Allahabad High Court
Ram Sanehi And Ors. vs State Of U.P. on 22 March, 2004
Equivalent citations: 2005CRILJ153
Author: U.S. Tripathi
Bench: U.S. Tripathi, M. Chaudhary
JUDGMENT U.S. Tripathi, J.
1. This appeal has been directed against the judgment and order dated 7-8-1992 passed by Sessions Judge, Jhansi in Sessions Trial No. 44 of 1989 convicting all the appellants under Sections 302 read with 34, IPC for committing murder of Bahadur, under Sections 302 read with 149, IPC for committing murder of Pyare Lal and sentencing each of them to imprisonment for life on each count. Appellants Ram Sanehi, Ramadin, Baladin and Shiv Dayal were further convicted under Section 148, IPC and sentenced to undergo R.I. for a period of one year, while appellant Dhamidhar was further convicted under Section 147, IPC and sentenced to undergo R.I. for a period of six months. All the sentences were ordered to run concurrently.
2. The prosecution story, briefly stated, was as under :-
A few years before the occurrence of this case, Umrao, father of appellant Ram Sanehi was murdered. Bahadur deceased was prosecuted for said murder. Pyare Lal deceased, father of Bahadur deceased, was doing pairvi on behalf of Bahadur. Ultimately Bahadur was acquitted of the said murder case. On account of it, there was enmity between Ram Sanehi and the two deceased Pyare Lal and Bahadur. The other appellants were of the family of Ram Sanehi.
3. On the evening of 19-11-1988 at about 4.30 Deopal (P.W. 1), s/o Pyare Lal, Devi Singh (P.W. 2) and Kallu were sitting in the cattle shed of Jawahar of his village, as Deopal (P.W. 1) had gone there to sharpen his sickle. After about 10 minitues, Bahadur deceased, the brother of Deopal (P.W. 1) also came there for sharpening his gandasa. In the meantime, appellants Ram Sanehi, Bala Prasad alias Balla, Shiv Dayal and Ramadin came there. Appellant Shiv Dayal was having spear and appellants Ram Sanehi, Bala Prasad and Ramadin were having guns. Shiv Dayal appellant inflicted spear blow on left shoulder of Bahadur and thereafter Ram Sanehi, Bala Prasad and Ramadin fired on him from their respective guns. Bahadur deceased fell down and died. The witnesses present there could not dare to save him due to fear. After murdering Bahadur, Ram Sanehi told that they had killed him (Bahadur) and his father Pyare Lal should also be killed. Saying it, the above appellants proceeded towards field, where Pyare Lal was watching his Bajra crop. Depal (P.W. 1) along with Devi Singh (P.W. 2) and Kallu followed the above appellants and when they reached in the field, they saw that Pyare Lal deceased, his son Manohar (P.W. 3) and wife Moola Bai were present in the field. In the meantime, appellant Dhamidhar also came there and joined the other appellants. Dhamidhar snached axe of Pyare Lal and thereafter Ram Sanehi, Baladin and Ramadin fired on Pyare Lal from their respective guns. Sustaining fire arm injuries, Pyare Lal fell down. Appellant Dhamidhar then cut his neck with Kulhari. Deopal (P.W. 1) and others raised alarm and hearing shrieks, several persons of the village rushed towards spot, but before they could reach the spot the appellants made their escape good by running towards jungle. After fleeing of the appellants, Deopal (P.W. 1) and others came to Pyare Lal who was lying dead near Mahua tree in the field. This occurrence took place at about 4.45 p.m.
4. Deopal (P.W. 1) came to his house and prepared report of the occurrence (Ext. Ka-1) and came to Police Station Kakarwai, where he lodged report at 6.15 p.m. on the basis of written report. Head Constable Shiv Charan (P.W. 1) prepared chik report (Ext. Ka-27), made an endorsement of the same at the G.D. report (Ext. Ka-28) and registered a case against all the appellants under Sections 147, 148, 302, 149, IPC.
