Allahabad High Court
State vs Braj Rai Singh on 20 May, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 04.04.2022 Delivered on 20.05.2022 Case :- GOVERNMENT APPEAL No. - 1880 of 1984 Appellant :- State Respondent :- Braj Rai Singh Counsel for Appellant :- A.G.A. Counsel for Respondent :- Ma,Kuldeep Johri Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
(By Narendra Kumar Johari,J.)
1. The instant Government Appeal has been filed against the judgment and order dated 09.03.1984 passed by the Additional Sessions Judge, Bareilly in S.T. No. 67 of 1993, Case Crime No. 114 of 1982, State of U.P. Vs. Braj Raj Singh and Others, under Sections 147/ 148/ 149/ 302/ 307 IPC whereby the learned Trial Court acquitted the accused persons from the charges of offence defined under Sections 302/149, 148, 307/149 IPC.
2. The record indicates that the accused Braj Raj Singh, Kandhari Singh and Master Singh have died during the pendency of instant appeal and the appeal has been abated for above accused respondents. At present accused-respondents Ram Chandra Singh and Omkar Singh are surviving. Hence, we are proceeding to consider the Governement Appeal in respect of the said accused respondents, namely, Ram Chandra Singh and Omkar Singh.
3. In brief, the facts of the case are that the informant Phoolan Singh S/o Malkhan Singh lodged the FIR under Section 147, 148, 149, 307 and 302 IPC against the accused persons Braj Raj Singh, Kandhari Singh, Omkar Singh, Ram Chandra Singh and Master Singh with the contention that accused Braj Raj Singh had taken some loan from the Lala Ram Awtar, which could not be repaid, consequently the land of Braj Raj Singh got auctioned in lieu of loan amount. The brother of informant Buddha Singh took part in auction proceedings and was successful bidder. He paid Rs. 8,000/- as auctioned money but due to subsequent litigation Buddha Singh could not get possession over the property auctioned. Since Buddha Singh had purchased the aforesaid land of Braj Raj Singh in auction, therefore, Braj Raj Singh and his family members were feeling enmity with Buddha Singh. On 29.10.1982 at about 3.00 p.m. the informant alongwith his brother Buddha Singh was going with his animals towards pond for providing them bath, as they reached near the hut (Mandvi/Chhappar) of accused Master Singh, the accused persons who were carrying the guns in their hand came out from inside the hut of Master Singh. Accused Braj Raj Singh exhorted them to kill. As the informant and Buddha Singh saw and felt intention of the armed accused persons and heard the voice of exhortation they ran towards north east by raising alarm to save their life. After running some distance informant and Buddha Singh for taking shelter, entered into the house of Phoolan Singh S/o Lakhan Singh and tried to close the door. At same time all the accused persons, who were chasing them reached there and opened fire on informant and Buddha Singh with intention to kill. The brother of the informant fell down by receiving the fire arm injuries, informant also received the pellet injuries on his body. At that time witnesses Phoolan Singh S/o Lakhan Singh, Bheekam Singh, Balbir Singh, Hardwari Singh, Indar Pal Singh and Badri Singh and other villagers reached on the spot. Having seen them, the accused persons fled away towards north. While causing the attack, accused persons Kandhari Singh and Ram Chandra Singh were carrying their licensee guns and Braj Raj Singh, Omkar Singh and Master Singh were carrying single barrel guns in their hands. Buddha Singh had died on the spot. Accordingly, the FIR of the occurrence was lodged under Crime No. 114 of 1982 against aforesaid accused persons at Police Station Bhuta.
4. The investigation was entrusted to S.I., Pooran Singh, who reached on spot prepared the inquest report, sent the body of the deceased for post mortem, sketched the spot map, recorded statement of witnesses, prepared the recovery memo of empty cartridge, pellets and bamboo stick. After completing investigation, the Investigating Officer submitted charge sheet against accused persons in Court concerned.
5. The trial of the case was committed to Court of Sessions, where the charges under Sections 148, 302 read with Section 149 and 307 read with Section 149 IPC were framed against the accused persons, who denied and abjured the charges, claimed not guilty and preferred trial.
6. On behalf of the prosecution informant Phoolan Singh S/o Malkhan Singh as P.W. 1, Indra Pal Singh as P.W. 2, Phoolan Singh S/o Lakhan Singh as P.W. 3, Soran Singh as P.W. 4 and Jawahar Lal as P.W. 5 recorded their statements as witnesss.
7. P.W. 1 Phoolan Singh S/o Malkhan Singh in his oral testimony narrated almost the same fact, as mentioned in the FIR. He deposed that Buddha Singh had purchased the land of Braj Raj Singh in auction, due to the said reason the accused Braj Raj Singh and his family members were enimical with Buddha Singh and in furtherance of the aforesaid enmity, on 29.10.1982 when he and his brother Buddha Singh were going towards pond with their animals, armed accused persons, who were present in the hut (Mandvi / Chhappar) of accused Master Singh seeing them (victims) came out with exhortation and threat to kill. Having seen their gesture and smelling danger, the informant and Buddha Singh ran towards north and east to save their lives. They took shelter in the house of Phoolan Singh, at the same time the accused persons, who were chasing them, rached at the door of house of Phoolan Singh S/o Lakhan Singh and opened fire on Buddha Singh and informant when they were trying to hide themselves. After receiving the fire arm injuries, Buddha Singh fell down and died on the spot, whereas informant received injuries of pellets on his body. When the witnesses and other village persons reached on the spot, the accused persons escaped. He lodged the FIR in Police Station concerned and undergone the treatment of their injuries after medical examination.
8. P.W. 2 -Indra Pal Singh, who is the S/o informant's brother stated in his oral statement that informant and Buddha Singh were going towards pond with their animals, on the way they had seen that the armed accused persons came out from the hut (Mandvi / Chhappar) of accused Master Singh and exhorted and extended threat to kill Buddha Singh. Hearing the exhortation, feeling the danger the informant and deceased turned back and ran away from the spot. The accused persons started chasing them. Having seen the above activities, the witness also followed them. The informant and deceased entered inside the open house of Phoolan Singh S/o Lakhan Singh and to save their lives, they tried to close the door of house, but all the accused persons, who had reached there, opened fire indiscriminately. In the firing of accused persons informant and Buddha Singh received fire-arm injuries. Buddha Singh died on the spot. The witness also stated that the occurrence took place due to enimity because the deceased had purchased the land of Braj Raj Singh in auction.
