Prithvipal Yadav And Another vs State Of U.P. on 26 July, 2019

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Allahabad High Court

Prithvipal Yadav And Another vs State Of U.P. on 26 July, 2019

Equivalent citations: AIRONLINE 2019 ALL 1924

(Delivered by Hon'ble N.A. Moonis,J.) The instant appeal has been preferred on behalf of appellants against the judgment and order dated 6.9.2011 passed by the learned Additional Sessions Judge, Court No.15, district Allahabad in S.T. No. 371 of 2007 (State of U.P. Vs. Prithvipal Yadav and another), under Sections 302, 325, 504 and 506 I.P.C. police station Mauaima, district Allahabad whereby each of them have been convicted under Section 302/34 I.P.C. for life rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine, five months further rigorous imprisonment, under Section 325/34 I.P.C. five years rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine of three months rigorous imprisonment and convicted under Section 504 I.P.C. three years rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine further three months rigorous imprisonment. All the sentences directed to run concurrently.

The facts and circumstances giving rise to the appeal is as under;

The prosecution case as mentioned in the first information report lodged by Vijay Bahadur Yadav, P. W. 1 is that he is a resident of village Pure Rudrashah, police station Mauaima, district Allahabad Prithvipal Yadav (appellant no.1) is the son-in-law of Pitambar Yadav. Pitambar Yadav had executed a sale deed in favour of his daughter's son (i.e. maternal grand son appellant no. 2) of three bigha land hence there is a dispute regarding the land between the two family and with respect to that a case is also pending. On account of the enmity due to the dispute of land on 20.11.2006 at 11.30 A.M. Prithvipal Yadav (appellant no. 1) who is the son-in-law of Pitambar armed with his licensed 12 bore gun along with his son Dinesh Yadav (appellant no. 2) came on a motorcycle. The complainant (Vijay Bahadur Yadav), his father Ambar Yadav, Prem Shankar Yadav and Om Prakash son of Ambar Yadav and Ram Chandra son of Panchoo were sitting at the road side. On seeing them Prithvipal Yadav and his son Dinesh Yadav alighted and parked their motorcycle. Prithvipal Yadav loaded his gun and started hurling abusive language moved towards them and fired indiscriminately and his son Dinesh Yadav exhorted to kill. His father sustained firearm injury due to which he died instantaneously on the spot as Prem Shanker ran forward to save. The son of Prithvipal Yadav, namely, Dinesh Yadav had snatched the gun of his father and fired upon Prem Shanker. Prem Shanker and Om Prakash had sustained injuries during the course of incident. On their hue and cry various persons of village arrived there at this Prithvipal Yadav and Dinesh Yadav took to their heels hurling vituperative abuses unleashing reign of terror extending threat to their life. The complainant thereafter brought Prem Shanker and Om Prakash in injured condition to the police station while leaving the dead body of his father Amber on the spot. The first information report was got scribed by him through Sudhir Kumar Dwivedi, which was handed over at the police station.

On the basis of the written report the first information report (Exhibit 5-A) of the aforesaid incident was registered at 1.30 P.M. on 20.11.2016 as case Crime No. 143 of 2016, under Sections 302, 504, 323 and 307 I.P.C. (Exhibit 7-A/11). The chick first information report was registered in the general diary as Chick No. 122 of 2006 by Head Constable Ram Lal Kaithwal (P.W. 7).

On the registration of the first information report the criminal law was set in motion. The S.H.O. Ranjeet Singh (P.W.8) was entrusted with the investigation. He had entered the copy of the chick first information report in the case diary and recorded the statement Head Constable of Ram Lal Kaithwal (P.W. 7). He tried to record the statement of the two injured persons but they were not in position to depose as such he started the investigation by reaching at the place of incident where he found the dead body of Ambar Yadav. The inquest report was prepared at the dictate of HC Shiv Badan Tiwari in the presence of the witnesses exhibited as Exhibit Ka. 13. Thereafter, the dead body was sealed and was handed over to Constable Harish Chandra Yadav to be taken for the post mortem. The papers relating to challan nash, photo nash, letter to R.I., letter to Chief Medical Officer, sample seal were sent along with the dead body. The aforesaid papers were prepared by HCP Shiv Badan Tiwari under his direction, which was also signed by him and was marked as Exhibit Ka.14, Ka.15, Ka.16, Ka. 17, Ka. 18 and Ka. 19. He had recorded the statement of the complainant Vijay Bahadur Yadav (P.W.1) at the place of incident and entered the same in the case diary. At the instance of the complainant inspected the place of incident and prepared the site plan, which was marked as Exhibit Ka. 20. He had also taken blood stained and plain earth, empty cartridges and live cartridges of which separate memo were prepared on the spot in the presence of the witnesses, which was marked as Exhibit Ka. 22. The same was also entered in the case diary. At the place of incident he was informed by Constable Ram Lavat that Prem Shanker who was injured in the incident has died on reaching to the hospital. At this information he had made arrangement for the inquest of the said deceased Prem Shanker to be conducted by S.I. Mohd. Siddique. On the spot he had recorded the statement of other witnesses, which was incorporated in the case diary. He also entered the inquest of the deceased Amber Yadav in the case diary. Thereafter he went to search the accused persons. During 21/22.11.2006 S.I. Mohd. Siddique had informed him that after conducting the inquest of the deceased Prem Shanker his dead body has been sent for post mortem to S.R.N. Hospital through Constable Harish Chandra and Constable Raj Kumar Maurya. The inquest prepared by S.I. Mohd. Siddique was made part of the case diary by him. Again he tried to make a search of the accused persons on 22.11.2006, he had deposited the memo relating to plain earth and simple earth and other case property in the Malkhana and his return was transcribed in the G.D. No. 26 at 4.05 P.M. The paper relating to the inquest of Prem Shanker Yadav, sample seal, letter to R.I., photo nash, sample letter to Chief Medical Officer were mentioned in the case diary. Om Prakash who was also injured in the incident, his medical report and X-ray report was also transcribed in the case diary.

Accused Prithvipal Yadav was arrested on 22.11.2006 at 6.20 P.M. at the tempo stand, Telai Bazar by the Investigating Officer who had confessed his guilt and stated that he can get his licensed gun recovered, at this he was taken in custody and was taken to his home in village Sandila, police station Ranigan, district Pratapgarh. He got the double barrel gun recovered from the heap of straw lying on the first floor of his house. He had also handed over the belt containing six cartridges and four empty cartridges and stated that this is the same gun with which he and his son Dinesh had killed Ambar Yadav on 20.11.2006 and had also caused injuries by firing upon Prem Shanker. Thereafter the gun was taken in custody from which smell of gunpowder was noticed. The gun and belt of cartridges were separately sealed in the presence of police personnel of which memo was prepared also signed by the accused exhibited as Paper No. 23 Ga. A copy of the memo was given to the accused and his arrest was also informed to his wife who was present at the time of recovery of gun.

The injuries of injured Om Prakash was mentioned in the case diary. As the Investigating Officer Ranjeet Singh was transferred the investigation was handed over to S.O. Udai Veer Singh, P.W. 11 on 10.12.2006 vide Parcha No. 11. He had recorded the statement of witnesses of inquest, namely, Sudhir Kumar, Lalu Prasad, Radha Prasad, Indra Kumar Pandey etc. on 11.12.2006 (Parcha No 12). On 12.12.2006 recorded the statement of witnesses of inquest of Yogendra Pratap, Shobha Nath Yadav, Pradeep Kumar, Krishna Kumari etc. and also statement of eye witness Chhangu Lal entered in Parcha No. 13. On 13.12.2006, statement of Ram Chandra son of Kallu and Om Prakash and S.I's. who were the witnesses of recovery of gun entered in Parcha No. 14.

P. W. 11 S.O. Udaiveer Singh after collecting all the materials concluded the investigation and submitted the charge sheet vide Parcha No.15 dated 14.12.2006 in his own writing marked as Exhibit Ka. 25. The cognizance was taken by the learned Magistrate and the case was committed to the court of sessions on 22.5.2007, which was numbered as S.T. No. 371 of 2007. The charges were framed by the learned court below against the appellants under Sections 307/34, 325/34, 504 and 506 I.P.C. on 24.8.2007. Both the accused pleaded not guilty to the charges and claimed trial, hence they were put on trial.