5. Investigation of the case was initially taken up by Sri Ram Autar Mathur (P.W. 10), who interrogated Deopal (P.W. 1) and Head Moharir at the police station. Thereafter, he proceeded to the spot along with two constables. Thereafter, the investigation of the case was taken up by Ram Babu Singh (P.W. 8), who reached the spot at about mid night. Sub Inspector R.A. Mathur (P.W. 10) and two constables Lalu Prasad and Kamlapat were already present on the spot. Due to paucity of light, no proceeding could be done in the night. On the next morning, the I.O. conducted inquest of the dead body on Bahadur, sealed it and handed over to Constables for taking to mortuary. The I.O. recovered one empty cartridge from the spit. He also collected blood stained and simple earth from the spot and prepared recovery memos. Thereafter, the I.O. came to the place of murder of Pyare Lal, where he conducted inquest of the dead body of the deceased. He also recovered blood stained and simple earth, two empty cartridges and one blood stained Kulhari from the spot and prepared recovery memos. Thereafter, the I.O. inspected place of occurrence of murder of Bahadur and prepared site plan.
6. Autopsy on the dead bodies of Bahadur and Pyare Lal was conducted on 21-11-1988 by Dr. P.N. Dwivedi (P.W. 6), who found following ante-mortem and internal injuries :
Postmortem report of Bahadur Ante mortem injuries :-
(1) Gun shot wound of entry 2 1/2 cm x 2 cm x thoracic cavity deep on the left nipple. Blackening present Direction from front to back. Margins inverted.
(2) Gun shot wound of entry 1 cm x 0.75 cm x thoracic cavity deep on upper and medial portions of chest of right side, 2 cm below from medial margin of clavicle. Blackening present and direction from back to front and backwards. Margins inverted.
(3) Two gun shot wounds of exit measuring 1 cm x 0.75 cm diameter in an area of 2 cm on right lower portion of back of chest. Corresponding to injury No. 2.
(4) Gun shot wound of entry 2 cm x 2 cm on left lower portion of back 30 cm below from left shoulder joint. Direction from left to right.
(5) Gun shot wound of entry 2 cm x 1 cm x muscle deep on epigastrian portion of abdomen 18 cm above from umbilicus. Direction front to back.
(6) Gun shot wound of entry 2 cm x 1 cm on the epigastrian portion of abdomen, I cm above from injury No. 5. Direction from front to back.
(7) Contusion 4 cm x 3 cm on middle and front of fore-head.
(8) Contusion 5 cm x 2 cm on middle and right side of back of chest, 4 cm away from mid line.
(9) Contusion 3 cm x 2 cm on lower and left side of back of chest.
(10) Incised wound 2 cm x 2 cm x muscle deep, 9 cm below from the left shoulder.
7. Internal examination showed that iiird and ivth ribs of left side and iiird rib of right side were fractured. Pleura was lacerated. Both lungs were lacerated. Thoracic cavity contained about 1 1/2 liter of liquid blood. Peritoneal cavity contained about 1/2 liter of liquid blood. Stomach was lacerated and contained semi digested food material. Liver gall bladder and spleen were lacerated. Death was caused due to shock and haemorrhage resulting from ante-mortem injuries.
8. The doctor recovered one cork and 21 metallic pellet from left lung and thoracic cavity. One cork and 18 metallic shots were recovered from right lung liver and thoracic cavity. Two corks, 18 metallic shots were recovered from spleen stomach and abdominal cavity.
Postmortem report of Pyare Lal Ante-mortem injuries :-
(1) Incised wound 8 cm x 3 cm x bone deep on right lower jaw, 4 cm below from angel of mouth right side.
(2) Incised wound 10 cm. x 6 cm. x bone deep on front portion of neck. Underlying bone of cervical vertebrae No. 3 fractured. Soft tissues and muscle cut.
(3) Gun shot wound of entry 3 cm x 2 cm x muscle deep in lower and front portion of left arm, direction from left to right, 8 cm above from elbow joint. Blackening present. Margins inverted.
(4) Gun shot wound of exit 4 cm x 1lh cm on lower and front portion of left arm. Margins converted. Injury corresponding to injury No. 3.
(5) Gun shot wound of entry 2 cm x 2 cm x muscle deep on left axilla.
(6) Gun shot wound of entry 2Vicm x 1 x1/2h cm x thoracic cavity deep on left side of nipple 1 cm below from left axilla. Blackening present from left to right. Margins inverted.