9. Wintess Phoolan Singh S/o Lakhan Singh deposed as P.W. 3. He did not support the prosecution case. Consequently, he had been declared as hostile witness. Although in his examination- in- chief he stated that on the date of occurrence at about 03-04 p.m., the informant and his brother Buddha Singh entered into his house raising voice for help and in his house they received the fire arm injuries, but who had opened the fire, he could not see.
10. P.W. 4 Soran Singh and P.W. 5 Jawahar Lal, as formal witnesses, have proved the investigation proceedings.
11. Since the accused persons had accepted genuineness of medical examination report of informant Phoolan Singh and post mortem report of deceased Buddha Singh, the doctors had not been produced by the prosecution.
12. In their statement under Section 313 Cr.P.C., the accused persons, except the accused Master Singh (since died), had accepted that the deceased Buddha Singh had purchased the land of Braj Raj Singh in auction. All the accused persons stated that the facts and allegations of prosecution are false and concocted. They are innocent and they have been roped in the case due to the reason of previous enmity and village party bandi.
13. Learned trial Court after hearing the arguments of rival parties acquitted the accused persons from the charges of offences defined under Sections 147, 148, 149, 302 and 307 IPC, which has been assailed by the prosecution by way of instant appeal.
14. We have heard the arguments of learned AGA as well as learned counsel for the accused respondents and perused the record carefully.
15. Learned AGA argued that judgment and order of acquittal is misconceived and bad in the eye of law. The impugned judgment and order passed by the Trial Court is against the provisions of law and same is based on conjectures and surmises. Prosecution had succeeded to prove its case beyond any shadow of doubt against the accused persons but the trial Court failed to appreciate the evidence available on record in right perspective. To substantiate his arguments, learned AGA referred the evidence of P.W. 1 and P.W. 2, who were eye witnesses of occurrence, and submitted that P.W. 1 is injured witness. The statement of eye witnesses is supported with medical evidence. The findings recorded by the Trial Court in the impugned judgment and order are perverse and same are liable to be set aside and the appeal deserves to be allowed.
16. In reply, learned counsel for the accuesed respondents vehemently opposed the arguments of learned AGA. Learned counsel for the respondents submitted that the deceased had been attacked by some unknown persons, who were interested in the lady, namely, Dhandei. She was living with deceased Buddha Singh illicitely who had enticed her. The prosecution story is false and baseless. There is no existance of hut (Chhappar/ Mandvi) of accused Master Singh (since died) in the village nor accused persons were present in the hut of accused Master Singh (since died). The alleged pond, where deceased as well as the informant were going with their animals, was dried and also was too far from the residence of victims. The accused persons are innocent. They have not committed any offence, rather they have been falsely implicated in the case by the informant due to enmity and village party bandi. The FIR was ante timed. Motive of offence has not been proved. The prosecution witnesses had given false statements. The investigation was defective and biased. The prosecution failed to prove its case against accused persons beyond reasonable doubt. Findings recorded by the trial court in the impugned judgment and order are in accordance with facts, evidence and law. The appeal has no force and is liable to be dismissed.
17. Before proceeding to discuss the submissions raised by the learned counsel for the parties, we may mention the findings of the trial court on material points in the impugned judgement and order, which are as under:
(i). There was no hut (madai) belonging to Master Singh (since died) in the village in question nor the accused persons were hiding in the said hut at the time of incident.
(ii). F.I.R. was lodged after due consultation with the help of police personnel and same is ante-timed document.
(iii). PW-1 and PW-2 are interested witnesses. They have made false statement before the Court. Their statements were not reliable.
(iv). Prosecution case is not supported with independent evidence.
(v). None has seen the incident.
(vi). Incident did not take place in the manner and style as stated by the prosecution witnesses.
(vii). Alleged motive has also not been proved by the prosecution beyond reasonable doubt.
(viii). Accused were implicated in this case due to previous enmity and parti-bandi.
(ix). The Investigating Officer has not conducted the investigation fairly.
(x). Deceased and injured witness were not going to Tall (pond) alongwith their cattle for providing them water.
(xi). There are major contradictions in the statement of prosecution witnesses on material points.
18. After outlining the findings recorded by the trial court in the impugned judgement and order on material points, we are proceeding to deal with the submissions advanced by the learned counsel for the parties.
F.I.R.:-
19. The date and time of incident, as shown in the FIR, was 03.00 p.m. on 29.10.1982 and the FIR of the case was lodged at Police Station Bhuta at 07.15 p.m. on the same day. The distance of Police Station from the place of occurrence has been shown as 08 mile (i.e. equal to approx 12.87 K.M.). P.W. 1 had stated in his evidence that after the occurrence, they moved from his village at about 04.00 p.m. to lodge FIR at Police Station concerned by bullockart and reached there in three hours and lodged the FIR. So far as the condition of informant is concerned, he had received three injuries of lacerated wound on non-vital part of the body for which the doctor opined that the injuries were simple in nature. Apart from that he had received eight wounds of .8 diameter in the part of upper abdomen. The occurence had taken place at 3.00 p.m. and FIR was lodged at 7.15 p.m. i.e. after 4.15 hours. Therefore it can not be said that the informant was not in a condition to lodge FIR. Moreover, the informant had gone under medical examination at 01.10 a.m. on 30.10.1982 i.e. after 10 hour, even then the doctor who had examined him, did not mention any srious condition of patient in his medical examination report. The genuineness of the medical examination report of informant has been accepted by the learned counsel for respondents. The witnesses of rural background have tendency to explain the conditions in exaggerate form which is natural, and does not amount to material contradiction. In view of report of injured informant, it can not be said that informant was not in fit physical condition and the FIR had been lodged by the consultation of police persons. It has also been argued by learned counsel for appellant that inquest report was having overwriting in the date of 29.10.1982, which creates doubt about timing of registration of FIR. Inadvertently or by mistake mentioning of wrong date is possible and it is quite common also, and if the wrong entry of date is corrected, and the concerning witness has given the proper explanation of such overwriting and there is no other evidence on record which may prove that such overwriting has been done knowingly or has been done to mislead any other fact, in that case such overwriting in inquest report can't be said to be fatal for prosecution case. The view taken by trial Court, regarding anti timed FIR is presumptive, wrong and against the settled law. Taking into consideration the mode of conveyance i.e. bullockart, timing mentioned in the FIR, other connecting circumstances and evidence and in absence of any evidence contrary, it can be concluded that the FIR of the occurrence was lodged with due promptness, without any unnecessary delay or consultation. It is not an ante-timed document. Finding of the Trial Court recorded in the impugned judgment and order on this point is perverse and against the evidence and settled principle of law.
