Allahabad High Court
Ram Krishna Yadav vs State Of U.P. on 20 December, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 1 Judgment reserved on : 05.12.2018 Judgment delivered on : 20.12.2018 Criminal Appeal No. 775 of 2015. Ram Krishna Yadav vs. State of U.P. Connected with Criminal Appeal No. 1326 of 2015. Nanhey vs. State of U.P. Hon'ble Ramesh Sinha, J.
Hon'ble Dinesh Kumar Singh-I, J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. The aforesaid criminal appeals have been preferred by the appellants against the judgment and orders dated 12.2.2015 passed by Additional Session Judge, Shahjahanpur passed in S.T. No. 277 of 2013 arising out of case crime no. 42 of 2013 convicting and sentencing appellants Ram Krishna Yadav and Nanhey under section 302 & 34 I.P.C. for rigorous life imprisonment with a fine of Rs. 10000/- and in case of default of payment of fine additional rigorous imprisonment of two years and also convicting and sentencing the appellant Nanhey by the aforesaid impugned judgment and order passed in S.T. No. 278 of 2013 arising out of case crime no. 45 of 2013 under section 25/27 Arms Act for three years rigorous imprisonment with a fine of Rs. 5,000/- and in default of payment of fine additional rigorous imprisonment of three months.
2. The brief facts of the case are that an F.I.R. was lodged by one Gangadeen Yadav son of Ramlal resident of village Puran Nagla, police station Paror, District Shahjahanpur (hereinafter referred to as 'the informant') alleging that on 23.1.2013 in the night, he along with his son Krishna Pal (hereinafter referred to as 'the deceased') aged about 25 years had gone in the Tilak ceremony at the house of one of his relative, namely, Ramdas son of Soran resident of village Nagriya, police station Kalan, District Shahjahanpur. In the said ceremony, accused Nanhey Yadav and Ram Krishna sons of Pyare Lal resident of Dharampur, police station Paror, district Shahjahanpur were also present. There was sufficient light in the Tilak ceremony through generator. In the night, at about 11 p.m., accused Ram Krishna because of some previous enmity caught hold of the deceased from back and exhorted his brother Nanhey Yadav to shoot him on which the accused Nanhey Yadav fired shot on the deceased by a country made pistol at the back of his head due to which the deceased died on the spot.
3. On the said written report given by the informant at police station Kalan, District Shahjahanpur, an F.I.R. was registered against accused Nanhey Yadav and Ram Krishna Yadav as case crime no. 42 of 2013 under section 302/34 and 504 I.P.C.
4. After registration of the F.I.R., investigation of the case was started and during investigation, on the information given by the police Informer, accused Nanhey Yadav was arrested on 29.1.2013 and at the time of his arrest on search a country made pistol of 315 bore and one live cartridge of 315 bore were recovered from his possession.
5. The accused confessed his guilt and stated that he shot dead the deceased with the said country made pistol. A fard recovery memo of said country made pistol and live cartridge recovered from the possession of accused Nanhey, was prepared and a separate case was registered against him as case crime no. 45 of 2013 under section 25/27 Arms Act at police station Kalan, District Shahjahanpur and the same was also investigated.
6. After investigation, the police submitted charge-sheet against accused Nanhey Yadav and Ram Krishna Yadav for the offence under section 302/34, 504 I.P.C. and against Nanhey Yadav a separate charge-sheet under section 25/27 Arms has also been filed. As both the charge-sheets relate to one and same incident, hence both the cases were committed by the Magistrate to the Court of Session and in both the Session trial, i.e., S.T. No. 227 of 2013 for the offence under section 302/34 and 504 I.P.C. arising out of case crime no. 42 of 2013 and S.T. No. 278 of 2013 under section 25/27 Arms Act arising out of case crime no. 45 of 2013 which was registered against accused Nanhey Yadav only. The trial court summoned the accused Nanhey Yadav and Ram Krishna Yadav for framing charges, who appeared before the trial court and charges were framed against them. Both the accused denied charges and claimed their trial.