(7) Gun shot wound of exit five in number, smallest being Vz cm 2 x V2 cm and largest being 0.75 cm x V2 cm in an area of 12 cm x 6 cm on right portion of chest, 10 cm below from axilla right side and 18 cm above from right anterior supra iliac spines. Injury corresponded to injury No. 6.
(8) Gun shot wound of exit 1 cm x 1 cm x abdominal" cavity deep on upper and left portion of abdomen, 10 cm above from umbilicus. Blackening present. Margins inverted. Direction from front to back.
(9) Abrasion 5 cm. x IV2 cm. x muscle lower front portion of thigh, 7 cm above from knee joint.
(10) Abrasion 2 cm. x 2 cm. on the rest of the middle finger of right hand.
9. Internal examination showed the brain was Pulpy IIIrd cervical vertebrae was fractured. Pleura was lacerated. Larynx trachea and bronchi were cut. Both lungs were lacerated. Neck was cut. Abdominal cavity contained about 200 ml. liquid blood. Stomach was lacerated. Liver was partially lacerated, Cause of death was shock and haemorrhage resulting from ante-mortem injuries.
10. The doctor recovered one cork, one big metallic shot and two small metallic shot from stomach. 2 corks and 5 small metallic shots were recovered from right and left lung.
11. The remaining investigation was conducted by Ranjit Singh Gaur (P.W. 9), who interrogated Devi Singh (P.W. 2) and Manohar (P.W. 3) on 29-11-1988. Police custody remand of appellants was taken and on 18-1-1989 on the pointing out of appellant Shiv Dayal blood stained spear was recovered from bushes of village Kharwanch Rewaja in the possession of Thakurdas (P.W. 7) and Kanhaiyal LaL. The I.O. also interrogated witnesses of recovery and prepared site plan of the place of recovery. On the completion of investigation, the I.O. submitted charge sheet against all the appellants.
12. Cognizance of the case was taken up by the Magistrate, who committed the case to the Court of Sessions.
13. The appellants Ram Sanehi, Baladin, Ramadin and Shiv Dayal were charged with the offences punishable under Sections 302 read with 34, IPC for murder of Bahadur. All the appellants were charged under Section 302, read with 149, IPC for murder of Pyare Lal. Appellants Ram Sanehi, Baladin, Ramadin and Shiv Dayal were further charged under Section 148, IPC and Dhamidhar was further charged under Section 147, IPC, Appellants pleaded not guilty and claimed that they were falsely implicated on account of enmity to grab land.
14. The prosecution in support of their case examined Deopal (P.W. 1), Devi Singh (P."W. 2), Manohar (P.W. 8) Kamlapati (P.W. 4), Mewa Lal (P.W. 5), Dr. P. N. Dwivedi (P.W. 6), Thakur Das (P.W. 7), Ram Babu Singh (P.W. 8), Ranjit Singh Sub Inspector (P.W. 9), R. A. Mathur, Sub Inspector (P.W. 10) and Shiv Charan (P.W. 11). Deopal (P.W. 1), Devi Singh (P.W. 2) and Manohar (P.W. 3) were witnesses of fact, while evidence of remaining witnesses was formal in nature.
15. The appellants did not adduce any evidence in their defence.
16. Learned Sessions Judge on considering evidence of prosecution held that the prosecution has established the guilt of the appellants for the offences punishable under Sections 147, 148, 302/34 and 302/ 149, IPC. With these findings he convicted and sentenced the appellants as mentioned above.
17. Aggrieved with their above conviction and sentence, the appellants have come up in this appeal.
18. We have heard Sri G. S. Chaturvedi, learned counsel for the appellant Ram Sanehi and Sri J. S. Sengar, learned counsel for remaining appellants and have placed the entire evidence on record.
19. Homicidal death of Bahadur and Pyare Lal deceased is not disputed. Medical evidence of Dr. P. N. Dwivedi (P.W. 6) referred to above clearly established that the death of two deceased was homicidal and they died on account of ante-mortem injuries sustained by them.