Injured / eyewitnesses:-
20. The informant Phoolan Singh (P.W. 1) was an injured person, who had received the multiple injuries of pellets and soon after the occurrence had gone to Police Station along with the persons of his village, namely, Phoolan Singh S/o Lakhan Singh, Bheekam Singh, Brahm Pal Singh and Indra Pal Singh. There is no evidence of any deliberations or any conspiracy to lodge the false FIR against accused persons leaving real assailant/ culprit, if any. Five persons have been named in the FIR as accused persons assigning role to attack on deceased and informant with fire arms. The injured witness P.W. 1 had received four injuries of laccerated wound caused by pellets of fire arm. On the other hand deceased Buddha Singh had received ten injuries of gun shot entry wounds. No suggestion has been given by counsel for defence to witness P.W. 1 in his cross examination indicating the fact of any deliberation of P.W. 1 with any other person to implicate the accused persons falsely. Although, in the impugned judgment and order, to show contradiction, learned Trial Court has discussed the evidence of P.W. 2, who had mentioned in his oral statement the distance of Police Station from the place of occurrence as 18 miles, but the said distance is not proved. Apart from that witness P.W. 2 who had affixed his thumb impression on his oral evidence, seems an illiterate / rustic person. The witness P.W. 2 had stated that they reached at Police Station by 07.00 p.m. on the date of occurrence. Considering the above part of his statement, the trial Court wrongly interpreted the statement of witness P.W. 2, and wrongly believed the distance of Police Station from the place of occurrence as 18 miles. The above distance has been shown in FIR as 8 k.m. and the fact has not been confronted with the Investigating Officer in his cross examination. In absence of any evidence regarding the distance of Police Station as 18 miles, the distance mentioned in the FIR, which has been mentioned by a public servant performing his public duty, is liable to be believed and can be concluded that the FIR of the occurrence was lodged by the informant promptly.
21. The witness P.W. 1 has stated that on the date of occurrence, while going towards pond with their animal, he had accompanied his brother Buddha Singh. On the way the accused persons came out from the hut (Mandvi / Chhappar) of Master Singh (since died). The accused persons gave threat of life to deceased. Seeing the activities of the accused persons the deceased and witnesses P.W. 1 ran towards north then towards east to save their lives. The accused persons chased them and for taking shelter, when they reached inside the house of Phoolan Singh S/o Lakhan Singh, the accused persons opened fire indiscriminately from the gate of his house. It has been mentioned in the statement of P.W. 1 that in the house of Phoolan Singh the victims had tried to shut the door, but before closing the door the accused persons had reached at the gate and started firing from outside the gate in which Buddha Singh received as many as 10 fire arm injuries and fell down on the spot.
22. Learned counsel for the accused respondents has submitted that the witness P.W. 1 in his cross examination has stated that he could not see as to which accused had fired how many shots / bullets on them, therefore the witness P.W. 1 can not be termed as eyewitness. In our view, the aforesaid argument of learned counsel for the respondent is not acceptable, as at the time of firing, both the victims, (the deceased as well as the informant) were trying to save their lives. The accused persons had started firing from the gate of Phoolan Singh's house which was indicriminate, therefore, in the above situation, if the witness P.W. 1, who was under shelter and had received the pellet's injuries in firing, could not see that which of the accused had fired how many shots / bullets, (as it was asked by defence counsel in cross examination of witness), it can not be inferred that P.W. 1 was not the eye account witness of the incident. It is to be noticed that witness P.W. 1 had received the injuries of lacerated wound caused by pellets of fire arm during the course of same occurrence. Soon before the occurrence he was accompaying Buddha Singh with whom the accused persons were having enmity due to the reason that he had purchased the land of accused Braj Raj Singh in auction and was trying to take possession over the said land. In this context, learned counsel for the respondents argued that if the accused persons had opened fire to kill Buddha Singh why they left informant and Phoolan Singh S/o Lakhan Singh alive, who were also present at the place of occurrence. Learned AGA in reply has submitted that the accused persons as well as victims were resident of same village, there was direct enmity of accused persons with Buddha Singh. Only Buddha Singh was target. Therefore, if accused persons, who were not the habitual criminals, have not killed the other persons, who were also present in the house of Phoolan Singh S/o Lakhan Singh it was their natural behaviour. It is not denied that the witness P.W. 1 had not received the injuries in the same occurrence. Therefore, his presence on the spot is established and in this regard, in absence of any evidence otherwise the evidence of witness P.W. 1 is liable to be believed. In our considered view he is trustworthy witness. Finding of the Trial Court recorded in the impugned judgment and order on this point is also perverse and against the evidence and settled principle of law.
