Phool Chand & Another vs State Of U.P. on 20 April, 2017

[Cites 5, Cited by 8]

Allahabad High Court

Phool Chand & Another vs State Of U.P. on 20 April, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) Heard Sri I.M. Khan, learned Advocate assisted by Ms. Puneeta Pandey and Kumari Shweta Pandey, learned counsel for the appellants, Sri A.N. Mulla, Kumari Meena, learned A.G.As. for the State and Smt. Manju Thakur, learned state brief holder and perused the record.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 23.02.1995 passed by the VIII Additional District and Sessions Judge, Fatehpur, in Sessions Trial No.731 of 1992 (State Vs. Phool Chand and others) arising out of Case Crime No.153 of 1992, under Section 302 IPC, Police Station- Lallauli, District- Fatehpur, whereby the accused appellants have been sentenced to life imprisonment under Section 302 IPC.

Gravamen of the charge is rooted in the FIR, which discloses fact that the written report was lodged at Police Station- Lallauli, District- Fatehpur on 07.08.1992 at 11.30 A.M. by Sri Ram Vishal S/o Sri Sankat Nai, R/o Thawai, Police Station- Lallauli, District- Fatehpur, wherein, allegations were made to the effect that murder of Ram Chand Kori brother of Phool Chand of informant's village was committed in the month of February, 1992. This murder was committed by Ram Nazar Singh S/o Ranjit Singh Thakur R/o Thawai, Narendra Singh @ Dhunari S/o Ganga Dhar Singh R/o Thawai and Ram Singh S/o Ram Lal R/o Kanjerdera Gauri. Today (07.08.1992) morning at about 8.30 A.M., Ram Nazar Singh was washing his mouth at the government hand-pump installed in front of his door. In the meanwhile, Phool Chand S/o Gayadeen Kori, Vijay Bahadur and Chunnu both S/o Ram Jiwan Mali, who were resident of village Thawai along with elder brother-in-law of Phool Chand Kori who resides in district Banda out of animosity on account of murder of Ram Chand Kori arrived on the spot; Phool Chand was possessing gun, whereas, the rest of the accused were possessing axe. Shot was fired on Ram Nazar Singh, which was followed by assault being caused with axe by the accused. This incident was witnessed by the informant (Ram Vishal), who was coming over there to the house of Ram Nazar Singh after cutting hair from Pariharan Tola. It has been described in the F.I.R. that Ram Nazar Singh fell down because of the injuries sustained by him. On alarm being raised by the informant, few persons of the village arrived on the spot and they also witnessed the incident. The assailants made their escape good from the spot. Informant along with Ram Bahadur Singh, Suraj Bhan Singh, Uttam Singh, Jauhari, Raj Kumar Singh, Shiv Narain, Balram and Indrapal etc. were carrying Ram Nazar Singh on a cot to the police station, when Ram Nazar Singh succumbed to his injuries on way (to the police station). Dead body has been brought at the police station. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1.

Contents of written report were taken down in the check FIR at Case Crime No.153/1992, under Section 302 IPC at Police Station- Lallauli, District- Fatehpur on 7.8.1992 at 11.30 A.M. The check FIR is Ex.Ka.13. On the basis of entry so made in the check FIR, a case was registered at Serial No.15 of G.D. of the date at 11.30 A.M. at aforesaid case crime number under aforesaid section of IPC against the accused. Copy of GD entry is Ex.Ka.14.

Kalu Ram P.W.6 swung into action and he took note of contents of FIR and concerned General Diary and instructed S.I. Lal Singh Yadav P.W.5 to hold inquest of deceased- Ram Nazar Singh on 07.08.1992. Consequently, inquest of deceased was held at a place about 50 steps away from the gate of police station- Lallauli. Preparation of inquest commenced at 12.10 P.M. and was completed at 1.15 P.M. on 07.08.1992. The inquest report is Exhibit Ka-3. Opinion was expressed for conducting postmortem examination of the dead body for ascertaining real cause of death and in the process relevant papers were also prepared like- letter to R.I., letter to C.M.O., photonash, specimen seal, challan dead body, which have been marked as Exhibit Ka-4 to Exhibit Ka-8, respectively. Form 33 is Exhibit Ka-9. Thereafter, Constable Basant Lal and Home Guard- Brij Bihari were entrusted with the safe custody of the corpse for conveying the same over to mortuary.

