Allahabad High Court
Tahir And Others vs State Of U.P. on 24 March, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R Reserved On : 09.11.2022 Delivered On : 24.03.2023 Court No. - 39 1. Case :- CRIMINAL APPEAL No. - 1335 of 2009 Appellant :- Tahir, Bhayyan and Pappu @ Kamina Respondent :- State of U.P. Counsel for Appellant :- P.C. Srivastava,A.M. Zaidi,Abhay Kumar Srivastava,Ajay Kumar Singh,Ashwani Kumar Pandey,Brij Raj Singh,Dr. Arun Srivastav,Dr. Arun Srivastava,Haji Kamal Khan,Mohd. Yaseen,Nazrul Islam Jafri,Rajesh Kumar Mishra,Shahid Ali Siddiqui,Sushil Kumar Pal Counsel for Respondent :- Govt. Advocate WITH 2. Case :- CRIMINAL APPEAL No. - 1209 of 2009 Appellant :- Hasan Respondent :- State of U.P. Counsel for Appellant :- P.C. Srivastava,Rupesh Srivastava,S.P. Srivastava Counsel for Respondent :- Govt. Advocate AND 3. Case :- CRIMINAL APPEAL No. - 1334 of 2009 Appellant :- Nazuk and Nazim Respondent :- State of U.P. Counsel for Appellant :- P.C. Srivastava, Brahma Nand Pandey, Qaisar Kamal Ansari, Rupesh Srivastava,S.A.Siddiqui Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal, J.
Hon'ble Umesh Chandra Sharma, J.
(Per : Hon'ble Umesh Chandra Sharma, J.)
1. These criminal appeals have been preferred by the appellants against the common judgment and order of conviction and sentence passed by the Court of Special Judge (SC/ST Act), Bareilly, passed in Sessions Trial No.249 of 2002, under Section 302 read with Sections 147, 148, 302, 149 IPC, Section 3(2)(5) of the Scheduled Caste (SC) and Scheduled Tribe (ST) (Prevention of Attrocities) Act, 1989 (which shall be called in later part of judgment as SC/ST Act) and Section 25 and 4/25 Arms Act, Police Station Kila, District Bareilly on 19.02.2009 in which the trial court convicted the accused persons only under Sections 147, 148, 302 and 149 IPC and acquitted from the charges under Section 4/25, Section 3/25 Arms Act and Section 3 (2) (5) SC/ST Act, hence they are being decided together.
2. In brief, facts of the case are that on 29.09.2001 the complainant/informant, Ramesh Chandra Bharti, PW-1 moved a written complaint on 24.09.2001 at 08:25 p.m. that on 24.09.2001 at 07:00 p.m. he (complainant) was returning to his house with his brother Suresh Chandra Bharti from their shop and when they reached in front of the shop of Dr. R.K. Sharma, Om Prakash, Hawaldaar and Ganga Ram of his locality met them, he stopped and started talking. In the meantime, his brother moved forward about 5-6 steps where Tahir, Bhaiyan, Pappu with pistols, in their hands, Nazuk and Nazim with knives and Hasan with batten (danda) stopped him. Tahir and Hasan caught hold of Suresh and threw him down with intention to kill him, Tahir, Bhaiyan and Pappu @ Kamina fired bullets from hand held pistols, Nazuk and Nazim attacked with knives and Hasan beaten him with a stick. His brother fell on the spot, there was chaos, people walking on the road spared by firing by the accused, the people closed their shops and doors and windows of their houses. Out of fear, when they challenged, the accused ran away towards the New Basti. They recognized the accused persons committing the offence and running away well in the light of the electric bulbs. With the help of the people, he took him to the district hospital where the doctor declared him dead, thereafter he went to the concerned police station keeping the dead body to the mortuary. He requested to take action against the accused persons.
3. After the F.I.R. was lodged, the Investigating Officer (which shall be called later on as 'I.O.') started the investigation. The I.O. took the blood stained soil, empty cartridge of 315 bore from the place of occurrence in his possession and arrested the accused Pappu @ Kamina on 26.09.2001, recovered country-made pistol of 315 bore and live cartridges of the same bore. The inquest report Ex. K-19 was prepared on the same day from 21:30 p.m. to 23:00 p.m. The postmortem was done by Dr. G.D. Katiyar on 25.09.2001 at 03:15 a.m. He found firearm wounds, incised wounds and abrasions. According to him, death of the deceased was occurred due to shock and hemorrhage on account of ante mortem injuries. The I.O, C.O. (City) Mr. Dinesh Singh collected the post mortem report Ex.Ka-4, prepared the spot map Ex.K-16, recorded the statements of the complainant and the witnesses, arrested the accused persons, recovered country-made pistols and knives from their custody, prepared spot map with regard to recovery of weapons, took permission to prosecute the accused persons under Action 25 Arms Act and filed the charge sheets as Ex.K-12, Ex.K-29, Ex.K-30, Ex.K-31 and Ex.K-32 against five accused persons under Sections 25 and 4/25 Arms Act and charge sheet Ex.K-18 against all the six accused persons under the aforesaid Sections of the I.P.C. and the S.C./S.T. Act.
4. The prosecution has examined the following witnesses:-
(i) PW-1, Ramesh Chandra Bharti, complainant/informant; (ii) PW-2, Om Prakash; (iii) PW-3, Ganga Ram; (iv) PW-4, Sewak Ram; (v) PW-5, Dharampal; (vi) PW-6, Dr. G.D. Katiyar; (vii) PW-7, Head Constable Ram Singh; (viii) PW-8, I.O. Nawab Singh; (ix) PW-9, S.I. Gurunam Singh, I.O. U/S 25 Arms Act; (x) PW-10, Dinesh Singh, C.O.-II, Bareilly, who conducted the case as main I.O; (xi) PW-11, Sanjai Kumar Singh, S.O, who conducted inquest; (xii) PW-12, S.I. Nek Ram Singh, who investigated the case U/S 25 Arms Act; and (xiii) PW-13, S.I. Anwar Afaq who prepared the recovery memo of country-made pistol.
5. Prosecution has produced and proved the following documents in support of the prosecution case:-
(i) Ex.K-1, written complaint by the complainant, PW-1; (ii) Ex.K-2, recovery memo of razor; (ii) Ex.K-3, recovery memo of knife; (iv) Ex.K-4, copy of chik FIR and postmortem report; (v) Ex.K-5 and Ex.Ka-6, G.D; (vi) Ex.K-7, chik FIR u/s 25 Arms Act; (vii) Ex.K-8, G.D; (ix) Ex.K-9 G.D. Corban Copy and Ex.K-10,recovery memos; (xi) Ex.K-11, spot map; (xii) Ex.K-12, charge sheet under Section 25 Arms Act; (xiii) Ex.K-13, prosecution sanction; (xiv) Ex.K-14, recovery memo of blood stained and plain soil; (xv) Ex.K-15,recovery memo of country-made pistol and empty cartridge; (xvi) Ex.K-16, spot map; (xvii) Ex.K-17, spot map; (xviii) Ex.K-18, charge sheet under Sections 147, 148, 302, 149 IPC and Sections 3(2)(5) of SC/ST Act; (xix) Ex.K-19, inquest report; (xx) Ex.Ka-20 TO Ex. K-23, papers annexed with the inquest (xxi) Ex.K-24, speciment seal; (xxv) Ex. K-25, spot map; (xxvi) Ex.Ka-26 to Ex.Ka-28, prosecution sanction; (xxix) Ex.K-29 to Ex.Ka-32, charge sheets; (xxxiii) Ex.K-33, chik F.I.R; (xxxiv) Ex.K-34, Carban copy G.D.
6. The appellant has taken ground that the trial court has not considered the material available on record and illegally convicted and sentenced them. The sentence is against the weight of evidence on record. It is not based on cogent finding and the impugned order is illegal and bad in law. No offence under Sections 302, 149, 139 IPC is made out and there is nothing on record to prove the appellants guilty for the alleged offence. Hence, the impugned judgement and order be set aside and the appellants be acquitted.
7. In Criminal Appeal No.1209 of 2009, appellant Hasan and in Criminal Appeal No.1334 of 2009, appellants Nazuk and Nazim have taken similar grounds, hence there is no need to repeat the same again.
