State Of U.P. vs Sahib Singh on 19 July, 2022

[Cites 104, Cited by 0]

Allahabad High Court

State Of U.P. vs Sahib Singh on 19 July, 2022

1. The present government appeal has been filed by the State seeking leave to appeal against the judgment and order dated 22.06.1985, passed by learned IIIrd Additional Sessions Judge, Meerut in S.T. No.577/1983 (State Vs. Sahab Singh and others), arising out of Case Crime No. 4 of 1983, under Sections 147, 148, 323, 324, 307, 302 IPC, Police Station Chhaprauli, District Meerut. By the impugned judgment and order, learned trial court acquitted the accused-respondents Sahab Singh, Charan Singh, Dharamvir, Dhara Singh and Shri Pal for the offence punishable under Sections 323/149, 302/149, 147 IPC.

2. In brief, the case of the prosecution was that the informant Mahak Singh lodged an F.I.R. in Police Station Chhaprauli, District Meerut on 12.01.1983 at 18.10 hours stating that informant along with his brother Satyapal Singh was returning from his sugar cane field on 12.01.1983 at about 3.00 P.M. On the way, as he reached near the sugarcane field of Zilley Singh, the accused persons Sahab Singh, Charan Singh, Dharamvir, Dhara Singh and Shri Pal, who were hidden in the sugar cane harvest of Zilley Singh's field, came out from the filed caught Satyapal Singh and started assaulting him. All the accused persons had beaten him badly using the weapons Lathies and Kharpali (a sharp edged weapon). Informant, who was also returning from his field and following Satyapal Singh from some distance, seeing the occurrence, ran towards them by raising alarm to rescue his brother. Looking his activities accused Saheb Singh attacked on him with Danda. Having heard the voice of informant, Ranvir, Chandan and Baljeet, who were present in their fields, moved towards the place of occurrence to save them. As the witnesses reached on the spot, accused persons made their escape good. The accused persons had attacked on his brother, due to old enmity.

3. Injured/victim Satyapal was brought from the place of occurrence to his house by bullock cart and thereafter to Police Station by bus. The police registered F.I.R. on the basis of above written Tehreer, scribe by Krishna Pal Singh. The Investigating Officer, considering the serious condition of injured, recorded the statement of Satya Pal Singh under Section 161 Cr.P.C. at Police Station. Thereafter, the injured Satyapal Singh was sent to Chaprauli Hospital for treatment. Since the doctor was not available there, hence the injured moved to Primary Health Center, Baraut from Chaprauli, but on the way, injured Satyapal Singh succumbed to his injuries. Injured Mahak Singh got medically examined at Primary Health Center, Baraut at about 10.10 P.M.

4. Pursuant to the F.I.R., investigation of the case was entrusted to Station Officer Rajendra Singh, who prepared the Inquest report, send the dead body of Satyapal Singh for Post Mortem, inspected the spot, sketched the site map and recorded statement of the witnesses under Section 161 Cr.P.C. The Investigating Officer also collected the blood stained and plain soil from the place of occurrence. On the pointing out of the accused Sahab Singh, the Investigating Officer recovered three blood stained lathies from the Gher of his residential house, prepared the Fard and submitted the police report under Section 173 (2) Cr.P.C. before the Court concerned against all the accused persons.

5. Learned trial court framed the charges under Section 323 read with 149, 302 read 149 and 147 IPC against accused persons, who denied and abjured the charges, pleaded not guilty and preferred the trial.

6. On behalf of the prosecution Mahak Singh as PW 1, Chandan Singh as PW 2, Pheru as PW 3, Baljit as PW 4, Kalu Ram S/o Hardan Singh as PW 5, Dr. T. Raj Sharma as PW 6, Dr. V.P. Gupta as PW 7, Constable Sohanpal Singh as PW 8, Constable Budh Prakash as PW 9, R.S. Kaushik as PW 10 and constable Sukhpal Singh as PW 11 have recorded their evidence.

7. PW 1, Informant Mahak Singh, has corroborated the F.I.R. version in his evidence and submitted that he was the eye witness of the occurrence. At the time of attack, accused Dhara Singh was having Kharpali in his hand and other accused persons were carrying Lathies. They started beating Satya Pal with the weapons which were carried by them in their hands. At that time, he was approximately 25 steps behind his brother. Having seen the occurrence he shouted the voice for help. After sustaining the injuries, Satya Pal had fallen down. Informant also received injuries of Lathi/Danda and had fallen down on earth due to his injuries. After occurrence, Mahipal carried them at his residence by bullock cart. Informant dictated his application to Krishna Pal and handed over the application/Tehreer to Police. They were sent by Police to Chaprauli Hospital for treatment but the doctor was not available there. Thereafter, they were carried to Baraut Hospital. On the way, injured Satya Pal succumbed to the injuries sustained by him. At Baraut Hospital, informant got medically examined. The witness also discribed about the motive of occurrence that approximately 8 months prior to the occurrence his brother Satya Pal was coming with bullock cart. Accused Dhara Singh was also coming behind him by a tractor and was trying to overtake the bullock cart of Satya Pal but he could not succeed. Due to the above reason some quarrel took place between accused Dhara and Satya Pal and for the aforesaid reason accused Dhara developed the enmity with Satya Pal. Co-accused persons Sahab Singh, Dharamvir and Charan Singh are the sons of accused Dhara Singh and Shri Pal is his nephew.

8. PW 2 Chandan Singh has stated in his oral evidence that on the date of occurrence, upon hearing the voice of informant, he reached on the spot and had seen that accused Dhara, with Kharpali and other accused persons with lathies were beating Satya Pal. When Mahak Singh (informant) intervened and tried to rescue his brother, he was also beaten by lathies. The injured Satya Pal was taken to his village by bullock cart.

9. PW 3 Feru deposed that approximately 7-8 months prior to the murder of Satyapal, the witness was going towards his field with Ranveer. On the way, he saw that Satyapal was coming with Buggi (bullock cart), behind him accused Dhara was coming by his tractor. Satyapal had carried paddy in his bullock cart. Dhara was saying to give him pass but Satyapal refused as the passage was as narrow as there was no proper room to overtake the bullock cart. Due to the reason some hot talk took place in between them and also they scuffled. The witness PW 3 and Ranveer interfered and mediated to subside the dispute. Thereafter, both the persons moved towards the village abusing one another.

10. Witness PW 4 Baljeet Singh deposed that on the date of occurrence when the accused persons were beating Satyapal by Khaprali and lathies, the witness reached on the spot. He had also seen that accused Sahab Singh gave lathi blow to Mahak Singh also. He also stated that Satyapal had received several injuries which have caused profused bleeding.

11. Kalu Ram who had been examined by the prosecution as PW-5 has stated that on 12.01.1983 Investigating Officer/S.I. had recorded the statement of injured Satyapal in his presence. He further stated that injured had described the details of occurrence, name of accused persons and weapons to S.I. who recorded the statement and read over the same to injured. The witness further had stated that he also signed the statement as witness. The witness PW 5 had verified his signature on dying declaration and proved the same.

12. PW 6 Dr. T. Raj Sharma deposed and proved the Post Mortem Report of deceased Satyapal. This witness had conducted autopsy of deceased Satyapal. He had found approximately 10 injuries on the body of deceased Satyapal and stated that all the injuries sustained by deceased were sufficient, in normal course, to cause death. The incised wounds have been caused by Kharpali and contusions as a result of Lathi blows.

13. As according to the postmortem report, in autopsy the injuries found on the body of deceased Satya Pal were as under :-

"(i) Multiple contusion in right side of arm, forearm and in palm in area of 58 cm. x 16 cm. extended from 9 cm. below right shoulder joint to base of all the fingers with fracture of radial bone.

(ii) Multiple incised wound in dorsal surface right arm in area of 8 cm. x 1.5 cm. measuring from 2 cm. x .5 cm x muscle deep to 1 cm. x .5 cm. x muscle deep just above the right elbow joint.

(iii) Multiple contusion in back of right side of gluteal region in area of 36 cm. x 30 cm. at the middle of right gluteal region.

(iv) Multiple contusion in back and front of right side thigh leg and foot in area of 50 cm. x 18 cm., 30 cm. below the right hip joint.

(v) Multiple incised wound in front of right side of leg in area of 7 cm. x 2 cm. measuring from 2.5 cm. x 0.5 cm. into bone deep to 1.5 cm. X .5 cm. into muscle deep 10 cm. above the right ankle joint.

(vi) Multiple contusion in back and front of left side of leg and ankle in area of 24 cm. x 18 cm., 8 cm. below the left knee joint.

(vii) Multiple incised wound in front of left leg in area of 10 cm. x 3 cm. measuring from 2 cm. x .5 cm. x bone deep to 1 cm. x .5 cm. x muscle deep, nine cm. above the left ankle joint.

(viii) Multiple contusion in back of left side of gluteal region in area of 30 cm. x 16 cm. at the middle of left gluteal region.

(ix) Multiple contusion with traumatic swelling in dorsal surface of left forearm hand palm in area of 28 cm. x 10 cm. 5 cm. below the left elbow joint to base of all the fingers of left palm.

(x) Incised wound in dorsal of left forearm .5 cm. x .5 cm. x muscle deep at the level of left elbow joint."

14. PW 7 Dr. V.P. Gupta proved the injury report of informant Mahak Singh and stated that he had inspected the injuries of Mahak Singh and had prepared his medical examination report.