Record reflects that postmortem examination on the cadaver of deceased was conducted by Dr. S.S. Banarjee P.W.4 on 08.08.1992 at 3.10 P.M., wherein, following ante-mortem injuries were noted on the body:-

Ante-mortem injuries :

(1) Incised wound 1 cm x ½ cm x bone deep on left eyebrow.

(2) Incised wound 2 cm x ½ cm x bone deep at left eyebrow at 90 degree to injury no.1 and situated at the medial end of left eyebrow.

(3) Incised wound 4 cm x ½ cm x bone deep on right eyebrow.

(4) Incised wound 5 cm x ½ cm x bone deep situated horizontally on the right side of the head 8.5 cm above right eyebrow.

(5) Incised wound 6 cm x ½ cm x bone deep situated obliquely on the right side of head, medial end of injury merging with medial end of injury no.4. Lateral end extending upto 11 cm from right ear.

(6) Incised wound 6 cm x ½ cm x brain cavity deep situated in the back of right lateral side of head, vertical in direction, 7 cm above right ear.

(7) Incised wound 4 cm x ½ cm x bone deep parallel to injury no.6 and 1 cm apart.

(8) Incised wound 3 cm x ½ cm x bone deep parallel and 1 cm apart from injury no.7.

(9) Incised wound 2 cm x ½ cm x bone deep parallel and 1 cm apart from injury no.8.

(10) Incised wound 4 cm x ½ cm x bone deep situated horizontally at the base of injury nos.6, 7, 8 and 9 and 9 cm above neck.

(11) Incised wound antero-posteriorly on the middle of head 4 cm x ½ cm x bone deep.

(12) Tattooing scattered in an area of 45 cm x 32 cm on the right lateral side of chest and abdomen.

(13) Firearm wound of entry measuring 2 cm x 1.5 cm on the right lateral side of abdomen 5 cm above right iliac crest. Margins inverted, blackening, tattooing present around wound. On dissection, the direction is right to left slightly upward injuring in the its way the left kidney, spleen, left done of diaphragm, left pleura, left lung.

(14) Firearm wound of exit 3 cm x 2 cm on left lateral side of chest 17 cm above left iliac crest. Margins inverted. This wound of exit is in continuation to injury no.13.

Injury shown in police record at right elbow joint is infact old heeled abrasions.

Cause of death was stated to be shock and haemorrahage due to ante-mortem injuries. Postmortem examination report has been proved by Dr. S.S. Banarjee P.W.4 as Exhibit Ka-2.

Investigation was in progress and at the instance of the informant site plan of the incident was prepared by the Investigating Officer, which has been proved by him as Exhibit Ka-11. The Investigating Officer also collected simple and blood stained clay-roll from the spot and got the memo prepared through S.I. Lal Singh Yadav P.W.5, which is Exhibit Ka-10. He also recorded statement of various witnesses including formal witnesses and after completing the investigation filed charge-sheet, Exhibit Ka-12 against the accused.

Consequently, proceeding of the case was committed to the court of Sessions where it was numbered as Sessions Trial No. 731 of 1992 and was transferred to the court of VIII Additional Sessions Judge, Fatehpur for conduction and disposal of trial.

The trial court heard the prosecution and the accused on point of charge and was prima facie satisfied with the case against the accused Phool Chand- under Section 302 IPC; and under Section 302/34 I.P.C., against accused Chunnu and Daya Ram. Accordingly, charge was framed and read over and explained to the accused, who abjured charge and claimed to be tried.

Consequently, the prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the same is sketched herein below:-

Ram Vishal P.W.1 is the informant and he has lodged the first information report, Exhibit Ka-1 and he is an eye-witness of the occurrence.

Narendra Singh P.W.2 is also and eye-witness of the occurrence.

