Allahabad High Court
Dinesh, Surendra @ Babua vs State Of U.P. on 20 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1634, 2020 (2) ALJ 114 (2020) 110 ALLCRIC 78, (2020) 110 ALLCRIC 78
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 48 Criminal Appeal No. 1335 of 1988 1. Dinesh 2. Surendra Singh @ Babua ---- Appellants Vs. State Of U.P. ---- Respondent For Appellants : Shri Amit Tripathi for appellant no. 1 Shri Vishesh Kumar for appellant no. 2 For Respondent/State : Shri J.K. Upadhyay, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (20.09.2019)
1. This appeal arises out of the impugned judgement and order dated 03.05.1988 passed by II Additional District & Sessions Judge, Kanpur Dehat in Sessions Trial Nos. 50 of 1985 (State Vs. Dinesh) and 104A of 1985 (State Vs. Surendra Singh), convicting the accused-appellants under Section 302/34 of IPC and sentencing them to undergo imprisonment for life.
2. In the present case, name of the deceased is Ram Swaroop Tiwari. Deceased stood as a surety for appellant Dinesh but as Dinesh continued to commit crimes, deceased informed him that if he will not make himself correct, in such a condition, deceased would be compelled to get his bail cancelled. Looking to this attitude of the deceased, accused Dinesh got annoyed with him and with the help of co-accused Surendra Singh, Umesh (died during investigation) and Ramesh (absconded during trial), on 03.08.1984 committed the murder of the deceased by causing gun shot and axe injury to him. Incident has been witnesses by Shiv Kant Tiwari (PW-2), a child witness aged eight years (son of deceased), who at the time of commission of offence was with the deceased. Hearing the cries of the deceased, his another son Kamal Kant Tiwari (PW-1) rushed to the spot and saw the accused persons fleeing from the spot. On the written report Ex.Ka.-1 lodged by Kamal Kant Tiwari (PW-1) on 03.08.1984 at 07.45 pm, FIR was registered against four accused persons under Section 302 of I.P.C.
3. Inquest on the dead body of the deceased was conducted, on the same day i.e. 03.08.1984, vide Ex.Ka.4, which started at 09.30 pm and completed at about 11.00 pm and body was sent for postmortem, which was conducted by Dr. Anil Bihari Lal Saxena (PW-7) vide Ex.Ka.15 on 04.08.1984.
As per Autopsy Surgeon, as many as seventeen following injuries were found on the body of the deceased:
"1. An incised wound 12cm x 3cm x brain cavity deep, right side of scalp, 3cm above Rt. ear.
2. An incised wound 9cm x 3cm x bone deep cut on posterior side of scalp, 1½ cm behind right ear temporal bone fractured.
3. An incised wound 8cm x 3cm x bone cut deep on right side face upto right ear, temporal bone fractured.
4. An incised wound 11cm x 4cm x bone cut on rt. side neck extended above upto the scalp behind the ear-temporal bone fractured.
5. An incised wound 6cm x 2½ cm on the rt. side neck just below the injury no. 4.
6. An incised wound 27cm x 5½ cm x bone cut posterior and left side of neck, occipetal bone and vertebra upper fractured.
7. An incised wound 10cm x 2½ cm x muscle deep on the upper part of back just below the root of neck.
8. An incised wound 8cm x 1½ x muscle deep on the back of right shoulder.
9. An abrasion-contusion 5½ cm x 3½ cm on the back of right shoulder just below on injury no. 8.
10. An incised wound 4 cm x 1½ cm x muscle deep on the epigastric fossa.
11. An incised wound 10 cm x 3½ cm x muscle deep on ventral aspect of rt. hand forearm in its middle part.
12. A gun shot wound of entry 4 cm x 3½ cm x through and through on the dorsal aspect of right forearm, 8 cm below the right elbow, margins inverted and ulna bone fractured.
13. A gun shot wound of exit 10 cm x 3 cm x through and through communicating to the injury no. 12 on the ventral aspect of rt. forearm 2½ cm above the wrist joint-margins everted and one wadding piece is recovered.
14. A gun shot wound of exit 8 cm x 3 cm x through and through communicating to the injury no. 12 on the medial side of rt. forearm, 1½ cm away from injury no. 13, margins everted and one wadding piece is recovered from the wound.
15. Multiple gun shot wound of entry in an area of about 20 cm x 6 cm x muscle deep on rt. side of lower part of chest and upper part of abdomen, 18 pellets (16 small + 1 big and one broken) recovered from the wound.