8. In brief, the evidences of the witnesses are produced herein below:-
9. PW-1, Ramesh Chandra Bharti, younger brother of the deceased Suresh Chandra Bharti, has deposed that he is washerman by caste. On 24.09.2001 at about 07:00 p.m. he and his brother Suresh Chadra Bharti were going to their house after shutting down their tent shop. When they reached at the crossing of the road, Om Prakash, Ganga Ram, Narendra @ Hawaldar met them. He started talking with them. In the meantime, his brother went forward for 5 to 6 steps. When he turned, he saw that Tahir and Hasan threw down his brother on the ground. Tahir, Bhaiyan, Pappu @ Kamina fired at his brother and Nazuk and Nazim attacked with knives. Accused Hasan attacked with stick. There was no one other than these six people. Bhaiyan and Tahir had a quarrel with the deceased and they had threatened to see him. His brother had told this fact to him and his family, but they did not pay any attention to this incident. Apart from him Om Prakash, Narendra and Ganga Ram had also seen the incident. The injured was taken to hospital where the doctor declared him dead. The witness recognized his signature and proved the written complaint Ex.A-1 and also deposed that the accused are the residents of his locality. He knew them well. In cross-examination, this witness had deposed that the witnesses had seen the incident with him. Shops were opened, shopkeepers did not see the incident as they were busy in their work. There were total 3-4 shops out of which one was of Dr. R.K. Sharma, one belonged to Nathu. There was a shop of Kallu. There was a tailoring shop. This incident took place at a distance of about 50 steps to the south from Kallu's shop. From the Nathu's shop, the incident site was about 60 steps west. His clothes were also stained with blood. He brought the injured to his shop in e-rikshaw and had taken to the District Hospital in a police jeep. He himself said that first of all, he informed the police station where S.S.I. Tejendra Kumar Chaudhary said first you should take your brother to the District Hospital, it took about ten minutes to reach P.S. Quila. He went inside where the report was written. He did not talk with the Head Muharrir but told S.S.I. with whom he was not acqainted, he had not given any information to Quila Chauki.
10. He did not show the blood on his clothes to the I.O. In panic even later he did not give those clothes to the police. He took a rickshaw and was sitting in it carrying his injured brother. Jeep was found at tiraha, from there he got down from rickshaw and went through the jeep. This tiraha is 100-125 steps north from his shop. His injured brother had fainted. Three-four persons of his locality had put on his brother at rickshaw, he was panicked so he could not tell their name.
11. On being asked by the doctor he had told him his name. Complaint was read over by the Inspector. He came home from the police station and saw that several persons were present on the spot. He was interrogated by the police. He could not say whether they took over the blood stained soil at that time or not. His house would be about 100-150 steps away from the place of occurrence towards the west direction. The police had taken blood stained soil in front of him from the place of the incident, when he reached it was quarter to nine in the night. The people/persons present in the house were weeping. The police came to call him and alongwith the police he went to the district hospital without staying at the place of the incident. He himself said that he went to the hospital from his vehicle, many policemen specially police officer had come to his house. He had written the complaint sitting at the police station. He alone reached at the hospital from home, there Om Prakash, Rajendra, Om Pal, Ganga Ram were present. They were present at the time of the inquest also. He had signed the inquest report. He confirmed the opinion of panchas that the deceased had died due to injury caused by knife and the fire arms. He had written and signed it. The injury was also caused from the stick. He could not know whether he had informed the police officials as to from which weapons, the bullets were fired. The injury was caused by stick, which is not written in the inquest. He remained in the hospital up to 10:00-11:00 p.m. He and the deceased both used to sit at the tent house and did not do any other work. It used to open at 09:00 a.m. and used to be closed at 06:30 - 07:00 p.m. In the evening there was no work at his shop on the day of the incident, so labourers and contractors were not present there.
12. Most of the time he and the deceased used to go together after closing the shop. Some times the brother used to go home early. Even four days before the incident his brother Suresh had gone home alone. The deceased had a fight four days before the incident with some of the accused. Except that, he did not know about a fight that happened ever.
13. The houses of the accused persons are in between 05 to 200 steps away from his house.
14. He received the information regarding arguments between the accused and the deceased same day. After hearing the complaint, he said that the information regarding the earlier fight has not been mentioned. He has also not informed this fact to the I.O. At the time of incident when he looked back for the first time, the accused were in the west direction from him and they were killing his brother. Near the place of occurrence, there was a house of Zakir, Muntyaz sons of Mukhtiyar, Tahir, Tufail and Sajjad. There were also the houses of Nanhey, Munni and Asgar where the people lived in the houses. In the state of panic, he did not see anyone in these houses at the time and place of the incident.
15. There was two feet wide slab over the drain near the place of occurrence. At that time he and his deceased brother were present on the slab, but had not crossed it. There was no blood on this slab. Because of night he could not see whether the blood had spilled on it or not.
16. The I.O. had prepared the map before him. This slab falls on turning west from the south north road. May be 15 step from this north south road.
17. When he saw Suresh Chandra for the first time, he was lying on the ground and the accused were killing him. He was thrown on the ground after being beaten with a stick, he cannot tell the number of attacks by sticks, length and thickness or shape of the stick. The whole incident happened in 2-2½ minutes, he did not see the injuries on his brother's body at the time of the incident but had seen many injuries on him in the hospital. He could not count how many shots were fired on the spot. The shots were fired from a distance of 1, 1 ½ - 2 steps. The bullet injuries on Suresh Chandra's body had occurred after falling on the ground. Except for the sticks, all other injuries were inflicted on him only after he fell on the ground. Two accused persons had attacked 7 - 7, 8 - 8 times with knife. They were killing by stabbing the knife again and again. After hitting Suresh Chandra with fire, Nazuk and Nazim caught Suresh Chandra and killed him with a knife. They had not dropped the deceased on the ground after inflicting knife and bullet injuries. Later on no attack was done with stick. After the incident the accused fled away in the north direction towards the New Basti. He did not try to catch the accused persons, as they had revolver, he had not seen the accused persons brandishing the knife after the incident. He had seen the people of neighborhood, who were closing the doors and windows of their houses, people were coming on the road at the time of the incident. Before the incident, bothers Nasir and Sakir used to live in his neighbourhood. He did not know whether they had sold their house or not. He did not know that there was dispute and quarrel between the deceased and both of them. It may be correct but it was wrong to say that due to terror of the deceased, they had left their houses. The witness denied that the deceased was involved in illegal trade of VCR and liquor and would have also taken Rs.5,000/- from the accused Pappu in some installments and could not repay the money. This witness admits that before the incident in the marriage of Kallu's daughter who is father of the accused Nazuk, articles from his tent house were sent. The witness denied that Kallu did not pay the full amount for the articles due to which the deceased had a fight with Kallu. He expressed ignorance regarding police case against Pappu. He admits that the witnesses are from his community, but denied any kinship with them. This witness had denied suggestions given by accused side.
18. This witness was independently cross-examined for the accused Hasan in which he deposed that in the inquest, the cause of death has not been mentioned having been caused by the stick.
19. PW-2, Om Prakash an independent eye-witness, has deposed that he knew the informant, his brother and the accused persons very well. The accused persons Nazim, Nazuk, Tahir, Bhaiyan, Pappu and Hasan were the residents of Quila Cantt. The incident was dated 24.09.2001, it was about 07:00 p.m. He met Ramesh Chandra near Dr. R.K. Sharma's shop at tiraha. They started conversation, on asking he told that he was going after closing the shop. He asked about Suresh Chandra, he told that he had gone ahead. After this, he heard the sound of gun firing when he looked after, Suresh Chandra was being stabbed by Nazim and Nazuk. Pappu, Tahir and Bhaiyan were making fires at Suresh Chandra with pistols and Hasan was hitting with a stick. Apart from him Ramesh, Ganga Ram and Narendra were also present there and when they tried to make-a-noise there was a chaos. Shutters started falling, the shopkeepers started closing their shops and people started closing doors and windows of their houses. After that, the accused fled away towards the north of new basti. He saw that Suresh Chandra was suffering like a fish lying on the track of Dr. R.K. Sharma's shop. He got Suresh Chandra loaded in rickshaw on the advice of Ramesh Chandra. He did not go with rickshaw but Ramesh went to the District Hospital with the Rickshaw. Later on when he reached the district hospital, Suresh Chandra was dead and his panchnama had been filled up.
20. In the cross-examination the witness denied any kinship with the informant and the deceased, and admitted that there are 5-6 houses between his and Ramesh Chandra's house. He deposed that in relation to this case, the I.O. had taken his statement. He did not tell the C.O. that he met Ramesh Chandra and had a conversation with him. These facts were also not mentioned in his statement under Section 161 Cr.P.C. He admitted that he and Ramesh belong to same community. There was a distance of 40 steps between the house of the accused and his house. After the incident he tried to catch the accused but they fled away from the place of the incident. They immediately called the police which had arrived there at around 07:00-07:15 p.m, eye-witnesses Ganga Ram and Narendra were present amongst his acquaintances. These were people who saw the incident. Ganga Ram and Narendra went with him to the district hospital in a rickshaw.
