Allahabad High Court
Beeru Alias Beeru Jatav vs State Of U.P. on 26 March, 2019
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved Case :- CRIMINAL APPEAL No. - 1800 of 1996 Appellant :- Beeru Alias Beeru Jatav Respondent :- State Of U.P. Counsel for Appellant :- Sunil Kumar,Ajay Kumar,Dileep Kumar,Pankaj Kumar Srivastava,Rajrshi Gupta Counsel for Respondent :- Govt.Advocate,A K Pathak,N.K. Srivastava,P.K. Srivastava,Pulak Ganguly Hon'ble Naheed Ara Moonis,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Virendra Kumar Srivastava.J.)
1. The instant appeal has been preferred on behalf of the appellant against the judgment and order dated 25.9.1996 passed by the learned IVth Additional District & Sessions Judge Bulandshahar in Sessions Trial No. 231 of 1992 (State versus Beeru) arising out of Case Crime No. 727 of 1991, under sections 302/34, 394 & 404 Indian Penal Code (I.P.C), Police Station Sikandrabad, District Bulandshahar, whereby the accused-appellant Beeru has been convicted and sentenced for the offence punishable under section 302/34 IPC to undergo life imprisonment. The appellant has further been convicted and sentenced under section 394 IPC to undergo rigorous imprisonment for a period of three years and under section 404 IPC for a term of one year rigorous imprisonment All the sentences were directed to run concurrently.
2. Briefly stated that prosecution case is that Ramesh Chand (P.W.1), his nephews Dharmpal(P.W.2), JaiPrakash (deceased) Jagveer (P.W-3), Veeran Babu (P.W.4) and accused appellant Beeru are resident of village Chanderan, P.S Sikandrabad, District Bulandshahar. Since last four years there was previous enmity between complainant Ramesh Chand (P.W.1) and accused-appellant Beeru.On 16.12.1991 at about 1.30 p.m. the first information report (FIR) was lodged by Ramesh Chand (P.W.1) against the appellant Beeru and two unknown persons with respect to the incident of same day occurred at about 10.00 a.m. alleging therein that the complainant and his nephew Dharmpal (P.W.2) were going for buffalo to his kith and kin Godha Singh at village Kulee on cycle along the track of Gang canal . Another nephew of the complainant Jai Prakash (deceased), Veeran Babu (P.W.4) and Jagveer (P.W.3) were going on their cycles to attend I.T.I.School Muawana who were ahead to 100 yards to them. When they reached at about 10.00 a.m at the distance of approximately one kilometre from village Mohammadpur Kalan, Beeru (accused appellant) son of Ratana Jatav with his two associates equipped with country-made pistol appeared from the bank of the Gang Canal. They caught Jai Prakash (deceased) at the track of the Gang Canal and fired at him from their respective country made pistol. Veeran Babu (P.W.4) jumped into the canal on account of trepidation and awfulness. Jagveer (P.W.3) was caught by the third malefactor. The complainant and Dharmpal (P.W.2) handled their cycles swiftly and reached at the spot. The accused appellant Beeru threatened him to liquidate at the dint of country made pistol. The appellant and his associates threw the corpse of Jai Prakash in the canal and disappeared riding on cycle of Jai Prakash and Veeran Babu (P.W.4) towards Mohammadpur Kalan from the trail of canal. After the disappearance of the accused persons the complainant raised an alarm and on hearing his lamentation and shriek, the local persons gathered at the spot. With the succour and assistance of those persons the dead body of Jai Prakash was taken out from the canal. Veeran Babu (P.W.4) had given information of this incident in the village. A number of persons of the village Chanderan including his brother Narain , Bal Kishan and others gathered at the spot. The two associates of Beeru were duly recognized by the complainant, Dharmpal(P.W.2), Veeran Babu (P.W.4) and Jagveer (P.W.3) who can be identified by them. The accused appellant was nurturing animus and grudge against the family of deceased Jai Prakash on account of which Jai Prakash has been done to death by the accused appellant and his two associates. The contents of the report were written by Raj Kumar at the dictate of complainant Ramesh Chand (PW.1). The report was submitted to Head Moharrir Shyam Lal (P.W.6), who prepared chick F.I.R (Ex.ka.2) and made necessary entries in the G.D, vide Case Crime No. 737 of 1991 under section 302/394 IPC (Ex.ka.3) at Police Station Sikandrabad, District Bulandshahar.
3. Investigation was entrusted to S.I. Hukum Singh (P.W.7) who swung into action. He noted the relevant materials in the case diary. He recorded the statement of the complainant Ramesh Chand (P.W.1) and the Head Moharrir Shyamlal who had prepared the Chik FIR ( Ex.Ka.2), besides many other witnesses and visited the spot at the instance of the complainant and prepared site plan (Ex.ka.7). He took the corpse of deceased Jai Prakash into his custody and prepared inquest report and other relevant papers. The corpse of deceased Jai Prakash was duly sealed. After carrying out necessary formalities, the corpse of Jai Praksh was sent to mortuary for autopsy along with letter issued to the Chief Medical Officer, Bulandshahar escorted by Constable Sanjai Kumar (P.W.5) and Ved Prakash. He collected the blood stained and plain earth in two separate containers and prepared memo (Ex.ka-8). The post mortem of the deceased Jai Prakash was conducted by Dr. Sunil Kumar Sharma (P.W.8) on 17.12.1991 at 2.30 p.m. who found the following ante-mortem injuries on the person of the deceased.
Ante-mortem injuries :
1. Gunshot wound of entry size 1.5 x 1.5 cm x chest cavity deep on right side of chest 3 cm below and medial to right nipple. Margins inverted and irregular blackening and tatooing present.
2. Gunshot wound of entry size 1.5 x 1.5 cm x brain deep on left side of head 3 cm away from left ear, margins inverted and irregular. Blackening and tattooing present.
4. According to the doctor (P.W.8) rigor mortis was present over the body since death was about one day old. Left temporal and parietal bone were found fractured. Right lungs and right pleura were lacerated, semi digested food found in stomach. He sealed his wearing apparels and metallic bullets extracted from right chest cavity as well as 12 pellets and three wadding piece recovered from brain tissue were separately sealed in an envelope prepared postmortem report (Ex.ka.10). The cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.
5. The investigating officer made hectic and tireless efforts to arrest the accused appellant but it yielded no tangible result. He recorded the statement of the witnesses of the incident. In their statement they supported the prosecution version showing the complicity of the accused-appellant. The accused-appellant surrendered before the court below. His statement was recorded. The Investigating Offier after collecting credible and clinching evidence showing the complicity of the appellant submitted charge sheet under sections 302/394/404 IPC before the competent magistrate who took the cognizance of the offence and after providing copy of necessary document as mentioned in section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C) committed the case to court of Session for trial.