16. One gun shot wound of entry 1 cm x 1 cm x through and through 4 cm above the left writ joint on ventral aspect medial side, margins inverted.
17. One gun shot wound of exit 1½ cm x 1½ cm x through and through communicating to the injury no. 16 on the ventral aspect and above the writ joint margins everted."
Cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injuries.
4. During investigation, accused Umesh died and, therefore, charge sheet was filed against the appellants and one absconded accused Ramesh.
5. While framing charge, the trial Judge has framed charge against the accused-appellants under Section 302/34 of I.P.C.
6. During trial accused Ramesh had absconded and, therefore, the trial court proceeded with the trial of Dinesh and Surendra Singh.
7. So as to hold the accused appellants guilty, prosecution has examined eight witnesses, whereas one defence witness has also been examined. Statements of the accused-appellants were recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.
8. By the impugned judgment, the trial Judge has convicted and sentenced the accused-appellants as mentioned in paragraph no. 1 of this judgment. Hence this appeal.
9. Learned counsel for the appellants submits:
(i) that the FIR is ante-dated, inquest was prepared on 03.08.1984 and in the same, reference of seizure memo has been given whereas seizure was affected on 04.08.1984. Learned counsel submits that in the inquest, crime number and other details have not been mentioned, whereas as per requirement of law, the same ought to have been mentioned.
(ii) that Kamal Kant Tiwari (PW-1) had not even seen the accused persons fleeing from the spot, but with the help of police, he has put forth an absolute false case.
(iii) that Shiv Kant Tiwari (PW-2), a child witness, had not seen any occurrence nor he was present at the spot and it was only after tutoring him, he has been made as an eye-witness to the incident. Had this witness would have seen the occurrence, in the spot map, details of the place from where he saw the incident would have been shown.
(iv) that there is delay in recording 161 Cr.P.C. statement of Shiv Kant Tiwari (PW-2) and the said delay has not been explained by the prosecution. Even otherwise, PW-2 does not appear to be a competent witness.
(v) that motive assigned by the prosecution appears to be very weak and for such a small thing, nobody would commit a murder.
(vi) that as per prosecution case, Gauri Nath, Shyama Devi and Sudha had also seen the occurrence, but these witnesses have not been examined by the prosecution.
(vii) that there is inordinate delay in sending the copy of special report to the Magistrate.
10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that there is no evidence on record to show that FIR is ante-timed. He submits that inquest started on 03.08.1984 at 09.30 pm and the same continued till 11.00 in the night and that could be the reason that in the recovery memo, next date i.e. 04.08.1984 has been mentioned. He points out that in the inquest, FIR number has been mentioned and the other details have also been shown therein and thus, it cannot be said that the FIR is ante-dated. It has been argued that even assuming that there is some clerical mistake in mentioning the time or date, it would not be fatal for the prosecution when there is other conclusive evidence available on record. He submits that police had gone to record 161 Cr.P.C. statement of the witnesses, but as the entire family was in a shock and was crying, the statement could not be recorded.
(ii) that Shiv Kant Tiwari (PW-2) appears to be a fully competent witness and from his statement, it is apparent that he is a mature boy and had not been tutored.
(iii) that Kamal Kant Tiwari (PW-1) appears to be another witness. He states that he saw the accused persons fleeing from the spot and had he been a planted witness, he would have become an eye witness to the incident.
(iv) that non-examination of Gauri Nath, Shyama Devi and Sudha would not be fatal for the prosecution, as it is the choice of the prosecution to examine its witnesses.
(v) that motive part has been duly proved by the prosecution wherein in the FIR itself, it has been stated that despite request of the deceased when appellant no. 1 Dines continued his illegal activities, he was warned, which was not liked by him, as a result of which Dinesh was having animosity with the deceased.
(vi) that Shiv Kant Tiwari (PW-2) has categorically stated that when his father was being killed, he hide himself near the bundle of wood and cow dung.
(vii) that FIR was registered at 07.45 pm and the inquest was prepared till late in the night and on the next morning, special report was sent to the Magistrate.