In order to prove the guilt of the appellants the prosecution has examined as many as 11 witnesses. P.W .1 Vijay Bahadur Yadav, (complainant) P.W. 2 Om Prakash injured witness, both sons of deceased Amber Yadav. P.W. 3 Changu Lal witness of inquest, P. W. 4 Ram Chandra, nephew of deceased Amber Yadav. P.W. 5 Mohd. Siddique the then Sub Inspector conducted the inquest of Prem Shanker, P.W. 6 Dr. R. K. Dubey conducted the post mortem of deceased Ambar Yadav, P. W. 7 HCP Ram Lal Kaithwal prepared the chick F.I.R., P.W. 8 Ranjeet Singh S. I. first Investigating Officer, P. W. 9 Dr. A. K. Pandey conducted the post mortem of deceased Prem Shanker, P. W. 10 Dr. Rakesh Pathak, Radiologist examined the injured Om Prakash (P.W.2) and proved his X-ray report, P. W. 11 Sub Inspector Udai Veer Singh second Investigating Officer after conducting the investigation submitted the charge sheet. Thereafter statements of the appellants Prithvipal Yadav and Dinesh Yadav were recorded under Section 313 Cr.P.C. They denied the prosecution case by submitting that they have been falsely implicated under the pressure of the police due to enmity.

The injury report 38A/4 of Prithvipal Yadav was filed and to prove the said report Dr. Gyan Chandra Patel was examined as D.W. 1 who had proved the injury report, which was marked as Exhibit Kha. 1. Dr. Ashok Upadhyay was examined as D.W. 2 who had conducted X-ray, prepared the report of X-ray of the appellant Prithvipal Yadav on 22.12.2006 indicating head of distal phalanx of right little finger missing proved by him as Exhibit Kha. 2.

In order to appreciate the prosecution case it is necessary to go through the testimony of the prosecution witnesses.

P. W. 1 Vijay Bahadur is the complainant of the case and the son of the deceased Ambar Yadav. He deposed that Pitambar Yadav is the elder brother of his father. His son-in-law's name is Prithvipal Yadav (accused/appellant no.1). Son of Prithvipal Yadav is Dinesh Yadav (accused appellant no. 2). Prithvipal Yadav and Dinesh Yadav are the resident of village Sandilla, Raniganj, district Pratapgarh. A civil litigation about the land is going on between his father Ambar Yadav and Tau Pitambar. Pitambar had executed a sale deed of three bigha land in the name of his daughter Kulhirni's son Dinesh Yadav. Due to litigation on account of the sale deed Pitambar and his son-in-law Prithvipal Yadav and Dinesh Yadav son of Prithvipal Yadav bearing enmity with his family. Prithvipal Yadav was having a single barrel gun. His father was killed on 20.11.2006. At 11.30 A.M. he, his father Ambar, Prem Shanker, Om Prakash, Ram Chander were sitting near the road side in front of their house. Prithvipal Yadav and Dinesh Yadav came on a motorcycle. Prithvipal Yadav was having licensed gun. They alighted from the motorcycle and after getting it on stand, they hurled vituperative words to his father. Prithvipal Yadav fired upon his father. The shot hit his father on account of which he fell down and died instantaneously. Dinesh Yadav thereafter snatched the gun of his father and about to attack upon him and other persons. Dinesh Yadav had fired with his father's gun at Prem Shanker and had also assaulted Om Prakash with the butt of the gun who had also sustained injuries. Thereafter both Prithvipal Yadav and Dinesh Yadav escaped on their motorcycle. A report of the incident was got transcribed by Sudhir Kumar Dwivedi. He put his signature thereon. Thereafter he accompanied with Om Prakash (injured), Prem Shanker (injured), Changu Lal, Paras and Ram Chandra to the police station and registered the case. From the police station Prem Shankar and Om Prakash were referred to Beli Hospital for medical examination. While reaching to Beli Hospital Prem Shanker succumbed to the injury. He further deposed that he knew very well both the accused Prithvipal Yadav and Dinesh Yadav. He had proved the first information report, which was exhibited as Exhibit Ka. 1. He had also deposed that this incident was witnessed by his uncle Changu Lal, Om Prakash and Ram Chander. The witness was cross examined by the defense.

In his cross examination he deposed about that a sale deed of three bigha land was executed in the name of Dinesh Yadav who is the maternal grand son of Pitambar who is alive. Pitamber has only daughter and no son. Name of mother of Dinesh Yadav is Kaloee and Prithvipal Yadav is the son-in-law of Pitambar. He is not aware that three bigha land was transferred in the name of Nirmala as he does not know Nirmala. He knows mother of Dinesh Yadav's name is Kalui. Nirmala is not known as Kalui. Pitambar had executed a sale deed of three bigha land to Kalui. Again he stated that it was executed in the name of Kalui's son. Kalui does not reside in the house of Pitambar. Kalui resides in village Sandilla. She usually comes in six months and again goes back to Sandilla. Pitambar is aged about 70-75 years. His son-in-law is Prithvipal Yadav. Pitambar has no son. He has only one daughter who is the mother of Dinesh Yadav named as Kalui. It is wrong to say that Pitambar had kept his son-in-law and maternal grand son in his house to look after the property. Prithvipal Yadav has not purchased any other land in village Pure Rudhrashah. In this village the name of Prithvipal Yadav is not in the voter list. He has no ration card of this village. P.W. 1 was further cross examined who deposed that a sale deed of three bigha land was executed in the name of Dinesh Yadav who is the grand son (Nati) of Pitambar. Pitambar has only daughter Kalui who is the mother of Dinesh Yadav. Prithvipal Yadav is the son-in-law of Pitambar. It is wrong to say that the land was solely belong to Pitambar. He had further stated that Kallu is the son of his uncle Panchu. Om Prakash (injured) is his real brother. Lallu is the son of Changu Lal. Lallan is the son of his grand father Sukhambar. Prem Shanker is the son of his uncle Changu Lal. Ambar (deceased) is his father. He denied that on 20.11.2006 at 11.30 P.M. on account of the land dispute Kallu, Om Prakash, Lallu, Lallan, Amber and Prem Shanker having lathi and axe and Om Prakash with his country made pistol reached at the door of Pitambar abusing him and when Prithvipal refrained them, then he (the complainant) and other above named persons had assaulted Prithvipal. He also denied that Lallan had assaulted Prithvipal Yadav with an axe on account of which his little finger was injured and received injury over his head and body. It is also wrong to say that when Dinesh Yadav ran to save him he had also been assaulted. It is also wrong to say that Ambar had snatched the gun of Prithvipal Yadav and it is also wrong to say that Prithvipal Yadav had taken away gun from Ambar. It is also wrong to say that Om Prakash had started firing with the pistol due to which Ambar and Prem Prakash had sustained injuries. He further denied that they had assaulted Prithvipal Yadav. He had never seen injury over the person of Prithvipal Yadav. Prithvipal Yadav never went to lodge the first information report at police station Mauaima, Allahabad. He (the complainant) had gone to the police station on the day of the incident and after 10-15 minutes he returned back to his deceased father. He never saw Prithvipal Yadav at the police station. No X-ray or medical of Prithvipal Yadav was done. He had also denied that the incident had not taken place as narrated by him. He had also denied that Prithvipal Yadav was all alone there and Dinesh Yadav was not present at the time of incident. He had also denied that he had lodged false first information report to avoid any cross case. Prem Shanker had never abused to the accused persons; where the incident had taken place there was no pellet but 3-4 empty cartridges were lying there. The incident had taken place towards the north-east side of his house. He could not see the manner in which the fire was made. No mark of fire was found on his house. He denied that the said incident had not occurred in his presence. He had also denied that the first information report was lodged by the police after calling him.