6. The trial court after hearing the prosecution as well as the defence framed charges against accused-appellant under Section 302 read with section 34 & 394/404 IP.C. The charge was read over and explained to him. The accused-appellant abjured the charges and claimed to be tried hence the prosecution was called upon to lead the evidence.
7. In order to prove guilt of the accused appellant, the prosecution examined eight witnesses in support of the same namely Ramesh Chand (P.W.1), Dharmapal (P.W.2), Jagveer Singh (P.W.3), Veeran Babu (P.W.4), Const. Sanjai Kumar (P.W.5), Head Moharrir Shyam Lal (P.W.6), S.I Hukam Singh ( Investigating Officer) (P.W.7), Dr. Sunil Kumar Sharma (P.W.8).
8. Thereafter the statement of the accused appellant was recorded under section 313 Cr.P.C. He denied the evidence produced by the prosecution for committing the murder of Jai Prakash by firing with country made pistol and throwing the corpse of deceased Jai Prakash in Ganga Canal. He also denied commission of misappropriation of the cycle of deceased Jai Prakash. The incriminating circumstances which were put to the appellant was also denied by him. According to him there was litigation of consolidation with mother of Ramesh Chand (P.W.1). Due to that enmity he was falsely named. There was also previous enmity between deceased (Jai Prakash) and Ramesh Prasad (P.W.1). Accused-appellant was given an opportunity to lead evidence in his defence, if any. He did not produce any evidence except a copy of judgment dated 29.3.1982 passed in Civil Suit No. 149 of 1981, Abdul Rahman vs. Bishana, copy of judgment passed in consolidation proceeding and copy of proceedings under sections 107/116 Cr.P.C initiated on the complaint of Narayan Singh (father of deceased Jai Prakash) to prove the previous enmity.
9. The trial court after hearing both the parties and discussing the evidence and material on record found the accused-appellant guilty for causing the murder of deceased Jai Prakash as well as the offence regarding robbery and misappropriation of property by taking away the cycle of Veeran Babu (P.W.4) as well as the cycle of deceased Jai Prakash which was in his possession and sentenced as above by the impugned order and judgment. Aggrieved by the impugned judgment and order the accused-appellant has preferred this appeal.
10. We have heard Sri Rizwan Ahmad holding brief of Sri Dileep Kumar learned counsel for the appellant, Sri Pulak Ganguly , learned counsel for the complainant and Sri Vikas Sahai, learned Addl. Government Advocate appearing on behalf of the State and have been taken through the record.
11. Learned counsel, appearing on behalf of the accused-appellant contended that the judgment and order passed by the learned trial judge is per se illegal and erroneous. All the witnesses of fact produced by the prosecution are highly interested and inimical who succeeded in accomplishing their evil design. The complainant Ramesh Chand (P.W.1) is the uncle of the deceased and Dharampal (P.W.2) is the brother of the deceased Jai Prakash. Both the witnesses are highly interested and biased. As per prosecution story at the time of incident Ramesh Chand (P.W.1) Dharampal (P.W.2) Jagveer (P.W.3) and Veeran Babu (P.W.4) were alleged to be present at the place of occurrence but none of them came forward for the rescue of Jai Prakash (deceased). It has come in the statement of Hukum Singh S.I (P.W.7) that Dharmpal (P.W2) was not present at the place of occurrence. Hukum Singh (P.W.7) had divulged in his cross examination that he was not informed by Ramesh (P.W.1) that he was present at the moment of occurrence and had seen the entire incident with regard to murder of Jai Prakash. The corpse was recovered in the jungle of Saifani. These contradictions creates the testimony of Ramesh PW-1 doubtful. Thus the testimony of Ramesh Chand (PW-1), Dharampal ( PW-2), Jagveer (P.W.3) and Veeran Babu (P.W.4) cannot be taken into account for the purpose of any reliability and credibility about their presence at the time of incident on account of material inconsistency and conflict in their version. Moreso the P.W.3 Jagveer and P.W.4 Veeran Babu have not supported the prosecution case and were declared hostile.
12. Learned counsel for the appellant has next submitted that no strong motive has been attributed in the first information report for committing the said crime. In the statement of the Ramesh Chandra (P.W.1) it has emerged that there has been litigation between the mother of the appellant and the mother of the complainant during consolidation proceedings. The accused-appellant was doing pairvi of the case in consolidation proceedings. The complainant was doing pairvi of the case on behalf of his mother during consolidation. They had been litigating the case for about three years. It has also been alleged by the P.W. 1 Ramesh Chand that the victim (Jai Prakash) was having illicit relation with the sister of the accused appellant which had prompted him to commit murder of Jai Prakash. The motive assigned to the appellant for committing the murder of Jai Prakash does not inspire any confidence corroborating its truthfulness and probity. In the FIR it is not mentioned that the accused appellant committed murder of Jai Prakash on account of property dispute as well as having illicit relation with the sister of the accused appellant.
13. Learned counsel for the appellant has further submitted that medical evidence does not corroborate the prosecution case. As per prosecution, occurrence took place on 16.12.1991 at 10.00 A.M. It has come in the statement of the P.W.1 Ramesh Chand that they were proceeding from the village concern on the fateful day at about 10.00 a.m. after taking the meal but in the postmortem report of Jai Prakash (deceased) semi-digested food was found in the stomach. The Doctor has stated that 3-4 hours was passed while the deceased had taken meal .The corpse of the Jai Prakash was not saturated with water . His clothes were dry. In case the alive person or dead body just after murder is thrown in water, there will be presence of water in his stomach. There was doubt with regard to ending of life in water. There was no mark of dragging and abrasion on the person of deceased Jai Prakash. There was no blood or water in the left lung . One pound blood was present in the cavity of chest. In the normal condition, there will be no blood in the cavity. The doctor could not ascertain the time of death of the victim Jai Prakash after hitting with pellets. Thus, the postmortem report creates absolute doubt about the veracity of the prosecution case.
14. The first information report had been lodged with due deliberation and consultation and the explanation given by the prosecution does not unravel any verity and truthfulness about the prosecution version. The FIR itself is anti-time because as per the prosecution, occurrence took place at 10:00 A.M. and the first information report has been lodged at 1.30 p.m. While the distance of the police station is about 10 kilometres. Hukum Singh S.I (P.W.7) in association with police personnel reached at the place of occurrence at about 2.30 p.m. Thus the evidence produced by the prosecution is self contradictory and highly unreliable. Prosecution has miserably failed to prove its case beyond reasonable doubt. The finding of trial court is based on surmises and conjectures. The impugned judgment and order dated 25.9.1996 does not stand on justifiable and valid ground may be set aside and the appellant may be set at liberty.