11. We have heard counsel for the parties and perused the record.
12. Kamal Kant Tiwari (PW-1), is a son of the deceased and the informant. He has stated that his father stood as surety for accused Dinesh in the earlier criminal case but even thereafter, appellant Dinesh continued to commit theft and dacoity. His father had asked appellant Dinesh that in such eventuality, he would get his bail cancelled and hearing this, appellant Dinesh was annoyed with his father. On the date of incident at about 4:00 pm, when his father was sitting at the door steps of one Gauri Nath along with Shiv Kant Tiwari (PW-2), he heard the cries when he was sitting in his house which is about 200-250 yards from the house of Gauri Nath. He along with Vimal Kant, Krishna Swaroop and several other persons immediately rushed to the house of Gauri Nath and then heard the sound of gunshot. Thereafter, he saw accused appellant Dinesh, Surendra Singh and Ramesh coming out from the house. He states that accused-appellants Dinesh and Surendra Singh @ Babua were having gun with them whereas Umesh and Ramesh were having country made pistols. In the house, he saw the dead body of his father having number of gunshot and axe injuries. He states that Shiv Kant Tiwari (PW-2) was found in the same room where dead body of the deceased was lying. He further states that thereafter, he lodged the FIR. He has clarified that as Radha, one of the witness has been married in the family of accused Dinesh, she is not willing to adduce her evidence. In the cross-examination, he has clarified that he had not seen any accused carrying axe. It is relevant to note that recovery of axe was made from the spot itself and this he has clarified in paragraph no. 10 of his cross-examination. In the cross-examination, this witness remained firm and has reiterated as to the manner in which the incident occurred. He has further stated that in a room where dead body was found there were bundles of wood and cow dung.
13. Shiv Kant Tiwari (PW-2) is a child witness and at the time of recording his evidence, he was 10 years of age. The trial court before recording his evidence, first recorded its satisfaction regarding competence of witness and then proceeded further. He has stated that four accused persons came in the house of Gauri Nath, where his father was sitting. They had some talk with his father regarding bail and then they threatened/scolded his father. His father took him inside the room and bolted the room from inside. The accused persons made an attempt to break open the door and after doing so, they entered the room and caused gunshot and axe injuries to his father. He has clarified that he hide himself near the wood and cow dung bundle and from there, he saw the entire incident. In the cross-examination, several questions were put to him but he answered all those questions in a best possible manner and has reiterated as to the manner in which his father was killed by the accused-appellants.
14. Chotey Lal Tiwari (PW-3), is a Head Moharrir, who recorded the FIR. Mirza Ishtiaq Beg (PW-4) is first Investigating Officer. He has categorically denied that till preparation of inquest, no FIR was registered. Madho Singh (PW-5) is a third Investigating Officer, who filed the charge-sheet against accused Dinesh and Ramesh (absconded accused). Ram Jiyawan (PW-6) took the dead body of the deceased for postmortem. Dr. Anil Bihari Lal Saxena (PW-7) is the doctor, who conducted post-mortem on the body of the deceased. Yogendra Singh (PW-8) is a second Investigating Officer, has duly supported the prosecution case.
15. Ram Gopal (DW-1) has not stated anything specific, which may be of any help to the defence.
16. Close scrutiny of evidence makes it clear that deceased stood as a surety for accused Dinesh and when he continued to indulge himself in the case of theft and dacoity, deceased asked him for withdrawing himself as his surety as a result of which, accused Dinesh was annoyed with him and on 03.08.1984, with the help of other co-accused persons, in the house of Gauri Nath, he committed his murder. Seeing the accused person, deceased entered the room of Gauri Nath along with his minor son Shiv Kant Tiwari (PW-2), but the accused persons broke open the door, gained entry in the room and committed murder of the deceased. Incident has been witnessed by Shiv Kant Tiwari (PW-2), a child witness, who remained very firm in the court, has reiterated as to the manner in which, he saw the incident. Hearing cries of the deceased, his another son Kamal Kant Tiwari (PW-1) rushed to the house of Gauri Nath and there he heard the sound of gunshot and soon thereafter, he saw accused persons carrying firearm with them and fleeing from the spot.
17. The case of the prosecution mainly rests on the testimony of Shiv Kant Tiwari (PW-2), who is a child witness, aged about 10 years, when his evidence was recorded. Before discussing the evidence of a child witness, it would be advantageous to refer to the law relating to child witness. Section 118 of the Evidence Act deals with the question of competency of person to testify. Under this Section, all persons are competent to testify, unless they are, in the opinion of the Court, (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender age is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness, if it appears that it can understand the questions put to him and give rational answers thereto. This section vests in the Court's discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take, is to satisfy himself that the child is a competent witness, within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the Judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in positive, the Court will not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth.