21. He deposed that he was the shop keeper during the days of the incident, Narendra was the driver. Ganga Ram works as a washerman in a kiosk (wooden made shop) which was closed at the time of the incident. Narendra was driving his own tempo from Railway Junction to C.B. Ganj, Fatehganj. He used to come back with tempo at around 05:00-06:30 p.m. and leave home at around 07:00 a.m. in the morning. His own grocery shop is about 100 steps away towards the west direction from the place of the incident. It used to close at about 10½-11 p.m. At night he met Ramesh on the spot and thereafer they met in the hospital at around 09:30 p.m. According to this witness, he had not picked-up the injured from the spot though it was mentioned in his statement under Section 161 CrPC, which he denied.
22. He heard the sound of firing and looked back, but it was not written in the statement under Section 161 CrPC. On being asked he said that he could not say the reason. The witness further replied that he recognized all the accused persons by their names and faces. At the time of the incident sun had set. The incident took place about half an hour after the sun had set. The dead body was shifted from emergency ward to mortuary before he reached. The mortuary ward was opened at that time and it was about 09:00-9:30 p.m. He asked to sign the inquest report which was being filled up at that time and he signed on it.
23. At the time of the incident, Suresh was wearing pant-shirt and also at the time of the inquest. Slippers of the deceased were left at the place of the incident. The dead body was barefoot at the time of the inquest. He did not remember the day of the incident, but knew the date.
24. He was alone when Ramesh met him before the incident and within a minute, Ganga Ram and Narendra also come there. Ganga Ram and Narendra came there and stood quietly while he was talking to Ramesh. The place where he was standing would be 5-6 steps away from the spot in the west direction. From there he, Ramesh, Ganga Ram and Narendra saw the incident. There was a trijunction near the incident site, where the road went in the north - south and west directions, where the road turn in the west direction, there was a drain with slab in the north - south direction.
25. On being questioned regarding manner of attack, this witness deposed that the accused, who fired at Ramesh from pistol, were standing about 2-2½ steps west of Suresh. Suresh was first fired after that he was stabbed. He could not tell the number of firing, and injuries occurred to the deceased. The incident happened within 1-1½ or 2 minutes. The witness denied the kinship with the deceased. He had also denied the suggestions given by the defence counsel.
26. This witness had denied that Hasan was wrongly implicated in this case.
27. PW-3, Ganga Ram deposed that it was 24.09.2001 at about 07:00-07:15 p.m, Ramesh accompanied by his brother Suresh were going towards their home after closing their shop. He met with them at the crossing bridge. Om Prakash and Narendra were also there. At that time Suresh went about six steps ahead of them, he started talking to Ramesh. All the accused persons already known to him came there, Hasan and Tahir dropped Suresh in front of Dr. R.K. Sharma's shop and started hitting him after surrounding. Bhaiyan, Tahir and Pappu @ Kamina had pistols, Nazuk and Nazim had knives and Hasan had a stick. Suresh had received bullet, knife and stick injuries. There was chaos when the bullets were fired. Shop keepers and hockers started closing their shops. He picked up Suresh and got him loaded on rickshaw. After this he went to Suresh's house to inform about the incident. He saw and recognized the accused in the street light. The inquest of the dead body was prepared before him and he recognized his signature on it.
28. On being cross-examined the witness expressed ignorance about the recovery of weapons from the accused persons at the time of their arrest, but answered that they were arrested after 5-6 days from the incident. This witness denied that at the time of incident he was working in Gold soap factory, Nainital Road, Bareilly. He further deposed that at that time he used to sell nan-khatai (biscuits), before that he used to iron the clothes. This witness further deposed that he did not take Suresh to the District Hospital but after getting him loaded on a rickshaw, he went to his house to inform about the incident. This witness could not remember whether he had given any statement to the I.O. or not but deposed that many policemen talked to him about this incident. On the second day of the incident, the police interrogated him. This witness disowned his statement under Section 161 Cr.P.C that Suresh was taken to the district hospital from the spot where the doctors declared him dead. According to this witness, no policeman met with him in the night of the incident, but he affirmed giving information of the incident at the house of Suresh. After giving information, he went to his house where he stayed about 1-1½ hours and after that he went to the district hospital by rickshaw alone and reached there at around 09:00 to 09:15 p.m. On the request of Remesh, he had signed the inquest report at about the quarter past 11:00 p.m, it might have been 10:00 O'clock, he did not have a watch, no one had read the inquest to him. He stayed in the hospital at about 11:00 p.m. in the night.
29. Next day, the I.O. visited the spot at about 11:00-12:00 O'clock. The I.O. did not prepare any map in front of him, there were a tea shop, a doctor's shop, tailor and a grocery shop near the incident site. All those shops were opened at the time of the incident. No shop keepers had come to the spot at the time of the incident. Natthu Khan's grocery shop was about 08-10 steps away from the place of the incident. All those shops were closed at the time of firing. On the east side, at a distance of about six steps, standing over the slab he was looking at Ramesh.
30. In the hospital, except the eye-witnesses, Om Prakash and Ramesh, no one else was present. He did not know the name of the Sub-Inspector present there. He denied the statement recorded by the I.O. that the inquest was prepared by the Inspector, Rajendra Singh Chaudhary before him and Onkar Gangwar, Rajendra Sharma and Ramesh Chandra Bharti. The Inspector who prepared the inquest report had not asked him as to whether any eye-witness was present or not. The deceased died due to the injuries caused by the knife and the firearm. Postmortem report was not written before him. He was only asked to sign the inquest report. Duty of panch was not conveyed to him by the Inspector. On the day of occurrence, he had finished the ironing work by 06.30 p.m. After parking the cart (thela) before the house he walked towards the bridge for purchasing. When he reached there, Ramesh and Om Prakash were talking with each other. He could not remember the fact that when he reached at trijunction. Om Prakash, Hawaldar and Ramesh met there and started conversation. It was incorrect that when Ramesh met him, Suresh was also standing there, but he had gone 5-6 steps ahead at that time. He was not looking at Suresh while talking to Ramesh.
31. He had hardly talked to Ramesh for about half a minute when he heard the sounds of fire. While talking they were standing on the slab lying on the drain. The incident did not occur there. It happened in front of the shop of Dr. R.K. Sharma. There was blood on the spot. When Suresh was picked up and put on the rikshaw, blood also fell. He saw blood where Suresh was killed. About 6 steps towards the west there was shop of Dr. R.K. Sharma. The road near the incident side was running north, south and west. The road where the incident took place ran to the west. This incident occurred at a distance of 1-2 steps from the door of Dr. Sharma's shop. The accused who fired were in front of Dr. Sharma's shop at about 1.5-2 steps away. The attackers had surrounded Suresh from all sides. When Suresh was fired upon, he tried to flinch but Hasan and Tahir caught and pushed him on the ground. He could not remember that he had stated that fact to the I.O. or not. Initially only one shot was fired at the deceased before he tried to escape. He could not tell whether that fire hit the deceased. He got rest of the firearm injuries when he fell on the ground. That fire hit the deceased but on which part of the body, he could not say. The incident was completed within 2-2.5 minutes. He did not see any person attacking by knife when Suresh was standing but saw causing the injuries by knife when Suresh fell on the ground on the back side. The deceased was picked up and put in the rikshaw in the same condition. He himself did not go with the rikshaw. Ramesh was sitting on the rikshaw with Suresh and there was no one else. After the incident he did not have any conversation with Narendra and Om Prakash. He left the spot immediately. It was asserted that he stayed there for an hour or an hour and a half. The police did not come in front of him at the scene of the incident. He told the I.O. about the lights being switched off at the shop on the spot, though it was not found to be written in his statement under Section 161 CrPC. Further he replied that he could not tell how long ago the sun had set before the incident. But it was not the night and the lights were still on, light of Dr. Sharma's shop and others shops were on. It would be wrong to say that the lights were not on at the time of the incident. Suresh belonged to his fraternity but not of his family. It was wrong to say that Suresh used to run VCR illegally, sell liquor illegally and several cases against him were lodged by the police. PW-3 denied the suggestions of the defence.
32. PW-4, Sevak Ram Rathore is the witness of recovery of razor and knife from the accused Nazim and Nazuk though he had affirmed the recoveries on the pointing of both the accused persons but had denied that the recovery memos were prepared on the spot. He stated that recovery memos were prepared in the police station. Therefore, the witness had been declared hostile and was cross-examined by the prosecution.
33. PW-5, Dharampal had proved the recovery memo Ex.A-2 and Ex.A-3 regarding recovery of knives from Nazuk and Nazim. Since the appellants have been acquitted under the charges of Section 25 Arms Act and the State has not preferred any appeal against the judgment and order of the acquittal and this witness is only the witness of recovery his testimony is not relevent for our purposes.
34. PW-6, Dr. G.D. Katiyar who did autopsy of the deceased, found 22 injuries on the body of the deceased out of which injury nos.16 and 18 were firearm injury. Injuries nos.17 and 21 were abrasions. Rest 17 injuries were incised wounds on the vital and non-vital part of the deceased which were sufficient to cause death.