15. Per contra learned counsel appearing on behalf of complainant as well as learned A.G.A for the State have submitted that the presence of witnesses produced by the prosecution is quite natural and their statements are reliable and trustworthy. Jagveer Singh (P.W.3) and Veeran Babu (P.W.4) have also supported the prosecution case up to a considerable extent and merely on the account of that they have been declared hostile by the prosecution, their statements cannot be wiped off. The ocular evidence is fully supported by the medical evidence. The accused-appellant had strong motive to commit murder of Jai Prakash. F.I.R has been lodged without any delay. The murder has been committed in broad day light. The evidence produced by the prosecution is wholly reliable and trustworthy. The impugned order passed by the trial court requires no interference.
16. We have considered the submission advanced by the learned counsels for both the parties and have perused the material on record. In the light of the argument of both parties, the crucial point that arises for consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubt.
17. Ramesh Chand (P.W.1) informant who is the uncle of deceased Jai Prakash deposed that at the time of incident i.e about 10.00 a.m, he in association with his nephew Dharampal Singh (P.W.2) was going to village Kulee to purchase buffalo riding on a cycle. Some paces ahead Jai Prakash (deceased), Jagveer (P.W.3) and Veeran Babu (P.W.4) were also going towards I.T.I School situated in village Muawana on their distinct cycle. He has further stated that he and Dharampal (P.W.2) had reached towards west direction one kilometre away via bridge of Mohammadpur Kala. On the footpath of the canal, a metalled trail was carved out. On reaching there, he saw that the accused- appellant Beeru and his two accomplice , who were armed with katta (country made pistol) emerged from bushes of canal and had obstructed to Jai Prakash (deceased), Veeran Babu (P.W.4) and Jagveer (P.W.3). Beeru fired pointing towards Jai Prakash after getting him down from cycle. One of the associate of Beeru also fired on the opposite temple of Jai Prakash. Veeran Babu (P.W.4) jumped into canal on account of fear. According to him at the crucial juncture of incident he and Dharmpal (P.W2) were away at a distance of 80-100 yards. After firing to the deceased Jai Prakash,the accused appellant caught his hands and his two accomplice caught his feet and threw him in the canal after dragging. Deceased Jai Prakash had succumbed to injuries prior to pushing him in the canal. Jagveer (P.W.3) was detained by the accused-appellant and his two accomplice. He has further stated that when they arrived at the contiguity of Jagveer (P.W.3) and the assailants, the accused appellant extended threats to him pointing the pistol to stop at the place otherwise he will be liquidated and he was also terrorised that in case he will raise any alarm or shrill, he will be decimated. After carrying out the incident, the accused appellant fled away with the cycle of Jai Prakash (deceased) and his two associates disappeared with the cycle of Veeran Babu (P.W.4) towards Mohammadpur Kalan. He has further deposed that the persons of the locality who were pulling off the skin of sugarcane after hearing his alarm, arrived at the place of occurrence and with the aid and assistance of the melee, he took out the corpse of Jai Prakash from the canal. Veeran Babu (P.W.4) jumped and crossed the canal. He disseminated the news of said incident in village Chanderu. On hearing the news, the brother of the complainant namely Narain Singh and a number of persons of the locality reached at the place of occurrence. According to him, the report of this incident was got written by Raj Kumar on his dictation in the proximity of corpse of Jai Prakash. He had supported the prosecution version divulging the cause of death of Jai Prakash on account of suspicion on his character with the sister of Beeru. He had also admitted about consolidation proceeding ensued between the mother of the accused appellant and his mother.
18. Dharampal (P.W.2) is another eye witness examined by the prosecution stating that at the time of occurrence he and his uncle Ramesh Chand (P.W.1) were going to village Kulee to purchase a buffalo. Ramesh Chand (P.W.1) was driving cycle whereas he was sitting on the frame of the cycle. Ahead of them Jai Prakash (deceased), Veeran Babu (P.W.4) and Jagveer (P.W.3) were also going by their cycles to I.T.I. School, Muawana. According to him it was 10.00 a.m, they were passing through footpath of the canal and had reached one kilometer away to village Mohammadpur Kala. They saw the accused-appellant Beeru emerged from the bushes of canal with two associates and stopped Jai prakash (deceased). All of them were armed with country made pistol.The accused-appellant Beeru got Jai Prakash (deceased) descended from his cycle and fired at him and one of his associates also fired at opposite temple of Jai Prakash(deceased) and meanwhile Veeran Babu (P.W.4) on account of fear jumped into canal. Jagveer Singh (P.W.3) was caught by one associate of accused-appellant Beeru. Jai Prakash (deceased) fell down due to fire arm injury thereafter accused-appellant Beeru caught his hand and his associates caught his legs and thrown him into canal. He has further stated that as he heard the fire, his uncle Ramesh Chand (P.W.1) accelerated his cycle as they were 80-100 yard away, the assailants returned towards them with the cycle of Veeran Babu (P.W.4) and Jai Prakash (deceased), thereafter accused-appellant Beeru threatened them on the point of country made pistol stating that they would also kill them if they will say about anything regarding the occurrence to any one. After the occurrence, the accused-appellant Beeru with the cycle of Jai Prakash(deceased) and two associates with the cycle of Veeran Babu (P.W-4) fled away towards Mohammadpur. He has further deposed that on their hue and cry the people present nearby field peeling the skin of the sugarcane crops, arrived at the place of occurrence. According to him his uncle Ramesh Chand (P.W.1) with the help of some other persons took out the corpse of Jai Prakash (deceased) from the canal. He has further deposed that he had very well seen the accused-appellant Beeru and his two unknown associates to whom he can identify.