23. In the case of Surjit Singh Alias Gurmit Singh Vs. State of Punjab 1993 Supp (1) SCC 208 the Hon'ble Apex Court has held in para 9, which reads as under:-
"9. To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the marrying of the crime bullet shells with the pistol recovered was not convincing, mor so when the .303 pistol, the alleged crime weapon, was recovered from Gurmit Singh, co-accused. It is noteworthy that Gurmit Singh, co-accused, stands convicted under the Arms Act for being in possession of that pistol. This aspet of the case cannot be a substitute to the eyewitness account or the plea taken by the appellant. Had the presence of the two witnesses, that is, Jaswinder Kaur PW5 the Taljit Singh PW2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. When the two eyewitnesses are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the newphew of the deceased who had suffered grievous injuries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. The venture is futile."
24. In the case of Majju & Another Vs. State of M.P. 2002 SCC (Cri) 597, the Apex Court has held in para 5, which reads as under:-
"5. The counsel for the appellants contended that the evidence adduced by the prosecution was interested and therefore, it cannot be relied upon. It is important to note that the witnesses examined on the side of the prosecution were all injured in the incident. PW6 Ramchandra Sustained a grievous injury, in the sense that he lost one of his teeth. The other witnesses also sustained injuries. That is proved by the various medical certificates issued by the doctor who examined them. Therefore, the presence of these witnesses at the place of occurrence cannot be suspected. All these witnesses gave evidence to the effect that when they along with deceased Bihari Lal were coming from the temple after performing some ceremony, the accused surrounded and attacked them. We do not find any infirmity in the evidence of these witnesses."
25. In the case of Prithvi (Minor) Vs. Mam Raj & Others (2004) 13 SCC 279, the Apex Court held that the fact that eyewitness sustained serious injuries in the incident in question the Hon'ble Apex Court held that giving credence to the prosecution story that he was at the spot when the offence was committed.
Relative and interested witness:-
26. P.W. 2, the son of deceased's brother, is also resident of the same village and locality, therefore, his presence on the place of occurrence is not improbable. He had also given the evidence of occurrence as eye witness account and further stated that when the accused persons were firing on the deceased and informant, he had taken shelter behind the animals. No questions have been asked in cross examination of P.W. 2 challenging the above fact and there is no reason on record to disbelieve his testimony. The oral testimony of eye witnesses P.W. 1 and 2 are supported with medical examination report of injured witness P.W. 1 and with post mortem report of deceased Buddha Singh. The genuineness of its contents have been admitted by the accused persons, hence in absence of any evidence contrary, the same are admissible in evidence.
27. In the case of Kathi Bharat Vajsur and Anr. Vs. State of Gujarat AIR 2012 SC 2163 the Hon'ble Apex Court has held in para 21, which reads as under:-
"21. When the medical evidence is in consonance with the principal part of the oral / ocular evidence thereby supporting the prosecution story, there is no question of ruling out the ocular evidence merely on the ground that there are some inconsistencies or contradictions in the oral evidence. We are not inclined to agree with Shri. Dholakia on this count."
28. Learned counsel for the accused respondents has submitted that the witnesses P.W. 1 and 2 are the relative of victim and are interested witnesses. Since P.W. 1 is the real brother of the deceased Buddha Singh and P.W. 2 is the S/o Buddha Singh's brother, therefore, their evidence is not trustworthy. We are not convinced with the argument of learned counsel for the respondents. Although witnesses P.W. 1 and P.W. 2 are close relative and family members of deceased yet there is no discrepancy in their evidence on the point of occurrence. A close scrutiny of evidence of P.W. 1 and 2 indicates that there is no contradiction in their statements on material points. Neither any contrary evidence nor any cogent evidence is on record, which may prove the facts otherwise or may place the ground to disbelieve their testimony. Hence, finding of the Trial Court recorded in the impugned judgment and order on this point is also perverse and against the evidence and settled principle of law.
29. In the case of Yogesh Singh Vs. Mahabeer Singh & Others AIR 2016 SC 5160 the Hon'ble Supreme Court has held in para 28, which reads as under:-
"28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52) : (AIR 2015 SC (Supp) 1991)."
30. In the case of State of U.P. Vs. Jagdeo & Others (2003) 1 SCC 456, the Apex Court has held in para 7, which reads as under:-
"7. There are three eye-witnesses of the incident, that is, P.W.1 Ramraj son of the deceased Ram Lachhan, P.W.2 Firangi and P.W.4 Sudama, who is an injured witness and whose son Rajendra is the other deceased. The High Court doubted the evidence of these eye-witnesses merely on the ground that they had motive in supporting the prosecution case. Legally speaking, we are unable to accept this reasoning. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eye-witnesses have to be persons who have reason to be present on the scene of occurrence because they happen either to be friends or family members of the victim. The law is long settled that for the mere reason that an eye- witness can be said to be an interested witness, his/her testimony need not be rejected. For the interest which an eye-witness may have, the court can while considering his or her evidence exercise caution and give a reasonable discount, if required. But this surely cannot be reason to ignore the evidence of eye-witnesses. The High Court was clearly in error in not considering the evidence of eye-witnesses at all in the present case for the reason that they were interested witnesses. As seen earlier, one of the eye-witnesses in an injured person who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefrom he received the injuries, would be an obvious question. In fact, P.W.4 is also the father of the deceased Rajendra. It is common in villages that male members of a family sleep together in the open during summer season. Sleeping near the tube-well is understandable because that would lend some coolness to the atmosphere. The High Court totally ignored the other aspect of the evidence of the eye-witnesses. That is, the evidence was consistent and the version of the witnesses tallied with each other. In our view, there was no reason to discard the evidence of the eye-witnesses. This evidence is clinching and it clearly implicates the accused persons. There is no reason to doubt the veracity of the evidence of at least P.W.1 and P.W.4 and that is sufficient to convict the accused persons."
31. In the case of Munigadappa Meenaiah Vs. State of Andhra Pradesh (2008) 11 SCC 661, the Apex Court has held in para 10, which reads as under:-
"10. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version.
10..... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
32. In the case of Brahma Swarup & Others Vs. State of U.P. 2004 (2) JIC 827 (All), this Court has also expressed the same view.
33. In the case of Hardev Singh & Others Vs. Harbhej Singh & Others 1996 (4) Crimes 216 (SC), the Hon'ble Supreme Court has held that the evidence of close relations who testified facts relating to occurrence be not rejected merely on ground that they happened to be relatives. Evidence of such witnesses be scrutinized very carefully.