35. In the internal examination, this witness found that the brain was congested and there was 200 ml blood in the chest cavity. The membranes of the lungs were cut on both sides. There was 100 ml black coloured substance in the stomoch. The large intestine was perforated at many places on the left side. The left side of the liver was cut. A metalic bullet was found in ingulin region. A metalic bullet was also found on the right side of the abdomen, chest below the rib cage.
36. The witness opined that the injuries on the body of the deceased could occur at 7 p.m. on 21.09.2001. The injuries no.1 to 6, 8 to 15, 19 and 20 could come from the sharp-eged weapon like knives and razors. Injury nos.10 and 18 were possible from any firearm. Inury nos.7, 17, 21 and 22 could come from rubbing against the rough and hard surface. During the cross-examination, the witness deposed that in the month of September, rigor mortis (stiffness) after death may start from the upper part of the body and pass in 24 to 48 hours. The rigor mortis normally first passes through the upper part and then the lower part. He could not say whether the dark coloured liquid found in the stomoch of the deceased could be liquor. He had not mentioned the edge of the wounds. He did not mention the condition of tailing about any cut wound. If wounds were caused by hitting with knives or razor, tailing occur in the injuries. The spare etc which was inserted into the body and taken out did not have tailing. The witness accepted that he did not mention the word 'firearm' about injury nos.16 and 18 but had mentioned the word 'wound of entry'. He did not give the direction of the wounds or stabbed wounds. At the time of deposition the bullets were not before the witness. He further deposed that no death report of the hospital was produced before him. There was the possibility of a gap of 4-6 hours in the period of death. The post mortem was done in the artificial light.
37. PW-7, was the H.C.M. deposed that on 24.09.2001 he had lodged F.I.R. in Case Crime No.1209 of 2001, under Sections 147, 148, 149, 302 IPC and Section 3(2)(V) SC/ST Act and disclosed in rapat no.3 at 20:25 p.m. on the same day in the original G.D. The witness had brought the original G.D. In the process of its prepearation a carbon copy was also prepared which was the available on the file. It was in his hand writing and signature. The chik F.I.R. paper no.3/1 and carbon copy of GD are exhibited as Ex.Ka-4 and Ex.Ka-5, respectively. He further deposed that on 26.09.2001, accused Pappu @ Kamina alongwith a truss and specimen seal was produced by the SHO Nawab Singh, it was entered in the GD. Its carbon copy was prepared in the same process which was correct as per the original. The witness proved it. It was exhibited as Ex.Ka-6.
38. On 26.09.2001 S.I, N.K. Sharma produced three properties, in three trusses which were entered at rapat no.46 at 21:18 hour and about which case at Crime No.1209 of 2001, under Sections 147, 148, 149, 302 and Section 3(2)(V) SC/ST Act was lodged. Two specimen seals were also produced. A carbon copy was prepared alongwith original GD in his hand writing and signature which he proved and had been exhibited as Ex.Ka-8. On 01.10.2001 at rapat no.12 at 08.00 p.m. accused Hasan in Case Crime No.1209 of 2001 was produced by the SHO Nawab Singh about which original GD and carbon copy in the same order was prepared by him. The witness proved the carbon copy GD as Ex.Ka-9.
39. In cross-examination, the witness admitted that no seizure or arrest memo was made in front of him. On 24.09.2001 after 09:25 p.m. no cognizable offence was lodged in the police station Kila. Only a case under the M.V. Act had been registered. The witness denied that he made the entries anti-timed.
40. PW-8, Nawab Singh, I.O. of the case, deposed that on 24.09.2001 he was posted as S.H.O, Police Station Kila, District Bareilly and had proved the recoveries of country made pistol of 315 bore and one cartridge of the same bore from the accused Pappu @ Kamina, Tahir and Bhayyan, knife and razor from Nazuk and Nazim respectively and had proved the preparation of recovery memoes which are exhibited as Ex. Ka-9, Ka-2 & Ka-3 and the recovered articles as material Ex. 1, 2, 3, 4, 5 & 6.
41. P.W.-9, S.I., Gurudayal Singh, I.O. Of the Case Crime No. 1215 of 2001 under Section 25 Arms Act had proved the map Ex. A-11 and charge-sheet against the accused Pappu @ Kamina Ex. Ka-12 and prosecution sanction Ex. Ka-13.
42. PW-10, Dinesh Singh C.O. Police deposed that on 24.09.2001 he was posted as C.O. City-II, Bareilly when at Case Crime No.1209 of 2001, under Sections 147, 148, 149, 302 IPC and under Section 3(II)(V)SC/ST Act, an FIR was lodged and copy of the F.I.R. and G.D. was copied by him in case diary. He reocrded the statement of the H.M. Ram Singh, reached on the spot and directed S.S.I. Rajendra Singh Chaudhary to conduct the inquest. There was blood and empty cartridges on the road. Being night and insufficient arrangement of light, the place of occurrence could not be inspected in the presence of the eye-witnesses. He took blood stained and simple soil from the place of occurrence, sealed it, prepared recovery memo and recognised his signature on recovery Ex.Ka-14. A recovery memo was also prepared regarding recovered empty cartridges. He recognised his signature on the concerned recovery memo Ex.Ka-15. He copied the recovery memo in C.D, recorded the statement of Sonu and Suraj Pal witnesses of recovery memo, entrusted the security of place of occurrence to Head Constable Chandra Bhan Sharma, recorded the statement of witness Hawaldar Naresh. On 25.09.2001 he tried to arrest the accused, recorded the statement of informant Ramesh Chandra Bharti, witness Ganga Ram Bharti and Om Prakash, prepared map view on the pointing of the informant, recognized his signature on map view Ex.Ka-16 recorded the statement of Om Pal Gangwar and Rajendra Sharma witness of inquest. He received information of the arrest of accused Pappu @ Kamina on 27.09.2001 that a country-made pistol and cartridge have also been recovered from him about which a case at Case Crime No.1215 of 2011, under Section 25 Arms Act had been registered, its G.D. was copied in C.D, recorded the statement of accused Pappu @ Kamina wherein he confessed the offence, obtained inquest and post mortem report and copied it in C.D. and also recorded the statement of Constable Roop Singh and Constable Ram Pal who had carried out the dead body to the Mortury. On 28.09.2001, on the basis of arrest of accused and recovery from Tahir, Nazuk, Nazim and Bhaiyan in Crime Nos.1216 of 2001, 1217 of 2001, 1218 of 2001, 1219 of 2001, cases under Section 25 Arms Act and Section 4/25 Arms Act had been registered, its recovery memo and G.D. were copied in C.D. and their statements were recorded wherein they confessed. When accused Nazim and Nazuk informed about the recovery of razor and chaku, S.H.O. Nawab Singh was sent for its recovery. It was recovered on their pointing. Both the recovery memos were copied in C.D, recorded their statement of accused Hasan on 01.10.2001. On 02.10.2001, he recorded the statement of S.H.O. Nawab Singh, S.S.I. Rajendra Singh, A.S.I. Anwar Afaq, S.I. N.K. Sharma, Constable Om Singh, Constable Dinesh Pal Singh, Constable Ranvijay Singh and Constable Chandra Bhan Sharma. He directed the S.H.O. P.S. Kila to send the recovered case properties for examination to FSL Agra. On 10.10.2001, he recorded evidence of witnesses of fard. He visited the place of recovery of knife and razor with H.C.P. Anwar Afaq and prepared map, recognized his signature on map Ex.Ka-7. After coming back, recorded the statment of Constable Ayyub Khan at police station Kila and finding sufficient evidence against the accused persons he submitted Charge Sheet No.130 of 2001 Ex.Ka-18, under Sections 147, 148, 149, 302 IPC and Section 3(II)(V) SC/ST Act. After getting the receipt of deposition of case property he kept the receipt on 09.11.2001. A sealed bundle was opened before this witness from which country-made pistol, cartridges were received. The empty cartridge of 315 bore was exhibited as Material Ex.1. The bundle of blood stained and plain soil were exhibited as material Exs.22 and 23.
43. In cross-examination, on behalf of accused Hasan he replied that he neither arrested accused Hasan nor had recovered any weapon from his possession used in the murder. No stick or lathi was recovered from his possession. He denied that he did not find any evidence and filed false charge sheet against him.