7. The prosecution in support of its case examined P.W.-1 Ganga Deen, P.W.-2 Parshuram, P.W.-3 Ram Das, P.W.-4 Virbhan Singh, P.W.-5 Head Moharrir-Prem Chandra Sharma, P.W.-6 Dr. A.U.P. Sinha, P.W.-7 S.I. Nagdu Yadav, P.W.-8 S.I. Roshan Singh, the Investigating Officer, P.W.-9 Madan Sen Assistant Scientist, Forensic Science Laboratory, U.P. Lucknow. The documentary evidence relied upon by the prosecution was written report-Ex. Ka-1, inquest report of the dead body of the deceased-Ex. Ka-2, Chik F.I.R. of case crime no. 42 of 2013-Ex. Ka-3, G.D. of registration of case crime no. 42 of 2013-Ex. Ka-4, Postmortem report of the deceased Ex. Ka-5, letter to C.M.O.- Ex. Ka-6, Challan nash- Ex. Ka-7, Photo nash-Ex. Ka-8 Fard recovery of blood stained and plain earth-Ex. Ka-9, Site plan of place of occurrence-Ex. Ka-10, Recovery of country made pistol-Ex. Ka-11, Chik F.I.R. of case crime no. 45 of 2013 under the Arms Act-Ex. Ka-12, G.D. of case crime no. 45 of 2013-Ex. Ka-13, Charge-sheet under section 302/34, 504 I.P.C. Ex. Ka-14, Site plan of the place of recovery of country made pistol Ex. Ka-15, the order of Magistrate sanctioning prosecution of appellant Nanhe Yadav under section 25 Arms Act-Ex.Ka-16, Charge-sheet under section 25/27 Arms Act-Ex. Ka-17, site plan of place of arrest of accused Nanhe-Ex. Ka-18, report of Forensic Science Laboratory-Ex. Ka-19. Besides the said documentary evidence, weapon of assault, i.e., country made pistol-material Ex. Ka-1 and one live cartridge Ex. Ka-2 were also produced before the trial court.
8. The statements of accused were recorded under section 313 Cr.P.C. They denied the prosecution case and evidence given against them.
9. Accused Nanhey Yadav in his statement recorded under section 313 Cr.P.C. has stated that in the Tilak ceremony which was going on at the house of Ramdas in the night, around 25 shots were fired and the persons, who were present in the said Tilak ceremony when found that a person had received gun shot injury then all of them scattered. He further stated that when he was arrested by the police then he was booked for one night in the police station and on the next day false recovery of one country made pistol and one live cartridge was shown from his possession.
10. Accused Ram Krishna Yadav in his statement recorded under section 313 Cr.P.C. has stated that he has not voted for Narendra Singh Yadav in the election of Gram Pradhan, hence he got lodged the present false F.I.R. against him also in collusion with P.W. 1, the informant. So far as the report of Forensic Science Laboratory is concerned, the accused have stated that they have nothing to say about the same but they stated that they have been falsely implicated in the present case and the said report was a wrong report.
11. P.W.-1 Gangadeen has deposed before the trial court that he along with the deceased, who was his son, had gone to attend the Tilak ceremony at the house of one of his relative, namely, Ramdas and in the said ceremony accused Nanhey Yadav and Ram Krishna Yadav had also come and were present there. At about 11 p.m. in the night, accused Ram Krishna Yadav caught hold of his son and exhorted his brother Nanhey Yadav to shoot him on which Nanhey Yadav fired shot at his son which hit him on the back side of his head on account of which he died on the spot. He stated that his son was shot dead by the accused Nanhey Yadav because of old enmity. He stated that the inquest proceedings of the dead body of his son were conducted by the police thereafter the same was sealed and sent for post mortem. He has further deposed that the inquest of the dead body of the deceased was conducted in his presence and he has affixed his thumb impression on the same. He also proved the inquest report as Ex. Ka-2. The said witness in his cross examination has stated that two months prior to the present incident a quarrel took place between accused Ram Krishna and his son but he had not lodged any report for the same and except the said incident there was no other incident took place. He further stated that the said quarrel had not taken place before him and his son has not received any injury in the said quarrel. He has admitted that Ramdas in whose house the Tilak ceremony was going on in which he was invited, is not in his relation. He further deposed that the incident has taken place after the Tilak ceremony in the courtyard of the house of Ramdas. It was stated by him that after the shot was fired by accused Nanhey Yadav by country made pistol and his country made pistol became empty then too he did not try to catch him because of the fear that accused Ram Krishna Yadav may not fire on him. He admitted in his cross examination that in the F.I.R. he did not mention that accused Ram Krishna was also having country made pistol and he also did not state the said fact in his statement recorded under section 161 Cr.P.C. by the Investigating Officer. He denied the suggestion that he has stated the said fact in the court on the asking of some other person. He stated in his cross examination that he had gone to lodge the F.I.R. alone and no one had accompanied him. He also denied the suggestion that he has not seen the incident and the deceased has received gun shot injury on account of celebration firing done by someone in the Tilak ceremony on account of which the deceased died and because of enmity, he lodged the false F.I.R. against the accused persons.