15. The medical examination report of injured Mahak Singh evidents that he had undergone medical examination on 12.01.1983 at 7:10 p.m. at P.H.C., Baraut, where following injuries had been found on his body:-

"1. Red contusion upon right forearm middle on flexor aspect 3 cm. x 2 cm. It is 14 cm. above from merist of right.

2. Abrasion on right deltoid region 3 cm. x .5 cm. long. It is 8 cm. below from top of right shoulder.

3. Lenear abrasion on back middle on both sides 11 cm. x 1 cm. long. It is transverse in line. It is 19 cm. below from top of reverth and clavicle vertibre."

As according to the Doctor's opinion, the injuries were simple in nature and caused by some hard object. The duration of injuries were fresh.

16. PW 8 Constable Sohanpal Singh stated that he had prepared the Chik report and G.D. entry on the basis of Tehrir given by informant Mahak Singh at Police Station Chhaprauli.

17. PW 9 Constable Budh Prakash deposed that he had carried the dead body along with relevant papers to doctor for post mortem.

18. PW 10 S.I. Shri R.S. Kaushik deposed that he had prepared the inquest report of the deceased and sent the dead body to P.H.C. Bagpat for post mortem through constable Budh Prakash and Veersen.

19. PW -11 Constable Sukhpal Singh, in absence of Investigating Officer, proved the investigation proceedings, (which were carried by Investigating Officer Rajendra Singh), the hand writing of Constable Sohan Pal (who had prepared the Chik report and made the G.D. entry) and the recovery memos of three blood stained lathies and soils blood stained as well as plain.

20. After conclusion of prosecution evidence, the trial court recorded the statements of accused persons under Section 313 Cr.P.C., in which the accused persons denied their implication in the offence, stated that the witnesses had given false evidence against them. They further stated that they had been implicated in the case due to Partiandi of the village. They denied the facts mentioned in the F.I.R., oral as well as documentary evidence of prosecution. They also denied the factum of recovery of lathies. No oral evidence has been produced as defence witness, in support of their defence.

21. After considering the facts and circumstances as well as the evidence on record, learned Trial court acquitted the accused persons from the charges levelled against them. Aggrieved by the acquittal of accused persons, the prosecution preferred the instant appeal before this Court.

22. Learned A.G.A. submitted that the trial court has committed material illegality in acquitting the accused/respondents from the charges. Learned trial Court did not appreciate the evidence in accordance with the legal principles. The prosecution had succeeded in proving the guilt of accused persons, that too, without any shadow of doubt. There were injured witness as well as eye witness account of the occurrence. There was consistency in prosecution evidence. Since Satya Pal had died before the medical treatment, therefore, his statement under Section 161 Cr.P.C. deserve to be treated as his dying declaration, and was liable to be considered as trustworthy. The F.I.R. version is supported by the statement of reliable witnesses as well as documentary evidence including medical evidence. In the light of evidence of eye witnesses, if the Investigating Officer has not come forward to record his evidence, that can not cause any adverse effect on the prosecution case. Learned trial court has wrongly interpreted the above points and acquitted the accused persons from the charges. Hence, the judgment and order passed by the trial court, being based on surmises and conjuncture, is liable to be set aside and instant appeal deserves to be allowed. The accused persons be punished for the crime committed.

23. In reply, learned counsel for the accused-respondents, referring the findings of trial court, submitted that the prosecution witnesses were not reliable. There were discrepancies in documentary as well as oral evidence of witnesses. Motive of the occurrence has not been proved. There is subsequent improvement in the prosecution evidence. Dying declaration has not been recorded in accordance with law. The manner, by which, it was recorded by the Investigating Officer makes it inadmissible in evidence. The Investigating Officer has not been produced by prosecution to adduce his evidence and the Chik writer has not completed his cross examination. The evidence of PW 11 was not admissible. Taking into consideration the above inherent defects, the trial court has rightly acquitted the accused persons as the prosecution had failed to prove the charges of offence against the accused persons. There is no illegality or infirmity in the judgment of the trial court. The instant appeal has no force and is liable to be dismissed.

24. We have heard the arguments of both the sides and perused the record thoroughly. The appellate court is competent and has jurisdiction to reassess the evidence on record in the light of facts and circumstances of the case.

25. The FIR of the occurrence has been lodged at Police Station Chhaprauli, District Meerut on 12.01.1983 at 18:10 hours for the offence which took place on the same day at 3:00 p.m. The distance from the place of occurrence to police station has been shown as 6 miles. It has also been shown that after the occurrence, the injured persons were brought at his residence by bullock cart first. As according to evidence of PW-1 the distance from place of occurrence to his residence was approximately 6-4 furlong, then after that by Bus the victim was brought to Police Station. Taking into consideration the severity of injuries, distance and mode of transportation, in the absence of any evidence otherwise, it can be concluded that the FIR of the offence was lodged with due promptness and without any unnecessary/undue delay.

26. Learned A.G.A. has submitted that prosecution had produced 11 witnesses, out of them, 5 were the witnesses of fact. Apart from that, the documentary evidence produced by prosecution, all were able to prove the case against accused persons without any shadow of doubt, but learned trial Court failed to consider the prosecution evidence in accordance with law.

27. In reply, learned counsel for the accused-respondents has submitted that witness PW-1 Mahak Singh is the real brother of deceased Satya Pal. He is family member as well as highly interested witness, therefore, learned trial court has rightly concluded that his testimony is not reliable.

28. As according to fact and evidence on record, the witness PW 1 although is real brother of deceased Satya Pal, yet at the time of occurrence, his presence alongwith Satya Pal is not doubtful. The FIR of the occurrence as well as all the prosecution witnesses have categorically shown his presence at the place of occurrence. The statement of PW 1, so far as his presence, role of accused persons and injuries sustained by him and Satya Pal are concerned, have been corroborated by oral evidences of witnesses PW 2, PW 3 and PW 7 along with his injury report and post mortem report of Satyapal, which have been proved as Exts. Ka-3 and Ka-4. Witness PW-1 had stated in his examination-in-chief that when he tried to rescue his brother, he was also beaten by Lathi Danda. He fell down in drain (Naali) due to his injuries. Doctor had medically examined him in Baraut Hospital at about 8'O clock. Witness PW 4 Baljit, who had reached at the place of occurrence hearing the alarm of PW 1 was the eye witness of occurrence. He had stated in his chief examination as well as in cross-examination that when he reached on spot he had seen that the accused at the spot had beaten Satyapal, when Mahak Singh raised an alarm to save his brother, thereafter, he too was beaten by accused Sahab Singh. The witness PW-7 Dr. V.P. Gupta, who had examined him after the occurrence and had prepared his medical examination report, has proved the same in his evidence. The witnesses PW 1, PW 4 and PW 7 had been cross-examined by counsel for defence in length but nothing otherwise could be revealed. The FIR itself, which has promptly been registered, also contains the fact that when informant Mahak Singh tried to save his brother Satya Pal, accused Sahab Singh beaten him by wooden stick (Danda). Nothing is on record which may prove that informant had not received the aforesaid injuries during the course of occurrence.

29. So far as the evidentiary value of such a relative eye witness is concerned, the Hon'ble Apex Court in the case of Yogesh Singh Vs. Mahabeer Singh & Others AIR 2016 SC 5160 the Hon'ble Supreme Court has held in para 28, which reads as under :-

"28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52) : (AIR 2015 SC (Supp) 1991)."

30. In the case of State of U.P. Vs. Jagdeo & Others (2003) 1 SCC 456, the Apex Court has held in para 7, which reads as under :-

"7. There are three eye-witnesses of the incident, that is, P.W.1 Ramraj son of the deceased Ram Lachhan, P.W.2 Firangi and P.W.4 Sudama, who is an injured witness and whose son Rajendra is the other deceased. The High Court doubted the evidence of these eye-witnesses merely on the ground that they had motive in supporting the prosecution case. Legally speaking, we are unable to accept this reasoning. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eye-witnesses have to be persons who have reason to be present on the scene of occurrence because they happen either to be friends or family members of the victim. The law is long settled that for the mere reason that an eye- witness can be said to be an interested witness, his/her testimony need not be rejected. For the interest which an eye-witness may have, the court can while considering his or her evidence exercise caution and give a reasonable discount, if required. But this surely cannot be reason to ignore the evidence of eye-witnesses. The High Court was clearly in error in not considering the evidence of eye-witnesses at all in the present case for the reason that they were interested witnesses. As seen earlier, one of the eye-witnesses in an injured person who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefrom he received the injuries, would be an obvious question. In fact, P.W.4 is also the father of the deceased Rajendra. It is common in villages that male members of a family sleep together in the open during summer season. Sleeping near the tube-well is understandable because that would lend some coolness to the atmosphere. The High Court totally ignored the other aspect of the evidence of the eye-witnesses. That is, the evidence was consistent and the version of the witnesses tallied with each other. In our view, there was no reason to discard the evidence of the eye-witnesses. This evidence is clinching and it clearly implicates the accused persons. There is no reason to doubt the veracity of the evidence of at least P.W.1 and P.W.4 and that is sufficient to convict the accused persons."

31. In the case of Munigadappa Meenaiah Vs. State of Andhra Pradesh (2008) 11 SCC 661, the Apex Court has held in para 10, which reads as under:-

"10. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version.