44. On behalf of rest of the five accused persons, this witness was cross-examined together wherein he replied that he could not recollect as to which firearm was recovered from which accused. He could reply only by seeing the recovery memo. The C.D. was not in his hand writing. It was written by peshkar Shailendra Mishra on his dictation. He was still in service. It was not mentioned in C.D. that the entry therein was written by Shailendra Mishra. He admited that there was only signature on the charge-sheet, the C.D. was written by reader on his dictation. He denied the suggestion that he did not apply his mind. He denied that any part of the C.D. had been written by Nawab Singh or any other S.I. though it has not been mentioned in C.D. that which act was done when. He had taken into possession only plain and blood stained soil, khokha and empty cartridges of 315 bore. Neither any accused was arrested nor any other material was recovered before him. He was not present at the time of the inquest. He did not know when the case property was kept in malkhana. The witness denied that he submitted the charge sheet on fake and false facts.
45. PW-11, S.I. Sanjay Kumar Singh deposed that on 24.09.2001 he was posted as Sub-Inspector in the police station Kila, Bareilly. He had prepared inquest report Ex.Ka-19 in Mortury before the witnesses which was in his hand writing and signature. The witness also proved letter to C.M.O, letter to R.I, challannash, photonash which were exhibited as Ex.Ka-22 and Ex.Ka-23. After sealing the dead body he sent it through Constable Roop Singh and Constable Ram Pal for post mortem. He had prepared specimen seal Ex.Ka-24 in his writing and signature.
46. In cross-examination, the witness replied that before preparation of the inquest report he had read over the F.I.R. and was knowing about the eye-witnesses of the incident. He could not remember as to whether any eye-witness had been made witness of the inquest or not. He further deposed that Om Pal and Ganga Ram eye-witnesses were also the witness of inquest. The opinion of panch witnesses had also been written. Before signing the panchayatnama the duty of panchas was not told by him. It was wrong to say that some panch witnesses were not present during the inquest proceeding and their signatures were obtained later. The crime number was written on the inquest. Though the name of the accused was not written. The witness denied the suggesstions.
47. PW-12, S.I. Nek Ram Singh Pal deposed that in the year 2001 he was posted as S.I. at police Station Kila, Bareilly. He had investigated the Cases under the Arms Act wherein the accused persons have been acquitted.
48. PW-13, S.I. Anwar Afaq deposed that on 26.09.2001 he was posted as A.S.I. in the police station Kila. That day he alongwith S.H.O. Nawab Singh, S.I. Rajendra Singh, Constable Om Singh, Constable Chandra Bhan Sharma were busy in search of the accused persons with government jeep on the information of informer at around 10:00 p.m. The accused Pappu @ Kamina was arrested with a country made pistol and cartridges on the road runing from Surkha Fatak to Vinod Soap Factory who confessed his crime and that the weapon having been used in the incident and also disclosed the names of accomplices. The witness further deposed that he had written the recovery memo Ex.Ka-9 on speaking of S.H.O. He recognized his signature. On 27.09.2001 in search of the remaining accused persons he alongwith S.H.O. and other police personnel arrested the accused persons Tahir, Bhaiyan @ Sharif Mohammad alongwith the accused Nazuk and Nazim. From the possession of Tahir a country-made pistol of 315 bore and one cartridge, from Bhaiyan @ Sharif Mohammad a knife, from Nazim a country-made pistol of 12 bore with two cartridges and from Nazuk a country-made pistol of 315 bore and one cartridge were recovered. He had written the recovery memo Ex. Ka-10 on the speaking of S.H.O. The witness has recognized his signature on it.
49. On 28.09.2001 on the poiting of accused Nazuk and Nazim the razor and knife used in the murder of the deceased Suresh were recovered. Its recovery memo was prepared by S.H.O. Nawab Singh. The witness also recognized his signature which have already been exhibited as Exs.Ka-2 and 3. The witness furhter deposed that the case property was before him in the court which was already exhibited as material Exs.1 to 21.
50. After closure of prosecution evidence, the statements of witnesses were recorded under Section 313 Cr.P.C. accused Tahir denied all allegations and the prosecution evidence and stated that the witnesses were the relatives and friends, therefore, they are falsely deposing. The police and doctor witnesses acted wrongly. Witnesses were testifying against him out of enmity and party rivalry. When he told the police not to implicate without reason to accused Pappu, he was also falsely implicated for arguing. Deceased Suresh was involved in business of V.C.R. and illegal liquor trade.
51. Accused Nazim also denied the allegations and the evidence. He further alleged that the deceased Suresh by spreading panic got sold the houses of Nazir and Shakir, therefore, they had enmity with him.
52. Accused Pappu @ Kamina also deposed that the police used to pressurize him for giving false testimony but he refused. He had taken money on installment from Ramesh which he could not repay, therefore, informant Ramesh had enmity with him.
53. Accused Nazuk also denied the allegations and prosecution evidence and stated that informant and the witnesses belong to same party and had ties with the police. In his sister's marriage, some material were supplied from the tent house of Ramesh and some money was due to him, therefore, Ramesh had enmity. A quarrel had also occurred between his father Kallu and the informant Ramesh.
54. Accused Bhaiyan @ Sharif denied the allegations and the prosecution evidence and stated that being relative of accused Kallu, he was falsely implicated.
55. Accused Hasan also denied the allegations and evidence produced by the prosecution and stated that he had been falsely implicated due to party rivalry.
56. From the side of defence DW-1 Zakir Husain had been examined who deposed that at the time of the incident he was at his house. When he heard the sounds of firing, he reached there and saw that there were razor in the hands of two miscreants and another having revolver were escaping after killing Suresh. He saw the incident from a distance of 7 to 8 steps. Since there was no light, therefore, it was not looking from afar. Bulb was not on. Apart him, Taiyab, Muntiyaz and Tufail etc. also reached there. He went to the shop of Ramesh and informed about the incident to him. Suresh was taken away by the informant in the rikshaw. Deceased was involved in illegal V.C.R. trading and also used to do other illegal business.
57. In cross-examination, this defence witness replied that he did not recognize the killers. He did not receive any summon. He had no knowledge about any report against Suresh. He had not come for testifying himself in favour of either side. He had come from the shop and had also watched the dial, hence the time was in his remembrance. There was only sound of firing. He had reached first and rest of the people came after 5-7 minutes. The shop of Ramesh was about 250-300 steps away from his house. Suresh had no shop. He used to work from home. His house would be 70 steps away from his house. He had only formal relation with Suresh. It was wrong to say that he was deposing falsely and had no knowledge of the incident.
58. Learned counsel for the appellants raised the following grounds during the argument:
(i) The mandatory requirement of Section 157(1) CrPC and paragraph 101 of Special Report Uttar Pradesh Police Regulations have not been complied with.
(ii) No previous FIR regarding altercation held 3-4 days ago had been registered with the police/Magistrate.
(iii) There was no evidence that the alleged offence had been committed in furtherance of common object.
(iv) There was no injury caused by blunt object.
(v) There was variation about the place of the incident. How the injured Suresh was brought to the hospital was doubtful.
(vi) The prosecution had withheld the medical documents of the district hospital, Bareilly.
(vii) The constables who carried the dead body to mortury were not examined.
(viii) The FIR was ante-timed.
(ix) The autopsy was conducted with inordinate delay.
(x) There was inordinate delay in recording the statement of the eye-witnesses.
(xi) There was material inconsistency in confirmity and contradiction in the witnesses of fact and the conduct of PWs-1, 2 and 3 was unnatural.
(xii) The medical report and evidence are inconsistent with the ocular evidence.
(xiii) No blood was found on the person or clothes of the informant Ramesh PW-1.
(xiv) The prosecution case was not proved beyond reasonable doubt.
59. Having heard learned counsels of the parties and persued the record, we may note that :-
60. As per prosecution case the offence was committed at about 07:00 p.m. on 24.09.2001 for which the F.I.R. was lodged on the same day at 08:25 p.m. at P.S. Kila which was only 3 farlang away from the place of the occurrence. As per prosecution story, the deceased was taken to the district hospital, Bareilly from the place of occurrence and after declaring him dead, the dead body was sent to the Mortury. The informant being brother and active member of the family lodged the F.I.R. one hour and 25 minutes after the occurrence, therefore, it cannot be said that there was any delay in lodging the F.I.R. The chik F.I.R. had been sent through post and it had been seen by the CJM, Bareilly on 26.09.2001. Though, it should have been produced within 24 hours after lodging the F.I.R, but in the facts and circumstances of the case there was no inordinate delay in sending the chik F.I.R. Due to night occurrence, the proceedings substantially could start on 25.09.2001 and the information reached to the C.J.M. on 26.09.2001. Therefore, such minor delay cannot be said to be inordinate delay and fatal for prosecution.
61. Learned counsel for the appellants relied on State of Rajasthan Vs. Daud Khan, 2015 0 Supreme (SC) 1041. There was delay of about 36-37 hours in receiving the copy. In paragraphs 26-29, the question regarding sending special report and copy of the F.I.R. to the Magistrate, has been discussed which are as under:
"26. The interpretation of Section 157 of the CrPC is no longer res integra. A detailed discussion on the subject is to be found in Brahm Swaroop v. State of U.P. (2011) 6 SCC 288 which considered a large number of cases on the subject. The purpose of the "forthwith" communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging an FIR, then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate. However, if no question is put to the investigating officer concerning the delay, the prosecution is under no obligation to give an explanation. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. In other words, the facts and circumstances of a case are important for a decision in this regard.