12. P.W. 2 Parshuram, who is also an eye witness of the occurrence has also narrated the prosecution case that he was present in the Tilak ceremony where the accused Nanhey Yadav and Ram Krishna Yadav and the informant Gangadeen alongwith the deceased Krishna Pal had also come. Accused Ram Krishna Yadav caught hold of the deceased and accused Nanhey Yadav had fired shot at the deceased, who received injuries on the back side of his head and died on the spot. The police arrived at the place of occurrence and the inquest proceedings were started in his presence and he has also affixed his thumb impression on the same. He in his cross examination had stated that though the informant and his son belong to his caste but not related to him. His house is adjacent to the house of Ramdas in whose house the Tilak ceremony was going on but Ramdas is not related to him. He further deposed that in the village where the Tilak ceremony is performed at some place firing is also done but at some place it is not. He further deposed that in his village three persons, namely, Ramchandra, Chandrapal and Veerbhan had fire arm license and they also belong to his caste. He further deposed that Ramchandra, Chandrapal and Veerbhan were not present in the Tilak ceremony and when the inquest proceedings were going on Chandrapal and Veerbhan were not present. They were also not related to Ramdas. He has denied the suggestion that Chandrapal, Veerbhan and Ramchandra were present in the Tilak ceremony with their licensee weapons and were firing. He further denied the suggestion that in the Tilak ceremony there was celebration firing going on on account of which the deceased Krishnapal received one injury on the back of his head and died and in order to save the real culprit, he deposed against the accused persons. He further denied the suggestion that he has not seen the incident and was falsely deposing against the accused persons.
13. P.W.-3 Ramdas has also deposed before the trial court that at 11 p.m. in the night he was sitting in the courtyard of his house in the Tilak ceremony and there was sufficient light because of running of generator. In the said ceremony, Gangadeen and his son Krishnapal had come. Accused Nanhey Yadav and Ram Krishna were also present in the Tilak ceremony and on account of some old enmity, the accused Ram Krishna caught hold the deceased and Nanhey Yadav fired shot at the deceased which hit him on the back side of his head. The said incident was witnessed by him alongwith several other persons including Veer Bhan, Gangadeen , who were present at the Tilak ceremony. The deceased Krishna Pal died on the spot. On the next day, they went to lodge the F.I.R. about the said incident where the investigating officer interrogated him about the incident. The deceased was not his nephew. In his cross examination, he has admitted that in the Tilak ceremony persons had come from Hardoi. They were not having licensee weapons. He has stated that in his village there are some persons, who are having licensee weapons, namely, Chhatrapal and Chandrapal. Veerbhan was not having any licensee weapon. He denied the suggestion that the deceased has received injuries in the celebration firing done at the Tilak ceremony at his house. He has admitted the fact that Gangadeen is not related to him but belongs to his caste. At the time of incident, the Tilak ceremony had ended and many of the guests had returned and only some villagers including Gangadeen along with his son Krishnpal were present. He deposed that the accused persons do not relate to him. At the time of incident, fire was shot by Nanhey from a close range. He denied the suggestion that in the Tilak ceremony indiscriminate celebration firing was done by Chandrapal, Chhatrapal and Veerbhan on account of which the deceased receiving gun shot injury and died and he is deliberately concealing the said fact just to save his relatives and guests and got a false F.I.R. lodged against the accused persons. He deposed that immediately after the incident, a phone call was made and constables had arrived at 1:00 a.m. in the night and he had gone on the next day at police station and brought the police between 7-8 a.m. from the concerned police station, who made a spot inspection and had taken the dead body of the deceased by a tractor and at about 10:00 a.m., a report of the incident was lodged.