10..... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

32. Also in the case of Brahma Swarup & Others Vs. State of U.P., 2004 (2) JIC 827 (All) this Court has expressed the same view.

33. In the case of Hardev Singh & Others Vs. Harbhej Singh & Others 1996 (4) Crimes 216 (SC), the Hon'ble Supreme Court has held that the evidence of close relations who testified facts relating to occurrence be not rejected merely on ground that they happened to be relatives. Evidence of such witnesses be scrutinized very carefully.

34. In the case of State of U.P. Vs. Naresh & Others (2011) ACR 370, the Apex Court has held that mere relationship cannot be a factor to affect credibility of a witness. Evidence of a witness cannot be discarded solely on the ground of his relationship with victim of offence. Contrary to the same the finding of trial Court is perverse.

35. In the case of Surjit Singh Alias Gurmit Singh Vs. State of Punjab 1993 Supp (1) SCC 208 the Hon'ble Apex Court has held in para 9, which reads as under:-

"9. To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the marrying of the crime bullet shells with the pistol recovered was not convincing, mor so when the .303 pistol, the alleged crime weapon, was recovered from Gurmit Singh, co-accused. It is noteworthy that Gurmit Singh, co-accused, stands convicted under the Arms Act for being in possession of that pistol. This aspet of the case cannot be a substitute to the eyewitness account or the plea taken by the appellant. Had the presence of the two witnesses, that is, Jaswinder Kaur PW5 the Taljit Singh PW2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. When the two eyewitnesses are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the newphew of the deceased who had suffered grievous injuries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. The venture is futile."

36. In the case of Majju & Another Vs. State of M.P. 2002 SCC (Cri) 597, the Apex Court has held in para 5, which reads as under :-

"5. The counsel for the appellants contended that the evidence adduced by the prosecution was interested and therefore, it cannot be relied upon. It is important to note that the witnesses examined on the side of the prosecution were all injured in the incident. PW6 Ramchandra Sustained a grievous injury, in the sense that he lost one of his teeth. The other witnesses also sustained injuries. That is proved by the various medical certificates issued by the doctor who examined them. Therefore, the presence of these witnesses at the place of occurrence cannot be suspected. All these witnesses gave evidence to the effect that when they along with deceased Bihari Lal were coming from the temple after performing some ceremony, the accused surrounded and attacked them. We do not find any infirmity in the evidence of these witnesses."

37. In the case of Prithvi (Minor) Vs. Mam Raj & Others (2004) 13 SCC 279, the Apex Court held that the fact that eyewitness sustained serious injuries in the incident in question the Hon'ble Apex Court held that giving credence to the prosecution story that he was at the spot when the offence was committed.

38. The informant Mahak Singh (P.W. 1) was an injured witness, who had received three injuries soon after the occurrence had gone to Police Station along with the injured Satya Pal, his medical examination has been done promptly and has been proved by witness PW 7. There is no evidence regarding any deliberations or any conspiracy before lodging the FIR, against accused persons leaving real assailant/culprit, if any. Five persons have been named in the FIR as accused persons assigning role to attack on deceased and informant with Lathi, Danda and Kharpali. The deceased Satya Pal had received ten injuries. No suggestion has been given by counsel for defence to witness PW 1 in his cross examination indicating the fact showing any deliberation of PW 1 with any other person to implicate the accused persons falsely.

39. Although witness P.W. 1 is real brother of deceased yet there is no discrepancy in his evidence on the point of occurrence. A close scrutiny of evidence of P.W. 1 indicates that there is no discrepancy in his statement on the material points. Neither any contrary evidence has been produced nor any such contradiction has been pointed out in prosecution evidence, which may prove the facts otherwise or may place the ground to disbelieve the testimony of injured witness PW 1. Hence, in the facts and circumstances of the case, the statement of witness PW 1, who is injured eye witness, is trustworthy and reliable. The contrary finding of the trial court on the above point is perverse and against the evidence on record.

40. Learned counsel for the accused-respondents has argued that prosecution witnesses were failed to prove the prosecution case against the accused-respondents. The statements of prosecution witnesses are not corroborating the prosecution version rather there are contradictions and improvements. The FIR as well as statement of injured Satya Pal, which was recorded by the I.O. under Section 161 Cr.P.C. had not shown that amongst accused persons who had carried Lathis and who had carried Kharpali, this fact is subsequent development. The statement of PW 1 that accused Dhara had attacked Satyapal by Kharpali, that too is improvement, hence, learned trial court rightly concluded it improvement and discrepancy, accordingly, the statement of PW 1 is not admissible.

41. It reveals from the record that at the time of submission of written Tahreer for FIR, the informant and Satya Pal both were having injuries on their body. Satya Pal had received a number of grievous and fatal injuries including incised wounds, which had resulted excessive bleeding. At that time his general condition also was not good. The fact is also on record that within few hours from recording his statement under Section 161 Cr.P.C. the injured was expired before getting any medical aid, hence in such a situation, omission of all the detail is not unnatural. His injuries were corroborated by his post mortem report. The informant was of tender age with rustic background, therefore, in such panic situation, the omission to mention the kind of weapons, which were carried by each of the accused persons in their hands is quite probable. Although, in his cross-examination, he had explained that he had dictated scribe to mention the aforesaid fact in Tehreer that accused Dhara was carrying Kharpali in his hand and he do not know why the scriber has not mentioned the said fact in FIR. The law is well settled that FIR is not a chronicle of the exhaustive details of occurrence. A prompt FIR does not require to have mention each and every details of occurrence. The purpose of FIR is to request for initiation of investigation, it cannot be encyclopedia. In the case State of U.P. Vs. Munesh, 2013 Cr.L.J., 194, in paragraph no. 13, Hon'ble Apex Court has held as under:-

"13. Though it is stated that all the details as spoken to by Pws 1, 2 and 3 were not mentioned in the FIR, as rightly observed by the trial Court, FIR is not an encyclopedia. It is just an intimation of the occurrence of an incident and it need not contain all the facts related to the said incident."

42. In the case of State of U.P. Vs. Harban Sahai and Others, 1998 SCC (Crl) 1412, the legal principles has been laid down in paragraph no. 8, which is as follows:-

"8. The aforesaid criterion is the result of a strained reasoning. It is understood that Kanta without sharp projection at the end would be a mere stick or lathi. If the nephew of the deceased mentioned in the FIR that the assailants were armed with lathis and guns there is no reason to conclude that the information when he gave first information had ruled out the possibility of Kanta being used by the assailants. FIR is not a chronicle of the exhaustive details of the occurrence, nor is it a catalogue of everything including minor particulars of the events which took place. Picking out an insignificant discrepancy regarding description of one of the weapons for jettisoning an otherwise sturdy account of the eyewitness is not a commendable approach in the evaluation of evidence."

43. In the case of Stae of U.P. Vs. Naresh and Others, [2011] A.C.R. 370, it has been held by Hon'ble Apex Court in paragraph no. 26, which is as follows:-

"26. The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all the accused had not been named in the complaint/NCR.

It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. [Vide: Rohtash v. State of Rajasthan, (2006) 12 SCC 64; and Ranjit Singh & Ors. v. State of Madhya Pradesh, JT 2010 12 SC 167]."

44. The co-ordinate Bench of this Court in the case of Mata Baksh Singh Vs. State of U.P., 1978 Cri.L.J. N.O.C., 63 (All.), has held that FIR is not an encyclopedia of the details of the crime. It is not necessary that it should set out the minor details of the occurrence.

45. In the present case, the FIR is prompt, the prosecution version as mentioned in the FIR, is supported by medical evidence as well as oral evidence of witnesses, PW-1, PW-2, PW-4 and PW-5. There is no substantial inconsistency in their deposition. Therefore, in the light of aforesaid trustworthy and supporting evidence of prosecution, the view taken by learned trial court contrary to the same, is bad in the eyes of law, the above omission in the FIR and in statement of Satyapal is neither subsequent development, nor fatal for prosecution case.

46. Learned counsel for the accused-respondents has further submitted that witness PW 1 in his statement had stated that he had not gone Chhaprauli alongwith injured Satypa Pal rather he joined him at Baraut while going Baraut for medical treatment. The above part of the statement of witness creates doubt on his testimony regarding occurrence, injuries, dying declaration and FIR, why not he joined Satya Pal when he was going Chhaprauli from Police Station. Prosecution is silent on this point.

47. In reply, learned A.G.A. has submitted that according to the fact of the case and evidence available on record, there is no inconsistency that witness PW-1 received injuries in occurrence and went Police Station with Satya Pal. In Police Station there might have been many reasons for his not joining Satya Pal when he was going Chhaprauli for medical treatment. One probability is that he had to receive copy of the FIR and injury letter to doctor for medical (injury memo) or there might have non-availability of room in vehicle carrying Satya Pal to Chhaprauli. As it may be, but the witness PW-1 has not been cross-examined by defence regarding his non-joining Satya Pal, for Chhaprauli. The injuries of both the persons have been proved by medical evidence. Therefore, if informant had not joined injured Satya Pal when he was going Chapprauli for medical treatment. It does not make prosecution story and role played by accused persons doubtful. The argument of A.G.A. on above point has force.

48. Learned counsel for the accused-respondents further submitted that witness PW-2 was not the eye witness and was not present at the time of genesis of occurrence rather he reached on the place of occurrence, thereafter, at that time according to PW-2, accused had given 5-6 Lathi blows to Satya Pal, therefore, he had not seen the occurrence and his testimony is not trustworthy.