Ram Bahadur P.W.3 is the scribe of the written report.

Dr. S.S. Banarjee P.W.4 has conducted autopsy on the dead body of deceased- Ram Nazar Singh at 03.10 P.M. on 08.08.1992 and has proved postmortem examination report Exhibit Ka-2.

Lal Singh Yadav, S.I. P.W.5 has held inquest of the deceased and has also prepared certain relevant papers under supervision of Kalu Ram (I.O.) P.W.6.

Kalu Ram P.W.6 is the Investigating Officer. He has detailed the various steps, whereby he prepared the site plan (Exhibit Ka-11) and completed the investigation. He has filed charge-sheet against the accused (Exhibit Ka-12).

R.P. Misra P.W.7 was Head Moharrir at Police Station- Lallauli on 07.08.1992 and the has entered relevant entry in the concerned Check FIR and GD and has proved the process as Ex.Ka.14 and Ex.Ka.15.

Except as above, no other testimony whatsoever was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, they claimed to have been falsely implicated in this case on account of enmity.

Accused- Daya Ram has stated that Phool chand was his brother-in-law and he was suffering from tuberculosis and he used to reside in the village from prior to the incident and therefore, he has been falsely implicated in this case.

Accused- Chunnu has stated that he was the witness in the case of murder of Ram Chand Kori, therefore, he has been falsely roped in in this case.

Accused- Phool Chand has stated that his brother Ram Chand Kori was murdered and he had reported the matter against the informant side, therefore, informant side was inimical to him, therefore they are falsely deposing against him.

The defence has not led any evidence, whatsoever.

Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced accused-appellants- Phool Chand, Chunnu and Daya Ram to imprisonment for life under Section 302 IPC.

Feeling aggrieved by the same judgment and order of conviction and sentence, the accused have preferred this appeal.

It has been vociferously claimed on behalf of the appellants that no witness has seen the actual occurrence. It appears that someone killed the deceased Ram Nazar in the darkness of night and the informant came to know about the incident only after the dead body was recovered. The site plan indicates that the fire was shot from a distance of about 8 to 10 feet, but there is blackening and tattooing in the gunshot wound, which is suggestive of fact that the fire was shot from close range. Noticeable that the site plan describes 'Chabutra' (elevated platform)- the place from where the shot was fired and the exact spot has been marked by word 'e' and the place from where shot hit the deceased has been marked by word 'A' and the position of 'chabutra' is at higher level than the place marked by 'A', where the shot hit the deceased. But the doctor has noted in his postmortem examination that the wound, which hit the deceased, had its direction slightly upwards, which under circumstances is not possible. All this shows that the medical testimony is not in consonance with the ocular testimony. That way, the FIR itself is ante-timed and the time of the incident has been deliberately changed. The doctor who conducted postmortem examination, has himself confirmed that the deceased might have died instantaneously after he sustained injuries, whereas, the ocular testimony has come forth to the ambit that the deceased was alive after he sustained gunshot injury. Presence of Ram Vishal P.W.1 on the spot is highly doubtful. He happens to be a chance witness and he is deposing because he is intimate to the family of the deceased and he was the family barber of the family of the deceased. The motive imputed for committing the crime is based on imagination and guesswork. No reliance can be placed on the motive ascribed in the first information report as the real cause behind the crime. The Investigating Officer has also not conducted the investigation fairly and he has colluded with the informant side in order to falsely implicate the accused in this case. The wholesome testimony on record does not inspire confidence and it lacks consistency. The trial court while considering merit of the case has woefully failed to assess and evaluate the testimony on record, qua facts and circumstances of the case, and it has recorded erroneous and perverse finding of conviction. Prosecution has failed to prove its case beyond reasonable doubt.