14. P.W.-4 Veerbhan, who was also present at the place of occurrence has deposed before the trial court that he was also present in the Tilak ceremony at the house of Ramdas wherein the informant along with his son and two accused persons were also invited and at about 11 p.m. in the night accused Ram Krishna caught hold the deceased and accused Nanhey fired shot at the deceased by a country made pistol of 315 bore which hit him on the back side of his head on account of which the deceased died on the spot. Thereafter both the accused fled away from the place of occurrence. The said incident was witnessed by him along with Jaipal, Gangadeen and Parshuram and several other persons. On the next day, the police had come and conducted the inquest in his presence along with other persons. Thereafter, the dead body of the deceased was sealed and sent for postmortem. He was also the witness of inquest proceedings and affixed his thumb impression on the same which is identified by him. He further deposed that the investigating officer has recorded his statement. The cross examination of the said witness was deferred by the trial court on 21.8.2014 after lunch but he did not appear before the trial court for cross examination and subsequently he appeared as D.W.-1 from the side of defence and deposed that on the date of incident, the Tilak ceremony of the son of Ramdas, namely, Rakesh was going on, who is related to him and he was also invited and had gone there. Many persons had come in the Tilak. In the night, Tilak ceremony was going on and there was light of gas cylinder and he was also sitting in the courtyard and when the Tilak ceremony was going on there were many persons gathered in the courtyard and during the Tilak ceremony around 30-40 celebration shots were fired. The deceased was also sitting in the courtyard and on his back accused Nanhey and Ram Krishna were also sitting and they were also firing shots. They were asked not to fire and at that time when the deceased Krishnapal received gun shot injury all the persons fled away. Earlier, his statement was recorded in the court when he was brought by Gangadeen and Ramdas and had given his statement as has been told by them.
15. In his cross examination, he has stated that today he appeared as defence witness. He had come along with accused Ram Krishna. He denied the suggestion that at the instance of accused he is giving his statement in their favour and stated that he is stating whatever he had seen. He further stated that on 21.9.2014 when he has firstly deposed before the trial court as P.W.-4 then he has deposed at the behest of informant Gangadeen falsely but today he is giving correct statement. He denied the suggestion that he has colluded with the accused persons just to favour them. He has denied the suggestion that he is giving the statement due to fear of the accused persons.
16. P.W.-5 Head Moharrir Prem Chandra Sharma has deposed before the trial court that on 24.1.2013 he was posted at police station Kalan, District Shahjahanpur on which date the informant Gangadeen had given a written report against the accused Nanhey Yadav and Ram Krishna Yadav on the basis of which he had prepared a chik F.I.R. and further made an endorsement about the same in the G.D. at 7:30 a.m. and he has proved the same as Ex. Ka-3 and 4 respectively.
17. P.W. 6 Dr. A.U.P. Sinha, Senior Consultant of District Hospital Shahjahanpur has deposed before the trial court that on 24.1.2013 he was posted on the said post at the said hospital and conducted the post mortem of the deceased Krishnapal Singh son of Gangadeen Yadav whose dead body was brought for post mortem by Constable No. 200 Kishanpal and Home Guard 1274 Umashankar of police station Kalan, who have identified the dead body of the deceased. On examination of the dead body of deceased, he found following ante mortem injuries on his person:-
"1. Fire arm wound of entry of size 3.5 cm. x 1.2 cm. cavity deep on the occipital region of skull on right side, 3 cm. below the occipital protuberance blackening present around the wound, margin inverted."
18. As per the post mortem report, the cause of death of the deceased was Coma as a result of ante mortem injury.
19. On internal examination, the witness found that occipital bone was fractured, parietal bone and left side parietal bone was also fractured and one metalic bullet was recovered and the same was sealed by him and sent to S.O. police station Kalan through the said constable.