Om Prakash who is an injured witness has been examined as P.W. 2. He deposed that Vijay Bahadur (P.W. 1) is his real brother. Ambar is his father. Prem Shanker is his cousin. The incident had occurred on 20.11.2006 at 11.30 A.M. At that time he, his father Ambar, Prem Shankar, Vijay Bahadur, Ram Chandra and Changu Lal were sitting outside the house near the road. Prithvipal Yadav and Dinesh Yadav came on a motorcycle. After keeping the motorcycle on stand they hurled abusive language and Prithvipal Yadav fired from his licensed gun to his father Amber who fell down. Prithvipal Yadav had fired 4-5 rounds. Dinesh Yadav had taken the gun of his father and fired at Prem Shanker on account of which he sustained injuries. Thereafter he (Om Prakash) had lifted and slammed down Prithvipal Yadav at this Dinesh Yadav had assaulted him with butt of the gun. He sustained injury over his head and hand. After murderous assault Prithvipal Yadav and Dinesh Yadav escaped away on their motorcycle along with gun. Pitambar is his Tau and Prithvipal Yadav is the son-in-law of Pitambar. There was a land dispute between his father (Amber) and Pitamber. Pitamber had executed sale deed to his maternal grand son Dinesh Yadav without its partition, hence on account of this, enmity was going on between them. Prithvipal Yadav is the resident of village Sandila, district Pratapgarh. After the incident they had gone to the police station. The report was lodged by his brother. He and Prem Shanker who had suffered injuries were sent to Beli Hospital from the police station. On arrival at the hospital Prem Shanker succumbed to the injuries. His medical examination and X-ray was done. In this incident his father died on the spot. There is a joint family of him, his father Ambar Lal and his brother.

P.W. 2 Om Prakash was cross examined by the defense but nothing could be elicited to doubt about the manner of incident. On being cross examined he had clearly stated that his father was fired five shots from a distance from 10 - 12 hands. On Prem Shanker two fire was shot from a distance of 10 paces. Dinesh Yadav on account of trepidation could not load the gun. Dinesh Yadav had assaulted him with the butt of the gun. He was also residing along with his father Ambar. The incident had taken place on the north side of the house near the road, which is at a distance of ten paces. Pitambar's house is situated ten paces of north side from the house of Ambar. The opening of Pitambar's house is towards north and his house opens towards north-east. In the incident Prithvipal Yadav had not sustained any injury and he had also not seen any injury over his body. Prithvipal had not been assaulted from his side. He is not aware about the accused Dinesh Yadav was studying in university. He had denied that on the date of incident Prithvipal Yadav was sitting at his door. He had also denied that Kallu, Lallu, Lallan, Prem Shankar and Ambar were armed with lathi and axe and he was armed with Katta, reached at the door of Prithvipal Yadav hurling abusive language due to the dispute of land. He had also denied that when Prithvipal Yadav refrained to abuse they had assaulted him (Prithvipal) with lathi and axe. He has also denied that Ambar had snatched the gun of Prithvipal Yadav and was about to go from there then Prithvipal Yadav had snatched the gun from Ambar. He also denied that he had fired with his country made pistol and on account of which Ambar and Prem Shanker sustained injuries. He also denied that in defense he had got up his own injuries. He had stated that he and Prem Shanker who arrived at the police station were sent to hospital. Various persons of the locality had arrived there. During the course of incident when firing took place Changu Lal, Ram Chandra and Vijay Bahadur were present. He did not know about the name of other persons who were also present. In his cross examination he has also stated that they were sitting at the side of the road and there was no special reason when they were sitting by the side of the road. They were sitting since 6 O'clock in the morning. When he was taken to police station he was unconscious. He regained consciousness at Beli hospital. He remained there till 8 P.M., in the night, thereafter he returned to his house. He could not meet the police. He denied that on 20.11.2006 since 10 O'clock morningPrithvipal Yadav and Dinesh Yadav were sitting in front of the door. Dinesh Yadav resides 20 km. away and it is wrong to say that Dinesh Yadav had gone to degree college to study on that day. He also denied that on 20.11.2016 at about 11 and or 11.30 A.M. Prithvipal Yadav was sitting in front of the door of his father-in-law. He had also denied that Prithvipal Yadav and Dinesh Yadav reside in the house of Pitambar and doing cultivation. He denied that the incident had taken place at the door of Prithvipal Yadav. It is also wrong to say that the incident had not taken place as deposed by him. It is also wrong to say that Dinesh Yadav was not present at the time of the incident.

Changulal son of Jiyawan was examined as P.W. 3. He deposed that the inquest of Prem Shanker son of Changulal was conducted in his presence at S.R.N. Hospital on 20.11.2006 at 5.30 P.M. and after dead body was sealed it was sent for post mortem. He had also signed the inquest report, which was exhibited as Exhibit Ka. 2. In his cross examination he deposed that he was present when inquest of Prem Shanker was going on. He had also accompanied with Prem Shanker to the police station and reached at the police station at 2 P.M. Ram Chandra son of Panchu was examined as P.W. 4. He deposed that the incident had taken place one year ago, which had occurred at 11.30 A.M. He, Vijay Bahadur Yadav, Om Prakash, Prem Shanker and Ambar were sitting by the side of the road under the tree. His house is also situated there. Thereafter Prithvipal Yadav and Dinesh Yadav arrived there. Pitamber is the father in law of Prithvipal. Dinesh Yadav is the son of Prithvipal Yadav. Both had come on a motorcycle, they were having licensed gun and they came and hurled abusive language, then they fired. The first shot hit to Ambar who fell down and died on the spot. Thereafter Dinesh Yadav had taken the gun of his father Prithvipal Yadav and fired at Prem Shanker, when Om Prakash ran to save them he was also assaulted with the butt of the gun. On account of dispute of landed property with the accused persons, they had committed murder of Amber. After 20-22 days of the incident the Investigating Officer had recorded his statement. Om Prakash had sustained injury. Amber and Prem Shanker died on account of injuries suffered by them.

In his cross examination the P.W. 4 Ram Chandra deposed that Panchu Yadav is his father. His house is situated between the place of incident and the house of Amber, 20 meters away from the place of incident. He has a betel shop adjacent to his house. At the time of incident the shop was opened. After the incident he closed the shop. He heard noise of 4/5 round of firing. In the incident Prithvipal Yadav had not sustained any injury. Ambar who had sustained injury fell at the spot and died instantaneously. He had not seen any person assaulting Prithvipal Yadav at the place of incident. He had not seen any injury over the person of Prithvipal Yadav. He admitted that Sudhir Kumar had written the report on the spot. Various persons of the vicinity had gathered at the time of incident. Dinesh Yadav and Prithvipal Yadav used to come once in a month or two. Often they used to stay. Wife of Prithvipal Yadav resides at her matrimonial house. He further deposed that Pitambar had given three bigha of land to the son of Prithvipal Yadav and hence the litigation was going on. Pitamber was aged about 60 years. He (Ram Chandra P.W. 4) is the real nephew of Ambar. Ambar's claim was that he had also share in the three bigha land but as Prithvipal Yadav had not given the share of Ambar and others, Ambar was annoyed. He (P.W.4) denied that he was not present at the time of incident and had not seen the occurrence. He also denied that being the nephew of Ambar, he is deposing falsely against the accused persons.

Mohd. Siddique, Senior Sub Inspector who was posted as Sub Inspector on 20.11.2006 at police station Mauaima was examined as P.W. 5. He had conducted the inquest of the deceased Prem Shanker, which was prepared at S.R.N. Hospital proved by him as Exhibit Ka. 2. Thereafter the dead body of Prem Shanker was handed over along with the necessary papers to Constable Harish Chandra Yadav for post mortem . He proved the papers relating to photo nash,challan nash, letter to Chief Medical Officer, sample seal, report to R.I. as Exhibit Ka. 3, Ka. 4, Ka. 5, Ka. 6 and Ka.7 respectively.

In his cross examination he deposed that the deceased Prem Shanker had sustained firearm injury but he was not aware as to with which type of weapon the injury was caused. At the time of inquest he had received the copy of first information report brought by police of Mauaima. He denied that at the time of inquest the first information report was not in existence. In the challan nash the time of death has been mentioned as not known.

Dr. R. K. Dubey, Senior Consultant Orthopedic Surgeon, Moti Lal Nehru Medical College, Allahabad was examined as P. W. 6. He conducted the post mortem of the deceased Ambar Yadav on 21.11.2006 at 1.30 P.M. He deposed that he received the dead body of Amber Yadav in a sealed cover brought by Constable Raj Kumar Maurya and Constable Harish Chandra Yadav of police station Mauaima, Allahabad along with inquest report and copy of the first information report and other relevant papers. The body was sealed. The deceased was about 65 years of age. Death had occurred one day ago. Deceased was average built. Rigor mortis was passed from upper limbs and present lower limbs. No sign of decomposition. Eyes were closed and mouth half opened. The following anti mortem injuries were found on the body of the deceased;

(1) Firearm wound of entry 5 cm x 3.5 cm. present on left side neck, just below left ear. Abraded collar present around wound directing towards right margin inverted.