49. In reply, learned A.G.A. had submitted that the evidence of witness PW-2 should be read as a whole. If in reply of a particular question, the witness had stated that the injured had already received Lathi blows it does not give way to conclusion that the witness was not eye witness. The witness PW-2 had stated that he reached on spot hearing alarm of informant, he was at the distance at 20-30 Laththa from accused persons, he had seen that Satya Pal was lying on earth and accused were beating him. He had also narrated the action of accused persons that accused persons had not assaulted Satya Pal on his head and mouth. Satya Pal had received injuries on his body part below his neck. The injuries caused by Kharpali were on hand and leg of deceased. The part of this statement is corroborated by port-mortem report of deceased, therefore, only on the above part of statement, the entire evidence of witness PW-2 cannot be discarded. The argument of learned A.G.A. is forceful.

50. Learned counsel for the accused-respondents has further submitted that PW-4 had admitted that he had not told I.O. in his statement under Section 161 Cr.P.C. that accused Dhara Singh was carrying Kharpali in his hand but the witness had stated in his examination-in-chief that accused Dhara Singh was having Kharpali in his hand. Thus there is contradiction, which is fatal for prosecution case.

51. Taking into consideration the evidence as a whole, it reveals that the above omission in statement under Section 161 Cr.P.C. is not material. All the accused persons had constituted unlawful assembly and attacked on Satya Pal with common object. The witness has neither denied the presence of accused Dhara Singh at the place of occurrence nor specified that he was not assaulting on Satya Pal. The witness has stated in Court about role of accused Dhara Singh in his evidence. The injuries of Satya Pal indicate that he had received the injuries of sharp edged weapon also. The Doctor had opined that the incised wound has been caused by weapon like Kharpali. Other witnesses also specified the role of Dhara in their statements, therefore, mere omission to mention nature of weapon in hand of a particular accused Dhara in statement under Section 161 Cr.P.C. is not sufficient to discard the entire evidence of witness PW 4, particularly, when the evidence of PW-4 is corroborated by other evidence of prosecution. Witnesses PW-2 and PW-4 are eye witnesses of the occurrence, who reached on the place of occurrence hearing alarm of injured Mahak Singh and seen the occurrence. The above witnesses had been cross-examined in length by learned counsel for defence, but no substantial contradictions could be brought on record.

52. So far as the evidentiary value of the witness PW 1, an injured eye witness account is concerned, the oral testimony of above witness is supported by medical evidences. His presence on place of occurrence is certified. Regarding such an injured witness, in the case of Majju & Another Vs. State of M.P. 2002 SCC (Cri) 597, the Apex Court has held in para 5, which reads as under :-

"5. The counsel for the appellants contended that the evidence adduced by the prosecution was interested and therefore, it cannot be relied upon. It is important to note that the witnesses examined on the side of the prosecution were all injured in the incident. PW6 Ramchandra Sustained a grievous injury, in the sense that he lost one of his teeth. The other witnesses also sustained injuries. That is proved by the various medical certificates issued by the doctor who examined them. Therefore, the presence of these witnesses at the place of occurrence cannot be suspected. All these witnesses gave evidence to the effect that when they along with deceased Bihari Lal were coming from the temple after performing some ceremony, the accused surrounded and attacked them. We do not find any infirmity in the evidence of these witnesses."

53. There is no discrepancy in the statements of prosecution witnesses on material points. If some deviation in narration of facts are found, those are at the fringe and that too are bound to occur due to the reason that there was time gap in recording the evidence of witnesses, and the mental capacity/mentality of witnesses, who are illiterate and rustic. By perusal of evidence of witnesses as a whole it depicts that despite some minor discrepancies the witnesses have substantially supported the case of prosecution as mentioned in FIR. Finding of the Trial Court recorded in the impugned judgment and order on the above point is perverse and against the evidence on record. In the case of Subodh Nath And Another Vs. State of Tripura (2013) 4 SCC 122, the Apex Court has held in para 16 that :-

"16. Once we find that the eye witness account of PW-13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW-1, PW- 2, PW-13 and PW-19. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another, in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. Learned counsel for the appellants is right that the prosecution has not been able to establish the motive of the appellant no.1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only."

54. In the case of Marwadi Kishor Parmanand And Another Vs. State of Gujarat (1994) 4 SCC 549, the Apex Court has held in para 31, which reads as under:-

"31. The evidence of a witness deposing about a fact has to be appreciated in a realistic manner having due regard to all the surrounding facts and circumstances prevailing at or about the time of occurrence of an incident. Some contradictions and omissions even in the evidence of a witness who was actually present and had seen the occurrence are bound to occur even in the natural course. It is a sound rule to be observed that where the facts stated by an eyewitness substantially conform to and are consistent on material points from the facts stated earlier to the police either in FIR or case diary statements and are also consistent in all material details as well as on vital points there would be no justification or any valid reason for the court to view his evidence with suspicion or cast any doubt on such evidence. In the present case as discussed above we find that the solitary witness Ranchhodbhai, PW 1 is a wholly reliable witness and his evidence in itself, without any further corroboration is enough to sustain the conviction of the two appellants for the crime they are charged with, but we find that the evidence of the sole eyewitness Ranchhodbhai finds corroboration on material aspects from the evidence of Jayantilal PW 6, Makkar PW 8, Dr Nathani PW 1 0, Dr Avasia PW 1 1, Dr Joshi PW 12 and the Head Constable Moolchand PW 18. Thus the corroboration is also not lacking in the present case and there was hardly any ground or any possibility of taking the view which is unfortunately taken by the learned trial Judge. In our considered opinion the trial court clearly fell in serious error in rejecting the truthful version made by the sole eyewitness PW 1 whose evidence does not suffer from any infirmities, much less the unwarranted criticism made by the trial court. The High Court was therefore, in exercise of its powers under Sections 378 and 386, Criminal Procedure Code, fully justified to reverse the erroneous findings recorded by the trial court. We find ourselves wholly in agreement with the view taken by the High Court and the conclusions recorded by it. Consequently the appeal deserves to be dismissed."

55. In the case of Shivappa & Others Vs. State of Karnataka (Supra), the Hon'ble Supreme Court has held that some discrepancies are bound to occur in the oral statements of witnesses because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court.

56. In the case of Hayat Singh Bora Vs. State of Uttarakhand [2012 (77) ACC 615] Uttarakhand High Court has held that variation in the testimony of witnesses if found natural, do not affect prosecution story where direct evidence is supported by medical evidence.

57. So far as the witnesses, who belong to village background and are illiterate, are concerned, it has been held in paras 34 and 39 by this Court in the case of State of U.P. Vs. Shane Haidar And Others 2015 (1) J.Cr.C. 775, which reads as under:-

"34. After an overall assessment of all the witnesses, produced by prosecution, we are of the firm view that all the witnesses are throughout cogent and consistent while deposing in court. All the factual witnesses are rustic villagers, who are bound to get confused during their cross-examination. PW-2 is an injured witness, which fact is evident from his injury report, duly proved by the Doctor. Apart from some minor contradictions nothing has been elicited in their statements to cause a shadow of doubt on their credibility.

39. On a close scrutiny of the evidence, available on record we find that the trial judge has discarded the testimony of witnesses on flimsy and unjustifiable grounds without keeping in mind that the witnesses are rustic villagers. The apex court in the case of State of U.P. v. Krishna Master and others (2010) 12 Supreme Court Cases 324 has held as under:-

A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime."

58. Therefore, such a variation which does not touch the pith and substance of the prosecution version or do not throw light towards a different fact is not fatal for prosecution case. The finding of learned trial court contrary to it is against the intention of law.

59. Learned counsel for the accused-respondents has further submitted that motive of the occurrence has not been shown in the FIR, therefore, the findings of trial court that the prosecution witnesses have shown the motive to commit offence for the first time in their oral evidence, amounts improvement, hence their statements are not trustworthy, is just and proper.

60. Legally it cannot be concluded that since motive of crime is not established by prosecution, hence the evidence of witnesses are liable to be rejected. The motive of occurrence which has been shown by the prosecution is that before few months from the date of occurrence, a dispute on the point of overtaking of vehicle took place between deceased and Dhara. While accused Dhara was coming by his tractor behind the Buggi of Satya Pal. The passage was narrower, hence, Satya Pal was not providing room for tractor to overtake his Buggi. Both the persons were residents of same village and were going in same direction. Witness PW-3 had admitted that it was an usual and common incident. Witness also interfered and facilitated by mediation to terminate the dispute on spot. Witness PW-3 further stated that there are partibandi of two groups in the village, but he does not know who belongs to which party. The accused persons in their statement under Section 313 Cr.P.C. had not given any detail regarding the enmity due to the reason of such partibandi. Therefore, it cannot be presumed that the occurrence in question was the result of clash due to partibandi leading to any false implication of accused persons. The factum of partibandi has not been proved by any cogent evidence. No evidence of any other previous enmity with accused persons or with anybody has been brought on record or proved. The deceased was a young boy of 26 years age whereas accused Dhara Singh was of 70 years old. Other accused persons Sahab Singh, Charan Singh and Dharamvir Singh were sons of Dhara. Accused Shripal was nephew of Dhara Singh. Witness PW 3 narrating the motive had stated in his evidence that Dhara was trying to overtake his tractor from the Buggi of Satya Pal. Satya Pal was not providing way to tractor, on the above point, during the course of dispute, after oral altercation, they grappled one another. Satya Pal slammed Dhara Singh to the ground. Although the matter was settled at that time yet it might have been the reason that accused persons were feeling insulted/enmity with Satya Pal, which was raising day by day and culminated in the shape of attack on Satya Pal by the accused persons. Always the motive remains in the mind of the assailant which is not fathamable by other persons/prosecution.