20. According to the prosecution, occurrence took place on the afternoon of 19-11- 1988 at 4.30 and 4.45 p.m. That Bahadur deceased was murdered at 4.30 p.m. while Pyare Lal was murdered at about 4.45 p.m. A suggestion was made on behalf of appellants that murder of both the deceased took place after mid night. The ocular witnesses Deopal Singh (P.W. 1), Devi Singh (P.W. 2) have categorically stated that Bahadur was murdered at about 4.30 p.m. Manohar (P.W. 3) stated that Pyare Lal deceased was murdered at 4.45 p.m. The above witnesses have denied the suggestion that occurrence took place after mid night. The report of the oc- currence was lodged of the same day at 6.15 p.m. The first I.O. Sri R. A. Mathur (P.W. 10), reached the place of occurrence in the same night. The second I.O. Sri Ram Babu Singh (P.W. 9) stated that he reached the spot at mid night. No doubt the inquest of the dead bodies was conducted on next morning, but there is sufficient explanation for not conducting inquest in the night, as there was no arrangement for sufficient light. Head Constable Shiv Sharan (P.W. 11) has stated that report of the occurrence was handed over to him at the police station at 6.15 p.m. and he made an endorsement regarding preparation of chik report in the general diary report at 6.15 p.m. No doubt in his cross-examination he stated that special report of the occurrence was sent on 20-11-1988 at 5.30 a.m. the endorsement of which was made in G.D. report, but he has offered explanation that in the night of occurrence there was no means available for not sending the special report. Thus, there is also explanation for sending the special report in the night of occurrence. There is no evidence to substantiate the suggestion or the appellant that occurrence had taken place after mid night. Dr. P. N. Dwivedi (P.W. 6) has also stated that death of Bahadur and Pyare Lal would have taken near about 4.30 p.m. on 19-11-1988. He denied the suggestion of the appellants that death of Bahadur and Pyare Lal would have taken place at about 4 or 5 a.m. on 20-11 -1989. The above evidence on record clearly established that occurrence had taken place at 4.30 and 4.45 p.m. on 19-11-1988.
21. There is also no serious dispute regarding places of occurrence of the murder of two deceased. The I.O. had visited the spot and had recovered dead bodies of Bahadur and Pyare Lal at the house of Jawahar and in the field of Pyare Lal respectively. The I.O. had also recovered blood, empty cartridges and pellets from the above places of occurrence. The appellants have not suggested any counter places of occurrence of the murder of above two deceased and therefore the prosecution has also established the places of occurrence.
22. The motive alleged by the prosecution was that Umaro father of Ram Sanehi appellant was murdered prior to occurrence of this case, for which Bahadur deceased was prosecuted. Pyare Lal deceased was doing pairvi on behalf of Bahadur, Bahadur was ultimately acquitted and there was enmity between the parties on account of it. Other appellants belonged to the same family. This fact is not disputed to the appel lants. Therefore, the appellants had motive for murder of the two deceased.
23. To prove its case the prosecution has relied on ocular testimony of Deopal (P.W. 1), Devi Singh (P.W. 2) and Manohar (P.W. 3). The learned counsel for the appellants challenged the presence of the ocular witnesses on the spot.
24. Deopal (P.W. 1) stated that on the date of occurrence at about 4.30 p.m. he was sitting at the cattle shed of Jawahar as he had gone there to sharpen his sickle. Devi Singh (P.W. 2) and Kallu were also sitting there. After 10 minutes of his arrival at the house of Jawahar, Bahadur deceased also came there. Appellants Ram Sanehi, Bala Prasad, Shiv Dayal and Ramadin came there and Shiv Dayal inflicted spear injury on left shoulder of Bahadur. Thereafter, Ram Sanehi, Bala Prasad and Ramadin fired on Bahadur with their respective guns. Bahadur fell down on the spot and died. Thereafter, Ram Sanehi told that Bahadur was murdered and his father Pyare Lal should also be murdered as he had killed his father. Saying it, they proceeded towards field. Deopal (P.W. 1) further stated that he also followed the appellants. The appellants reached in Jowar field of Pyare Lal, where Pyare Lal was present. His brother Manohar (P.W. 3) and mother Smt. Moola Bai were also present there. Appellant Dhamidhar also came there and joined the appellants. Appellant Dhamidhar snatched the axe of his father Pyare Lal and Ram Sanehi. Bahadur and Ramadin fired on his father Pyare Lal with their respective guns. Dhamidhar started cutting neck of Pyare Lal with Kulhari. On the alarm raised by him and other witnesses the persons of the locality rushed to the spot, but the appellants ran away toward's jungle.