19. Jagveer Singh who was examined as P.W.3 has stated that on 16.12.1991 at about 9.30 a.m morning, he in association with Veeran Babu (P.W.4) and Jai Prakash (deceased) was going to I.T.I. Muawana riding on their cycle from village Chanderu. Nobody was coming behind them hailing to his village. When they (three persons) reached towards west crossing the bridge of canal at a distance of 1'1/2 kilometre from village Mohammadpur, three persons came out from the shrubs who had covered their faces. All the three persons were equipped with country made pistol. At the point of pistol, they stopped to them (three persons). In the midst of three persons, one fired upon Jai Prakash . On account of wrapping the face, he could not identify the main assailant and two other accomplice. On being hit with fire, Veeran Babu (P.W.4) jumped into the canal and he (Jagveer Singh) ran towards right side. A number of people were pulling off skins from the sugarcane. It was divulged by him that he fled from the place of occurrence after incident therefore, he was not aware as to whether Jai Prakash was dead or not. The persons who were peeling skins of sugarcane were informed by him thus they gathered at the place of occurrence. They saw that Jai Prakash was not present there rather blood was scattered which was running towards water. It appeared that Jai Prakash was thrown in water after dragging. He did not find the corpse of Jai Prakash. He was brought by some person on motor cycle at Chanderu from the place of occurrence so as to inform to the family members of Jai Prakash. This witness was declared hostile by the prosecution and permitted by the trial court for cross examination. In cross examination by the prosecution he showed his ignorance as to whether the corpse of Jai Prakash was taken out by Ramesh (P.W.1) or the persons engaged in pulling off skin of sugarcane because he had come to his village and did not go back at the place of occurrence from the village. Prior to him, Veeran Babu (P.W.4) had given information of this incident in the village. On being interrogated by the police he divulged the correct fact which was narrated by him before the court. He retracted that Ramesh (P.W.1) and Dharampal (P.W.2) were coming to purchase the buffalo riding on cycle behind him. He further resiled abruptly that Beeru and his two associates appeared equipped with country made pistol. He denied that Beeru and his two associates had liquidated Jai Prakash hitting with pellets. He disowned that it was stated by him that Ramesh and Dharmapal reached at the place of occurrence riding on cycle and were threatened by Beeru and his two associates. He denied the statement recorded by the Investigating Officer to this effect under section 161 Cr.P.C. He admitted that he had came at Collectorate Bulandshahar in relation to this case. Both the parties had procured his affidavit forcibly. He was brought at Collectorate Bulandshahar by Harkesh,the uncle of Jai Prakash (deceased). Firstly Harkesh got an affidavit procured from him (Jagveer Singh-P.W.3) but it was slashed by Harkesh in front of him (P.W.3). Subsequent thereto, Ratna (father of appellant Beeru) got an affidavit procured from him. Thereafter Harkesh created ruckus in the village then the parents of Jagveer Singh (P.W.3) got Harkesh satisfied by applying all means. Harkesh threatened that in case the statement on affidavit will not be retracted he will lodge report against him. Subsequent thereto, Harkesh got his another affidavit prepared. Jagveer Singh (P.W.3) seconded his earlier statement in the cross examination. He denied that he made subsequent statement on account of undue pressure of Ratna, the father of accused Beeru.
20. Veeran Babu has been examined as P.W.4. In his statement he averred that he, Jagveer Singh (P.W.3) and Jai Prakash (deceased) were going to I.T.I.School situated at Muawana on 16.12.1991. He in association with Jagveer Singh (P.W.3) and Jai Prakash (now deceased) proceeded from their village riding on cycle at 9.15 a.m. No person belonging to his village was coming behind when they were riding on cycle. He, Jagveer Singh (P.W.3) and Jai Prakash ( since deceased) had covered about one kilometre towards west from the bridge of Mohammadpur Kalan, then three miscreants appeared from bushes. All the three miscreants had wrapped their face. They obstructed and fired upon Jai Pakash. He ran away from the place of occurrence after jumping into canal. He came in the village crossing the forest. This incident had occurred at about 10 a.m. in the morning. This incident was informed by him to the father of Jai Prakash (deceased) and other family members. At this stage this witness was declared hostile and the prosecution obtained permission to cross examine him. During cross-examination, he again stated that he could not ascertain who was the actual assailant among the three miscreants as he had come across jumping in the canal. It was also divulged by him that Ramesh (P.W.1) and Dharampal (P.W.2) had not reached at the place of occurrence in his presence. He had informed to Narain, the father of the deceased Jai Prakash. He had not entered inside the house. According to him he had never deposed before the investigating officer that Ramesh Chand (P.W.1) and Dharampal (P.W.2) had been going to purchase buffalo in village Kurli and were riding on cycle, that Beeru s/o Ratna and two unknown persons appeared from bushes equipped with country-made pistol and obstructed them; that miscreants dragged Jai Prakash and Beeru and his one associate fired upon Jai Prakash with country made pistol. He disowned that he was making such statement on account of terror and fear of Ratna (father of Beeru). He (Veeran Babu-P.W.4) was not cross examined by the defence counsel.
21. Sanjai Kumar constable has been examined as P.W.5. He filed an affidavit deposing that he was posted as constable at Police Station Sikandrabad, District Bulandshahar on 16.12.1991. He in association with other constables and S.I. Hukum Singh (P.W.7) visited the place of occurrence at about 2.30 p.m. The panchayatnama of Jai Prakash (deceased) was conducted by S.I. Hukum Singh at 14.30 p.m on 16.12.1991 who handed over copy of panchayatnama, FIR chick report, G.D. Entry and other requisite papers to him (constable Sanjai Kumar) and Ved Prakash with the corpse of Jai Prakash for autopsy at mortuary. According to him he and Const. Ved Prakash brought the corpse of Jai Prakash in sealed condition in the mortuary at Bulandshahar. The sealed corpse of Jai Prakash was placed before the doctor and was duly identified. It was also confirmed by him that on 17.12.1991 after autopsy the clothes of Jai Prakash (deceased) and other incriminating articles were handed over to him which was presented by him at the police station concerned in a sealed cover. The corpse of Jai Prakash remained intact in his custody.
22. Shri Shyam Lal Head Moharrir has been examined as P.W.6. He deposed that he was posted as Head Moharrir on 16.12.1991 at Police Station Sikandrabad District Bulandahahr. He confirmed that the chik F.I.R (Ext.ka.2) was written by him on the basis of written report submitted by Ramesh Chand (P.W.1). According to him this report was further entered by him in the G.D. report no.27 marked as Ext.ka.3. He proved the chik FIR (Ext.ka.2) and G.D. report (Ext.ka.3).
23. The Investigating Officer S.I Hukum Singh has been examined as P.W.7. He deposed that he was posted as Sub-inspector at Police Station Sikandrabad on 16.12.1991.Chik report was got by him from the police station concerned. After getting chik report, it was noted in the case diary, he recorded the statement of Shyam Lal (P.W.6) and Ramesh Chand (P.W.1) at the police station. Thereafter he (P.W.7) alongwith other police personnel reached at the place of occurrence. He prepared the Panchayatnama of deceased Jai Prakash which was signed by him was marked as Ext.Ka.9. The present case was registered in his presence and was entrusted with the investigation of the case. He had verified the letter to R.I. vide Ext.Ka.3, letter to Chief Medical Officer Ext.Ka.5, Challan Lash Ext.Ka.6 signed by him. He had sent the corpse of Jai Prakash to mortuary under seal. He had prepared the site plan on the pointing of the complainant which was exhibited as Ka.7. He took the sample of plain and blood stained soil and bracelet (Kara) of the deceased Jai Prakash and prepared its memo. He recorded the statements of witnesses and also the statements of Veeran Babu (P.W.4) and Dharampal (P.W.2). The investigation was transferred and entrusted to S.I. Ram Chandra who conducted the investigation and submitted the charge sheet on 3.2.1992 vide Ext.ka.2. He (P.W.7 Hukum Singh) had confirmed that the corpse of Jai Prakash was lying on the north side of Canal. He disowned that the corpse of Jai Prakash was firstly brought at village Chanderu and thereafter it was sent from police station to Bulandshahar for autopsy. There was no electric connection on the place of occurrence. He further disposed that the site plan was prepared at the instance of Dharmpal. The place of occurrence is towards North East from the police station. He denied that he never went to the place incident.