27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. (2013) 12 SCC 539 wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:
"30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-1979. Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.
31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. (2012) 6 SCC 107 wherein the said position has been explained as under in paras 62-63: (SCC p. 132)
"62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11- 2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab, (1972) 2 SCC 640 wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab (1976) 4 SCC 369, Anil Rai v. State of Bihar (2001) 7 scc 318 and Aqeel Ahmad v. State of U.P. (2008) 16 SCC 372."
28. It is no doubt true that one of the external checks against ante-dating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.
29. In so far as the present case is concerned, there was no delay in lodging the FIR. Hence the question of its manipulation does not arise. Additionally, the officer in charge of the police station, PW-21 Surender Singh was not asked any question about the delay in sending the special report to the Magistrate. An explanation was, however, sought from the investigating officer PW-25 Rajinder Parik who tersely responded by saying that it was not his duty to send the special report to the court (or the Magistrate). In the absence of any question having been asked of the officer who could have given an answer, namely, the officer in charge of the police station, no adverse inference can be drawn against the prosecution in this regard, nor can it be held that the delay in receipt of the special report by the Magistrate is fatal to the case of the prosecution. This is apart from the consistent evidence of the eye witnesses, which we shall advert to a little later."
62. In Anil Rai Vs. State of Bihar, (2001) 7 SCC 318 and in State of Punjab Vs. Hakam Singh, (2005) 7 SCC 408 it has been held that the delay in sending copy of the F.I.R. to the area Magistrate is not material where the F.I.R. is shown to have been lodged promptly and investigation had been started on that basis. The delay is not material in the event when the prosecution has given cogent and reasonable explanation for it.
63. On the basis of the above discussion the defence argument about delay in compliance of Section 157(1) CrPC has no force and is accordingly, rejected.
64. Learned counsels for the appellants have argued that if prior to this incident any altercation had taken place between the deceased and the accused Tahir, Bhaiyan and Hasan no F.I.R. or complaint had been made, which shows that there was no motive with the accused to cause murder.
65. The informant PW-1 in the F.I.R. stated that due to bicycle collision, there was a scuffle between the deceased and the accused persons Tahir, Bhaiyan and Hasan and they had threatened the deceased with dire consequences but they did not pay any special attention to that matter.
66. This case is based on direct evidence for which motive is not necessary though in the statements under Section 313 Cr.P.C. accused persons themselves admit enmity and motive with the deceased. It is a case based on the evidence of three eye-witnesses, therefore, there is no need to prove motive.
67. The third argument is that the common object of the accused persons, the constitution of unlawful assembly before the incident and that there was a common object of such unlawful assembly regarding murder of the deceased had not been established. Therefore, individual act of the accused would have to be taken into consideration.
68. In the F.I.R., the informant setup previous enmity as motive behind the commission of the crime. As per prosecution, it was a case based on direct evidence of the eye-witnesses PWs-1, 2 and 3, brother of the deceased and member of the close vicinity. In cases based on direct evidence, motive does not have much significance, but in the cases based on circumstantial evidence motive becomes significant and of much consequence. The legal proposition was stated in Nagraj Vs. State, (2015) 4 SCC 739, Wakkar Vs. State of U.P, 2011 (2) ALJ 452 (SC), Nathuni Yadav Vs. State of Bihar, (1998) 9 SCC 238 etc.
69. In this regard it is pertinent to mention Sections 141 to 149 I.P.C. which are as under:-
"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First.--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
142. Being member of unlawful assembly.--Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
143. Punishment.--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
144. Joining unlawful assembly armed with deadly weapon.--Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.--Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both.
146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
70. In view of the above sections, prosecution version and the evidence were discussed. From the begining to end, as per the F.I.R. there were six accused persons together out of which accused Tahir, Bhaiyan and Pappu @ Kamina were armed with country-made pistol while the accused Nazuk and Nazim were armed with knives and accused Hasan was armed with stick. From the evidence of PWs-1, 2 and 3 it is established that all the accused persons simultaneously played an active role in commission of the crime.
71. As per Section 141 I.P.C. if there is a requirement of common object of an assembly consists of five or more persons is designated an "unlawful assembly".
72. As per explanation to this section if initially an assembly is not unlawful at the time of its assemblance, it may subsequently become an unlawful assembly.
73. In this case, as per F.I.R. version and the evidence, the deceased was coming with his brother, informant PW-1 and when two other persons met him, the informant stopped but the deceased went few steps ahead where the alleged offence was committed. All the accused persons simultaneously attacked with the weapons which they had in their hands.
74. As per Section 142 I.P.C. if knowing the fact that the assembly is unlawful any person intentionally joins it or continues in it, he is said to be a member of such unlawful assembly. Accused Hasan was having only stick in his hand, therefore, an argument has been advanced for him that he cannot be said to be member of unlawful assembly and his role should be assessed considering the weapon in his hand. In the F.I.R. and in evidence of the eye-witnesses it is averred and deposed that accused Tahir and Hasan made the deceased fall on the ground. PW-1 has deposed in cross-examination that apart from bullet and knife, the deceased was also hit by the stick. PW-2 Om Prakash deposed in examination-in-chief that Hasan was hitting the deceased with the stick. In this regard no question in cross-examination has been asked. Hence, the evidence of PW-2 being unrebutted becomes conclusive regarding the role of the accused Hasan.
75. PW-3, Ganga Ram deposed in cross-examination that Hasan and Tahir made the deceased fall on the ground. Hasan had a stick. When Suresh was fired upon, he tried to run away after struggling, then Hasan and Tahir caught hold him and dropped him. Even from this witness no question has been asked and no suggestion has been given regarding hitting or non-hitting by the accused Hasan by stick. All the witnesses of fact PW-1, PW-2 and PW-3 have supported the version of F.I.R. unanimously and without any contradiction and have deposed that when deceased went 5-6 steps ahead and when they turned, they saw that Tahir and Hasan made the deceased fall on the ground and Tahir, Bhaiyan and Pappu @ Kamina started indiscriminate firing on the deceased. Nazuk and Nazim attacked him with a knife and Hasan attacked with the stick.
76. For an overt act in pursuance of the common object of any member of an unlawful assembly, every member of that assembly would be constructively liable for such acts also where such acts constitute offence. Hitting the deceased by the accused Hasan with the stick or stabbing by accused Nazuk and Nazim by razor and knife and use of firearm by Tahir, Bhaiyan and Pappu @ Kamina establishes that all the accused persons shared a common object. From the above evidence, presence and participation of every accused as member of the unlawful assembly is clearly established.
77. Section 149 IPC does not create separate offence but only declares vicarious liability of all members for unlawful assembly for acts done in furtherance of common object of the assembly. There might be no fatal injury from the attack of the accused Hasan but since he was knowing that the rest of the persons were having deadly weapons which would be used in the murder of the deceased and due to their attack the deceased had died, Hasan would also be directly and vicariously liable being member of the unlawful assembly for murder. Though mere presence in unlawful assembly cannot render person liable unless there was common object and the appellant has shared it with other accused but in this case the accused Hasan has played an active role. Firstly, he dropped the deceased with co-accused Tahir and also hit him from the stick knowing that three other accused persons had firearms and rest two other accused persons had deadly weapon like razor and knife proposed to be used in killing of the deceased. Therefore, it can very well be concluded that accused Hasan would also be liable for commission of murder under Section 302 I.P.C. read with Sections 147, 148, 149 I.P.C. So far as the rest five accused persons are concerned, it has been proved beyond reasonable doubt that they all have inflicted fatal injuries to the deceased to achieve the common object of the unlawful assembly composed for killing of Suresh.
78. In Lalji Vs. State, AIR 1989 SC 754, Bhudeo Mandal Vs. State, AIR 1981 SC 1219, it has been held that Section 149 creates a specific and distinct offence. The vicarious liability of the member of the unlawful assembly will extend to (i) the acts done in pursuance of the common object of the unlawful assembly, and (ii) if such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. An accused person whose face false within the terms of this section cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly.
79. In Fatte Vs. State, AIR 1979 SC 1504 it is held that every one must be taken to have intended to probable and natural results of the combination of the acts in which he joined. It is not necessary in all cases that all the persons forming an unlawful assembly must do some overt act.
80. In Vishambar Bhagat Vs. State, AIR 1971 SC 2381 it has been held that where the accused had assembled together, armed with lathis and were parties to the assault on the complainant, the prosecution is not obliged to prove which specific overt act was done by which accused.