(2) Firearm wound of exist 9 cm x 5 cm communicating with injury no.1 present on right side front of neck, just below mandible margin everted.

(3) Firearm wound of entry 4 cm x 3 cm. present right side chest just below clavicle right bone abraded collar present around wound more on upper part. Lateral margin everted.

(4) Firearm wound of exist 4 cm x 3 cm present on right side chest just below lateral to injury no. 3. Margin everted connecting with injury no. 3.

(5) Firearm wound of entry 2 cm x 2 cm. present over right side front of leg 4 cm below right knee. Abraded collar present around wound. Margin inverted connecting with injury no. 6. Fracture of tibia bone (right) in injury no. 5.

(6) Firearm wound exist 2.5 cm. X 2 cm. present over right side back of leg. 5 cm. below knee, margin everted. Injury no. 1, 2, 3 and 4 are connected wound of one fire, exist of injury no. 2 of entry 1, 3 exit no. 4. On internal examination trachea lacerated, catrodid artery of both side neck lacerated, heart empty, stomach containing 100 ml. semi digested fluid present. Small intestine empty and in large intestine feacal matter and gases present. Urinary bladder full. Death was caused by shock and hemorrhage as a result of anti mortem injuries.

The seal bundle was prepared of the apparels of the deceased Amber including black thread and handed over to the Constable Harish Chand along with the dead body. Dr. R.K. Dubey P. W. 6 proved the post mortem report marked as Exhibit Ka. 8. He further deposed that death of deceased would have occurred on 20.11.2006 at 11.30 A.M. In cross examination he deposed that two fire arm wound were found on the body of deceased Amber Yadav.

H.C.P. Ram Lal Kaithal who was posted as Head Moharrir at P.S. Mauaima on 20.11.2006 examined as P. W. 7. He deposed that he had registered the first information report under Sections 302, 504, 506 and 307 I.P.C. as case Crime No. 143 of 2006 on the basis whereof the same was entered in the general diary Rapat No. 31 dated 20.11.2006 at 1.30 P.M. The first information report and the entry in the general diary proved by him exhibited as Exhibit Ka. 9 and Exhibit Ka. 10. He had received information on phone by constable Harish Chandra Yadav on 20.11.2006 about the death of injured Prem Shanker. He recorded the same in the general diary at 3.10 P.M. as Rapat No. 34 dated 20.11.2006, which was proved by him as Exhibit Ka. 11 on 21.11.2006 at 4.05 P.M. On the same day he received from the S.O. Ranjeet Singh sealed sample of blood stained and plain earth and the sealed envelope of empty cartridges, which was entered in the general diary and the same was proved by him as Exhibit Ka. 12.

In the cross examination of P.W. 7 HCP Kaithwal, he showed his ignorance as to when the copy of chick first information report was received in the C.O. office. No date is mentioned under the signature of C.O. He further deposed that the signature of the Chief Judicial Magistrate is mentioned dated 6.12.2006 in the first information report exhibited as Exhibit Ka. 9. The report would have received in the office of Chief Judicial Magistrate on 6.12.2006. After 12 O'clock no other case was registered at the police station. He denied that the report was lodged subsequently and date of lodging has been mentioned anti time. The said report of this case was taken by constable Parshuram Chaudhary who did not return till 12 O'clock in the night on 21.11.2006 while he (P.W.7) returned on 22.11.2006 at 6.15 A.M. He denied that the accused Prithvipal Yadav had gone to the police station to lodge the first information report and his first information report was not lodged. The accused Prithvipal Yadav was taken to Primary Health Center, Mauaima by constable Siraj Ahmad for medical examination on 23.11.2006 of which entry was made in the G. D. as Rapat No. 15 at 9.30 A.M., which was written by him. Prithvipal Yadav was admitted to police station on 22.11.2006 at 10.30 P. M. He further deposed that he cannot say as to why Prithvipal was not examined by the Doctor on 22.11.2006. He denied that Prithvipal Yadav had come on 20.11.2006 and asking him to lodge his report but on the instruction of S.O. his report was not lodged and was not examined. He stated that it was mentioned in the G.D. that the accused deposed that "he sustained injury on the day of incident". He (P.W. 7) deposed that he had mentioned in the G.D. that Prithvipal Yadav had sustained following injuries, which were three days old but the injuries were not mentioned by mistake in the G.D. He denied that deliberately under the order of the S.O. he has not mentioned the injuries of the accused in the general diary. He has also denied that all the entries in the general diary were false and fabricated.

Ranjeet Singh S.I. who was posted as Station Officer at police station Mauaima on 20.11.2006 was examined as P.W. 8. He deposed that he was entrusted with the investigation of case Crime No. 143 of 2006, under Sections 302, 307, 323, 504 and 506 I.P.C. He deposed that on account of gravity of the case he had taken over the investigation of case Crime No. 143 of 2006. He had gone through the chik F.I.R. and report, which was entered by him in the case diary. He recorded the statement of Head Moharrir Ram Lal Kaithal in the case diary. He made an effort to record the statement of the injured persons but they were not in a position to depose, hence he proceeded to the place of incident to initiate the investigation. He found the dead body of Amber Yadav at the place of incident. His inquest was prepared by HCP Shiv Badan Tiwari. He proceeded to the place of incident and started inquest at 2.30 P.M. of the deceased Ambar Yadav whose dead body was lying towards north east of his house near the road. Blood was found on the spot and 12 bore cartridges were also found beside the dead body. The inquest report was prepared by Shiv Badan Tiwari. He recorded the statement of the witnesses of inquest and the same was proved by him as Exhibit Ka. 13. After inquest the sealed dead body was handed over to Constable Raj Kumar Chaubey and Constable Harish Chandra Yadav for post mortem along with relevant papers. He had prepared the site plan at the instance of the complainant exhibited as Exhibit Ka. 20. He collected the blood stained and plain earth and empty cartridges, which were sealed and exhibited as Exhibit Ka. 21 and Ka. 22. He was informed at the place of incident through Constable Ram Lavat that injured Prem Shanker at the arrival to the hospital succumbed to the injuries. Thereafter he deputed S. I. Mohd. Siddique to conduct his inquest. He recorded the statement of eye witnesses and tried to arrest the accused persons. He was informed by S.I. Mohd. Siddique that after conducting inquest the dead body was handed over to Constable Harish Chandra Yadav and Constable Raj Kumar Maurya for post mortem, which was sent to S. R .N. Hospital, Allahabad. The copy of the inquest of Prem Shanker incorporated by him in the case diary and again tried to nab the accused persons on 22.11.2006. He deposited the blood stained and plain earth and other articles in the Malkhana and recorded entry about his return in the general diary No. 26 at 4.05 P.M. He had further deposed that on 22.11.2006 he went to the house of the accused Prtihvipal Yadav had taken him to his house in village Sandilla, police station Raniganj, district Pratapgarh where he climbed over the roof of his house and in the heap of straw taken out the 12 bore gun and belt of six cartridges and while handing over to him he disclosed that he and his son Dinesh Yadav had committed murder of Amber Yadav on 20.11.2006 and caused injury to Prem Shanker with the gun. Memo of gun and cartridges prepared by him on which the signature of Prithvipal Yadav and other public witnesses were taken. He proved the recovery memo of gun exhibited as Exhibit Ka. 23. The sealed gun was opened in the court and he identified that the same gun was recovered by him. Another sealed bundle was opened in which belt of six live cartridges and four empty cartridges of 12 bore gun were found exhibited as Exhibit Ka. 1 and Exhibit Ka. 2. Another bundle was opened in court in which blood stained and plain earth was found, which were exhibited as Exhibit Ka. 3 and Exhibit Ka. 4, besides that apparels of the deceased Amber Yadav Kurta and dhoti and of Prem Shanker pant and shirt were exhibited as Exhibit Ka. 5, Ka. 6, Ka. 7, Ka. 8 and Ka. 9 respectively. He had entered the injury report of the injured Om Prakash in the case diary, post mortem report of Ambar Yadav and thereafter S.O. Veer Singh had taken over the investigation on his transfer.