24. The prosecution has examined Dr. Sunil Kumar Sharma as P.W.8 who was posted at District Hospital Bulandshahar on 17.12.1991. He had conducted the post mortem of Jai Prakash (deceased) on 17.12.1991 at about 2.30 p.m. The corpse of Jai Prakash was identified by Constable Ved Prakash and Sanjai Kumar (P.W.5) who had brought it under seal for autopsy. He confirmed that the victim Jai Prakash had succumbed to injuries on account of fire arm injury as pellets were extracted from right chest cavity.(Detailed of ante mortem injuries has already been mentioned in previous paras of judgement). Three wadding piece recovered from brain tissue were handed over to the accompanying constable. The deceased was medium and average built aged about 22 years. Rigour mortis was present around on lower and upper limbs. Blood was oozing from nose and ears. The injuries on head proved that the injured could hardly survive 10 to 15 minutes. The eyes and mouth were closed. The doctor had opined that the caused of death was shock and hemorrhage due to ante-mortem injuries. He had proved the post mortem report which was marked as Ext. Ka.10.
25. Before discussing the rival submission of both parties it is pertinent to note that from perusal of material available on record it is clear that factum of death of the deceased was homicidal which was caused on 16.12.1991 at 10.00 a.m by fire arm injury is not disputed. All the witnesses namely Ramesh Chand (P.W.1) Dharmpal (P.W.2), Jagveer Singh (P.W3) and Veeran Babu (P.W.4) had deposed that Jai Prakash(deceased) was murdered by fire arm injury at the bank of Gang canal. All the witnesses except Veeran Babu(P.W.4) were cross examined by the defence but nothing had come out in their cross examination to create any doubt regarding time and manner of causing death of Jai Prakash( deceased).
26. So far as the main argument advanced by the learned counsel for the appellant that P.W.3 Jagveer and P.W.4 Beeran Babu are friends of deceased Jai Prakash, they have not supported the prosecution case whereas P.W.1 Ramesh Chand and P.W.2 Dharmpal are near relative of the deceased Jai Prakash as such they are interested witness and they are also inimical to the accused-appellant, no independent witness was produced and there is material contradiction between first information report and statement of P.W.1 Ramesh Chand whereby the presence of witnesses at the place of occurrence is doubtful is concerned, it is admitted case of the prosecution that Ramesh Chand (P.W.1) is the uncle of the deceased Jai Prakash and Dharmpal (P.W.2) is real brother of Jai Prakash (deceased) but Jagveer Singh (P.W.3) and Veeran Babu (P.W 4) have no relation with the deceased, they are resident of the same village where the accused-appellant and informant Ramesh Chand reside.
27. In the State of Andhra Pradesh Vs. S. Rayappa and other (2006) 4 SCC, 512, Hon'ble Supreme Court while commenting upon reason for reluctance of the public or the impartial person to join as witnesses and importance of evidence of relative witnesses in the criminal case has observed in para-7 as under:-
"On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W.1 and P.W.2 on the sole ground that they are interested witnesses being relatives of the deceased."
28. Thus it is settled principle of criminal jurisprudence that only on the account of relationship of deceased or injured with eye witness the evidence of eye witness cannot be discarded if their presence on the spot is proved and their statements are reliable and trustworthy. Thus it has to be seen that whether the presence of witnesses produced by the prosecution is proved and their statements are reliable and trustworthy.
29. Ramesh Chand (P.W.1) is the informant and eye witness of the occurrence. He has lodged the F.I.R on 16.12.1991 at 1.30 a.m. In the first information report it has been specifically mentioned that at the time of occurrence the deceased Jai Prakash was going by his bicycle with Veeran Babu (P.W.4) and Jagveer Singh (P.W.3) to I.T.I. School Muawana. At that time informant Ramesh Chand (P.W.1) and Dharmpal (P.W.2) were also going for Buffalo to his relative Godha Singh. It has also been mentioned in the first information report (Ex.ka-1) that deceased Jai Prakash, Veeran Babu (P.W-2) and Jagveer Singh (P.W 3) were ahead one hundred yard to Ramesh Chand (P.W-1) and when they reached at about 10.00 a.m one kilometer away towards western side of village Mohammadpur Kala, accused-appellant Beeru son of Ratna Jatav along with his two unknown associates equipped with country made pistol appeared from bushes of bank of canal, they caught Jai Prakash (deceased) and fired at him with their respective weapons. Horror stricken Veeran Babu (P.W.4) jumped into canal and ran away whereas Jagveer (P.W3) was caught by the accused persons. It has also been mentioned in the first information report (Ex.ka-1) that Ramesh Chand(P.W1) and Dharmpal (P.W2) handled their cycles swiftly and reached at the place of occurrence. The accused-appellant Beeru and his associates threatened them for dire consequence at the dint of fire arm carried by them. Thus, in the F.I.R (Ex.ka.1) the presence of Ramesh Chand (P.W.1), Dharmpal (P.W.2), Jagveer Singh (P.W3) and Beeran Babu (P.W.4) have specifically been mentioned. In their statements they have categorically stated about their presence on the spot. Ramesh Chand (P.W-1) was cross examined in detail by the defence counsel to create a doubt regarding his presence on the spot but from perusal of his statement in cross examination, it transpires that he had succeeded to respond all the questions put by the defence counsel to prove his presence as well as the presence of other witnesses. In cross examination he has stated that in the first information report, he had dictated that he had seen the place of occurrence towards right track of canal. He has further stated that the scribe of report (Ex.ka.1) would have read out the report but he would not have inquired that why he had not mentioned the aforesaid facts. He has also deposed that he had told to the Investigating Officer that he had seen the occurrence of right track of the canal. If the said fact was not incorporated in his statement by the Investigating Officer, he could not tell any reason as to why the Investigating Officer had not written this in his statement. He has further stated that he had dictated to the scribe of the first information report (Ex.ka.1) that Beeru opened fired towards Jai Prakash (deceased) after descending from cycle. Another associates of Beeru also fired at opposite temple of Jai Prakash (deceased). If it has not been mentioned in so many words he could not explain the reason. He has also stated that he had dictated to the scribe of the F.I.R that Jagveer Singh (P.W.3) was detained by third accused. Accused-appellant Beeru threatened him that in case he will raise any alarm he will be killed. After the committing the murder the accused-appellant escaped along with the cycle of Jai Prakash (deceased) and his two associates disappeared with the cycle of Veeran Babu (P.W.4) towards Mohammadpur Kala. If the aforesaid facts were not transcribed in the same way in the first information report (Ex.ka.1) he could not explain the reason behind it.