25. Devi Singh (P.W. 2) stated that on the afternoon of the occurrence at about 4.30 p.m. he was present at the house of Jawahar. Deopal (P.W. 1) and Lallu were also present there. Jawahar was busy in sharpening sickle. Bahadur deceased also came at the house of Jawahar for sharpening his Gandasa. In the meantime, Ram Sanehi, Balla (Baladin), Shiv Dayal and Ramadin also came there. Shiv Dayal was having spear and others were having guns. Shiv Dayal inflicted spear blow on the chest of Bahadur and Ram Sanehi, Balla and Ramadin fired on him with their respective guns. Bahadur sustained injuries and died. Ram Sanehi told that Bahadur had been murdered and his father should also be killed. Saying it, all the above appellants proceeded towards field. He along with Deopal (P.W. 1) and Lallu followed the appellants. In his field of Pyare Lal, his son Manohar (P.W. 3) and mother of Manohar were also present. Dhamidhar also came there. Dhamidhar snatched the axe of Pyare Lal. Ram Sanehi, Ramadin and Balla fired on Pyare Lal with their respective guns. Dhamidhar cut the neck of deceased Pyare Lal with Kulhari. Thereafter, the appellants fled away leaving the Kulhari on the spot.
26. Manohar (P.W. 3) stated that on the evening of occurrence, he was at his Takaria field. His father Pyare Lal and mother were also present there. He, his father and mother were watching the crop of Bajara and cutting fodder. At about 4.45 p.m. appellants Ram Sanehi, Shiv Dayal, Ramadin and Bala Prasad came there. Behind them appellant Dhamidhar also came there. Shiv Dayal was having spear. Ramadin, Ram Sanehi and Ram Prasad were having guns. Dhamidhar snatched the Kulhari of his father and other appellants having guns fired on his father Pyare Lal. His father sustained fire arm injuries and fell down. Dhamidhar inflicted Kulhari blows on the neck and jaw of Pyare Lai. Thereafter, all the appellants fled away towards jungle leaving Kulhari on the spot. Devi Singh (P.W. 2), Deopal (P.W. 1) and Lallu came subsequently.
27. The learned counsel for the appellants challenged the testimony of above witnesses firstly on the ground that Deopal (P.W. 1) and Devi Singh (P.W. 2), who claimed their presence at the house of Jawahar had not sustained any injury and in case brother of Deopal (P.W. 1) was being murdered in his presence, he ought to have attempted to save his life and in his above attempt, he would have sustained some sort of injury. He further pointed out that Deopal (P.W. 1) had equal enmity with the appellants, butno attempt was made on him. That Deopal (P.W. 1) had made subsequent developments in his evidence and purposely became witness of the second phase of incident, which took place in the field of Pyare Lal and that he had no occasion to be present at the house of Jawahar. Certain contradictions and improbabilities were also pointed out.
28. Deopal (P.W. 1) claimed that on the afternoon of the occurrence, he had gone to the house of Jawahar for sharpening his sickle. Admittedly, the witness had his house in the same village and was an agriculturist. The occurrence took place in the month of November, which was harvesting season for Rabi crop. Sickle is used as agricultural implement for cutting crop and grass. There- fore, Deopal (P.W. 1) had proper occasion to go to house of Jawahar for sharpening sickle, as Jawahar was a blacksmith.
29. It is true that no injury was sustained by Deopal (P.W. 1), but the absence of injury on his person has been fully explained, that as soon as the appellants reached the spot, they started causing injury on Bahadur, who was an accused in the murder of Umrao, father of Ram Sanehi appellant. Moreover as many as three appellants were armed with guns and Ram Sanehi was armed with spear and Deopal (P.W. 1) was unarmed. In these circumstances instinct of self preservation can be dominant instinct and that being the position, in action of Deopal (P.W. 1) in not coming to rescue of the deceased cannot be a ground for discarding his evidence.
30. No doubt, Deopal (P.W. 1) was real brother of Bahadur deceased, but the appellants had motive to eliminate Bahadur, who was prosecuted for the murder of Umarao, father of Ram Sanehi and was acquitted by the Trial Court and therefore, there was also explanation for making no attempt by the appellants on the life of the witness.