61. So far as the requirement to prove the motive of offender is concerned, according to principle of law, where there is direct evidence regarding the commission of offence, motive losses its importance. It need not to be proved by prosecution. In the case of Rohtash Kumar Vs. State of Haryana, Criminal Appeal No. 896 of 2011, it has been held by the Hon'ble Apex Court in para 21 that :-

"21. The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same. (Vide: Subedar Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205)."

62. In the case of Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91, the Apex Court has held in paras 22 and 26, which reads as under:-

"22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

23. While dealing with a similar issue, this Court in State of U.P. v. Ksihanpal held as under: (SCC p. 88, para 39)

39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

63. In the case of Uma Shankar Vs. State of U.P. [2015 (89) ACC 421], this Court has held in para 44, which reads as under:-

"44. It is pertinent to mention here that where there is eye witness account the motive looses its importance. Motive may be the reason to commit the offence but at the same time motive may also be a reason to falsely implicate the accused. Motive for committing the offence although is of futile nature but as per prosecution this was the reason due to which the present offence was committed by the accused. It may be mentioned here that some time offences are committed on the basis of futile motive. Therefore, motive assigned by the prosecution merely on the basis that it was futile in nature, the prosecution case cannot be disbelieved specially when one day before for that reason an altercation had taken place between the accused and deceased. The reason for falsification taken by the accused is not supported by any evidence. Merely the plea, until and unless same is supported by any believable evidence, cannot take place the piece of evidence. Thus we are of the view that although motive assigned by the prosecution is of futile nature but was sufficient to commit the present offence. Thus point no. 2 is answered as above."

64. Motive always originate in the mind of accused, therefore, in present case, if the motive of occurrence has not been mentioned in the FIR it makes no adverse effect in the case of prosecution. The finding of learned trial court, contrary to the same, is against the settled law.

65. Learned A.G.A. has submitted that there was dying declaration of deceased on record, which is reliable and sufficient to prove the occurrence and role of the accused persons, but learned trial Court erred with material illegality and irregularity in not placing reliance on it and as such the impugned judgment is perverse.

66. In reply, learned counsel for the accused-respondents submitted that prosecution had shown that before his death injured Satya Pal had given his statement in police station. The above statement was recorded by the I.O. under Section 161 Cr.P.C. After the death of Satya Pal, the prosecution is claiming the above statement of Satya Pal as his dying declaration. The above dying declaration is not in accordance with Police Manual. The statement has been recorded by the police officer, which is not permissible. No certificate of doctor has been procured regarding the mental condition of Satya Pal, that whether he was able to understand the nature of question and was able to reply the same. The aforesaid dying declaration has not been recorded by the Magistrate as it requires under the law. It was not in the form of question and answer. At the time of recording the statement in police stations so many persons were coming in and were going out from there, therefore, authenticity and reliability of dying declaration is highly doubtful. In such case, learned trial Court rightly disbelieved the dying declaration due to above lackness.

67. On the above point, it reveals from record that the I.O. has recorded the statement of deceased under Section 161 Cr.P.C. as a general course. The I.O. had not recorded the statement of Satya Pal as dying declaration, hence there is no violation of any rules and regulations directing the mode of recording of a dying declaration. The witnesses PW-1 and PW-5 had stated in their evidence that the injured Satya Pal in his statement had given the details of occurrence and weapon to I.O. Both the witnesses have not been cross-examined by defence on the point of any poor mental condition of injured Satya Pal, hence the statement of witnesses are not to be disbelieved that Satyapal was able to record his statement with his understanding.

68. In the case of Paras Yadav and Others Vs. State of Bihar, 1999 (2) SCC 126, Hon'ble Apex Court has held in paragraph nos. 8 and 9 that:-

"8. It has been contended by the learned Counsel for the appellants that the Investigating Officer has not bothered to record the dying declaration of the deceased nor is the dying declaration recorded by the doctor. The doctor is also not examined to establish that the deceased was conscious and in a fit condition to make the statement. It is true that there is negligence on the part of Investigating Officer. On occasions, such negligence or omission may give rise to reasonable doubt which would obviously go in favour of the accused. But in the present case, the evidence of the prosecution witnesses clearly establishes beyond reasonable doubt that the deceased has conscious and he was removed to hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of the number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused. Itmay be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court from the case of Ram Bihari Yadav v. State of Bihar and others, (SCC pp. 523-24, para 13).

"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."

9. In this view of the matter with regard to Paras Yadav, in our view, there is no reason to disbelieve the oral dying declaration as deposed by the number of witnesses and as recorded in the farbdeyan of deceased Sambhu Yadav. The farbdeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within a few minutes of the occurrence of the incident. Witnesses also rushed to the scene of offence after hearing hulla gulla. The medical evidence as deposed by p.w. 11 also corroborates the prosecution version. Hence, the courts below have rightly convicted Paras Yadav for the offence punishable under Section 302 I.P.C."

69. The Delhi High Court in the case of State Through Reference Vs. Ram Singh and Others, Death Sentence Reference No. 6/2013, has held that in Pakala Narayana Swami v. King Emperor [(1938-39) 66 IA 66:AIR 1939 P.C. 47] Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstances have some proximate relation to the actual occurrence. The test laid down by Lord Atkin has been quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487] and His Lordship has held that Section 32 of the Evidence Act is an exception to the rule of hearsay evidence and in view of the peculiar condition in the Indian society has widened the sphere to avoid injustice. His Lordship has held that where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four corners of Section 32 and, therefore, admissible and the distance of time alone in such cases would not make the statement irrelevant. On the aforesaid touchstone, we have no hesitation in concluding that the statement made by injured Satya Pal to I.O. under Section 161 Cr.P.C. showing the cause of his death is admissible as dying declaration.

70. In the case of State of Rajasthan Vs. Bhup Singh (1997) 10 SCC 675, Hon'ble Apex Court has held that it is not necessary to record dying declaration in the form of question and answer. In paragraph nos. 10 and 11 of the case, it has been held as under:-

"10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability, unless there are other reasons to doubt the truth of it.

11. Nor would a dying declaration go bad merely because the magistrate did not record it in the form of questions and answers. It is axiomatic that what matters is the substance and not the form. Questions put to the dying man would have been formal and hence the answers given are material. Criminal courts may evince interest in knowing the contents of what the dying person said and the questions put to him are not very important normally. That part of the statement which relates to the circumstances of the transaction which resulted in his death gets the sanction of admissibility. Here it is improper to throw such statement overboard on a pediantic premise that it was not recorded in the form of questions and answers. (Vide Ganpat Mahadeo Mani Vs. State of Maharashtra (1993 Supp. (2) SCC 242)."

71. In the case of Sudhakar Vs. State of Madhya Pradesh, (2012) 7 SCC 569, in paragraphs 16, 17, 18, and 20, it has been held by Hon'ble Apex Court that:-

"16. We may, now, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In Bhajju v. State of M.P. [(2012) 4 SCC 327], this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which has been generally described as dying declaration. The court, in no uncertain terms, held that: (SCC p.336, para 24) "24...It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence."

The dying declaration, if found reliable, could form the basis of conviction. This principle has also earlier been stated by this Court in Surinder Kumar v. State of Haryana (2011) 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration.

17. In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.

18. In Laxman v. State of Maharashtra [(2002) 6 SCC 710], the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows: (SCC pp. 713-14 para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

20. The 'dying declaration' is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."

72. In the case of Lakhan Vs. State of Madhya Pradesh, (2010) 8 SCC 514, in paragraph no. 9, the Hon'ble Apex Court has held as under:-

"9. The doctrine of dying declaration is enshrined in the legal maxim "Nemo moriturus praesumitur mentire", which means "a man will not meet his Maker with a lie in his mouth". The doctrine of Dying Declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as, " Evidence Act") as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases."

73. In the case of Meharaban and Others Vs. State of M. P., (1996) 10 SCC 615, in paragraph no. 7, the Hon'ble Apex Court has held as under:-

"7. Shri Bachawat's other criticism relating to the evidence is regarding some improvements and exaggerations. It is known that what the court has to adjudge is the substratum of the case and, in doing so, grain has to be separated from chaff. It is settled law that some improvements here and some exaggerations there or some minor discrepancies in the evidence do not hurt the prosecution case. As to the core of the present case the same being dying declaration of Ranjit Singh we are fully satisfied, and so, the decision of this Court in Jagga Singh v. State of Punjab, 1994 Supp.(3) SCC 463, which has been referred by Shri Bachawat, has no application, as in that case the dying declaration had not inspired confidence, whereas one at hand does. We have said so because the evidence of PW.4 Dr.Das. who had done post-mortem, does not in any way show if Ranjit Singh was not in a position to speak, because his evidence in the cross-examination is that the head injury sustained by Ranjit Singh might or might not have resulted in loss of consciousness. His further statement is that the deceased might have expired at about 10 or 11 am, long before which he had been contacted by the aforesaid PW.s."