30. From perusal of first information report, it transpires that the accused-appellant and his associates extended dire consequence to the eye witnesses and Jagveer Singh (P.W3) was caught by the one of the associate of the accused-appellant. It is settled principle of criminal law that first information report is not an encyclopedia but a compendium of the prosecution case. It is written at the time when the first informant and other relatives of the deceased were in state of bewilderment and restlessness. The first information report, according to Ramesh Chandra (P.W.1) was dictated at the place of occurrence to one Raj Kumar who is also well wisher of the deceased. It might be that due to hurly burly some fact could not be mentioned in the report as stated by Ramesh Chand (P.W.1). In the F.I.R (Ext.ka.1) date, time, place of occurrence, manner and modus of committing the incident, involvement and role of the accused-appellant Beeru and his associates, presence of witnesses and motive etc. have been clearly mentioned. There is no material contradiction between statement of Ramesh Chand(P.W.1) and F.I.R( Ex.ka.1). The contradiction if any between the first information report (Ex.ka.1) and the deposition of Ramesh Chand (P.W.1) is not so significant and material to create any doubt about his presence on the spot.
31. So far as the presence of Dharampal (P.W.2) is concerned, according to him he was also going with Ramesh Chand (P.W.1) at the time of occurrence and had seen the incident. In cross examination he has clearly stated that on the fateful day of incident he and his uncle Ramesh Chand (P.W.1) departed from their house at about quarter to 9.00 a.m. and half past 9.00 a.m. in the morning . He had seen the dead body of Jai Prakash (deceased) at the canal between 10.00 a.m. till to 3-4 p.m. The police personnel had arrived there near the dead body of the deceased Jai Prakash at about 2.30 p.m and remained there till the dead body was sent for postmortem. He has further stated that the police personnel had recorded his statement between 2.30 p.m to 2.45 p.m. S.I Hukum Singh, (P.W.7) has also stated in his cross examination that he had prepared the site plan (Ex.ka.7) on the pointing of Dharmpal (P.W.2).
32. Jagveer Singh(P.W 3) and Veeran Babu (PW.4) have also stated that at the time of occurrence they were going with Jai Prakash( deceased) to I.T.I. School, Muawana and were present at the place of occurrence on 16.12..1991 at 10.00 a.m. The statement of these witnesses was not disputed by the defence counsel before the trial court.
33. Thus, in view of the above facts and circumstance the presence of these prosecution witnesses is quite natural and proved by the prosecution beyond reasonable doubt. Therefore, their statements cannot be disbelieved either on the ground that they are relatives of the deceased Jai Prakash or on account of minor variation from F.I.R or contradiction between the statement of witnesses with their statements recorded by the investigating officer u/s 161 Cr.P.C,if any.
34. So far as the submission of learned counsel for the appellant that Dharmpal(P.W.2) was not found by the Investigating Officer at the place of occurrence, Ramesh Chand (P.W.1) had not stated to the Investigating Officer at the time of preparation of inquest report regarding witnessing the occurrence and according to Investigating Officer the dead body was found in the Sefani jungel, the eye witnesses present on the spot did not make any effort to save the deceased Jai Prakash, hence the presence of eye witnesses at the place of occurrence is doubtful is concerned, from perusal of record it transpires that the prosecution case is based on direct evidence of four eye witnesses namely Ramesh Chand(P.W.1) Dharmpal (P.W.2), Jagveer(P.W.3) and Beeran Babu (P.W.4). They have consistently deposed that the occurrence had happened on the bank of Ganga canal situated near about one kilometer from the village Mohammadpur Kala. None of the eye witnesses, in their statements, had stated that the corpse of deceased Jai Prakash was found at any other place than the place deposed by them. S.I. Hukum Singh (P.W.7) has prepared site plan (Ex.ka.7) wherein the place of occurrence has been shown as the side of canal. No dispute on site plan was raised by defence counsel during his cross examination. It might be that the place of occurrence which was on the side of Ganga canal and near village Mohammadpur Kala as disclosed by prosecution comes within the precinct of Safani Jungle. Similarly it is settled law principle of law that the purpose of preparation of inquest report is only to send the dead body of deceased in safe custody to medical expert for postmortem in order to know the cause of death of deceased. Thus, if Ramesh Chand (P.W.1) had not disclosed to Investigating officer at the time of preparation of inquest report that he had seen the occurrence or Investigating Officer has mentioned the place of occurrence as Shefani jungle or the presence of Dharmpal (P.W.2) was not shown in the inquest report, the prosecution case cannot be treated as doubtful on this account alone.
35. It is also pertinent to note at this juncture that no particular manner of conduct or behaviour can be expected from any witness present at the place of occurrence when the offence is being committed by accused persons with deadly weapons. This depends upon the number of assailants, weapons carried by them, their muscles power and also their economical, social and political status. In addition to above, it is further pertinent to note at this juncture that some witnesses seeing occurrence tries to save the injured from accused, some becomes offensive, some becomes speechless and idol, whereas, some tries to run away from the place of occurrence. No universal standard of conduct of any witness can be formulated.
36. Hon'ble Supreme Court in Rana Pratap vs. State of Harayana (1983) 3SCC 327 while discussing the conduct and reaction of the witnesses present on the spot has observed as follows:-.................
"................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 witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way............."