34. In the case of State of U.P. Vs. Naresh & Others (2011) ACR 370, the Apex Court has held that mere relationship cannot be a factor to affect credibility of a witness. Evidence of a witness cannot be discarded solely on the ground of his relationship with victim of offence. Contrary to the same the finding of trial Court is perverse.
Hostile witness:-
35. Although P.W. 3 Phoolan Singh S/o Lakhan Singh has not fully supported the prosecution story in his oral statement yet he is the same person in whose house the informant and deceased Buddha Singh took shelter to save their lives and on the same place they had received the fire arm injuries. P.W. 3 has not denied the above fact in his evidence. The part of oral evidence of an hostile witness, which supports the prosecution case, is admissible in evidence. So far as evidence of hostile witness is concerned, in the case of State of Rajasthan Vs. Bhawani & Another (2003) 7 SCC 291 it has been held by Hon'ble Apex Court in para no. 10, which reads as under:-
"10. The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. But the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eyewitnesses, which was of unimpeachable character. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious."
36. In the instant case in the light of the statement of P.W. 3, taking into consideration of evidence of eye witnesses P.W. 1 and 2, it can not be said that prosecution could not prove its case beyond reasonable doubt by the evidence of trustworthy witnesses. Learned Trial Court, against the settled law, has wrongly appreciated the evidence of witness P.W. 3, which resulted in acquittal of accused respondents.
Number of witnesses:-
37. Learned counsel for the accused respondents submitted that prosecution had failed to prove its case by proper / independent witness. P.W.1 and P.W. 2 are relative witness. P.W. 3 has been declared as hostile, therefore, no proper and independent witnesses have been produced by prosecution. In our view, the argument of learned counsel has no force, as no fixed / particular number of witness is prescribed in law for the proof of any fact. In this regard Section 134 of Evidence Act makes following provision:-
"134 Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact."
38. Accordingly quality of evidence is material not the number.
39. On the above point, it has been held by Apex Court in the case of Amar Singh Vs. Balwinder Singh & Others 2003 (46) ACC 619 that no particular number of witnesses are required for proof of any fact.
40. In the case of Munshi Prasad And Others Vs. State of Bihar 2002 SCC (Cri) 175, the Apex Court has held that it is the quality of the evidence and not the quantity, which is required. It is to be seen that whether prosecution has been able to bring home the charges with the evidence available on record and if the evidence on record is otherwise satisfactory and trustworthy, an increase of number of witnesses are not required.
41. Learned counsel for accused respondents also argued that the occurrence, as alleged, took place in the aabadi of village in day light even then no public witness has been procured / produced by the prosecution. The evidence on record shows that there are two groups of Thakurs in the village. The victims and assailants belong to rival groups. In general, in villages and in backward areas where generally the people are uneducated / less educated, unexperienced and rustic, nobody wants to interfere in dispute / invite enimity by giving evidence before police and Court. In society the behaviour of police with illiterate people / general public is known by everybody. Therefore, if any public witness of village concerned has not come forward as witness of the occurrence, the prosecution case does not malign, particularly when the eye witnesses have proved the FIR version by their oral evidence and which has also been corroborated by documentary evidence. It can not be said that prosecution could not prove its case by genuine and trustworthy witnesses. In the present case, evidence of P.W. 1 is corroborated with the FIR, spot map and also with the medical examination/ P.M. report of victims. The finding recorded by the trial Court in the impugned judgment and order in this regard is against the provisions of law and evidence.
42. Learned counsel for the respondents has further submitted that according to contents of FIR as well as statements of P.W. 1 and 2, the accused persons came out from the hut (Mandvi/ Chhappar) of accused Master Singh (since died). Accused Braj Raj Singh exhorted and threatened for life to deceased as well as the informant. On the above fact, learned Trial Court had concluded that there was no existence of hut (Chhappar/ Mandvi) of accused Master Singh (since died) in the village Etoria. On this point, the counsel has referred the statement of of P.W. 1 where he had stated that Master Singh (since died) has land in his village, but he could not say as to whether his name was mentioned in the voter list of village or not. He further stated that Master Singh (since died) has not purchased any land in his village nor he was given any land in Village Etoria by Gram Sabha. The witness P.W. 1 has further stated that Master Singh (since died) was a resident of District Pilibhit and his sons were living at village Berkhera. He had further stated that Chhappar of Master Singh (since died) was open and there was public pathway on the eastern and southern side of the Chhappar. In this context, learned counsel has also referred the statement of witness P.W. 2 where it has been stated by witness P.W. 2 that he did not know that Master Singh (since died) was having any land in the village or not. Master Singh (since died) was not resident of his village rather he was the resident of District Pilibhit. Taking into consideration the above part of evidence of witnesses, the Trial Court has concluded that Investigating Officer had failed to collect evidence regarding existence of property of Master Singh (since died) in village Etoria and since the witnesses P.W. 1 and 2 had admitted that the accused Master Singh (since died) was the resident of District Pilibhit, therefore, it can not be said that Chhappar, from where the accused persons came out with fire arm, belongs to accused Master Singh (since died). Since there was no hut (Mandvi / Chhappar) of Master Singh (since died), therefore the prosecution story regarding role of accused person in occurrence is false. The above argument of learned counsel for the defence is not convincing us rather it is misleading. The evidence of witnesses should be read as a whole. P.W. 1, supporting the proseuction story, has stated in his evidence that the hut (Chhappar / Mandvi), from where the armed accused persons came out to attack on victims, was of Master Singh (since died), who was the person of co-accused's favour. The witness P.W. 1 had further stated in his evidence that Master Singh (since died) had raised its Chhappar upon the land of Gram Sabha two years prior. Therefore, though he was not allotted any land from Gram Sabha yet he had raised its Chhappar over the barren land of Gram Sabha illegally. It was an unauthorised construction existed in village Etoria, at the time of occurrence. The evidence of P.W. 1 shows that the accused persons were belonging to Chauhan Thakur. At the time of occurrence, Gram Pradhan of village was of the same community. The accused persons have supported him in his election, therefore, the probability can be presumed that the Gram Pradhan might have not taken any action against Master Singh (since died) for his unauthorised construction of the Chhappar over the Gram Sabha land. In villages, unauthorised construction over the lands of Gram Sabha are very common thing. At the stage of investigation there was no dispute regarding the existence of hut (Mandvi/Chhappar) of accused Master Singh (since died) from where accused persons came out and attacked on the victims. The Investigating Officer of the case had inspected the Chhappar of accused Master Singh (since died) during his investigation and had shown it in spot map, which was sketched by him soon after the occurrence and subsequently has given the description of Master Singh's hut (Mandvi / Chhappar) in his oral evidence. He has clearly mentioned in his statement that during investigation when he reached inside the Chhappar, there were no male persons but only females were residing under the Chhappar. It is to be noted that the Investigating Officer, who has deposed as P.W. 4 has not been cross-examined by the counsel for defence on the point of existence of the hut (Chhappar / Mandvi) of accused Master Singh (since died). Neither spot map has been challenged nor any positive evidence has been produced by defence side to substantiate their case regarding non-existence of hut (Mandvi / Chhappar) of accused Master Singh (since died) in the village in question. In the light of the above facts and evidence, it is not proved that there was no existence of hut (Chhappar/Mandvi) of accused Master Singh (since died) in the village Hence, the view taken by Trial Court in the impugned judgment and order that there was no hut (Chhappar / Mandvi) of Master Singh (since died) is based upon conjecctures and surmises. The said finding is liable to be interfered with.