81. In Gajanand Vs. State, AIR 1954 SC 695 the basis of liability has been discussed. In this case it has been held that under Section 149, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the seen of action.
82. In Maslati Vs. State of UP, AIR 1965 SC 202 the Constitutional Bench of the Supreme court held:
"What has to be proved agaisnt a person who is alleged to be a member of unlawful assmebly is that he was one of the persons constituting the assembly and he entertained alongwith the other members of the assembly the common object as defined by Section 141 IPC.... The crucial question to determine in such case is whether the assembly constituted of five or more persons and whether the said persons entertain one or more of the common objects as specified by Section 141."
83. In State Vs. Krishan Chand, AIR 2004 SC 4671 it is held that it is a well established principle of law that when a conviction is recorded with the aid of Section 149, relevant question to be examined by the Court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not.
84. In this case, all the appellants proved to be member of the alleged unlawful assembly having deadly weapons except the accused Hasan who was having lathi in his hand. Lathi was used in putting down the deceased and attacks was made from the lathi. There might be no fatal injury because of the attack from lathi but being member of the unlawful assembly having common object of killing the deceased, accused Hasan is also liable to be convicted for the offence of murder under section 302 IPC with the aid of Section 149.
85. It is also argued for the appellant Hasan that in post mortem report no injury of lathi has been found. From perusal of the post mortem report it transpires that there are 22 injuries on the person of the deceased. It is quite possible that the injury caused by the stick would have been hidden under such series of injuries. Therefore, this argument has no force and is accordingly, rejected.
86. Learned counsel for the appellants argued that according to the PWs-1 and 2, the incident occurred on the slab while as per PW-3 and site plan the place of incident at some distance from the slab.
87. In this regard, this Court has examined the relevant part of the F.I.R. and evidence. As per F.I.R. when informant and the deceased reached on the intersection near Dr. Sharma's shop at 07 p.m. the informant, Om Prakash, Hawaldar and Ganga Ram of their locality met to him with whom he started talking, his brother went 5 to 6 steps away then he was stopped in front of Dr. Sharma's shop and Tahir and Hasan caught hold Suresh and dropped him on the ground, accused Tahir, Bhaiyan and Pappu @ Kamina started indiscriminate firing at him. Nazuk and Nazim attacked with knives and Hasan hit him with stick. The deceased fell on the spot and shouted for help.
88. On the pointing of the informant, a map Ex.Ka-16 was prepared by the I.O. in which the place of occurrence has been shown by letter ''X' which is few steps away from the drain and is in front of and to the north of Dr. Sharma's shop wherefrom blood stained and simple clay was taken. From the place ''B' empty cartridge was recovered. Informant and rest of the witnesses are shown standing to the east on the slab at place ''A'. The distance between ''A' to ''X' was found to be 8 steps and from the bridge the place of occurrence was about 6 steps. Thus the informant and the witnesses were only 8 steps away from the place of occurrence. As per F.I.R. when his brother went ahead 5 to 6 steps from him, accused persons started committing the alleged occurrence.
89. PW-1 in his examination-in-chief has deposed the same facts. In cross-examination similar evidence has been deposed by PW-1. This witness deposed that when for the first time he saw, he found that accused persons were standing to the west side from him and they were killing the deceased. He further deposed that there was 2 feet wide slab over the drain. At the time of incident, he and his brother were present on it, they had not crossed it. Upon that slab, no blood had been dropped. Due to night he could not see whether blood had fallen on the slab or not.
90. PW-2 has deposed that he saw that accused were committing the alleged crime and saw that the deceased was suffering like a fish laying on the track of R.K. Sharma. In cross-examination this witness has deposed that there was a trijunction near the incident site, where the road ran in the north-south and west direction, where the road turned in the west direction. There was a drain and a slab lying on the drain. The drain was in the north-south. This slab track was near the shop and the road was government owned. He called the slab lying in front of R.K. Sharma's shop as a track.
91. PW-3, Ganga Ram has deposed that Hasan and Tahir dropped the deceased in front of R.K. Sharma's shop accused persons surrounded him and started killig him. He was standing on the east side at a distance of about 6 steps from where the incident took place. There was a drain about 1.1/2 to 2 feet wide near the spot of the incident. Slab was lying on the drain, he was standing on it. He had hardly talked to Ramesh for about half a minute when he heard the sound of fire while talking. They were standing on the slab lying on the drain, incident did not happen on the slab. It happened in front of the shop of Dr. Sharma. There was blood oozing from the body of Suresh at the place of occurrence. The place where the incident took place was a road which goes to the west. From that on walking west, Dr. Sharm's shop would fall in the south direction. This incident took place at a distance of 1-2 steps from the threshold of the shop of Dr. R.K. Sharma. The miscreants were at right side in front of Dr. Sharm's shop. They were at a distance of 1.1/2 to 2 steps.
92. When we compare the evidence of prosecution witnesses with the map and the F.I.R, we find no variation or contradictions about the place of occurrence. A person who is being attacked tries his best to save his life. The deceased and the accused persons seems to be present in an area of not less than 5 to 8 feet. It is not the case that the deceased was killed during sleeping on a fixed place. The place of occurrence has also not been denied by the defence and it it is not case of the defence that the place of occurrence is not the same as alleged by the informant and the witnesses. Even D.W-1 has accepted the same place of occurance. As per Ex.Ka-14 from the place of occurrence blood stained and plain soil had been collected. As per Ex.Ka-15 on the place of occurrence an empty cartridge of 315 bore was also found. The I.O. has also found the same place of occurrence where the deceased was killed. Therefore, only on the basis of the above noted suggestion or the argument it cannot be concluded that the place of occurrence has been changed.
93. Learned counsel for the appellants argued that how the injured was brought to the hospital is doubtful.
94. According to this Court, this is not a matter in issue as to how the deceased was brought to the hospital from the place of occurrence. Even if any variation is established in the manner in which the deceased was brought from the spot to the hospital, it will not affect the merit of the case.
95. Learned counsel for the appellants have argued that the medical evidence of district hospital, Bareilly has been witheld and had not been collected by the I.O.
96. Certainly any medical document regarding treatment of the deceased in the district hospital, Bareilly had not been produced but according to this Court such documents are not required for disposal of the case as it is fully proved that when the deceased was brought in the district hospital, the doctor declared him brought dead. The body was shifted to the mortuary for post mortem. Since no treatment was done in the district hospital, hence if any medical document of the district hospital has not been collected and annexed with the case diary, the same is not fatal for the prosecution.
97. Learned counsel for the appellants argued that the constables who carried the dead body to the mortury were not examined.
98. According to this Court, generally this fact that the dead body was entrusted for transportation after inquest for post mortem to which constable, is never a matter in issue. Since this fact has no importance for criminal justice, it is not necessary to examine such witnesses.
99. So far as the argument regarding ante-timing of the F.I.R. is concerned, it has already been discussed in the forgoing paragraphs of this judgment.
100. It is argued by the learned counsel for the appellants that autopsy was done with inordinate delay.
101. In this case PW-6, Dr. G.D. Katiyar has conducted the autopsy next day i.e. 25.09.2001 at 03:15 a.m. The occurrence took place at about 07:00 p.m. on 24.09.2001. In the night, after preparation of inquest report the dead body was sent to the Mortury and in the night of 24/25.09.2001, the post mortem of the dead body was conducted by Dr. G.D. Katiyar. There is no delay much less inordinate delay in the post mortem.
102. Learned counsel for the appellants argued that there is material inconsistency and contradictions in the evidence of the witnesses of fact and the conduct of PWs-1, 2 and 3 had been unnatural.
103. Earlier the statement of the witnesses of fact had been discussed. All the witnesses deposed in support of the prosecution version and no infirmity, inconsistency or material contradiction could be found in the evidence of the witnesses. Contrary to it, the evidences of PWs-1, 2 and 3 are in confirmity with that of each other. Neither there is any contradiction in respect of place of occurrence, manner of attack, identity of accused persons, weapons used by the accused persons, separately, loading of the deceased on the rikshaw nor about the light or any other fact connected with the commission of crime. All the witnesses of fact are local persons, their presence on the spot was quite natural. Since the accused persons were armed with deadly weapons and they committed the crime within two minutes and ran away from the spot, therefore, no occasion arose to the witnesses to save the life of the deceased or caught hold some of the accused persons.
104. In Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537, Ramesh Vs. State of UP, (2009) 15 SCC 513, it is held that minor contradictions in the testimonies of the prosecution witnesses are found to be there and in fact they go to support the truthfulness of the witnesses. In Maqsoodan Vs. State of UP, (1983) 1 SCC 218 (three-Judge-Bench), it is held that if there are minor inconsistencies in the statement of witnesses and F.I.R. in regard to the number of blows inflicted and failure to state who injured whom would by itself not make the testimony of the witnesses unreliable. This, on the contrary, shows that the witnesses were not tutored and gave no parrot like stereotype evidence.