37. Hon'ble Supreme Court in Paramjit Singh @ Mithu Singh vs. State of Punjab through Secretary (Home), AIR 2008 Supreme Court, 441 while observing that merely because the eye witnesses did not make any attempt to save the deceased when he was being attacked, does not make their presence at the place of occurrence doubtful, has again held as under:-
..."In our considered opinion there is no basis to contend that Amar Singh (PW-3) and Gurmail Singh (PW-4) were not present at the scene of offence and did not witness the incident. The contention was that Amar Singh (PW-3) and Gurmail Singh (PW-4) had not intervened to save Harnek Singh when he was being attacked by the accused. The evidence available on record reveals that Amar Singh (PW-3) and deceased Harnek Singh had almost reached their house when they had been way laid by the accused. The appellant and Gurcharan Singh (A-3) were armed with gandasas and Mukhtiar Singh (A-1) with a dang. As has been rightly observed by the High Court that it would be well nigh impossible to apply a universal yard stick as to how a person would react to a given situation. The presence of Amar Singh (PW-3) and Gurmail Singh (PW-4) cannot be doubted on the ground that they have not made any attempt to rescue the deceased. We cannot ignore the fact that the accused were armed with deadly weapons and the same may have deterred PW-3 and PW-4 in making any attempt to rescue the victim when he was under attack.
It is true that Gurmail Singh (PW-4) had not been able to spell out accurately the situs of the injuries on the dead body but the same would not make his presence doubtful. The victim was under attack from a group of persons armed with deadly weapons. He must have made attempts to save himself from the attack and in the process may have not remained static without moving one way or the other. One cannot expect that in such a situation the witness would graphically describe the nature of injuries and spell out accurately the situs of the injuries on the body of the victim. Their presence at the scene of offence is evident from the First Information Report itself which was lodged by Amar Singh (PW-3) himself. The fact remains Harnek Singh had been way laid by the four accused and thereafter inflicted several blows with the gandasas and dang"......
38. It is also pertinent to point out at this juncture that the record shows that at the time of occurrence before causing fatal injury to deceased Jai Prakash, the accused-appellant Beeru and his associates caught the deceased Jai Prakash and Jagveer(P.W.3) whereas Veeran Babu(P.W.4) jumped into canal on account of trepidation. The accused-appellant Beeru threatened Ramesh Chand (P.W.1) and Dharmpal (P.W.2) to liquidate them at the dint of arm carrying by them, if they make any effort to raise alarm or to save the deceased. Thus it is clear that the witnesses present on the spot could not try to save the deceased Jai Prakash due to fear or threatening caused by the accused-appellant Beeru as at the time of occurrence the accused-appellant and his associate were also armed with deadly weapon whereas the eye witnesses namely Ramesh Chand(P.W.1) Dharmpal (P.W.2), Jagveer(P.W.3) and Beeran Babu (P.W.4) were unarmed. Thus in the light of law laid down by the Apex Court and in view of the fact and circumstances of this case we are of the view that the presence of witnesses or their statements on oath can not be doubted on the ground that they did not make any effort to save the life of deceased. Submission made by learned counsel of appellant in this regard has no force.
39. So far the submission of the learned counsel for the appellant that P.W.3 Jagveer and P.W.4 Veeran Babu have not supported the prosecution case and they have been declared hostile, their testimonies can not be taken into for consideration in support of prosecution case is concerned, it is settled principle of criminal jurisprudence that merely on the ground that the witness has not supported the complete prosecution story and has been declared by the prosecution as hostile, the evidence given by such witness can not be treated as effaced or washed off the entire prosecution case but the trial court may consider the relevant portion of evidence of such witness. In the present case both P.W.3 Jagveer and P.W.4 Veeran Babu have clearly stated that at the time of occurrence i.e 16.12.1991 at about 10.00 a.m. they were going with Jai Prakash (deceased) by the side of Ganga canal and as they reached at a distance of 1-1.5 kilometers from village Mohammadpur, three unknown persons came out, wrapping their face by clothes, stopped them at the point of country made pistol. One of them fired at the deceased Jai Prakash. Veeran Babu (P.W.4) jumped into canal and Jagveer(P.W.3) ran away. P.W.3 Jagveer further stated that after some time when he came back at the place of occurrence, he saw that at the place of occurrence the blood was scattered and it appeared that deceased Jai Prakash was thrown into canal after being dragged. Both these witnesses had denied the presence of Ramesh Chand (P.W.1) and Dharmpal(P.W.2) at the place of occurrence. They had also refused to name the accused-appellant Beeru and the assailant as they had wrapped their face and they could not recognize them. In cross examination Veeran Babu(P.W.4) has admitted that when he reached in his village to inform the incident to Narayan, father of the deceased Jai Prakash, Ramesh Chand(P.W.1) and Dharmpal(P.W.2) were not present there. Jagveer (P.W.3) has also stated that Ratna, father of accused-appellant Beeru and Harkesh the uncle of deceased Jai Prakash had brought him to collectrate Bulandshahr. Harkesh had got his statement on oath prepared but destroyed it. Thereafter Ratna had brought him and got an affidavit procured from him by deceiving him. Thus, it is clear that this witness was pressurized by the accused-appellant side. The evidence of both these witnesses regarding the date, time, place and manner of occurrence has not been disputed by the counsel for the accused-appellant before the trial court during their cross examination.
40. Hostility of witnesses during trial has become cancer to criminal administration of justice. Hon'ble the Supreme Court expressing its opinion on admissibility of evidence of hostile witness in State vs. Sanjiv Nanda (2012) 8 SCC 450-has held as under:-
98. We notice, in the instant case, the key prosecution witnesses PW1 - Harishankar, PW2 - Manoj Malik, PW3 - Sunil Kulkarni turned hostile. Even though the above mentioned witnesses turned hostileand Sunil Kulkarni was later examined as court witness, when we read their evidence with the evidence of others as disclosed and expert evidence, the guilt of the accused had been clearly established. In R.K. Anand (supra), the unholy alliance of Sunil Kulkarni with the defence counsel had been adversely commented upon and this Court also noticed that the damage they had tried to cause was far more serious than any other prosecution witness.
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent witthe case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. [AIR 2004 SC 524], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a wholewith due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty."
41. In view of the principle of law settled by the Hon'ble Supreme Court qua hostile witness the evidence of Jagveer (P.W-3) and Veeran babu (P.W.4) are admissible in evidence in support of prosecution case. Hence the contrary submission of learned counsel for the appellant has no force.
42. The learned counsel for the appellant has laid stress regarding absence of motive. In this regard from perusal of material on record it is clear that the offence has been committed in the presence of Ramesh Chand(P.W.1),Dharmpal(P.W.2), Jagveer (P.W.3) and Veeran Babu (P.W.4). Ramesh Chand (P.W.1), in his statement has clearly stated that there was previous enmity with the accused-appellant Beeru since last four years prior to the occurrence and also between accused-appellant Beeru and deceased Jai Prakash as the sister of accused-appellant Beeru was of bad character and he had suspicion at the deceased Jai Prakash in this regard. On the account of that suspicion the accused-appellant Beeru had committed murder of deceased Jai Prakash. In cross examination he has further stated that a consolidation proceedings ensued regarding the land dispute between his mother and the mother of accused-appellant. The fact of land dispute and previous enmity is also proved from the documents filed by the accused-appellant before the trial court. Thus, the motive for causing the occurrence has been proved by the prosecution.