In his cross examination P.W. 8 Ranjit Singh deposed that he had mentioned house of Vijay Bahadur and his father Ambar Yadav in the site plan. The door of the house of Ambar Yadav is shown towards east. The site plan was prepared at the pointing out of the complainant Vijay Bahadur. The house of Ambar Yadav and Vijay Bahadur is one and the same. The place of occurrence is shown in the site plan towards west of house of Ambar Yadav and east of the road. One door of Pitambar Yadav is towards south and another is towards west. He proved the site plan of the place of incident as well as the house of Vijay Bahadur and house of Pitambar Yadav. He deposed that he had arrested Prithvipal Yadav on 22.11.2006. Three days old injuries were found on his body. Prithvipal disclosed that he sustained injuries at the time of incident. The incident had taken place on 20.11.2006. He denied that Prithvipal Yadav had gone on 20.11.2006 to the police station and his report was not lodged and he had been implicated falsely. He further stated that he was medically examined. He came to know later on that Prithvipal Yadav was examined and his X-ray was also done through police. He denied that he kept the accused for three days so that his injuries may disappear. He denied that the first information report was lodged after his consultation after inspecting the place of incident. He also denied that the place of incident has wrongly been shown, which was actually had taken place at the door of Pitambar Yadav. He deposed that he had deposited the cartridges, which were collected from the place of occurrence in the Malkhana of the police station. It was not sent to Sadar Malkhana and from there the same was sent to the Forensic Laboratory. He denied that after firing with the gun the empty cartridges were sent for Forensic Laboratory. He had also denied that the empty cartridges collected from the place of incident were not recovered by him. He had also denied that the blood stained and plain earth which was collected was not from the same place. The first Parcha was sent to the C.O. on 20.11.2006. He stated that there was no signature of the C.O. on any paper. He denied that the entire investigation had been conducted by him perfunctorily.

Dr. A.K. Pandey, In-charge Medical Officer of Navin Primary Health Center, Andavan, Allahabad examined as P.W. 9. He stated on oath that on 21.11.2006 at 2 P.M. he had conducted the post mortem of deceased Prem Shanker brought by constable Harish Chandra and Constable Raj Kumar Maurya of police station Mauaima, district Allahabad. He deposed that the deceased was of average built. Rigor mortis present in upper limbs, which was passing to lower limbs. He found the following anti mortem injuries;

(1) Firearm wound of entry 4 cm x 4 cm abraded collor present. Size 3 cm below Xiphi sternum, margin everted.

(2) Firearm wound of exit 5 cm x 4 cm below 12 cm right axilla communicating injury no.1 margin everted. 9th and 10th ribs of right side fractured. Clotted blood present in abdominal cavity, peritoneum lacerated, 500 gms. semi digested food found in the stomach. Liver lacerated. Urinary bladder empty. After post mortem the dead body was handed over to Constable with belongings of the deceased. Cause of death due to shock and hemorrhage as a result of firearm injury. The post mortem report was proved by Doctor A.K. Pandey, P. W. 9 marked as Exhibit Ka. 23. He had opined that the death could have occurred with the fire of gun at 11.30 A.M. on 20.11.2006. In cross examination he stated that he could not say as to whether the injury was caused by Katta or gun. There was no blackening, charring or tattooing in the wounds. In his opinion the fire was made from a distance of three fit. He deposed that the deceased would have taken food three hours prior to the incident. He could not say as to whether the injuries were caused by rifle, gun, revolver or country made pistol.

Dr. Rakesh Pathak, Radiologist of Primary Health Center, Khaga, Fatehpur was examined as P.W. 10 who deposed that he was posted in Emergency Medical Ward in T. S. Sapru Hospital on 20.11.2006 at 6.25 P.M. on that day he had examined Om Prakash son of Ambar Yadav. He was brought by home guard Ram Bahadur of police station Mauaima, district Allahabad. He found following injuries on the person of the injured;

1. Traumatic swelling in area 18.00 x 16.00 cm. suspected fracture of underline bone. This is in left forearm. There is a lacerated wound in area 1.00x 0.5 cm. Bleeding present. Kept under observation. X-ray of left forearm .

2. Lacerated wound left parietal area 4 cm x 1 cm x skin deep, 6 cm from left ear reddish.

3. Lacerated wound of lower back 0.5 cm x 0.5 cm reddish blood oozing. Opinion about injuries caused by hard blunt object. Injury no.1 kept under observation. X-ray advised. Injury nos 2 and 3 simple. Duration fresh. Left thumb impression of the injured was taken on the injury report, which was signed by him and proved as Exhibit Ka. 23. Dr. Pathak deposed that on 21.11.2006 he was also posted as Radiologist in the same hospital and on that day under his supervision X-ray of left forearm of the injured Om Prakash was conducted and according to X-ray report found fracture of ulna bone in the left hand. X-ray report was prepared and proved by him as Exhibit Ka. 24. The witness was cross examined by the defense. He deposed that he has not mentioned any mark of identification of the injured on the X-ray plate. He has not mentioned the name of the injured on the X-ray plate. At the time when his statement was recorded the injured was not present. He does not know the injured. Injury Nos. 2 and 3 was skin deep. He denied that he prepared false medical report and X-ray report in association with the injured.

The second Investigating Officer, S.O. Udaiveer Singh was examined as P.W. 11. He deposed that he was posted as Station Officer, Mauaima, Allahabad between December 2006 till January 2007. During this period he investigated the case of case Crime No. 146 of 2006, under Sections 302, 325, 504 ad 506 I.P.C. He had taken over the investigation on 10.12.2006 and prepared Parcha No. 11. He recorded the statement of witness of inquest, namely, Sudhir Kumar, Lalu Prasad, Mukund, Indra Kumar Pandey etc. He prepared Parcha No. 13 dated 12.12.2006 wherein the statement of witnesses of inquest, namely, Yogesh Prasad, Shobh Nath, Pradeep Kumar, Krishna Murari were recorded. He had also recorded the statement of eye witness Chhangu Lal on 13.12.2006. Paper No. 14 in which statements of witnesses Ram Chand, Om Prakash and S.I. who recovered gun, S.I. C. P. Pandey and S.I. Vivek Upadhyay, Constable Sudhir Singh, Constable Siraj Ahmad. Statement of witnesses of recovery of gun were recorded. Parcha No. 14 dated 14.12.2006 for which investigation was concluded and charge sheet was submitted and sent to the court. He proved the charge sheet No. 3-A, which was prepared and signed by him and marked as Exhibit Ka. 25.

In his cross examination he stated that the statement of complainant was recorded by S.O. Ranjeet Singh and he had recorded the statement of witness Om Prakash. Om Prakash had disclosed in his statement that Pitambar is the real Baba of Om Prakash. He had no son who had given three Bigha land to his daughter who is wife of Prithvipal Yadav. Om Prakash has further disclosed to him that he further wanted to give land to his daughter. Om Prakash had disclosed him that his family was not interested to give the land to any other person and hence his father had raised objection. Om Prakash had disclosed him that Dinesh Yadav could not load the gun and he has became puzzled. He further deposed that he had recorded statement of witness Ram Chand on 13.12.2006. He denied that all the investigation was false and fabricated.

Thereafter the statements of accused/appellants were recorded under Section 313 Cr.P.C. the appellant Prithvipal Yadav and Dinesh Yadav had denied the questions put to them relating to the first information report, charge sheet, recovery of gun and cartridges and had showed ignorance with respect to preparation of inquest report, post mortem report of the two deceased Amber Yadav and Prem Shanker, site plan, injury report of Om Prakash and his X-ray report. They further deposed that due to enmity and under pressure of police false case has been registered against them.

Accused Dinesh Yadav in his statement under Section 313 Cr. P. C. has further stated that Pitamber had given him land. He is the son of Prithvipal Yadav, hence he has been falsely implicated. He was not present at the time of the incident.

