused as he is the brother of Kaptan Singh.The said plea is clearly untenable that the appellant Deshraj has done nothing with his own hands. The manner in which ghastly murder had taken place, everyone must be taken to have intended the probable and natural result of the combination of the acts in which the appellant Deshraj had also joined. Appellant Deshraj having armed with gun. Atar Singh (since deceased) and Deshraj had put the fire on the heap of woods of Arhar after the dead body of Ram Sahay dragged from baithak to the field of Sahab Singh. The appellants Deshraj and Atar Singh had exerted to burn the dead body into ashes. It is not necessary that all the persons forming an unlawful assembly must do some overt act. The prosecution is not obliged to prove which specific over act was done by which of the accused. The failure of the prosecution to do so the prosecution case cannot be disbelieved when one person of the unlawful assembly is responsible as a principle for the acts of each and all, merely because he is a member of unlawful assembly overt act and active participation of the accused persons perpetuating the crime, indicates the common intention of the unlawful assembly fastening them vicariously with the requisite common object and knowledge.

There are umpteen pronouncements of the Hon'ble Supreme Court that investigation lapses, cannot provide ground of rejection of the prosecution and acquittal by a court in given case cannot be allowed to stand, solely, on the probity of investigation.

We will quote a few:

1. State of U.P. Vs. Harbhan Singh; 1998(37) ACC14 Supreme Court;

2. State of Karnataka Vs. K.Y. Reddy; 2000 SAR crime (37) Supreme Court;

3. State of Rajasthan Vs. Kishore; 1996(33) ACC 284 Supreme Court;

4. Karnail Singh Vs. State of Madhya Pradesh; 1995(32) ACC 742 Supreme Court.

In the aforesaid cases it was observed that any lapse during investigation of the case cannot be considered sufficient to discredit the prosecution version and if the eyewitnesses testimony is consistent and dependable, it is sufficient to sustain conviction. If there is any lacuna in the site plan, it will also not provide a ground for throwing out the prosecution case as weak and in co-inherent. It is indisputable in the present case that the occurrence took place in front of the house of the informant and at the time of incident, P.W-1 was present near his house.

One peculiar feature of the trial is that it prolonged for more than 24 years from the date of incident till the date of decision. Since the trial began in 1989 in respect of other accused persons and the present trial which began in 1995 was also clubbed with that. On such unusual and monumental delay we feel shame in deciding of the case which took about 24 years. There are three stages of the trial when a person commits an offence i.e. pre-stage of trial, trial and post trial. At the pre-stage of trial, the order-sheet indicates that though the charge sheet was submitted on 30.6.1985 against Atar Singh, Phulwari, Nawab Singh and Sughar Singh, but the charge sheet was submitted against the appellants, namely, Kaptan Singh and Deshraj only on 13.2.1986 as they were absconding. Thereafter the committal order was passed on 28.6.1989 and the case was successively adjourned on behalf of the appellants in both the sessions trial and at belated stage, both the trials were consolidated on 17.9.1998. After recording the evidence in Sessions Trial No.327 of 1989 of the other accused persons, the appellants in Sessions Trial No.129 of 1995 who were incessantly getting the case adjourned even after consolidation of both the trial, P.W-1 Bahaar Singh was again called in the witness box to be examined in the present sessions Trial between 20.5.2004 to 16.6.2004 when initially his statement had already been recorded during 17.1.2001 to 9.2.2001 in Sessions Trial No.327 of 1989.

From the perusal of the record it is also evident that Brijendra Singh who has been examined as P.W-2 in connected S.T. No.327 of 1989 has not been examined in the present Sessions Trial No.129 of 1995 (State Vs. Kaptan Singh and another) due to the reason that he was deterred by the accused persons to depose against the accused appellants, namely, Kaptan Singh and Deshraj. Not only Brijendra Singh but other accused persons who had witnessed the incident and witness of recovery have been extended with threat of dire consequences and hence they refused to come to court and the prosecution had to move an application claiming discharge of Brijendra Singh, Sahab Singh, Soney Lal and Nisar Devi though their statements under Section 161 Cr.P.C. were recorded by the investigating officer after the incident. There is another reason for the delay in trial as the accused appellants, namely, Deshraj and Kaptan Singh and one Phulwari were absconding against whom process under Sections 82/83 Cr.P.C. was initiated on 1.6.1985.