31. An attempt was made from the side of appellants to show that the witness had gone to graze his buffalo and was not present on the spot. But the witness had repelled the suggestion and there is no evidence on record to prove his presence at the time of occurrence at some other place.
32. The learned counsel for the appellants further pointed out that statement of Deopal (P.W. 1) is improbable, as according to the site plan assault on Bahadur deceased was made inside cattle room of Jawahar, but he had denied this fact. The witness has stated that he had not made any such statement before the I.O. In the site plan, the I.O. had shown place of assault with letter 'E', which is on the door of cattle room and it cannot be said that assault was made in the cattle room. The above place of assault shown in the site plan is based on statements by witnesses and is inadmissible in evidence, as hit by Section 162, Cr. P.C., and not based on personal observation of the Investigating Officer (vide Tori Singh v. State of U. P., AIR 1962 SC 399 and State of Rajasthan v. Bahwari, 2003 AIR SCW 3953.
33. It was contended that when Bahadur was going to house of Jawahar for sharpening his sickle, there was no occasion for Deopal (P.W. 1) to go there as Bahadur himself would have taken sickle of Deopal. In our view this argument is misconceived as no explanation was called from the witness on this point. Moreover, according to evidence of Deopal his brothers were living separately and Deopal had gone to the house of Jawahar earlier and there is nothing on record to show that Deopal was knowing that Bahadur would also go there.
34. Certain omissions in the FIR were also pointed out, but those omissions are immaterial, as FIR need not contain each and every minute details of the occurrence.
35. It was contended that Deopal (P.W. 1) claimed that he had seen the occurrence of murder of Bahadur as well as. occurrence of murder of Pyare Lal in the field and he also claimed that when the appellants after committing murder of Bahadur proceeded towards field of his father Pyare Lal, he also followed them and saw the second phase of occurrence. But this fact is not mentioned in the FIR and the facts and circumstances of the case indicate that Deopal (P.W. 1) would not have dared to follow the appellants up to the field of Pyare Lal, which was a distance of about 2 furlong, as he had every apprehension that he would also be assaulted and that Manohar (P.W. 3) had ruled out his presence on the place of murder of Pyare Lal at the time of occurrence. Assuming that Deopal (P.W. 1) had exaggerated in his evidence to have also seen the second phase of incident, his total evidence cannot be discarded, as the principle of falsus in uno falsus in omnibus cannot be applied in this case and if any exaggerated fact is contained in evidence of a witness that can be ignored.
36. In this way the presence of Deopal (P.W. 1) at the place of occurrence of murder of Bahadur has been established.
37. The learned counsel for the appel lant pointed out that evidence of Deopal (P.W. 1) is in contradiction with medical evidence, as according to his evidence appellant Shiv Dayal inflicted spear blow on Bahadur, but there was no punctured or piercing wound on the body of Bahadur had injury No. 10 of Bahadur was incised wound 2 cm x 1 cm x muscle deep and that there was no explanation for injuries No. 7, 8 and 9 of Bahadur. Dr. P. N. Dwivedi (P.W. 6) on observing spear (Ext. 1) stated that injury No. 10 of Bahadur could be caused by said spear, as the size and shape of spear (Ext. 1) was sufficient to cause incised wound. Deopal (P.W. 1) also stated that spear (Ext. 1) was having pointed edge as well as flat blade. It was also not mentioned in postmortem report that edges of injury No. 10 was clean cut and it had no tailing. The ocular testimony is clear on the point that injury No. 10 of Bahadur was caused by spear. Considering the shape and size of spear (Ext. 1) and the above oral evidence we find that there is sufficient explanation for injury No. 10 of Bahadur, that it was caused by spear.
38. Injuries Nos. 7, 8 and 9 of Bahadur were contusions in the middle of front forehead, middle of right side back of chest and left side of back of chest. Dr. Dwivedi (P.W. 6) has stated that injuries Nos. 7, 8 and 9 of Bahadur could be caused by fall. Bahadur was assaulted firstly by spear and thereafter by gun shots. It is also in the evidence of Deopal (P.W. 1) that after sustaining injuries Bahadur fell down on the ground. The manner in which the injuries were caused on Bahadur, there was every possibility that injuries Nos. 7, 8 and 9 could be caused by fall and due to floundering after falling on the ground. Thus, we find no contradiction between medical and oral evidence.