43. Learned counsel for the defence further stated that the deceased had enticed away a female, namely, Dhandei from her husband's house and kept her illegally / illicitely in his house as wife, for which a person, namely, Jai Singh was having enmity with deceased and due to which Jai Singh had committed the offence in question. On the above point of argument, we find that there is no evidence, either oral or documentary, on record to establish the fact that due to any enmity of aforesaid Dhandei, the offence has been committed by Jai Singh or by any other person. Hence, finding of the Trial Court recorded in the impugned judgment and order on this point is also perverse and against the evidence and settled principle of law.
Recovery of weapon:-
44. Lastly, the counsel for the defence has submitted that there is no recovery of weapon and no motive of offence is established. The statements of witnesses P.W. 4 and 5 indicates that accused were absconding from their houses and could not be arrested despite warrant of the Court and a proceeding of Sections 82/83 Cr.P.C. was initiated against Braj Raj Singh and other. The accused persons had surrendered in the Court. It was on accused persons to facilitate the recovery of fire arms used in the offence. On the other hand if they have not cooperated in investigation and have not facilitated the recovery of the incriminating weapons, it will not be fatal to prosecution case, particularly in the light of oral evidence of witnesses P.W. 1 and 2 as well as documentary evidence on record like recovery memo of empty cartridges and pellets, medical examination report of informant and post mortem report of deceased Buddha Singh, which have fully supported the case of prosecution. Therefore, finding of the Trial Court recorded in the impugned judgment and order on this point is also perverse and against the evidence and settled principle of law.
45. In the case of Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545, the Apex Court has held in paras 12 and 13, which reads as under:-
"12. In this context, we may refer with profit to the decision in Anwarul Haq v. State of U.P. [1] wherein it was held that solely because the knife that was used in committing the offence had not been recovered during the investigation could not be a factor to disregard the evidence of the prosecution witnesses who had deposed absolutely convincingly about the use of the weapon. That apart, the Court also referred to the evidence of the doctor which mentioned about the use of weapon It is worth noting that this Court observed that though the doctor's opinion about the weapon was theoretical, yet it cannot be totally wiped out. Regard being had to the aforesaid, this Court maintained the sentence of one year rigorous imprisonment under Section 324 IPC as imposed by the trial Court and concurred with by the High Court.
13. We may hasten to clarify that we are placing reliance on the aforesaid dictum as in the case at hand there is the doctor's evidence that the injury has been caused by the gunshot and the pellets have been recovered from the walls of the shop room of the accused appellant and no explanation for the same has been offered by the defence. What has been elicited in the cross-examination is that Prem Singh, the father of the injured, had a licensed gun. We really fail to fathom how the said elicitation would render any assistance to the defence. The learned sessions Judge, taking into consideration the nature of the injury and the weapon used, has convicted the accused under Section 324 IPC which has been accepted by the High Court. We perceive no fallacy either in the analysis or in the finding recorded on that score."
46. In the case of Yogesh Singh Vs. Mahabeer Singh & Others (Supra), the Apex Court has held in para 47, which reads as under:-
"The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validity discarded by the Trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakhan Sao v. State of Bihar and Anr., (2000) 9 SCC 82 : (AIR 2000 SC 2063) ; State of Rajasthan v. Arjun Singh & Ors., (2011) 9 SCC 115 : (AIR 2011 SC 3380) and Manjit Singh and Anr. v. State of Punjab, (2013) 12 SCC 746]."
Motive:-
47. The reason of occurrence / motive, which has been mentioned in the FIR as well as in the statement of witnesses of fact was that the accused persons became enimical with deceased due to the reason that he had purchased the land of accused Braj Raj Singh, which was auctioned by the Tehsildar in lieu of recovery of loan amount. This fact has been admitted by the accused persons (except accused Master Singh) (since died) in their statements recorded under Section 313 Cr.P.C. So far as the requirement to proove the motive of offender is concerned, according to principle of law, where there is direct evidence regarding the commission of offence motive losses its importance. In the case of Rohtash Kumar Vs. State of Haryana, Criminal Appeal No. 896 of 2011 the Hon'ble Apex Court has held in para 21, which reads as under:-
"21. The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same. (Vide: Subedar Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205)."
48. In the case of Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91, the Apex Court has held in paras 22 and 26, which reads as under:-
"22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.