18. In the matter of Panchi V. State of UP, (1998) 7 SCC 177 the Hon'ble Supreme Court has held as under:-
".....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
19. With regard to the testimony of child witness the Hon'ble Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & others reported in (2009) 12 SCC 731 had noticed the case law and held as under:
"The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See Suryanarayana v. State of Karnataka (2001) 9 SCC
129)]. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para
5) :-
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
20. The position of law relating to the evidence of a child witness has been dealt with also by the Apex Court in Nivrutti Pandurang Kokate and others V. State of Maharashtra, 2008 (12) SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh, (2008 (4) SCALE 569). In the case of State of U.P. vs. Krishna Master & Others, (2010) 47 OCR (SC) 263, the Hon'ble Apex Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.
21. The legal position which can be culled out from the aforesaid decisions is that before recording conviction on the solitary testimony of a child witness, the court has to ensure that he is a reliable witness. If his testimony is found to be trustworthy and reliable then conviction can be recorded on his sole testimony.
22. Considering the above position of law, if we apply the above principles in the present case, it is apparent that at the time of recording the evidence of Shiv Kant Tiwari (PW-2), his age was about 10 years. Before recording his satisfaction in respect of competency of this witness, the trial judge has asked certain questions to him and after satisfying himself of the fact that the witness understands the duty to speak truth and is able to rationally answer the questions put to him, the court has examined him. In the court, he has literally given the vivid description of the entire incident and has stated as to the manner in which his father was done to death by the appellants. Number of questions, including tricky questions were put to him by the defence, but all those questions have been answered very sensibly and with responsibility by the witness.
Lengthy cross-examination of this witness by the defence has further strengthened the case of the prosecution, where it can be said that Shiv Kant Tiwari (PW-2) was a competent witness and in no manner, he can be called a tutored witness.
23. We find no substance in the argument of the defence that the FIR is ante-dated. There is no legally admissible evidence on record to substantiate this argument. The mere fact that the inquest was conducted on 03.08.1984 and the recovery has been affected on 04.08.1984 will not establish the point that the FIR is ante-dated. In the inquest, details of FIR, including crime number have been mentioned and the most important aspect of the case is that the inquest started at 9:30 pm on 03.08.1984 and continued till 11:00 pm in the night. If the recovery has been shown on 04.08.1984, no fault can be attributed to the prosecution. Assuming that there is some mistake in mentioning the date in these two documents, this itself would not be sufficient to prove that the FIR is ante-dated.
24. We further find no substance in the argument of the defence that Kamal Kant Tiwari (PW-1) and Shiv Kant Tiwari (PW-2) are not reliable witnesses. As stated above, both these witnesses have duly supported the prosecution case and PW-2, though a child witness, appears to be fully trustworthy and reliable. The statements of PW-1 and PW-2 further find support from the post-mortem report of the deceased.
25. There is some substance in the argument of the prosecution that had the prosecution wanted to put forth any fabricated evidence, they would have projected PW-1 as an eye witness to the incident, but PW-1 has merely stated that when he reached the place of occurrence, he saw the accused persons fleeing from the spot. Similarly, non examination of some of the witnesses, whose reference has been given in the FIR, is also not fatal for the prosecution because it is the quality of the evidence which is required to be seen and not the quantity. Law in this respect is very clear.
26. In the case of Namdeo vs State Of Maharashtra; (2007) 14 SCC 150, the Supreme Court has held as under:
"It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
The Court also stated;
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect." In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : JT 1995 (8) SC 425, referring to several cases, this Court stated; "On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence." In Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397 : JT 2003 (7) SC 270, this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohamed Sugal and reiterating the law laid down therein, this Court stated:"
27. We further find no substance in the argument of the defence that motive has not been proved by the prosecution. From the evidence, it is clear that deceased had asked the appellant Dinesh to correct himself and when he did not, he made it clear to him that he would withdraw himself as surety. Hearing this, appellant Dinesh was annoyed with the deceased and he, with the help of other accused persons, committed his murder.
28. We further find no substance in the argument of the defence that there is any discrepancy in the spot map. These minor technicalities, if any, do not affect the prosecution case, as they do not go to the root of the matter.
29. After appreciation of the entire evidence, we are of the considered view that the trial court was fully justified in convicting the appellants. Judgement of the trial court deserves to be affirmed and the same is accordingly affirmed.
30. The appeal has no substance and the same is accordingly dismissed. Appellants are reported to be on bail, they be taken into custody forthwith to serve the remaining sentence.
31. This Court appreciates the assistance rendered by Sri Vishesh Kumar, learned Amicus. The State Government is directed to pay Rs. 10,000/- towards his remuneration.
Dated: 20.09.2019
SK/MK
(Raj Beer Singh,J) (Pritinker Diwaker,J)