39. In view of what has been discussed above, we find that presence of Deopal (P.W. 1) at the place of murder of Bahadur deceased is established and his evidence being corroborated by medical evidence, FIR and other circumstances of the case is clear, cogent and trustworthy.
40. Devi Singh (P.W. 2) also claimed to be present at the house of Jawahar at the time of occurrence. He also stated that he had gone to the house of Jawahar for sharpening his sickle and Gandasa. The Trial Court had not placed much reliance on the testimony of-this witness, as in his crossexamination he stated that on the date of occurrence he had gone to village Durkhuru and had told this fact before the IO he corrected himself in an answer to a Court question that he had gone to village Durkhuru on next day of the occurrence he has also given contradictory statement regarding arrival of Bahadur at the house of Jawahar and assault on him. Therefore, we also find that the evidence of the witness is shaky and does not inspire confidence.
41. On the second phase of incidence the field of Pyare Lal, where Pyare Lal deceased was murdered, there is evidence of Manohar (P.W. 3). According to evidence of Manohar (P.W. 3) on the evening of occurrence he along with his father Pyare Lal and mother was present in the field for watching Bajara crop from birds and for cutting grass. As mentioned above, the place of occurrence of Pyare Lal in the field has been established by the prosecution. The I.O. visited the spot in the night of occurrence and found dead body of Pyare Lal deceased lying there. The I.O. had shown existence of Jowar and Arhar crops in the field of Pyare Lai. Blood, blood stained Kulhari and empty cartridges were also found on the spot. The presence of Pyare Lal at the said place at the time of occurrence is established by presence of dead body and blood and empty cartridges as well as blood stained Kulhari. Manohar (P.W. 3) is the son of Pyare Lal. He also clarified that he was cutting grass in the field. Therefore his presence at the said place of occurrence is natural and probable.
42. No doubt, Manohar (P.W. 3) is real son of the deceased, but his relationship is no ground to discard his testimony as his presence on the spot was natural and probable.
43. It is true that Manohar (P.W. 3) had not sustained any injury, but his evidence shows that appellants on reaching the spot started firing on the deceased and appellant Dhamidhar cut his neck with Kulhari. According to site plan (Ext. Ka-21) at the time of occurrence the witness was at a distance of about 35 paces from the place of assault on Pyare Lal. Thus, there was no occasion of any assault on him. Moreover as many as three appellants were armed with guns, one with spear and one had taken Kulhari and therefore, the witness had no courage to come to the rescue of the deceased. Therefore, the absence of injury on Manohar that (P.W. 3) is explained from the facts and circumstances of the case.
44. The learned counsel for the appellants contended that Manohar (P.W. 3) was interrogated by the IO after 7-8 days i.e. on 29-11-1988 and late interrogation suggests that he was subsequently prepared to become a witness. The name of the witness finds place in the FIR, which was promptly lodged. The first I.O.. Ram Babu Singh (P.W. 8) stated that he did not interrogate Manohar (P.W. 3), as he accompanied the dead bodies of his father and brother. Thereafter, Ram Babu Singh was transferred from P.S. Kakarawai on 21-11-1988 and investigation was taken up by Ranjit Singh Gaur (P.W. 9). Sri Gaur (P.W. 9) had explained in his cross examination that he took up investigation of the case on 21-11-1988, but due to his illness no investigation was done up to 25-11-1988 and thereafter, he interrogated Manohar (P.W. 3) on 29-11-1988. Therefore, there is explanation for late interrogation of Manohar (P.W. 3) by the I.O. which in the facts and circumstances of the case appears genuine and convincing.