While retorting to aforesaid contention, learned AGA has submitted that in this case, as far as eye-account testimony of the occurrence is concerned, it has very much proved the incident in a coherent and consistent manner. The incident has been described by the prosecution witnesses of fact with all particulars. Presence of Ram Vishal P.W.1 on the spot is natural and specific reason has also been detailed as to how Ram Vishal P.W.1 reached on the spot when he saw the incident. The incident took place before Ram Vishal P.W.1 and Narendra Singh P.W.2, about which no doubt can be raised. Ram Vishal P.W.1 is neither abhorrent nor inimical towards the accused and there was no occasion for him to falsely implicate the accused in this case, leaving the real perpetrator at large. FIR under circumstance is prompt. The testimony of doctor is of opinionative value and it not conclusive. The ocular testimony is in consonance with the medical testimony on record. No Universal definition can be applied in case of direction of a shot as that would occur after the shot had hit the human body. The wholesome testimony on record consistently proves case for the prosecution and it establishes charge beyond doubt.

Learned trial Judge has rightly convicted the accused and has sentenced them to life imprisonment.

We have considered the above submissions and the rival claims, pros and cons.

In the light of above, the point for determination of this appeal relates to fact whether the prosecution has been able to prove its case beyond all reasonable doubt against the accused?

In this case, so far as death of deceased is concerned, the same is admitted to both the sides with certain deviation by the defence that death was caused in the darkness by some unknown persons and not by the accused. In this view of the matter, we have to critically scrutinize the testimony of the prosecution witnesses and particularly testimony of witnesses of fact, who claim themselves to have been present on the spot and to have witnessed the incident. As per the contents of first information report, we gather that allegations have been made to the extent that murder of Ram Chand Kori brother of Phool Chand of informant's village was committed in the month of February last (1992). In this murder case Ram Nazar Singh, Narendra Singh @ Dhunari and Ram Singh were apprehended. On the day of occurrence, it was around 8.30 A.M. Ram Nazar Singh (deceased) was washing his mouth at the government hand-pump installed in front of his door, when out of animosity of aforesaid murder of Ram Chand Kori, accused Phool Chand S/o Gayadeen Kori, Vijay Bahadur and Chunnu S/o Ram Jiwawan Mali of village- Thawai, elder brother-in-law of Phool Chand Kori, who resides in Banda, appeared on the spot and Phool Chand Kori was possessing gun, whereas the rest of the other accused were possessing axe. All the four persons came near to Ram Nazar and immediately fired on him and rest of the accused started assaulting Ram Nazar Singh with their axe. At the same time, the informant Ram Vishal S/o Sankat Nai, R/o Thawai was coming over there to Ram Nazar Singh's house for cutting his hair also arrived on the spot, he saw the incident and Ram Nazar Singh after sustaining injury fell on the ground. An alarm was raised by the informant, whereupon, few persons of the village arrived on the spot. They also saw the incident, challenged the accused whereupon the accused fled away from the scene. The informant and others put the injured on a cot and they were carrying him over to the police station when Ram Nazar succumbed to his injuries on way to police station. The dead body was kept about 50 steps away from the police station and the report was lodged.