23. While dealing with a similar issue, this Court in State of U.P. v. Ksihanpal held as under: (SCC p. 88, para 39)
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
49. In the case of Uma Shankar Vs. State of U.P. [2015 (89) ACC 421], this Court has held in para 44, which reads as under:-
"44. It is pertinent to mention here that where there is eye witness account the motive looses its importance. Motive may be the reason to commit the offence but at the same time motive may also be a reason to falsely implicate the accused. Motive for committing the offence although is of futile nature but as per prosecution this was the reason due to which the present offence was committed by the accused. It may be mentioned here that some time offences are committed on the basis of futile motive. Therefore, motive assigned by the prosecution merely on the basis that it was futile in nature, the prosecution case cannot be disbelieved specially when one day before for that reason an altercation had taken place between the accused and deceased. The reason for falsification taken by the accused is not supported by any evidence. Merely the plea, until and unless same is supported by any believable evidence, cannot take place the piece of evidence. Thus we are of the view that although motive assigned by the prosecution is of futile nature but was sufficient to commit the present offence. Thus point no. 2 is answered as above."
50. In the case of Kaki Ramesh & Others Vs. State of A.P. 1994 SCC (Cri) 1214, it has been held by the Apex Court that where parties belonging to different factions in the village, which might have provided motive for the crime, instead of false implication.
51. In fact motive always originate in the mind of accused, it cannot be fathomed by prosecution.
Discrepancy and contradictions:-
52. There is no discrepancy in the statement of witness on material points. If some deviation in narration of facts are found, those are at the fringe and same too are bound to occur due to the reason that there was time gap in recording the evidence of witnesses, the mental capacity and mentality of witnesses, who are illiterate and rustic. But despite the some minor discrepancies the witnesses have supported that FIR version substantially. Finding of the Trial Court recorded in the impugned judgment and order on this point is perverse and against the evidence and settled principle of law. In the case of Subodh Nath And Another Vs. State of Tripura (2013) 4 SCC 122, the Apex Court has held in para 16, which reads as under:-
"16. Once we find that the eye witness account of PW-13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW-1, PW- 2, PW-13 and PW-19. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another, in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. Learned counsel for the appellants is right that the prosecution has not been able to establish the motive of the appellant no.1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only."
53. In the case of Marwadi Kishor Parmanand And Another Vs. State of Gujarat (1994) 4 SCC 549, the Apex Court has held in para 31, which reads as under:-
"31. The evidence of a witness deposing about a fact has to be appreciated in a realistic manner having due regard to all the surrounding facts and circumstances prevailing at or about the time of occurrence of an incident. Some contradictions and omissions even in the evidence of a witness who was actually present and had seen the occurrence are bound to occur even in the natural course. It is a sound rule to be observed that where the facts stated by an eyewitness substantially conform to and are consistent on material points from the facts stated earlier to the police either in FIR or case diary statements and are also consistent in all material details as well as on vital points there would be no justification or any valid reason for the court to view his evidence with suspicion or cast any doubt on such evidence. In the present case as discussed above we find that the solitary witness Ranchhodbhai, PW 1 is a wholly reliable witness and his evidence in itself, without any further corroboration is enough to sustain the conviction of the two appellants for the crime they are charged with, but we find that the evidence of the sole eyewitness Ranchhodbhai finds corroboration on material aspects from the evidence of Jayantilal PW 6, Makkar PW 8, Dr Nathani PW 1 0, Dr Avasia PW 1 1, Dr Joshi PW 12 and the Head Constable Moolchand PW 18. Thus the corroboration is also not lacking in the present case and there was hardly any ground or any possibility of taking the view which is unfortunately taken by the learned trial Judge. In our considered opinion the trial court clearly fell in serious error in rejecting the truthful version made by the sole eyewitness PW 1 whose evidence does not suffer from any infirmities, much less the unwarranted criticism made by the trial court. The High Court was therefore, in exercise of its powers under Sections 378 and 386, Criminal Procedure Code, fully justified to reverse the erroneous findings recorded by the trial court. We find ourselves wholly in agreement with the view taken by the High Court and the conclusions recorded by it. Consequently the appeal deserves to be dismissed."
54. In the case of Shivappa & Others Vs. State of Karnataka (Supra), the Hon'ble Supreme Court has held that some discrepancies are bound to occur in the oral statements of witnesses because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court.
55. In the case of Hayat Singh Bora Vs. State of Uttarakhand [2012 (77) ACC 615] Uttarakhand High Court has held that variation in the testimony of witnesses if found natural, do not affect prosecution story where direct evidence is supported by medical evidence.
56. So far as the witnesses, who belong to village background and are illiterate, are concerned, it has been held in paras 34 and 39 by this Court in the case of State of U.P. Vs. Shane Haidar And Others 2015 (1) J.Cr.C. 775, which reads as under:-
"34. After an overall assessment of all the witnesses, produced by prosecution, we are of the firm view that all the witnesses are throughout cogent and consistent while deposing in court. All the factual witnesses are rustic villagers, who are bound to get confused during their cross-examination. PW-2 is an injured witness, which fact is evident from his injury report, duly proved by the Doctor. Apart from some minor contradictions nothing has been elicited in their statements to cause a shadow of doubt on their credibility.
39. On a close scrutiny of the evidence, available on record we find that the trial judge has discarded the testimony of witnesses on flimsy and unjustifiable grounds without keeping in mind that the witnesses are rustic villagers. The apex court in the case of State of U.P. v. Krishna Master and others (2010) 12 Supreme Court Cases 324 has held as under:-
A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime."