45. The learned counsel for the appellants challenged the reliability of Manohar (P.W. 3) on the ground that his evidence is in contradiction with medical evidence, as according to evidence of the witness appellant Dharmidhar inflicted Kulhari blow on the neck of the deceased and that Kulhari was left on the spot, which was recovered by the I.O. That no doubt medical evidence shows that injuries No. 1 and 2 of Pyare Lal deceased were incised wounds on right side of mouth and front portion of neck, but Dr. P. N. Dwivedi (P.W. 6) stated that injuries Nos. 1 and 2 of Pyare Lal could not be caused by Kulhari (Ext. 2) Perusal of entire evidence of Dr. P. N. Dwivedi (P.W. 6) shows that at one place he has stated that injuries Nos. 1 and 2 of Pyare Lal were not possible to be caused by Kulhari, but in an answer to Court question, he admitted that injuries Nos. 1 and 2 of Pyare Lal could be caused by Kulhari. He also clarified that earlier statement was given by him without measuring the blade of Kulhari and after measuring its blade, he was of the opinion that injuries Nos. 1 and 2 could be caused by Kulhari. The nature and size of injuries Nos. 1 and 2 of Pyare Lal were incised wounds of the dimension of 8 cm x 3 cm x bone deep and 10 cm x 6 cm bone deep, Dr. Dwivedi (P.W. 6) stated that edges of Kulhari were sharp and it's blade was semi circular. Underline bone of cervical vertebra No. 3 under injury No. 2 was found fractured and soft tissues and muscles were cut. The dimension of the injuries Nos. 1 and 2 is somehow different, but the dimension of injury depends on the part of the body which came into contact with the weapon. Injury No. 1 was on right lower jaw, a bony part and injury No. 2 was on front portion of neck. Therefore, the variance in the dimensions of two injuries was obvious. Thus, there appears no contradiction between medical evidence and oral evidence of Manohar (P.W. 3). The other injuries sustained by Pyare Lal were gun shot wounds and abrasions which were indisputedly caused by fire arm and fall on the ground. Moreover, slight confusion over one injury would not dilute the prosecution case, vide State of U.P. v. Krishna Gopal, 1988 (2) JT (SC) 544.
46. The learned counsel for the appellants contended that evidence of Manohar (P.W. 3) is belied by statement of Smt. Moola Bai recorded by the I.O. under Section 161, Cr. P.C. Smt. Moola Bai was not examined in the Court and the statement recorded by the I.O. under Section 161, Cr. P.C. is inadmissible in evidence and therefore, the evidence of-witness cannot be contradicted with the statement of a witness before the police.
47. It was further contended that the investigation was tainted and some corrections were made in the case diary during investigation on the pointing out of the Public Prosecutor. I have gone through the statement of Investigating Officer, who stated that he made certain correction in the case diary, which were clerical error. The above correction do not materially affect merit of the case. Assuming that there was some defects in the investigation, it was not fatal to the prosecution, as the presence of witnesses on the spot was natural and probable and their evidence was also supported by medical evidence, FIR and other circumstances of the case. Therefore, the defects in investigation is not fatal (vide Amar Singh v. Balwinder Singh, 2003 (2) JT (SC) 1 : (AIR 2003 SC 1164).
48. From our above discussions and observations, we find that evidence of Manohar (P.W. 3) is trustworthy.
49. Besides above ocular testimony there is corroborative evidence of recovery of spear on the pointing out of appellant Sliiv Dayal. According to evidence of Ran] it Singh (P.W. 9), he took police custody remand of the appellants, recorded their statement in the presence of their counsel Sri Raghavendra Rajauria and on 18-1-1989 on the pointing out. of appellant Shiv Dayal recovered spear (Ext. Ka-1) from bushes of village Kharwanch in the presence of Thakur Das (P.W. 7) and Kanhaiya Lal Thakur Das (P.W. 7) has corroborated the evidence of Ran] it Singh (P.W. 9) and proved the recovery of spear on the pointing out of Shiv Dayal. He also stated that spear (Ext. Ka-1) was blood stained. The above spear was sent to Chemical Examiner and Serologist for examination. The report of Chemical Examiner and Serologist (Ext. Ka-32) shows that the spear (item No. 1) contained human blood. But the blood was disintegrated for classification. Thus, recovery of blood stained spear on the pointing out of appellant Shiv Dayal also corroborates the prosecution story.
50. In view of our above discussions and observations we find that the prosecution successfully established the guilt of appellants and the Trial Court rightly convicted and sentenced them. The appeal thus bears no force and liable to be dismissed.
51. The appeal is, accordingly, dismissed. The conviction and sentence of the appellants recorded for the trial Court are confirmed. The appellants are on bail. They shall surrender before the C.J.M. Jhansi to serve out the sentence. C.J.M. Jhansi is also directed to procure arrest of appellants by adopting all processes available under law and send them to jail to serve out the sentence.