Contention has been raised on point that the timing suggested by the prosecution regarding lodging of the FIR is practically not possible. The suggestion has been made to Ram Vishal P.W.1 as to when he started from his home, then he replied to the same that he was coming from Pariharan Tola, which is located from the place of occurrence at a distance of 3 to 4 lathi (unit of measurement of distance in rural areas) after 2-3 houses. It means he was cutting hair of villagers at nearby place after 2-3 houses and was on way to the house of Ram Nazar Singh, when the incident took place. He has further testified on fact about the number of persons whose hair he cut at Pariharan Tola, whereupon, he has stated that he cut hair of 3-4 persons of Pariharan Tola and he took 2-3 minutes in cutting hair of one person. Specific contention has been raised that the incident is alleged to have occurred at 8.30 A.M. on 7.8.1992 and Ram Vishal P.W.1 testifies that he started from his home for cutting hair of persons of Pariharan Tola at 8.30 A.M., then how can he witness the incident, which according to his version occurred at 8.30 A.M. In this particular backdrop of the case, it can be conveniently observed that the statistical precision of timing suggested by Ram Vishal P.W.1, cannot be normally adhered to and minute to minute detail of each moment of occurrence and qua pre-occurrence timing cannot be equated mathematically, because the barber was not telling timing after watching any watch. But he would be anticipating the timing and it cannot be said that what he exactly spelt about the timing, was the actual time at that point of time without any variation or margin. Some variation in timing is practically admissible. Testimonial account of Ram Vishal lays stress that the incident took place around 8.30 A.M. and by that time he arrived on the spot. As per testimony of Ram Vishal P.W.1, it is reflected that on the day of occurrence, he was proceeding towards house of Ram Nazar Singh for cutting his hair and when he reached on the spot he saw Ram Nazar Singh washing his mouth at the government hand pump, which was installed in front of his house. He saw all the four accused persons present on the spot. Phool Chand was possessing gun, whereas other accused were possessing axe. Phool Chand fired with his gun on the accused, which fire hit deceased Ram Nazar, he fell on the ground and simultaneously the deceased was assaulted with axe by the rest of the accused. The informant raised alarm, whereupon, Ram Bahadur, Puttan, Suraj Bhan, Jwahir, Shiv Narain, Narendra of the village arrived on the spot. They challenged the accused, when they (accused) made their escape good from the scene. At that point of time deceased was alive, therefore, he was put on a cot and was being taken to the police station, besides the informant by Ram Bahadur, Puttan, Balram, Indrapal, Narendra; but the injured succumbed to his injuries on way to the police station. The written report was scribed by Ram Bahadur Singh P.W.3 near Lallauli bus-stand. The report was written at the dictation of Ram Vishal- P.W.1- and after the report was read over to him, then he impressed his thumb impression on it. This witness has proved the written report as Ex.Ka.1. He has specifically stated in his cross-examination that Ram Nazar Singh, the deceased, was not his family member. He had no evil intent to falsely involve the accused in this case while sparing the real culprit. We may observe that Ram Bahadur Singh P.W.3 has testified to the effect that the report was written by him at the instance of Ram Vishal P.W.1. He has categorically deposed that the wrote in the report whatever was dictated by Ram Vishal- the informant. He has also verified that he wrote this report at the Lallauli bus-stand.

In the same line of argument, it has been impressed upon us that the distance from the place of occurrence to the police station- Lallauli has been rated 10 kms in the Check FIR. Ram Vishal P.W.1 says that they started for the police station on foot by putting injured/deceased on a cot around 9-9.30 A.M. on 7.8.1992. It has also been added by Ram Vishal P.W.1 that on way to police station- Lallauli, there was a bus-stand en-route, where the scribe Ram Bahadur P.W.3 wrote the written report at the dictation of Ram Vishal- P.W.1 and in the process, at least half an hour time must have been taken, that way hardly one and a quarter hour was left for the informant to reach to the police station. Under Circumstances, it can be anticipated that four persons taking a man on a cot, would hardly travel 10 kms. distance within one and a quarter hour, therefore, lodging of the FIR at 11.30 A.M. at police station- Lallauli becomes dubious and ante-timed.

We hardly see any force in the above contention for two fold reasons:-

First, version of Ram Vishal P.W.1 makes out a case that soon after the occurrence, the informant along with others started for police station around 9/9.30 A.M. and on way to police station, the deceased succumbed to his injuries at village- Bandhwa, then they got the report written at bus-stand Lallauli and thereafter they set out for the police station. It has come in the testimony that they hurried their efforts for reading at the police station.

Next, if the informant is supposed to have started around 9/9.15 A.M. from his village, then they must have reached the police station by 11.00 A.M. within two hours. Therefore, covering a space of ten kilometers within two hours cannot be an impossible task.