Prithvipal Yadav in his statement under Section 313 Cr.P.C. had deposed that on the day of incident he was sitting at the door of his father-in-law Pitamber. Pitamber has no male issue. He has only daughter who is his wife. Pitamber had given three bigha land to his children and wanted to give some more land. Pitambar became old who had kept him, his wife and children to look after. At the time of incident Om Prakash, Lalman, Ambar Yadav, Prem Shanker, Vijay Bahadur and Ram Chand had assaulted him brutally with lathi-danda, axe and country made pistol. Ambar Yadav started to move after snatching his gun in which grappling took place with Amber and Prem Shanker at the same moment. Om Prakash had fired from his country made pistol on account of which Ambar Yadav and Prem Shanker had suffered injuries. He had gone to lodge the report about the incident but his report was not lodged rather he had been challaned falsely in the present case. He had suffered injuries and was also medically examined.

To prove the medical report of Prithvipal Yadav Dr. Gyan Chand Patel was examined as D.W. 1 who had proved the injury report and marked as Kha.-1. Injury was examined at 11 A.M. on 23.11.2006 brought by constable Siraj Ahmad. Following injuries were found;

(1) Lacerated wound 4 cm x 0.5 cm x scalp deep left site of forehead, 1 cm above to middle of left eye brow. Pus formation present. Margin irregular.

(2) Lacerated wound 1 cm x 0.5 cm left upper lip, 1.5 cm below to left nostril. Pus formation present. Margin irregular.

(3) Lacerated wound 1 cm x 0.7 cm in progimal phallynx right little finger. Nail is extracted out from its roots. Pus formation present. Margin irregular. Advice X-ray right little finger.

Opinion: Injury No.1 and 2 caused by hard blunt and simple in nature.

Injury No. 3 kept under observation and advice X-ray right little finger and referred to T. B. Sapru Hospital for expert opinion. Duration of all injuries about 3 days old received on 20.11.2006 at 11.30 A.M. In his opinion all injuries were possible with lathi danda and axe. Duration of pus formation starts after 72 hours and also depends upon infection. Pus formation was at preliminary stage. He denied that he prepared fake medical report to give undue advantage to the accused persons.

The articles which were sealed by the investigating officer sent for chemical examination to the Chemical Examiner Lucknow on 13.12.2006. After examination the report was received and according to the said report human blood was found on all the articles. On Item Nos. 1 to 13 blood was found and only on Item No.1 blood stains soiled. The blood was disintegrated and on other articles human blood was found. The report was exhibited as 48-A/1.

The Ballistic Expert Report was also received indicating that disputed cartridges, which was marked as 1/2007 was fired from gun B/4/29612. The Ballistic Export report further indicates that the cartridges were marked as EC1, EC 2, EC 3 were fired from SBBl gun, which was marked as 1/2007. The report of the Ballistic Expert proved that the empty cartridges recovered on the spot by the Investigating Officer, which were sent for examination to the Ballistic Laboratory. It was fired from same SBBL gun, which belongs to Prithvipal Yadav. The empty cartridges recovered by the Investigating Officer connecting the SBBL gun. The SBBL gun is the licensed gun of accused Prithvipal, which was recovered at his instance from his house and after opening it the smell of gunpowder was coming, which indicates that the gun was used shortly before, which corroborates with the report of the Ballistic Expert that the cartridges were used from the said gun.

On the analysis of the entire evidence on record the learned trial court after elaborate discussion of the oral and documentary evidence arrived at the conclusion that the appellant Prithvipal Yadav and his son Dinesh Yadav were involved in the commission of offense of double murder. The prosecution has proved the case beyond reasonable doubt and hence convicted them for life imprisonment.

We have heard Sri Abrar Ahmad, the learned counsel for the appellants and Sri Ashwani Prakash Tripathi the learned A.G.A. on behalf of the State and have taken through the record.

It is submitted by the learned counsel for the appellants that the genesis of the occurrence has been suppressed by the prosecution. The appellant Prithvipal Yadav had also sustained injury in the said incident, which has been proved by corroborative and cogent evidence yet totally discarded by the learned trial court and relying upon the prosecution case had proceeded to convict the appellants. The trial court has committed manifest error in relying upon the testimony of the interested witnesses, which are contradictory in nature. The post mortem report of the two deceased also belies the manner of incident as well as the participation of both the appellants as alleged in the first information report. On account of property dispute the appellants have been roped in by the prosecution witnesses. There is various irregularities on the part of the investigating officer, which goes to the root of the case to prove the innocence of the appellants in the commission of offense. Lastly, it has been submitted that since the appellant Prithvipal Yadav had also sustained injury of which no plausible explanation has been given by the prosecution hence creates serious doubt to rely upon the testimony of the prosecution witnesses.

In fact at the time of the incident the deceased and other persons were armed with lathi danda, axe and country made pistol who were nurturing enmity had brutally assaulted the appellant Prithvipal, as Pitamber the father-in-law of the appellant had transferred three bigha land in favour of his grandson Dinesh Yadav. It has emerged from the evidence that the complainant's side was the aggressor during the course of grappling they had inflicted injuries to the appellant Prithvipal and as the deceased Ambar Yadav had snatched the gun of appellant Prithvipal Yadav, Om Prakash P. W. 2 the son of the deceased had fired upon Amber Yadav and Prem Shanker on account of which they had sustained serious injuries. The report of the appellant Prithvipal was not lodged though he had gone to lodge a first information report of the incident and was later on medically examined from jail.

Thus the entire prosecution story has been cooked up to falsely implicate the appellant Prithvipal Yadav and his son Dinesh Yadav in the commission of the offense that alleged incident occurred at 11 A.M. of which a first information report was lodged at 1.30 P.M. after due deliberation and consultation. The learned trial court has also proceeded to rely upon the testimony of highly partisan witnesses in convicting the appellants.

The appellants are languishing in jail since last 13 years, hence the conviction is liable to be set aside, they deserve for acquittal.

Per contra learned A.G.A. appearing for the State has vehemently opposed the appeal by contending that it was a pre planned attack by the appellants who came at the house of the complainant on a motorcycle on 20.11.2006 at 11. A.M. and soon after standing their motorcycle the appellant Prithvipal Yadav who was armed with his gun fired at the complainant's father Ambar Yadav. The complainant, his father Ambar Yadav, Prem Prakash, Om Prakash, Ram Chandra were sitting near the house beside the road who were all unarmed little knowing that appellants had come with intent to kill. Both the appellants hurled abusive language. The accused appellant Dinesh Yadav had exhorted (ekjks lkys dks ns[k fy;k tk;sxk) and at this the appellant Prithvipal Yadav had started firing indiscriminately on account of receiving gun shot the complainant's father Amber Yadav died on the spot, when Prem Shanker who is nephew of the deceased ran towards him at this Dinesh Yadav after snatching gun of his father Prithvipal fired at Prem Shanker who was seriously injured and had also assaulted Om Prakash (P.W. 2) with the butt of the gun. Both the accused appellants fled away from the incident unleashing reign of terror. The injured were taken to the police station from where they were sent for the medical examination. Prem Shanker had succumbed to the injury. Thus according to the first information report the appellants have committed gruesome murder of two innocent persons and caused serious injuries to Om Prakash P. W. 2. The gun of the appellant Prithvipal was recovered on his disclosure, which was sent to Forensic Science Laboratory and the report was found positive that the same gun was used in the commission of offense. The learned A.G.A. has further contended that the testimony of injured witness has rightly been relied upon by the learned trial court, which cannot be discarded rather it confirms about that the incident had taken place at the said point of time. The post mortem report of the two deceased as well as the report of the injured Om Prakash stands proved by the Doctors P. W. 6, P.W. 9 and P.W. 10. The appellant Prithvipal did not receive any injury in the said incident, which has been purposely prepared to create a defense. If the appellant Prithvipal Yadav received injury at the time of incident no report was lodged by him or on his behalf by the son of the appellant or his family members. The learned trial court has rightly discarded the defense theory that the complainant party was the aggressor. The testimony of the prosecution witnesses cannot be disbelieved merely on the ground that they are related witnesses. The testimony of the injured witness, who was injured in the same incident has ensured his presence at the time and place of occurrence, cannot be doubted.

To prop up his submission leaned A.G.A. has relied upon the decision of the Apex Court in the case of Abdul Saeed Vs. State of M.P. 2010 (10) SCC 259, Kailash and another Vs. State of Maharashtra, 2011 (1) SCC 793, Durbal Vs. State of U.P., 2011 (2) SCC Page 676 and State of U.P. Vs. Naresh and others, 2011 (4) SCC page 324 wherein it has been held that the testimony of injured witness has accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare actual assailant in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. It has also been observed in the above noted cases that the position of law in such a case of contradiction between medical and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidenciary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved (vide Abdul Sayeed (Supra).