74. In the case of State of Rajasthan V. Champa Lal, (2009) 12 SCC 571, in paragraph nos. 9 and 10, the Hon'ble Apex Court has held as under:-

"9. In fact in Dalip Singh v. State of Punjab [(1979) 4 SCC 332 : 1979 SCC (Cri) 968] it was observed as follows: (SCC pp. 334-35, para 8) "8. There were two dying declarations of Ram Singh--one oral and the other written--which was recorded by the Assistant Sub-Inspector of Police, PW 28 on 12-12-1975. The oral dying declaration was made to PW 11 Tara Singh. Neither of the dying declarations was relied upon by the High Court because he had named Baldev Singh also. We may also add that although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor. As observed by this Court in Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376] the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but what we want to emphasise is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

(underlined [Ed.: Herein italicised.] for emphasis) In Dalip Singh case [(1979) 4 SCC 332 : 1979 SCC (Cri) 968] it was categorically observed that in case there was no time or facility available to the prosecution for adopting any better method the dying declaration can be taken into consideration. In fact in the present case that is the categorical statement of PW 20. As rightly contended by learned counsel for the State, the High Court discarded the statement even without indicating any reason. It is to be noted that Jora Ram (PW 20) categorically stated that it was not possible to get a Magistrate to record the dying declaration. The High Court disbelieved him without even recording any reason therefor. The dying declaration was recorded in the presence of a doctor (PW 13). In addition, the evidentiary value of the evidence of PWs 7, 9 and 10 has not been considered in its proper perspective.

10. In Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169] it was observed as follows: (SCC pp. 214-15, para 7) "7. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. In the instant case, it cannot also be said that there is no corroborative evidence of the statement contained in the dying declaration. The evidence of PWs 1, 4, 5 and 8 clearly corroborates the statement recorded in the dying declaration. We do not find any material on record on the basis of which the testimony of these witnesses can be disbelieved. It may also be noticed that none of these witnesses including the police officer who recorded the statement could be attributed with any kind of ill feeling against the accused. The High Court has elaborately dwelt on this aspect and has carefully considered all the materials on record and also the arguments advanced on behalf of the appellant. We are in agreement with the view expressed by the High Court and in our opinion the High Court was right in upholding the conviction of the appellant."

75. In the case of State of Madhya Pradesh Vs. Dal Singh and Others, (2013) 14 SCC 159, in paragraph nos. 14, 15, 18 and 20, Hon'ble Apex Court has held as under:-

"14. In Mafabhai Nagarbhai Raval v. State of Gujrat, AIR 1992 SC 2186, this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not have substituted its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made, were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon. A similar view has been re-iterated by this Court in Rambai v. State of Chhatisgarh, (2002) 8 SCC 83.

15. In Laxman v. State of Maharashtra, AIR 2002 SC 2973, this Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.

18. In Govindappa v. State of Karnataka (2010) 6 SCC 533, it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. This Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case."

76. In the case of Gulzari Lal Vs. State of Haryana, (2016) 4 SCC 583, in paragraph nos. 22, 23 and 21, Hon'ble Apex Court has held as under:-

"22. Further, clarity on the issue may be established by the judgment of this Court in Paras Yadav v. State of Bihar [(1999) 2 SCC 126], wherein this Court addressed the question regarding the dying declaration that was not recorded by the doctor and where the doctor had not been examined to say that the injured was fit to give the statement. It has been held by this Court as under: (SCC p. 130 para 8) "8....In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not."

23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by Head Constable, Manphool Singh (PW-7),he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW-7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.

21.We find no infirmities with the statements made by the deceased and recorded by the Head Constable Manphool Singh (PW-7). A valid dying declaration may be made without obtaining a certificate of fitness of the declarant by a medical officer. The law regarding the same is well-settled by this Court in Laxman v. State of Maharashtra, (1985) 2 SCC 61."

77. In the case of Vithal Vs. State of Maharashtra, 2007 Cr.L.J. 317, in paragraph no. 10, Hon'ble Apex Court has held as under:-

"10. Dying declarations which were four in number were made before different authorities including a magistrate. The Executive Magistrate Shashikant was examined as PW-6. The learned Trial Judge was not correct in discarding the said dying declaration. It is now well-settled that a dying declaration if found to be acceptable, the same need not be described to be in question and answer form."

78. In the case of Ashabai and Another Vs. State of Maharashtra, (2013) 2 SCC 224, in paragraph no. 15, Hon'ble Apex Court has held as under:-

"15. About the evidentiary value of dying declaration of the deceased, it is relevant to refer Section 32 (1) of the Evidence Act, 1872, which reads as under:-

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32 (1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32 (1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other."

79. A dying declaration enjoys almost a sacrosanct status as a piece of evidence coming with it does from the mouth of victim. No one at the point of death is presumed to tell lie. Clause (i) of Section 32 of the Evidence Act provides that statements made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, are themselves relevant fact. If the general condition of victim is poor and there is no time to call the magistrate to record the dying declaration, or call to doctor to certify the fit condition of victim and only I.O. is available. Then in that case, he can also record the dying declaration of victim and in such a scenario it is not necessary to record the same in the form of question answer or according to any specific formate, as the substance/fact matters not the formate. Therefore, the facts mentioned to I.O. in his statement may be it was recorded under the provisions of 161 Cr.P.C., is relevant and shall be treated as dying declaration of victim. Since the accused persons have no opportunity to confront/cross examine to maker, hence it is upon the court to scrutinize/examine the same with extreme cautions. In present case, the injuries on victim's body although were not on vital parts but the incised wounds were sufficient to cut the blood vessels, responsible to supply blood in vital organs, even there were hope of survival, hence the I.O. recorded his statement under Section 161 Cr.P.C. not as dying declaration. The statement was recorded soon after the occurrence. The facts narrated by Satyapal is supported and corroborated by other ocular as well as medical evidences. No cross examination has been done by defence with doctor regarding his mental condition. There was no evidence of any dictation or tutor to victim. Although it has been argued that so many persons were coming in and were going out at the time of recording statement of witness, but it has to be kept in mind that on the reply of specific question, the witness PW-5 has stated in his cross-examination that at the time of recording his statement Satya Pal was lying on earth, so many persons from public were entering into Police Station, therefore, witness also entered inside the Police Thana. Police were not permitting to enter inside the police station. Many persons were coming back from Police Station after seeing the victim. The witness again replied that when he entered inside the Police Station, I.O. was recording the statement of Satya Pal. The witness was standing near the door. Satya Pal was inside the Thana premises. In the above part of his evidence, the witness has not thrown any light towards any such fact that any relative or friend or police person or anybody else was trying to tutor the victim regarding the occurrence. No any specific question has been put to witness PW-5 also by counsel for defence on above point. The witness has duly proved the execution of recording the statement of injured. On the basis of above discussion, it is concluded that the dying declaration of Satyapal is true and trustworthy. In the absence of any cogent ground/reason, the conclusion of learned trial Court, regarding tutoring injured witness Satya Pal is bad in the eye of law.

80. The judgment of Hon'ble Apex Court cited by learned counsel for the accused-respondents in the case of Balak Ram Vs. State of U.P. (1975) 3 SCC 219 on the point of dying declaration is not applicable in present case as the facts of the cases are different.

81. Learned trial Court has also concluded that the statement of witness PW-5 under Section 161 Cr.P.C. has not been recorded by I.O., therefore, the statement of PW-5 be not considered. Learned counsel for the accused-respondents submits that to test the truthfulness/veracity of witness, the confrontation of witnesses as mentioned in Section 145 of the Evidence Act is necessary.

82. In the above context, the provisions of Section 162 of Cr.P.C. and Section 145 of the Evidence Act are reproduced as under:-

"162. Statements to police not to be signed: Use of statements in evicdence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter Provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

Section 145 of Evidence Act. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

83. According to the above provisions the earlier statement of witness "may be" confronted, it does not makes it mandatory. In absence of any previous statement, the conclusion drawn by learned trial court is not justified. The statement of witness, which has been recorded in Court is relevant. On one side, it has been mentioned that statement of witness PW-5 has not been recorded under Section 161 Cr.P.C. hence his statement is not admissible, on other hand, on the basis of evidence of witness PW-5, learned trial Court concluded that there is possibility of tutoring the witness/victim Satya Pal. Hot and cold cannot be blown simultaneously.

84. Learned counsel for the accused-respondents has submitted that the I.O. has not conducted the fair investigation. He has not recorded the statement of witness PW-5 Kallu Ram and has not appeared in Court to prove the material collected in investigation and dying declaration of Satya Pal.

85. It reveals from the record that the I.O. has not appeared before the trial Court to give his statement despite several attempts of learned trial Court. Learned trial Court has held in impugned judgment that I.O. has wilfully omitted to appear in Court for recording his evidence, although at that time he was posted at Vigilance Department, Lucknow and he has deliberately avoided to appear in Court as witness, therefore, the entire investigation has become doubtful as he was a necessary witness.

86. The above conclusion of Trial Court law is not just and proper. In accordance with law, in general, if there is any laches of I.O. in conducting the investigation, the prosecution case should not be suffered. There was no role of victim in such act of I.O. The reason may be possible that the I.O. might have been fallen in collusion with accused persons and just to provide them undue benefit, he did not appear in Court to record his evidence. In the case of Dhanaj Singh alias Shera and others Vs. State of Punjab, 2004 Cri.L.J., 1807, in paragraph nos. 5, 6 and 7, Hon'ble Apex Court has held as under:-

5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. ( See Karnel Singh vs. State of M.P.: (1995) 5 SCC 518).