It can be conveniently seen that lodging of the FIR at 11.30 A.M. has also been verified by R.P. Misra P.W.7, who was posted as Head Moharrir at Police Station- Lallauli on the day of occurrence on 7.8.1992 and he has testified to fact that the written report was given to him and then he made entry in the relevant Check FIR, Exhibit Ka-13 and case was registered, vide G.D. entry no.15 at 11.30 A.M. In the above factual backdrop of the case, possibility of the informant reaching the police station- Lallauli by 11.30 A.M. cannot be rendered dubious. Here, there is no advantage in concealing the time factor regarding lodging of the FIR in the present context because had they reached late at the police station, the same could have been well explained and time could have been well extended beyond 11.30 A.M. and no advantage can be gained by the informant by unnecessarily reducing the time of the FIR around 11.30 A.M. Therefore, there was hardly any occasion for the informant to go tricky with the timing of lodging of the FIR.

At this stage, we come across testimony of Lal Singh Yadav P.W.5, who held inquest of deceased- whose body had been kept 50 steps away from the gate of the police station. This witness has proved the inquest report as Exhibit Ka-3. Perusal of Exhibit Ka-3 reflects that it bears case crime no.153 of 1992 and the relevant section of Indian Penal Code. It divulges fact that the preparation of inquest commenced at 12.10 P.M. and completed at 1.15 P.M. That way consistency of lodging of the FIR becomes substantiated not only by the testimony of prosecution witnesses but also from the circumstances of the case, therefore, it cannot be said that the FIR in question is ante-timed.

We have already discussed about eye-account testimony of occurrence coming forth from Ram Vishal P.W.1 that he was present on the spot and he saw the occurrence. On the point of occurrence, we have been impressed upon by the learned counsel for the appellants that Ram Vishal P.W.1 was not in a position to see the occurrence by himself. We do not agree with the above contention, for the simple reason that the site plan Exhibit Ka-11, which was prepared by the Investigating Officer- Kalu Ram P.W.6 has specifically stated that this site plan was prepared at the pointing out of the informant.

Bare perusal of the site plan shows place 'B' as the place from where Ram Vishal P.W.1 saw the occurrence. It cannot be said that the place of occurrence is not visible from spot 'B'. The real place where the shot hit the deceased, has been marked by word 'A', which is within visibility of the place spotted by word 'B' where Ram Vishal was standing at the time of occurrence and from where he saw the occurrence. Similarly, place marked by word 'D' is the place where assault was caused to the deceased by the rest of the accused with their axe. From spot 'A' blood stained soil was also recovered by the Investigating Officer. Therefore, the place of occurrence is certain and there is no ambiguity regarding the same. Place of occurrence is the place where the hand-pump was installed and the place 'B' shows the physical presence of Ram Vishal P.W.1 at that particular spot at the time of occurrence, therefore, to say that he was not in a position to see the incident, stands diluted.

Moreover, no strong conspicuous circumstance or fact has been indicated or inferable as to how and why Ram Vishal P.W.1, who is not relative of deceased side, would falsely involve the accused- appellants persons with whom he has no cause of action or animosity.

At the same stage, we also collect some substantial testimony of another eye-witness Narendra Singh P.W.2. He is also resident of the same village where the incident occurred. His testimony divulges that at the time of the occurrence, he was sitting outside his house in 'varanda' (courtyard). He heard sound of fire and alarm raised by Ram Vishal P.W.1 and he arrived at the place of occurrence, as the same lies near to his house. When he arrived on the spot, he saw Phool Chand possessing gun in his hand by which he had shot on Ram Nazar Singh (deceased); and Chunnu, Vijay Bahadur and Daya Ram were possessing axe and they began to assault Ram Nazar Singh with axe. However, in his cross-examination, he has testified to the ambit that he is one of the accused in the murder of Ram Chand, brother of Phool Chand. He also testified that he saw Ram Vishal P.W.1, when he arrived on the spot. As per his testimony, it can be easily gathered without strain that he did not see the incident of firing caused by Phool Chand, because he arrived on the spot, only after he heard sound of fire and alarm raised by Ram Chand. This by itself is indicative and suggestive of fact that he might have arrived at the spot after the incident had commenced. It means he arrived on the spot during the continuance of the occurrence and he witnessed at least the assault being caused on Ram Nazar Singh by the other accused persons on the spot with axe. Therefore, his testimony too corroborates testimony of Ram Vishal P.W.1 regarding the occurrence. It is true that Narendra Singh P.W.2 has a cause for not speaking the truth, but site plan Exhibit Ka-11 indicates that house of Narendra Singh P.W.2 is the house shown by name- "house of Gangadhar Singh Thakur." This house lies to the extreme west side of the place of occurrence. No doubt, Narendra Singh P.W.2 can conveniently reach to the spot in a little short while after he heard sound of fire and alarm raised on the spot.. Therefore, both Ram Vishal P.W.1 and Narendra Singh P.W.2 prove the factum of incident having been caused by the present appellants on 7.8.1992 around 8.30 A.M., which resulted into death of the deceased.