The learned A.G.A. has further submitted that in the present case Vijay Bahadur who is the complainant and Om Prakash who is injured both are sons and Ram Chandra who is the nephew of the deceased Amber Yadav have been examined as P.W. 1, P.W. 2 and P.W. 4 respectively. It is submitted that the defense cannot take any benefit that no independent witness was examined. Where two persons of a family had lost lives on the same day in the incident and the other had sustained grievous injury in such circumstances even if an independent witness had witnessed the incident would not like to come forward and depose against the assailants. There is no rule that evidence of related witness cannot be relied upon. Evidence of related witness can easily be relied upon, if it is consistent, coherent and trustworthy. The learned trial court has rightly discarded the minor omissions or contradictions, which do not effect the basic version of the prosecution witnesses and on appraisal of the entire evidence on record the learned trial court has rightly convicted the appellants, hence the conviction of both the appellants deserves to be maintained.

Having considered the submissions advanced by the learned counsel for the appellants whose main thrust of argument is the non explanation of the injuries of the accused. The defense of the appellant Prithvipal is that he had sustained injury in the said incident thus the prosecution has suppressed the manner of incident. The plea that the complainant party were the aggressor has came up for the first time in his statement recorded under Section 313 Cr. P. C. and in support thereof two witnesses Dr. Gyan Chand Pandey as D.W. 1 and Dr. Ashok Upadhyay as D.W. 2. have been examined. D.W. 1 had deposed that he had examined injuries of appellant Prithvipal Yadav at 11 A.M. on 23.11.2006. Three lacerated wounds were found. Two injuries were said to have been caused by hard and blunt object and simple in nature while injury no. 3, which was on the right little finger was also lacerated wound. Advised X-ray of right little finger. Injuries were opined three days old on the basis of pus formation which begins after 72 hours. D.W. 2 Dr. Ashok Agarwal who had prepared the X-ray of the appellant Prithvipal Yadav on 22.12.2006 and according to the X-ray report it was found that head of the distal phalanx of right small finger was missing. According to the medical report its dimension was mentioned as lacerated wound 1 cm x 0.7 cm. Nail has extracted out from its root. Pus formation present. It is highly improbable that injury no.3 of right little finger sustained on 20.11.2006 examined on 23.11.2006 and its X-ray was conducted on 22.12.2006. If appellant Prithivipal had also sustained injury in the same incident there is nothing on record to show that any application was moved by his son or any other family member regarding the incident in which as according to the defense the complainant's party was the aggressor armed with lathi danda, axe and firearm weapon had assaulted him. If the complainants' side were the aggressor armed with all kind of weapons as mentioned above the son of Prithvipal Yadav who was also with him would not have been spared. In the statement under Section 313 Cr.P.C. of accused Dinesh Yadav he had stated that he was not present at the time of incident. If this plea is taken to be true then on receiving information that his father had been assaulted by the complainant's party causing him injuries and was suffering from nail trauma due to injury to the distal phalanx of right little finger, a first information report ought to have been lodged by his family member. In the above conspectus we are not ready to agree with the contention of the learned counsel for the appellants that where the prosecution has failed to explain injuries found on the person of the accused, the prosecution case should automatically be rejected.

Non-explanation of the injuries sustained by the accused/appellant Prithvipal Yadav may assume greater importance where the defense version which competes in all probabilities with that of the prosecution. In the instant case the evidence is clear, cogent and creditworthy and the truth from the falsehood is clearly distinguished as all the prosecution witnesses have consistently stated that Prithvipal Yadav had not sustained any injury in the said incident. The evidence of P.W. 1 Vijay Bahadur, P. W. 2 Om Prakash, P.W. 4 Ram Chandra who are the eye witnesses of the incident, they have categorically stated that Ambar Yadav and Prem Shanker Yadav sustained injuries on the day of the incident. Ambar Yadav died on the spot while Prem Shanker succumbed to the firearm injuries while on the way to hospital. The nature of the injuries, if any, sustained by the appellant Prithvipal Yadav are minor and superficial of which the prosecution witnesses though not bound to give any explanation yet they have given categorical statement that the appellant had not sustained any injury in the said incident. For the first time Prithvipal Yadav in his statement under Section 313 Cr.P.C. deposed that he was attacked by iron rod, lathi danda, axe by the complainant party, which completely ruled out such stand as there was neither any case instituted against the deceased or the prosecution witnesses nor number of injuries corroborated the defense. It was a broad day light incident in which two persons had lost life while one person had sustained injury.

According to the post mortem conducted by Dr. R. K. Dubey P.W. 6 the deceased Ambar Yadav had sustained three entry and three exist firearm wounds. The Doctor had found abrasion collors with entrance wounds, which are indicative of high velocity projectiles. They are caused by the bullet to the skin and the stretching that occurs with the entrance wound. lt is the contention of the learned counsel for the appellants that when it was a case of indiscriminate firing by the appellant Prithvipal Yadav only three injuries with three exist wounds were said to have been found on the body of the deceased Amber Yadav which improbalizes the prosecution case. It is not always necessary that all the fire shot by the assailants hit to the target as the object is not immobile and when any fire is made a person first response would try to escape and in that context if only two or three fire hit to him it cannot be said that the medical report does not corroborate the prosecution case. Empty cartridges, which were recovered from the spot and the gun of the appellant Prithvipal were sent for ballistic report, it was found that the same gun was used, which was seized from the appellant Prithvipal Yadav after his arrest from his house at his instance.

Similarly Prem Shanker had also sustained firearm injury of which there was an exist wound caused by appellant Dinesh who succumbed to the injury while he was on his way to hospital. The post mortem reports of Prem Shanker clearly indicates that the injuries received by the deceased were sustained by firearm weapon on the day of occurrence i.e. on 20.11.2006 at 11.30 A.M. The injured Om Prakash was examined at 6.25 P.M. on the same day of the occurrence by Medical Officer T.B. Sapru Hospital, Allahabad. His injuries were found fresh caused by hard blunt object. Traumatic swelling, suspected fracture of underlying bone in left forearm, bleeding present. X-ray of forearm was advised. He had sustained injury over his head which is lacerated wound and one injury was on lower back 0.5 x 0.5 cm. Reddish blood was oozing. His medical report was also proved by Dr. Rakesh Pathak P.W. 10 conducted X-ray on 21.4.2006 of his left forearm and found fracture of shaft of left ulna. P. W. 10 Dr. Rakesh Pathak has also proved the X-ray plate. These injuries of the injured Om Prakash itself belies defense version that injured Om Prakash had fired from his country made pistol, which hit to the deceased Ambar Yadav and Prem Shanker. The injured Om Prakash would not be in a position to use any weapon if he had himself sustained injury as per his medical report. Om Prakash P.W. 2 has categorically stated that he was assaulted with the butt of the gun by accused appellant Dinesh when he slammed down Prithvipal as the latter had fired at his father Amber Yadav. Though it is true that it is not necessary to invariably accept the version of the injured witness but it is settled that greater weight has to be given to the testimony of the injured witness as his presence cannot be doubted. We see no reason to disbelieve P.W. 2 Om Prakash under the aforesaid fact and circumstances.

Learned counsel for the appellants has doubted that the prosecution has failed to prove the place of occurrence as has been stated in the site plan.

We have gone through the entire evidence on record, the site plan prepared by the Investigating Officer clearly indicates that the incident took place near the western side of the house of the deceased where Amber Yadav was sitting near the road along with other persons. At the place of incident not only empty cartridges but blood was also found, which was collected and sent to the forensic laboratory. The first information report clearly reveals the place of incident as mentioned by the P. W.1 Vijay Bahadur Yadav, which has been corroborated by the other prosecution witnesses. Where one person died on the spot and other succumbed to the injuries while taking to hospital, the court has only to see as to whether or not the incident took place at the place where the incident as alleged in the first information report. Time and place of occurrence has been properly explained by the prosecution witnesses and nothing could be elicited in their cross examination by the defense on this point to doubt about the place of incident.