6. In Paras Yadav and Ors. v. State of Bihar: (1999) 2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors.: (1998) 4 SCC 517, if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-iterated in Amar Singh v. Balwinder Singh and Ors., : (2003) 2 SCC 518. As noted in Amar Singh's case (supra) it would have been certainly better if the fire arms were sent to the Forensic Test Laboratory for comparison. But the report of the Ballistic Expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version."

87. In the case of Ram Gulam Chaudhury and OthersVs. State of Bihar, AIR 2001 SC 2842, in paragraph no. 30, Hon'ble Apex Court has held as under:-

"30. In our view, in this case also non-examination of the Investigating Officer has caused no prejudice at all. All that Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The Investigating Officer was not an eye witness. The body had already been removed by the Appellants. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. There were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. We, therefore, see no substance in this submission."

88. In the case of Behari Prasad and Others Vs. State of Bihar, (1996) 2 SCC 317, in paragraph no. 23, Hon'ble Apex Court has held as under:-

"23. It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in conformity with the case made out in F.I.R. and also with the medical evidence. Hence, for non examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence."

89. In the case of Ganga Singh Vs. State of Madhya Pradesh, (2013) 7 SCC 278, in paragraph no. 17, Hon'ble Apex Court held as under:-

"17. We are also unable to accept the submission of Mr. Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt should be given to the appellant and he should be acquitted of the charge of rape. The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW-5 as corroborated by the evidence of PW-2 and the FIR establish beyond reasonable doubt that the appellant has committed rape on PW-5 and thus the appellant is not entitled to acquittal."

90. On the above point, in the case of Abhilakh Singh Vs. State of U.P., [2013 (82) A.C.C. 110], in paragraph no. 27, the co-ordinate Bench of this Court has held as under:-

"27. Learned counsel for the appellant has then vehemently argued that the prosecution has not examined investigating officer in the case, so the accused had been prejudiced in his defence. It is true that the investigating officer had not been examined in the case. It is always desirable for prosecution to examine I.O. However, as stated earlier non-examination of I.O. does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of eye-witnesses. If the presence of the eye-witnesses on the spot is established and the guilt of the accused is also proved by their trustworthy testimony, non-examination of I.O. would not be fatal to the case of prosecution.[Vide - Raj Kishore Jha vs. State of Bihar, 2003(47) ACC 1068 (SC), Ram Gulam Chowdhary versus State of Bihar, 2001(2) JIC 986 (SC), Bahadur Naik versus State of Bihar, JT 2000 (6) SC 226, Ambika Prasad versus State of Delhi Administration, JT 2000 (1) SC 273, Behari Prasad versus State of Bihar, JT 1996 (1) SC 93 and Ram Deo versus State of U.P., 1990(2) JIC 1393 (SC). Perusal of the order-sheet of the trial Court clearly show that it had taken all out efforts to procure the attendance of investigating officers in this case and even after defence evidence, the other Presiding Officer again passed orders for summoning the investigating officers, but the local police did not cooperate with the Court for reasons best known to them. Sometimes, the trial Courts feel themselves helpless when they do not get cooperation from the local administration in getting the witnesses served. It is not the task of the Court alone to decide cases without active help of the police wherever it is required in administration of justice. In the circumstances, where the administration or local police are not co-operative, the Courts are required to decide the cases on the basis of evidence available in the record of the case. However, it would not provide a lever to the accused to get rid of the charges levelled against them as the Court would impart its duty in an unbiased manner balancing the interest of accused and the victim or his/her family. In the instant case, the record shows that both the investigating officers have retired, so they could not be examined. In the light of the law referred above, we are, therefore, not impressed with the argument that for non-examination of the investigating officer, the accused should be acquitted."

91. In the case of Krishna Mochi and Others Vs. State of Bihar, 2002 (2) J.Cr.C., 123, in paragraph 80, Hon'ble Apex Court has held as under:-

"80. It has been also contended that Inspector Ram Japit Kumar, who was one of the investigating officers, has not been examined. The alleged occurrence had taken place on 12.2.1992 and in the same night on the basis of fard-beyan of the informant recorded by PW.33, as stated above, Inspector of Police Ram Janam Singh drew the formal First Information Report. From the evidence of this witness, it would appear that the Superintendent of Police, Gaya directed Inspector Ram Japit Kumar to investigate this case and so long he did not take charge of the investigation, this witness was entrusted to commence the investigation under verbal orders of the Superintendent of Police, Gaya. PW 33, thereafter, inspected the place of occurrence and seized blood stained earth, empties and reminiscence of bomb explosion. This witness further stated that as till 17th February, 1992 Inspector Ram Japit Kumar did not make himself available for taking over investigation of the case, he requested Superintendent of Police to give necessary direction whereupon the investigation was entrusted to one Suresh Chandra Sharma (PW.17) who, at that time, was posted as Inspector, Chandauti Police Station and PW.33 made over charge of the case to PW.17 on 19.2.1992, who, after completing investigation which was supervised by the Superintendent of Police himself, submitted chargesheet. From the above facts it would be plain that as Inspector Ram Japit Kumar had neither taken over charge of the investigation of the case at any point of time, much less investigated the same, no adverse inference can be drawn against the prosecution on account of his non-examination and non-furnishing of explanation for his not taking over charge of investigation. Thus, he having not conducted any investigation, the evidence of Inspector Ram Japit Kumar could not be of any avail either to the prosecution or the defence. That apart, it is well settled that non-examination of any witness would not affect the prosecution case, but in a given case non-examination of a material witness may affect the same. Reference in this connection may be made to the decision of this Court in the case of Masalti (supra). It is well settled that non-examination of investigating officer is not fatal for the prosecution unless it is shown that the accused has been prejudiced thereby. In the case on hand, in any view of the matter, it could not be pointed out that the defence has been prejudiced in any manner by non- examination of Inspector Ram Japit Kumar."

92. It will be proper that if learned Trial Court concludes that I.O. in collusion with accused persons has withheld his evidence and deliberately has not appeared in Court despite service of summons, hence learned trial Court has rightly directed that the concerned authorities can take action against the act of officer, which was a right approach, but another part of finding of trial court that in non-examination of I.O., the accused persons should be awarded benefit by rejecting the prosecution case, only on the above score is bad in the eye of law. It is duty of the Court to assess the evidence on record to achieve the target of fair trial.

93. So far as the collusive behaviour of I.O. is concerned, in the case of Sahabuddin Vs. State of Assam, 2013 Cr.L.J. 1252, in paragraph nos. 27, 29 and 30, Hon'ble Apex Court has held as under:-

"27. The investigating officer has conducted investigation in a suspicious manner and did not even care to send the viscera to the laboratory for its appropriate examination. As already noticed, in his statement, PW 11 has stated that viscera could not be examined by the laboratory as it was not sent in time. There is a deliberate attempt on the part of the investigating officer to misdirect the evidence and to withhold the material evidence from the court.

29. In our considered view, the doctor has also failed to discharge his professional obligations in terms of the professional standards expected of him. He has attempted to misdirect the evidence before the court and has intentionally made it so vague that in place of aiding the ends of justice, he has attempted to help the accused.

30. In our considered view, action should be taken against both these witnesses. Before we pass any direction in this regard, we may refer to the judgment of this Court in Gajoo [(2012) 9 SCC 532 : (2012) 3 SCC (Cri) 1200 : (2012) 2 SCC (L&S) 782] , where the Court had directed an action against such kind of evidence and witnesses: (SCC pp. 540-41 & 543-44, paras 20-22) "20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal [(2012) 8 SCC 263 : (2012) 4 SCC (Civ) 424 : (2012) 3 SCC (Cri) 838 : (2012) 2 SCC (L&S) 583] while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-30 & 33-36) '27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. [(1972) 3 SCC 613 : 1972 SCC (Cri) 659] this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab [(2004) 3 SCC 654 : 2004 SCC (Cri) 851] , held: (SCC p. 657, para 5) "5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."

28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104 : AIR 1999 SC 644] enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

29. In Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that: (SCC p. 398, para 42) "42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this Courts have a vital role to play."

(emphasis in original)

30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.

***

33. In Ram Bali v. State of U.P. [(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] the judgment in Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] was reiterated and this Court had observed that: (Ram Bali case[(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] , SCC p. 604, para 12) "12. ... In the case of a defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective."

34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the court should leave no stone unturned to do justice and protect the interest of the society as well.

35. This brings us to an ancillary issue as to how the court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab [(2003) 12 SCC 155 : 2004 SCC (Cri) Supp 343 : 2004 Cri LJ 28] , the Court, while dealing with the discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8) "8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out."

36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.

"34. ... The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but [that] of the court."

(See Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204 : 1992 SCC (Cri) 598 : (1992) 2 SCR 921] SCC pp. 221-22, para 34.)' (emphasis supplied)

21. The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigating officer, cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained serologist's report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused.

22. For the reasons aforerecorded, we dismiss this appeal being without any merit. However, we direct the Director General of Police, Uttarakhand, to take disciplinary action against Sub-Inspector Brahma Singh, PW 6, whether he is in service or has since retired, for such serious lapse in conducting investigation. The Director General of Police shall take [a] disciplinary action against the said officer and if he has since retired, the action shall be taken with regard to deduction/stoppage of his pension in accordance with the service rules. The ground of limitation, if stated in the relevant rules, will not operate as the inquiry is being conducted under the direction of this Court."