Common object:-
57. The medical examination report / injury report of injured Phoolan Singh S/o Malkhan Singh (informant) indicates that he had received four injuries of lacerated wounds, which were caused by pellets of fire arm. Although, three injuries, out of four injuries, were on non-vital parts of his body yet one injury of multiple lacerated wound had been found on the chest portion of victim. It was having wounds eight in numbers, which were on lower part of right chest and upper part of abdomen of informant. The accused person with proper knowldge and in a common intention and object had opened fire upon deceased Buddha Singh. The deceased had received ten gun shot entry wounds on his body, which prima facie indicates that the assailants were more than one in number with common object. The number of wounds indicates that there was meeting of mind in assailants with regard to the knowledge and object to kill Buddha Singh in which they had been succeeded. So far as the injuries of informant Phoolan Singh is concerned, three injuries have been found simple in nature but one was kept under observation by doctor. No any documentary or oral evidence has been produced by the prosecution showing any complication in injury of informant. Neither any x ray report nor any further investigation report or doctor has been produced in evidence. So far as the circumstances are concerned, the injured had received injuries at 03.00 p.m. on 29.10.1982, he lodged the FIR at 07.15 p.m. on same day in fit mental condition, then after that he was medically examined at 01.10 a.m. on 30.10.1982. In medical report no adverse report regarding vitality of patient has been mentioned. Even in his oral testimony the witness P.W. 1 has not described his injuries received in occurrence. In the occurrence since the accused Braj Raj Singh was having his enimity with Buddha Singh only, it appears that accused persons had meeting of mind with common object to kill only Buddha Singh, that is why when both persons i.e. the informant and Buddha Singh entered in the house of Phoolan Singh S/o Lakhan Singh, accused persons opened fire. Buddha Singh had received ten injuries of fire arm entry wound. On the other hand, informant had received only four injuries of pellets, out of which three were on non-vital parts of his body. The above circumstances lead to draw the inference that accused persons were not intending to cause fatal injuries to the informant, therefore, ingredients of Section 307 IPC are not proved against accused persons, rather it can be concluded that accused persons voluntarily caused hurt to the informant Phoolan Singh. Since the record indicates that all the accused opened fire upon Phoolan Singh (informant) along with Buddha Singh, the offence under Section 324 read with Section 149 is made out against them without any shadow of doubt.
58. In the case of Hardev Singh Vs. Harbhej Singh & Others 1996 (4) Crimes 216, the Apex Court has held in para 27, which reads as under:-
"27. Coming to the acquittal of accused Nos. 2 and 6 by the trial court against which the State of Punjab had filed an appeal to the High Court and the same was dismissed-in our opinion the learned Sessions Judge had completely misunderstood the scope of Section 149 IPC. The only reason given by the learned trial Judge was that there was no material on the record to prove that they caused any serious injuries to the two victims. It was further observed that no specific role was attributed to these two accused. In our opinion this finding is against contrary to the evidence on record in as much as both these accused were the members of the unlawful assembly and did have the common object as it was implicit in their action i.e. they were armed with deadly weapons; came along with other accused and participated in the murderous assault on both the victims. The trial court and the High Court had erred in law in not holding both these accused guilty with the aid of Section 149 IPC for the substantive offences punishable under Section 302 IPC. The order of acquittal passed by the trial court and on appeal affirmed by the High Court thus cannot be sustained for the reasons recorded hereinabove."
59. The occurrence took place in day light in the centre of Aabadi of village. There is nothing on record to show any reason for false implication of accused persons in place of real culprit. Mere rivalry in gram panchayat election is not sufficient cause to commit the present offence. The conclusion of trial Court that the accused persons have been implicated falsely due to old enmity or parti-bandi is based upon wrong appreciation of evidence available on record. The charges of offence under Sections 148, 302 read with Section 149 and 324 read with Section 149 IPC are found proved against the accused persons.
60. All the accused persons named in FIR were present on the spot having firearms in their hand. The occurrence is of day light. They have committed the present offence in furtherance of common object of wrongful assembly. No evidence is on record which may bifurcate the role of any of the accused from others. There is no contradiction or discrepancy in the prosecution evidence regarding role of all accused persons. The trial court has not rightly appreciated the evidence available on record and reached to a wrong conclusion holding the accused respondents to be not guilty for committing the murder of the deceased Buddha Singh. The impugned judgment and order is clearly unreasonable and it is found that the relevant and convincing materials have been unjustifiably eliminated. The conclusion / findings recorded by the trial Court in the impugned judgment and order are perverse and same are not sustainable in the eye of law.
61. Hence, in the light of above discussions and taking into consideration the entire facts and circumstances of the case and reappreciating the evidence available on record in accordance with settled law, we are of the considered view that the prosecution has succeeded to prove the guilt of accused persons beyond any shadow of doubt and to the satisfaction of the judicial conscience of the Court. So, the impugned judgment and order of acquittal dated 09.03.1984 passed by the trial Court, which is against the settled norms of law and has been sought to be assailed, call for and deserves interference. The Government Appeal is liable to be allowed and the impugned judgment and order is liable to be set-aside.
62. Accordingly, Government Appeal is allowed and the impugned judgment and order of acquittal dated 9.3.1984 is set aside.
63. Since the occurrence does not come under the perview of rarest of rare cases, therefore, both the surviving accused persons, namely, Ram Chandra Singh and Omkar Singh are hereby convicted for the offence under Sections 148, 302 read with Section 149 and 324 read with Section 149 IPC. They are sentenced for three years' imprisonment for commission of offence under Section 148 IPC and for life imprisonment for commission of offence under Sections 302/149 IPC as well as fine with the tune of Rs. 50,000/- each. In default of payment of fine, they shall undergo one year's additional simple imprisonment. Apart to this, the accused persons are sentenced for three years' imprisonment for the offence under Sections 324/149 IPC. All the sentences shall run concurrently. Earlier period of their detention in jail shall be counted in period of imprisonment imposed by this judgment and order.
64. In case the accused persons deposit the fine, half of fine amount shall be paid to the legal heir and representative of deceased Buddha Singh forthwith.
65. The accused respondents, namely, Ram Chandra Singh and Omkar Singh are hereby directed to surrender before the Chief Judicial Magistrate concerned forthwith, who shall take them into custody and send them in jail for serving out the sentence imposed upon them by the present judgement and order. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.
66. Let a copy of this judgment alongwith lower court record be sent forthwith to the Trial Court as well as Chief Judicial Magistrate, Bareilly for necessary compliance and further action. A compliance report be sent to this Court.
Order Date :-20.5.2022 SK Srivastava