The prosecution has examined Ram Chandra son of Panchoo who is the nephew of deceased Ambar Yadav and was produced as an eye witness of the incident. We are not convinced with the submission of the learned counsel for the appellant that there were number of houses near the place of occurrence and the prosecution could have adduced the evidence of other independent witnesses of the locality. It is not always necessary to multiply the evidence about the incident on the same point. It is the quality of the evidence and not the quantity, which is required. If the witnesses are trustworthy then it is not required that there should be a multiplicity of evidence. It has been held by Hon'ble Apex Court in Babu Ram Vs. State of U.P. 2002 Vol. 45 ACC page 499 SC, "it is settled law that non-examination of an eye witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye-witnesses examined in the case is found to be trust worthy and worth being relied on so as to form safe basis for recording a finding of guilt of the accused persons then non examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case."

In view of the above, we are of the view that the contention of the learned counsel for the appellants carries no weight.

Learned counsel for the appellants has further laid stress that there are serious discrepancies in the evidence of the prosecution witnesses and as such their evidence cannot be relied upon.

We have gone through the entire discrepancies pointed out by the learned counsel for the appellants minutely. Normal discrepancies are bound to occur in the testimony of natural and reliable witnesses. The normal discrepancies in evidence are those, which are due to normal errors of observations or normal error of memory due to lapse of time. The observation defers from person to person. The eye witnesses even cannot accurately recall and reproduce the words used by them or heard by them. They can only recall the main purports of the conversation and it will not be possible for the witnesses to meticulously specify the shots fired by each of the accused appellant. The contradiction, which has been pointed out are not such so as to effect the genuineness of the incident such discrepancies are bound to creep in the testimony of truthful witnesses.

In State of U.P. Vs. Anil Singh, 1988 Supp. SCC 686: 1989 S.C.Cr.R. 5, the Hon'ble Apex Court observed that:

(17) ......invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."

The Hon'ble Apex Court in Leela Ram Vs. State of Haryana, (1999) 9 SCC 525: 2000 S.C.Cr. R. 147, held as follows;

"12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated amount. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."

Thus it is well settled principle of criminal law that some minor contradiction or inconsistency cannot be made basis to discard the whole evidence as unreliable.

So far as the motive is concerned the case of the prosecution was that Pitamber is 'Tau' of Vijay Bahadur (P.W. 1) and Om Prakash injured (P.W. 2). Pitamber had no son and he had transferred three bigha land to his only daughter's son Dinesh (appellant no. 2) and he also wanted to give some more land. Amber Yadav deceased the father of P.W. 1 and Om Prakash P.W. 2 had raised objection with regard to alienation of the property. This fact is admitted to the appellants that enmity due to property dispute was going on since long as Pitamber had transferred the land to his daughter's son wife of appellant Prithvipal Yadav thus the enmity was there prior to the incident with regard to the landed property. It was the bone of contention between the parties and hence the appellant Prithvipal who is the son-in-law of Pitamber emerged along with his son Dinesh on motorcycle on the day of incident and after heated exchange of words Prithvipal had fired from his licensed gun causing instantaneous death of Ambar Yadav. Thereafter snatching gun of his father a shot was fired by his son Dinesh Yadav at Prem Shanker who had also sustained serious injury could not survive and succumbed to the injuries while he was taken to the hospital. The injured Om Prakash P.W. 2 son of Ambar Yadav whose reaction was normal at the time of incident to come forward to save his father, was also beaten up with the butt of the gun by the appellant Dinesh Yadav causing injuries over his hands resulting into fracture of his ulna bone of left hand. The recovery of blood stained earth and plain earth, recovery of the empty cartridges and blood stained cartridges from the spot by the Investigating Officer and the examination of the natural witnesses of the incident clearly show the involvement of the appellants in the commission of offense. The evidence of ocular and injured witnesses clearly exhibits the way in which the appellants took away the life of deceased Amber Yadav and Prem Shanker Yadav. Merely because the P. W. 1 and P. W. 2 the eye witnesses, are family members, their evidence cannot be discarded. Relationship is not a factor to affect the credibility of a witness. It is more often not that a relation would not conceal actual culprit and make allegation against an innocent person. We find from the record that the evidence of P.W. 1 and P. W. 2 are consistent and the court below has also properly scrutinized their evidence and committed no error in appreciation of evidence. The role played by both the appellants in killing Ambar Yadav and Prem Shanker by firing upon them has been proved by the prosecution witnesses beyond all reasonable doubt. The defense taken by the accused appellants is not convincing and deserves to be discarded. If the defense of cross version was correct they would have come forward with the criminal prosecution of the complainant before the court. Dinesh Yadav has stated that he was not present at the place of occurrence. He has failed to adduce any evidence to prove this fact. The principle is that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation, but if the accused asserts 'plea of alibi' thus burden is upon him to led evidence to prove that he was not at all present on the spot at the time of incident.

The reports of the Forensic Science Laboratory as well as those of Ballistic Expert have been perused by us. The Forensic Science Laboratory reports disclosed that the samples collected from the scene of incident and apparels of the deceased person had blood stains of human origin. The report of the Ballistic Export further makes it clear that on comparison microscopic examination the cartridges have been fired from the gun seized from the appellant Prithvipal. Thus the reports fully support the prosecution case. Among the short fired, some gun shots was misfired. Be that as it may, the fact remains that the appellants who are father and son had the common intention of committing the murder of the deceased Amber Yadav and Prem Shanker Yadav had also lost life when he made an attempt to come forward to save Amber Yadav. The sequence of events and the manner in which occurrence took place manifests a preconcerted plan and a prior meeting of their mind. Section 34 I.P.C. requires a prearranged plan, the act must have been done in furtherance of the common intention of two or more persons (Mehboob Shah Vs. King Emperor, AIR 1945 PC 118.

In Harshadsingh Pahelvansingh Thakore Vs. State of Gujrat, 1976 (4) SCC 640 (supra), a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus:-

"Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain Vs. State of U.P. (1975) 4 SCC 247; 1975 S.C.Cr. R. 281 Maina Singh Vs. State of Rajasthan, (1976) 2 SCC 827) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."

The essence of Section 34 is simultaneous consensus of the mind of two or persons participating in the criminal action to bring about a particular result.

Though judicial precedents with regard to common intention stand well entrenched, it will be sufficient to refer State pf Rajasthan Vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-

"10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram Vs. State of U.P. 6 (SCC p. 622, para 21), the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other."

The sequence of events, and the manner in which the occurrence took place, manifests a pre-concerted plan and a prior meeting of minds. Both the appellants came together on a motorcycle, they both left together after the shooting followed by assault on the same motorcycle. If common intention by meeting of minds is established in the facts and circumstances of the case, there is no reason why P. W. 1 and P. W. 2 who were the sons of deceased Amber Yadav would lying sheilding the real accused persons and naming the appellants. The appellant No. 2 Dinesh Yadav took the defense of alibi which has been disbelieved by the trial court. The taking of a false plea is an additional factor against him.

In Ramaswami Ayyangar Vs. State of Tamil Nadu, (1976) 3 SCC 779, 1976 S.C.Cr. R. 437, explaining the essence and purport of common intention, it was observed as follows :-

"12.....The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the commission of crime. Such a person also commits an ''act' as much as his co-participants actually committing the planned crime."

Common intention is a state of mind. It is not possible to read a person's mind. There can hardly be direct evidence of common intention. The existence or non-existence of a common intention amongst the accused has to be deciphered cumulatively from their conduct and behavior in the facts and circumstances of each case. Events prior to the occurrence as also after, and during the occurrence, are all relevant to deduce if there existed any common intention. There can be no straight jacket formula. The absence of any overt act of assault, exhortation or possession of weapon cannot be singularly determinative of absence of common intention.

Thus in the above conspectus in our view the prosecution has established the guilt beyond all reasonable doubt against the appellants Prithvipal Yadav and Dinesh Yadav. We find that the learned trial court has rightly convicted and sentenced the appellants. There is no infirmity in the impugned judgment passed by the trial court to make out any case of acquittal of both the appellants.

In view of the foregoing verbose and prolix discussion we find no merit in the appeal. The conviction and sentence awarded by the learned court is hereby affirmed. The appeal thus fails and is accordingly dismissed.

Let a copy of the judgment along with the lower court record be immediately sent back to the court concerned for compliance under intimation to this court.

Dt. 26.7.2019.

Shahnawaz.

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