20. P.W.-7 S.I. Nagdu Yadav was examined by the trial court, who deposed that on 24.1.2013 he was posted as S.O. police station Kalan, District Shahjahanpur on the said date and on the written report given by the informant case crime no. 42 of 2013 under sections 302/34, 504 I.P.C. was registered against the accused Nanhey and Ram Krishna Yadav. He has taken over the investigation of the case and has also prepared the inquest report of the dead body of the deceased, letter to C.M.O. and other documents, i.e., Challan nash and photo nash were prepared by him and also signed by him. He proved the inquest report as Ex. Ka.-2 and other police papers as Ex. Ka.-6 to 10. He has also arrested the accused Nanhey on 29.1.2013 and recorded the confessional statement of the said accused, who confessed his guilt and also stated that the country made pistol recovered from his possession was the weapon by which he shot dead the deceased. The country made pistol and live cartridge were sealed by him. He has proved the same as Ex. Ka-11. He deposited the country made pistol and live cartridge at the Malkhana of the said police station. The recovery memo was signed by the police in the presence of accused Nanhey and the F.I.R. of case crime no. 45 of 2013 under section 25/27 Arms Act was registered by Constable Sangram Singh and has proved the same as Ex. Ka-12 and G.D. as Ex. Ka-13. He submitted the charge-sheet against accused Nanhey and Ram Krishna Yadav in case crime no. 42 of 2013 under section 302/34 504 I.P.C. and proved the same as Ex. Ka-14 and also identified the country made pistol which was produced before the court and the live cartridge which was recovered from the accused Nanhey and also proved the same as Material Ex. Ka-1 and 2.
21. P.W.-8 S.I. Roshan Singh has stated that he was posted on the said post on 24.1.2013 at police station Paror, District Shahjahanpur and the investigation of case crime no. 45 of 2013 under section 25/27 Arms Act of police station Kalan which was lodged by Nagdu Yadav, was entrusted to him on 20.2.2013 and after conducting the investigation, he submitted charge-sheet against accused Nanhey and he had proved the same as Ex. Ka-17. He has also taken the sanction from the then District Magistrate for prosecuting the accused Nanhey under section 25/27 Arms Act and he has proved the same as Ex. Ka-16.
22. P.W.-9 Madan Sen is the Assistant Scientist of Forensic Science Laboratory U.P. Lucknow, who appeared before the trial court and proved the report of Forensic Science Laboratory U.P. Lucknow, i.e., Ex. Ka-19.
23. The trial court after recording the evidence of the prosecution witnesses and perusing the material available on record convicted and sentenced appellants Ram Krishna Yadav and Nanhey Yadav for the offence under section 302/34 I.P.C. and further appellant Nanhey Yadav under section 25/27 Arms Act also, hence the instant appeal preferred by the appellants before this Court.
24. Heard Sri G.S. Hajela, learned counsel for the appellants and Sri Irshad Hussain, learned A.G.A. for the State and perused the lower court record.