On the analysis of the evidence, it is fully established that the victim succumbed to unnatural death with gun shot injuries whose dead body was dragged and burnt down so as to efface the evidence. Hence the prosecution case cannot be doubted or suspected merely that the witnesses are related to the deceased or on account of some minor variation or aberration in their testimony. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulate manner. The overt act of the accused appellants at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt that within all human probability the act has been done by the accused appellants. The foul play of destroying the evidence by putting the corpse of the deceased on fire in the field of Sahab Singh after dragging him from his baithak and was decimated on account of bitterness. The manner has portrayed very inhuman and gruesome state of mind of the accused appellants. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. It cannot be doubted that the eye witnesses had not seen the accused appellant who had perpetuated the crime in a very relentless and devilish manner. The delay if any, in lodging the first information report will not falsify the entire prosecution version. The trial court has appreciated the evidence in the right perspective. We find from the record that the statement of the prosecution witnesses cannot be said to be untrustworthy simply on the basis that some of the facts deposed for the first time before the Court.

From the perusal of the entire record it clearly shows that the murder of Ram Sahay had taken place on 18.5.1985 at about 4.30 P.M. and the FIR was lodged on the same day at 6.50 P.M. The criminal law was set in motion and the police started investigating on 19.5.1985. The investigating officer raided the houses of Nawab Singh, Atar Singh and Sughar Singh (sons of Pyarey Lal), Mansha Ram, Phulwari, Kaptan Singh and Deshraj in the presence of Sahab Singh and Soney Lal, but they were not found at their houses nor any weapon was recovered. However, the memos were prepared and handed over to the wives of the accused persons which were marked as Ext. Ka-13, Ext. Ka-14, Ext. Ka-15 & Ext. Ka-16. The appellants had absconded after committing murder from their houses. Atar Singh (since deceased), Mansha Ram, Nawab Singh and Sughar Singh surrendered before the court below on 3.6.1985 while the appellants Kaptan Singh and Deshraj surrendered on 18.6.1985. This is the conduct on the part of the accused persons that they had disappeared from the scene of occurrence to some unknown place for considerable period. The charge sheet was submitted on 30.6.1985 against Atar Sing, Nawab Singh, Sughar Singh, Mansha Ram and Phulwari wherein it was mentioned that accused Kaptan Singh and Deshraj are absconding. Thereafter the process under Section 82/83 Cr.P.C. was initiated to secure the presence of the accused appellants, namely, Kaptan Singh and Deshraj against whom ultimately charge sheet was submitted on 13.2.1986. Thus the act of absconding is relevant factor to be considered along with other evidence. Such circumstance may also leads to a proof of a guilty mind attempting to evade justice which is inconsistent with their innocence.

The long abscondance of the appellants who were seeking adjournment at the pre-trial stage by moving exemption application for one reason or the other on each and every date separately and jointly leads to interference about their conduct that they were of guilty mind. Though it is true that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. Normally the courts are not inclined to attach much importance to the act of absconding, treating it as a very small and insignificant in the evidence for sustaining conviction and it can scarcely be held as a determining link in completing the chain of evidence determining guilt of the accused. But in the present case soon after lodging of the FIR all the accused persons had absconded for a long period which is quite unnatural showing their guilty conscience. Such act of absconding on the part of all the accused appellants is no doubt relevant piece of evidence to be considered along with other evidence in the present case.

In view of the above conspectus, unusual sympathy to the accused persons merely because of long lapse of time would do more harm than justice from the point of view of the victim and the society at large. The prolong trial like in the present case has caused gross miscarriage of justice as delay defeats justice. We are shocked that the trial remained pending for 24 years as it has been concluded in 2009 whereby the accused persons were convicted by the learned trial court in both the sessions trial.

On the basis of verbose and prolix discussions made above and after going through the lower court record, we are of the considered opinion that findings of conviction recorded by the learned trial court are well substantiated by the evidence available on record. Therefore, the conviction recorded by the trial Court against the accused appellants, namely, Kaptan Singh and Deshraj under Section 302/34,148 I.P.C. is hereby maintained and affirmed.

The appeals are devoid of merit and are accordingly dismissed.

The appellants, namely, Kaptan Singh and Deshraj are on bail. Their personal and surety bonds are hereby cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the sentence imposed upon them by the trial court and affirmed by us. In case they fail to surrender, the Chief Judicial Magistrate concerned is directed to take appropriate action against them in this regard.

Let a copy of this judgment and order along with original record be transmitted to the learned trial court for information and compliance.

Judgment certified and be placed on record.

 
Order Date :-7.2.2020
 
M. Tariq
 
			       
 

 
  (Anil Kumar-IX, J)     (Naheed Ara Moonis,J)

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