105. In this case all three witnesses have given consistent evidence regarding the role played by each of the accused separately and also that which accused was having which weapon in his hand and in which manner they attacked at the deceased. Previous enmity is already admitted to the accused persons. No alibi has been taken. There is no inconsistency or any variation in the evidence of witnesses regarding date, time, place and number of accused persons. There is no variation regarding direction and arrival or departure of the accused persons.
106. In Nankaunoo Vs. State of UP, (2016) 3 SCC 317 (three-Judge-Bench), it was held that where the witnesses give consistent version of the incident, the consistent testimony of the witnesses should be held credible.
107. In Bhagwan Jagannath Markad (supra), Ramesh Harjan Vs. State of UP, (2012) 5 SCC 777, Leela Ram Vs. State of Haryana, (1999) 9 SCC 525, Mukesh Vs. State (NCT) of Delhi and others, AIR 2017 SC 2161 (three-Judge-Bench) it has been held that if there are no material discrepancies or contradictions in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contadictions, inconsistencies, exaggerations, embelishments etc. The distinction between material discrepancies and normal discrepancies are that minor discrepancies do not corode the credibility of a party's case but material discrepancies do so.
108. On the basis of above discussion since no material inconsistency, inconfirmity or contradiction has been found in the evidence of PWs-1, 2 and 3, this argument being not tenable and is accordingly, rejected.
109. Learned counsel for the appellants further argued that there are inconsistency between the medical report/evidence and the ocular evidence.
110. PWs-1, 2 and 3 all the witnesses of facts deposed that accused Tahir, Bhaiyan and Pappu @ Kamina indiscriminatly fired upon the deceased and Nazuk and Nazim had attacked with razor and knife. Hasan had attacked with the stick. A perusal of the post mortem reported indicated that incised wounds, firearm wounds, lacerated wounds and abrasions have been found on the person of the deceased which would occur if a person is attacked by the alleged weapons in the alleged manner.
111. If any person is attacked with razor and knife, incised wound would occur. If a person is forcefully dropped on the road/ground, abrasion might occur. If any person is hit by lathi, abrasion or lacerated wounds might occur. If a person is shot by firearm, entry or exit wound could occur. Even metalic bullets were recovered from the body of the deceased during autopsy. Thus, there is no discrepancy or inconsistency between the medical report and evidence and the occular evidence. Such injuries may occurr if any attack is made by the weapons which were in the hands of the accused persons. Hence, this argument also has no force and is accordingly, rejected.
112. Learned counsel for the appellants further argued that no blood was found on the body and clothes of the informant Ramesh.
113. PW-1, informant, Ramesh Chandra Bharti, brother of the deceased proved that after the incident he carried the deceased to the district hospital by rikshaw sitting thereon. Certainly, some blood would have fallen on the body and the clothes of the informant. In this regard, cross-examination has been made wherein the witness deposed that he could not show blood on his clothes to the I.O. in panic, even he did not give those clothes to the police. In this regard, no question had been asked from the I.O, PW-10. Generally when the proper evidence are already available, the I.O. does not take the custody of clothes of the witnesses. Since the presence of informant, PW-1 and rest of the witnesses is not doubtful, therefore, if the I.O. had not taken the blood stained clothes of the informant and the same had not been sent for the examination, is not fatal for the prosecution. It may be called an omission or an act of faulty investigation. Faulty investigation in itself is not the sole realm to be explored by the court.
114. In Khem Ram Vs. State of Himachal Pradesh, (2018) 1 SCC 202; State of Karnataka Vs. Suvarnamma (supra); Leela Ram (supra); Dashrath Singh Vs. State of UP, (2004) 7 SCC 408; State of Punjab Vs. Hakam Singh, (2005) 7 SCC 408, it has been held that any irregularity or deficiency in investigation by the I.O. need not necessarily lead to rejection of the prosecution case when it is otherwise proved. The only requirement is the use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where occular testimony is found credible and cogent.
115. In Rahul Mishra Vs. State of Uttarakhand, AIR 2015 SC 3043 (three-Judge-Bench) and V.K. Mishra Vs. State of Uttarakhand, (2015) 9 SCC 588 (paragraph-38) it is held that the I.O. is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the I.O. cannot go against the prosecution. Interest of justice demands that such acts or omission of the I.O. should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions.
116. In Makbool Vs. State of Andhra Pradesh, AIR 2011 SC 184; Shiv Shankar Singh Vs. State of Jharkhand, 2011 CrLJ 2139 (SC); and Dhanaj Singh Vs. State of Punjab, (2004) 3 SCC 654, it is held that non-sending of blood stained earth and clothes of the deceased or injured to chemical examination for examination is not fatal to the case of prosecution if the occullar testimony is found credible and cogent.
117. In this case these precedents completely apply in favour of the prosecution.
118. On the basis of above discussion this Court has come to the conclusion that if the clothes of the informant was not taken by the I.O. and the same was not sent for the examination or the fact regarding blood on his person was not noted by the I.O. is neither material nor fatal for the prosecution. Hence, this argument is also rejected.
119. In the last, learned counsel for the appellants have argued that the prosecution could not prove the case beyond reasonable doubt.
120. It is a case based on the ocular evidence. The witnesses proved that the deceased was killed by the accused persons on the alleged date, time and place of occurrence. They also proved that which accused was having which weapon and those weapons were used in commission of the crime. Some of weapons have been recovered on their pointing. The doctor who did autopsy found the injuries which may occur by the attack from the weapons which were in the hands of the accused persons. Thus, it cannot be said that the prosecution has been failed in proving the case beyond reasonable doubt. No doubt much less no reasonable doubt can be created by the defence. Reasonable doubt is not a fetish.
121. The following judgements relied by the learned counsel for the appellants do not apply in the facts and circumstances of the instant case:
(I) Jagdish Murao Vs. State of UP, 2006 0 Supreme (SC) 775.
(II) Maruti Rama Naik Vs. State of Maharashtra, 2003 0 Supreme (SC) 863.
(III) Sampath Kumar Vs. Inspector of Police, Krishnagiri, 2012 0 Supreme (SC) 214 (IV) State of UP Vs. Parasuram Yadav, 2005 0 Supreme (All) 1309.
(V) State of Rajasthan Vs. Daud Khan, 2015 0 Supreme (SC) 1041 (VI) Khima Vikamshi Vs. State of Gujarat, 2003 0 Supreme (SC) 363.
(VII) Ganesh Bhawan Patel and another Vs. State of Gujarat, 1978 0 Supreme (SC) 323.
122. Contrary to the above citations referred from the side of appellants in Mahavir Singh Vs. State of Haryana, (2014) 6 SCC 716 (para 16), the Supreme Court has settled the legal proposition that in the event a witness is not cross-examined with regard to a particular issue, the correctness or legality of that issue cannot be questioned. Undoubtedly, it is the prosecution's duty to prove its side of story. However, in the light of Section 3 of the Indian Evidence Act, the Apex Court has observed in Harendra Vs. State of Assam, AIR 2008 SC 2467 and Himanchal Prashasan Vs. Om Prakash, AIR 1972 SC 975 that benefit of doubt should be given only on the basis of logical, reasonable and honest conclusion.
123. From the above discussion, it has been established that in this case a prompt F.I.R. has been lodged against the named accused persons describing their specific role who killed the deceased having previous enimity after forming an unlawful assembly to achieve the common object of such assembly, which has been proved by the independent eye-witnesses beyond reasonable doubt. The witnesses are proved to be sterling witnesses. Though the trial court has acquitted the accused persons under the charge of the Arms Act against which no appeal has been preferred by the State or the informant. But a charge under the Arms Act is different from the charges under the Indian Penal Code regarding commission of the main crime. In this reference the pronouncement of Nankaunoo Vs. State of UP, (2016) 3 SCC 317 (three-Judge Bench) is important in which the Apex Court has held that where the ample unimpeachable ocular evidence corroborated by medical evidence is available, mere non-recovery of weapon from the accused does not affect the prosecution case relating to murder.
124. The prosecution has been succesful proving the case against all the accused persons beyond reasonable doubt under Sections 147, 148, 302 read with Section 149 IPC. The appellants could not create any doubt and could not establish any ground on which the conviction recorded under the aforesaid charges could be reversed. Though it is a case of brutal murder even then the trial court has awarded only minimum sentence which cannot be reversed. Thus this Court concludes that the appeals in respect of conviction and sentencing are devoid of merit and are liable to be dismissed.
O R D E R
125. The appeals are dismissed.
126. Let the original file be sent back to the trial court for consignment alongwith a copy of this judgment.
Order Date :- 24.03.2023 Shahroz/Vinod.
(Umesh Chandra Sharma, J.) (Sunita Agarwal, J.)