25. Learned counsel for the appellants submits that the appellants, who are real brothers have been falsely implicated in the present case by the informant Gangadeen Yadav at the instance of P.W.-3 Ramdas in whose house the accused appellants and the informant along with his son were invited to attend the Tilak ceremony. He argued that the evidence of P.W.-3 Ramdas clearly goes to show that in the night at about 11 p.m. on 23.1.2013, Tilak ceremony of his son Rakesh was going on and after Tilak ceremony celebration firing was being made by the persons, who were present there on account of which the deceased received a gun shot injury on the back of his head and P.W.-3 just to save his relative from the responsibility of the death of the deceased Krishnapal, has implicated the two real brothers for the death of the deceased. He further argued that the appellants had no motive to commit the murder of the deceased as there was no enmity between them as is evident from the statement of P.W.-1, the informant, who only referred about a quarrel between the appellant Ram Krishna Yadav and his son the deceased Krishnapal which had taken place prior to two months of the present incident and in the said incident, the deceased has not received any injury nor any report was lodged against appellant Ram Krishna Yadav. He submitted that as the incident has taken place in the Tilak ceremony held at the house of P.W. 3 in which deceased died then P.W.-3 did not have any alternative to justify the incident and had to explain the death of the deceased, hence he implicated the appellants in collusion with P.W.-1 Gangadeen Yadav. He has further drawn the attention of the Court towards the discrepancies in the statement of P.W.-1 and P.W.-3 in order to show that the F.I.R. of the incident was lodged after due consultation and deliberation. In this regard, he has stated that though the F.I.R. of the incident was lodged at 7:30 a.m. on the next day but as per the statement of P.W -1 and P.W. 3 it is stated that the police had arrived at the place of occurrence at 1 a.m. in the night itself and F.I.R. was lodged at about 10:00 a.m. on the next day which further goes to show that the F.I.R. is an ante time document. He further urged that so far as the appellant Ram Krishna Yadav is concerned, he has been assigned the role of catching hold of the deceased and exhortation and on his exhortation, appellant Nanhey fired shot at the deceased, who died on the spot. It is argued by him that the said allegation against the appellants appears to be a false one as it would be highly improbable and beyond imagination that a person would catch hold of a person and other accused would shoot at him from a point blank range on the back of his head least caring that the shot could hit the said accused also. Moreover there is no evidence on record to show that the accused Ram Krishna Yadav had a common intention with his brother Nanhey Yadav for shooting the deceased in the Tilak ceremony as there is no evidence to show that the appellant Ram Krishna Yadav had any knowledge and was aware of the fact that his brother Nanhey was carrying country made pistol, who shot at the deceased on his back on account of which he died. The evidence of P.W.-1 and P.W.-2 regarding the participation of the appellant Ram Krishna Yadav cannot be said to be a reliable one, hence the conviction of appellant Ram Krishna Yadav by the trial court with the aid of Section 34 I.P.C. for murdering the deceased along with his brother appellant Nanhey is against the evidence on record and is liable to be set aside by this court. So far as appellant Nanhey Yadav is concerned, he has stated that it is a case of celebration firing though the prosecution witnesses have denied the same but as the origin of the incident is celebration firing which has been deliberately concealed by the prosecution. The accused Nanhey Yadav is entitled for benefit of doubt, therefore, his conviction and sentence by the trial court is also liable to be set aside.
26. Having considered the submissions advanced by learned counsel for the parties and perused the material available on record.
27. The prosecution case which has been set out from the evidence on record, it is an admitted fact that on 23.1.2013, a Tilak ceremony was going on in the house of P.W.-3 Ramdas where two accused Ram Krishna Yadav and Nanhey and P.W.-1 Gangadeen and his son Krishnapal were invited and in the night at about 11 p.m. as per the allegation made in the F.I.R. by P.W.-1 that the appellant Ram Krishna Yadav caught hold of the deceased and exhorted his brother appellant Nanhey Yadav to shoot the deceased Krishnapal on which appellant Nanhey Yadav fired shot at the back of the head of the deceased, who died on the spot. P.W.-2, who is also an eye witness of the occurrence and was present at the place of occurrence has also reiterated the evidence given by P.W.-1. P.W. 3 and 4 have also narrated the same version as has been given by P.W.-1 and 2 about the incident. All P.W.