43. The Apex Court in the case of Shivaji Genu Mohite Vs. State of Maharashtra AIR 1973 (SC) 55 while discussing the necessity of motive in criminal case has ruled as under:-
" Assuming that the prosecution evidence was not sufficient or cogent enough for a motive to be spelt out of it, the fact that the prosecution was not able to discover such an impelling motive would not reflect upon the credibility of a witness, proved to be a reliable eye-witness."
44. Thus, in view of the above discussion though the motive is not essential element in cases where the direct evidence has been produced by the prosecution and the eye witnesses are reliable and trustworthy, the prosecution in this case which is based on reliable and direct evidence of eye witnesses whose presence has been found as natural at the place of occurrence, has also proved the motive. Hence there is no force in the submission of learned counsel for the appellant that the motive has not been proved.
45. The learned counsel for the appellant has further submitted that as per the prosecution case the deceased had died at 10.00 a.m. whereas semi digested food was found in his stomach during postmortem examination. No water was found in the lungs and stomach of deceased Jai Prakash, his clothes were dry whereas according to prosecution case after causing injury the accused-appellant and his associates had thrown the body of deceased in the canal. However the material on record shows that the occurrence had happened on 16.12.1991 at 10.00 a.m. and the inquest report was prepared at 2.30 p.m. whereas the postmortem of deceased Jai Prakash was conducted on 17.12.1991 at 2.30 p.m. Ramesh Chand (P.W-1) has stated that the deceased Jai Prakash died prior to pushing him in the canal by the accused-appellant and his associates. Dharmpal (P.W.2) has also stated that after shot was fired the deceased Jai Prakash fell down thereafter accused-appellant Beeru caught his hand and his associates caught his legs and thrown his dead body into canal. Thus it is clear that the deceased Jai Prakash had already died prior to pushing him into canal. Dr. Sunil Kumar (P.W.8) has also stated that on account of the head injury the deceased Jai Prakash would have died within 10-15 minutes. This witness has not stated regarding possibility of presence of water in lungs or stomach of deceased if his dead body was thrown into canal after his death. Thus, we are of the opinion that since the deceased was thrown after his death into canal, absence of water in his stomach or lungs will not affect to the prosecution case adversely. Similarly the presence of semi digested food in the stomach of deceased Jai Prakash will also not affect the prosecution case as at the time of occurrence deceased was going to his school and had departed from his house at 9.00 a.m. It means that prior to his departure he would have taken his meal or breakfast. In addition to it time of causing of death of deceased Jai Prakash is not disputed in this case because hostile witnesses Jagveer (P.W3) and Veeran Babu(P.W.4) have also stated that the occurrence had taken place at 10.00 a.m. on 16.12.1991. The defence counsel had not cross examined the prosecution witnesses regarding time of occurrence. Thus, in view of the above discussion we are of the considered opinion that ocular evidence is wholly corroborated by medical evidence and there is no substance in the submission of learned counsel for the appellant in this regard.
46. The learned counsel for the appellant has submitted that the first information report is anti timed and it had been lodged after inordinate delay with due deliberation. Record shows that the alleged occurrence had happened at about 10.00 a.m. and the first information report had been lodged at 1.30 p.m. on the same day. According to Ramesh Chand (P.W.1) he got the first information report scribed at the place of occurrence near the corpse of deceased Jai Prakash by Rajkumar and after putting his signature, he had given written report of the occurrence to H.C. Sri Shyam Lal (P.W.6). Ramesh Chand (P.W.1) has not stated anything in his cross examination whereby it can be assumed that the report of the occurrence was lodged at any other point of time as mentioned in (Ex.ka.2) chik F.I.R. Similarly Shyam Lal (P.W.6) who had lodged (Ex.ka.2) chik F.I.R and entered the information in G.D. report (Ex.ka.3) has also not stated anything whereby it can be assumed that the first information report was lodged at any time other than at 1.30 p.m. on 16.12.1991. In addition to it the distance between the place of occurrence and police station Sikandarabad , District Bulandshahar has been mentioned as 10 kilometer in (Ex.ka.2). This fact has also not been disputed by the learned counsel for the appellant. It also transpires from the statement of Con. Sanjai Kumar (P.W.5) and S.I. Hukum Singh (P.W.7) that after lodging the first information report they had reached at the place of occurrence and the process of preparation of inquest report of corpse of deceased Jai Prakash was started at 14.30 hours on 16.12.1991.Thus, in view of the above facts and circumstance it is clear that neither the first information report is anti timed nor any unreasonable delay had been caused in lodging the same. The submission of learned counsel for the appellant in this regard has no force.
47. It is pertinent to mention here that all the witnesses were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their testimonies. Their testimonies have been well supported by the medical evidence. The minor discrepancies in the first information report will not overshadow the prosecution version. There is complete consistency and coherence in the examination-in-chief and cross-examination of the prosecution witnesses. The place, time and date on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, There is nothing on record to show that the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely absolving the actual assailants. The learned trial court has elaborately discussed the evidence led by the prosecution in the light of argument advanced by the prosecution as well as the defence. The impugned judgment and order requires no interference and liable to be affirmed.
48. Now the question arises as to whether sentence passed by the trial court is just and proper or not. Accused-appellant has been convicted by the trial court for offence u/s 302 I.P.C read with section 34 I.P.C for life imprisonment, for offence u/s 394 I.P.C for rigorous imprisonment for a period of three years and for offence u/s 404 I.P.C for a period of one year rigorous imprisonment. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:-
"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".-
49. Looking into the nature and gravity of the offence, we are of the view that punishment awarded by the trial court is just and appropriate and requires no interference. Appeal is liable to be dismissed and impugned judgment and order passed by the learned trial court is liable to be affirmed.
50. In the light of above discussion the appeal is hereby dismissed. The impugned judgment and order dated 25.9.1996 passed by Addl Session Judge, court no.4, Bulandshahar, in Session Trial No. 231 of 1992 (State vs. Beeru) is maintained and affirmed.
51. Accused-appellant Beeru is on bail, his personal bonds are cancelled and sureties stand discharged. He is directed to surrender before the C.J.M. concerned immediately to serve out the sentence awarded to him by the trial court. In case he fails to surrender, as directed above, the C.J.M concerned is directed to take coercive action against him in this regard, thereafter, compliance report be also communicated to this Court.
52. Let a copy of this judgment alongwith the lower court record be sent immediately to the Session Judge and the C.J.M. concerned for necessary compliance.
Dated : 26.03.2019 G.S.