Now, we switch over to the testimony of Dr. S.S. Banarjee P.W.4, who conducted postmortem examination on the dead body of deceased on 8.8.1992 at 3.10 P.M., wherein, he has noted as many as 14 ante-mortem injuries and injury no.13 relates to gunshot wound, wherein, blackening and tattooing was noticed. It has been claimed on behalf of the appellant that the distance between place 'A' and place 'e' has been stated to be approximately 8 steps, which means the distance between the two spot must have been at least 16 feet and firing from such distance would hardly have caused blackening and tattooing. We do not subscribe to above contention for the reason that it is not admissible that tattooing will be caused only when firing has been done from close range from a distance of 2-3 feet, but the heat of pellets can also cause blackening and it depends upon the nature of the pellets and the gun-powder used in the cartridges. Therefore, symptoms of blackening and tattooing would not create any adverse circumstance an would not make any doubt in the otherwise innocuous testimony of the prosecution witnesses of fact.

Dr. witness has testified that the death in question might have occurred instantaneously and as per testimony of Ram Vishal P.W.1, the deceased was alive, when they saw him after the assailants had escaped from the scene. Here, it can be conveniently observed that power of observation of each person differs and may be that the deceased was gasping and was taking his last breath and his dying process was on and it cannot be accepted that the deceased remained alive for long period after the injuries were caused to him, therefore, testimony of Ram Vishal P.W.1 and Narendra Singh P.W.2 cannot be rendered doubtful because the doctor says that the death might have occurred instantaneous. Thus, opinion of doctor cannot be given conclusive shape qua attendant facts and circumstances of this case.

There is no material contradiction appearing in the testimony of the prosecution witnesses of fact. If the names of all the witnesses, who witnessed the occurrence, do not figure in the written report, that by itself would not allude to inference that the testimony of the informant eye-witnesses is unworthy of credit or vacillating. We have already discussed fact that the presence of Ram Vishal P.W.1 the informant on the spot has been convincingly proved both on facts and by cogent attendant circumstances of the case, which cannot be doubted and faulted with.

It is cardinal principle of criminal jurisprudence that prosecution would have to prove its case beyond all reasonable doubt by producing convincing and clinching testimony in order to prove guilt of the accused. Here in this case testimony of witnesses of fact is consistent, clinching and creditworthiness of the witnesses of fact is found to be intact and inspiring confidence.

The above critical scrutiny regarding the evidence, facts and circumstances of the case goes to unravel the truth in favour of the prosecution that it has successfully proved the incident to have been caused by the appellants on 7.8.1992 at 8.30 A.M. at village- Thawai, whereby, they murdered Ram Nazar Singh by using weapons- gun and axe- and consequently, the conviction recorded and sentence awarded by the learned trial Judge in Sessions Trial No.731 of 1992 (State Vs. Phool Chand and others) arising out of Case Crime No.153 of 1992, under Section 302 IPC, Police Station- Lallauli, District- Fatehpur against the appellants is justified and the same is upheld by us.

Arguments advanced in support of this appeal sans merit and the appeal is dismissed.

Appellant- Phool Chand is on bail. His bail bonds and sureties are hereby cancelled. He shall be taken into custody forthwith for serving out the remaining sentence.

Appellants- Chunnu and Daya Ram are in jail. They shall serve out their remaining sentence.

Let a copy of this order/judgment be certified to the court below for necessary information an follow up action.

Order Date:-20th April, 2017 Raj/Ishan

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