-1, 2 and 3 have categorically denied the version as has been suggested by the defence the deceased received a gun shot injury in celebration firing. The accused in their statements recorded under section 313 Cr.P.C. have given a contradictory version regarding their presence at the place of occurrence but from the evidence of prosecution and statements of accused recorded under section 313 Cr.P.C. it is well established that they were also invited in the Tilak ceremony and were present at the place of occurrence where the son of P.W.1 died on account of gun shot injury caused on his head. So far as the contention raised by learned counsel for the appellants that the deceased has received gun shot injury in celebration firing is concerned, after scrutinizing the evidence on record particularly the statement of P.W. 1 Gangadeen, P.W. 2 Parshuram and P.W. 4 Veerbhan, who have denied that it was a case of celebration firing in which the deceased died, is not acceptable. Moreover, the defence which has been taken by the accused in their statement recorded under section 313 Cr.P.C. that 25 shots were fired in celebration and also by P.W. -4 Veerbhan, who reiterated the prosecution case but did not appear for cross examination and subsequently appeared as defence witness and stated that 40-50 fires were shots, also does not appear to be true as from the place of occurrence no empty cartridges were recovered by the investigating officer which goes to show that the case of the defence of celebration firing is not a correct one. It is relevant to point out that there is eye witness account of P.W. 1 and 2, who are also witnesses of inquest report. They were said to be present at the place of occurrence and saw the appellant Nanhey Yadav firing shot at the deceased which hit him on the back of his head on account of which he died on the spot but their evidence with respect to appellant Ram Krishna Yadav that when the appellant Nanhey fired shot at the deceased, he caught hold the deceased and exhorted appellant Nanhey to shoot the deceased, does not appear to be correct as the fire was shot from a point blank range and to say he caught hold of the deceased when the fire was shot, appears to be highly improbable that the said appellant without taking care of his life would catch hold of the deceased from back which shows that his participation in the incident has been exaggerated by the said witnesses and cannot be relied upon. Moreover, the evidence of P.W. 3 and 4 regarding catching hold of the deceased by appellant Ram Krishna Yadav is also not reliable one, hence his conviction and sentence by the trial court is against the evidence on record and he may be given benefit of doubt. The appeal of appellant Ram Krishna Yadav deserves to be allowed by this Court and is accordingly allowed. The conviction and sentence of the appellant Ram Krishna Yadav by the trial court is hereby set aside.
28. So far as appellant Nanhey Yadav is concerned, his participation in the incident cannot be ruled out as there is direct evidence of P.W. 1, 2 and 3 against him, who have categorically deposed that it was appellant Nanhey, who shot dead the deceased by firing shot on the back side of his head from a close range and the ocular testimony of the said witnesses is corroborated by the post mortem report of the deceased as blackening was found around the wound and margins were inverted. Moreover, the conduct of the defence that P.W.-4, who is also an eye witness of the occurrence has fully supported the prosecution case regarding the murder of the deceased by appellant Nanhey in his examination-in-chief but did not appear before the Court after his examination-in-chief recorded on 21.8.2014 and thereafter he was examined as defence witness on 26.9.2014, who tried to dilute the prosecution case in favour of the defence. It appears that he was also tried to be won over by the accused. As it is a case of direct evidence, hence the motive looses its significance. The argument of learned counsel for the appellants showing from the evidence of P.W 1 and 3 regarding the contradictory statements made by the said witnesses with respect to lodging of the F.I.R. showing that the said witnesses are not reliable one on which the prosecution case cannot be disbelieved as there appears to be some minor discrepancies which cannot go to root of the case to disbelieve the prosecution case. So far as recovery of country made pistol from the possession of the appellant Nanhey Yadav made at the time of his arrest on 2.9.2013 which was stated to be used in the crime is absolutely false in view of the report of Forensic Science Laboratory as from the said report it appears that the country made pistol recovered from the possession of appellant and the mettalic bullet recovered from the dead body of the deceased could not be tallied for want of necessary characteristic in the country made pistol, also does not hold good as there is a direct evidence of P.W. 1, 2 and 3 and also examination-in-chief of P.W. 4 that it was appellant Nanhey Yadav, who shot dead the deceased with country made pistol of 315 bore.
29. In view of the forgoing discussion, the conviction of appellant Nanhey by the trial court has been established by the prosecution beyond reasonable doubt and there appears to be no interference called for by this Court with respect to conviction and sentence of appellant Nanhey Yadav, hence the conviction and sentence of appellant Nanhey Yadav by the trial court is hereby affirmed.
30. The appeal of appellant Nanhey Yadav is dismissed.
31. He is said to be in jail. He shall remain in jail to serve out the sentence as has been awarded by the trial court concerned.
32. So far as appellant Ram Krishna Yadav is concerned, he has been given benefit of doubt.
33. The appeal on behalf of appellant Ram Krishna Yadav is hereby allowed.
34. The appellant Ram Krishna Yadav is stated to be on bail. He need not surrender, his bail bond and sureties stand discharged.
35. It is further directed that the appellant Ram Krishna Yadav shall furnish of bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
36. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:-20.12.2018
Shiraz.