94. In the case of Bakhsis Singh Vs. State of Punjab, AIR, 1957 SC 904, in paragraph no. 9, Hon'ble Apex Court has held as under:-

"9. The non-production of Sucha Singh who is stated in the dying declaration and in the statement of Narvel Singh PW 12 to have witnessed the occurrence was commented upon by counsel as a very serious omission. The Public Prosecutor stated at the trial that he was giving up Sucha Singh as he had been won over. Therefore, if produced, Sucha Singh would have been no better than a suborned witness. He was not a witness "essential to the unfolding of the narrative on which the prosecution was based" and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross-examination. No oblique reason for his non-production was alleged, least of all proved. There was therefore no obligation on the part of the prosecution to examine this witness: See Abdul Mohammad v. Attorney-General of Palestine [AIR 1945 PC 42] ; Stephen Servaratne v. King [AIR 1936 PC 289] ; Habeed Mohammad v. State of Hyderabad [(1945) SCR 475] . In the circumstances the court would not interfere with the discretion of the prosecutor as to what witnesses should be called for the prosecution and no adverse inference under Section 114 of the Evidence Act can be drawn against the State."

95. In the case of Narendra Nath Khaware Vs. Parasnath Khaware, (2003) 5 SCC 488, in paragraph no. 7, Hon'ble Apex Court has held as under:-

"7. Coming to the merits of the appeal, we find that the High Court disposed of the appeal in a very casual and cavalier manner. Before the High Court, it was an appeal against acquittal involving seven accused persons and the offence they were charged with was under Sections 148 and 302 IPC read with Section 149 IPC. The High Court being the court of first appeal, was required to consider and reappreciate the evidence on record. We fail to appreciate the manner in which the High Court disposed of the appeal on the basis of some general observations without making any effort to go into the evidence on record. The learned counsel appearing for the appellant before us particularly drew our attention to the evidence of PW 1, the complainant, who is also the father of the deceased. The complainant was an injured eyewitness. Therefore, there could not be any doubt about his presence on the spot. It was the grievance of the complainant that the accused party were influential people and they had managed to ensure that the prosecuting agency adopts a lackadaisical approach in investigation. This has led the complainant to file a protest petition before the Additional Chief Judicial Magistrate complaining the manner in which investigation in the case was being carried out. In fact this explains the non-examination of the investigating officer as a witness in the case. Regarding the observation of the High Court that other witnesses were not examined, the counsel submitted that at the time of actual occurrence only the complainant and his son Diwakar Khaware were present. The others came on the spot after the injuries had already been caused on the victim party. Diwakar Khaware having died at the spot, the complainant was the only eyewitness of the murder. The evidence of the complainant is corroborated by the medical evidence as well as by PWs 2, 3 and 4. The approach of the courts below on the other hand was of finding fault with the prosecution case, that is, non-examination of the investigating officer and non-examination of Ramdhani Jha etc. The prosecution case was thrown overboard on such grounds. We have been taken through the statement of the complainant -- PW 1. The statement shows that at the time of the actual occurrence only the complainant and deceased Diwakar Khaware were present. Diwakar Khaware having died on the spot, the complainant was the only actual eyewitness. Ramdhani Jha etc. came on the spot, maybe immediately after the event, and were therefore not eyewitnesses of the incident. So far as the non-examination of the investigating officer is concerned, it is settled law that the same is not fatal to the prosecution case. It has been often found that in order to help the accused party, specially in case where investigating officers are won over for whatever consideration, the investigating officers absent themselves and do not appear as witness in court. Another factor which had weighed with the courts below is the absence of blood on the spot. This was explained as wholly of no consequence in the facts of the present case where there is no doubt about the actual occurrence having taken place and about the spot where it took place. It is also emerging from the record that the courtyard where the incident took place was open to sky and it was a rainy day. Therefore, as argued by the learned counsel for the appellant, the bloodstains might have been washed away."

96. In the present case, witnesses PW-1, PW-2 and PW-4 have proved the FIR version. Witness PW-5 proved the dying declaration of deceased Satya Pal. There are no material contradictions on the point of occurrence rather they are corroborated each other substantially. In such a scenario, if the occurrence is proved by trustworthy other witnesses of prosecution as well as corroborated by medical evidence, then in that case the non-examination of I.O. will not vitiate the prosecution case. In the light of other trustworthy evidence of prosecution, it also do not cause any prejudice to accused person.

97. Learned counsel for the accused respondents has further submitted that the witness PW-8 has not been confronted with Dak Bahi (dispatch register) and has not been properly cross-examined, therefore his evidence is not admissible, hence learned trial Court has rightly held that the chik FIR has not been proved.

98. In reply, learned A.G.A. has submitted that witness PW-8 is formal witness, who had written the chik report in official record. Cross-examination of witness indicates that a specific question was asked regarding the entry of special report in G.D., the witness replied that he may reply after perusal of Dak Bahi that when chik report was sent from Police Station. Learned A.G.A. also pointed out towards the order sheet of the trial Court which indicates that since that very day, Dakbahi was not available, therefore the trial Court summoned the Dakbahi and the evidence of PW-8 was continued. Learned Trial Court has mentioned in his judgment that after 23.04.1985, the witness PW-8 left/resigned the service, therefore, he could not come in Court again for further cross-examination. Learned A.G.A. further submitted that if the cross-examination of PW-8 is not completed, if so, it will not be a ground to disbelieve the prosecution case, which has been proved by the other cogent evidence of prosecution. If the witness left his service and did not come in Court to complete his cross-examination, the victim had not played any role in it. The argument advanced by learned A.G.A. seems forceful.

99. Record reveals that during the pendency of present appeal, one of the accused-respondent Dhara Singh has died, therefore, the appeal has been abated against him. Other respondents are living/surviving.

100. The accused-respondents in their statement under Section 313 Cr.P.C., in reply of the question that why they have been prosecuted, the accused persons replied that due to partibandi they have been implicated in the case. The defence could not point out any fact of such partibandi, which could show that both the parties (informant and accused persons) were belonging to any rival parties and there was enmity in between the parties. Defence could not produce any evidence regarding alleged reason for any false implication of accused persons, also therefore, the finding of Trial Court that "since as many as five persons had been named as the murders, it could be possible that some innocent persons were also been included with a view to take revenge." is without any footing and is based upon surmises and conjecture.

101. It has been argued by learned counsel for accused/respondents that accused Dhara Singh was carrying Kharpali in his hand, solely caused incised wound to Satyapal, which caused excess bleeding and consequently has died and other accused persons had carried only Lathi and Danda in their hands, which have not caused any fatal injury to victim, hence they are not liable to be charged under Section 302 IPC.

102. According to FIR and prosecution evidence, five persons who had hide themselves in the sugar cane field came out before deceased Satya Pal, who was returning to his residence. The evidence regarding the presence of weapon in the hands of assailants/accused persons is intact and without any discrepancies, they had formed the unlawful assembly with common target, they had beaten Satya Pal badly and caused him 10 injuries in different parts of his body, in furtherance of their common object. The cumulative effect of their attack establishes their intention to cause such injuries, which are sufficient in ordinary course of nature to cause death as a result of excessive bleeding. It is sufficient to prove the common object of accused persons. The number of injuries on the body of Satya Pal proves that he was assaulted by more than one person. The nature and dimensions of injuries indicates their knowledge and intention to inflict such injuries. Therefore, charge of Section 302 read with Section 149 I.P.C. is proved against accused-respondents.

103. The accused persons were carrying Lathi, Danda and Kharpali in their hands, which can undoubtedly be used as deadly weapon, they formed unlawful assembly and in prosecution of common object of such assembly, they committed the offence by violence, therefore, the charges of Section 147 I.P.C. is also proved.

104. In the case of Shivappa & Others Vs. State of Karnataka, 2008 CRI. L.J. 2992, the Hon'ble Apex Court has held that the motive having been proved and the number of injuries being 20, in our opinion, leads to only one conclusion that all the accused persons formed a common object in committing the crime.

105. In the case of Hardev Singh Vs. Harbhej Singh & Others 1996 (4) Crimes 216, the Apex Court has held in para 27, which reads as under:-

"27. Coming to the acquittal of accused Nos. 2 and 6 by the trial court against which the State of Punjab had filed an appeal to the High Court and the same was dismissed-in our opinion the learned Sessions Judge had completely misunderstood the scope of Section 149 IPC. The only reason given by the learned trial Judge was that there was no material on the record to prove that they caused any serious injuries to the two victims. It was further observed that no specific role was attributed to these two accused. In our opinion this finding is against and contrary to the evidence on record in as much as both these accused were the members of the unlawful assembly and did have the common object as it was implicit in their action i.e. they were armed with deadly weapons; came along with other accused and participated in the murderous assault on both the victims. The trial court and the High Court had erred in law in not holding both these accused guilty with the aid of Section 149 IPC for the substantive offences punishable under Section 302 IPC. The order of acquittal passed by the trial court and on appeal affirmed by the High Court thus cannot be sustained for the reasons recorded hereinabove."

106. So far as injuries of informant Mahak Singh is concerned, the injuries as shown in injury report and the statement of witnesses indicate that accused persons were not intending to cause death to informant as they were having motive to attack Satya Pal only in revenge of occurrence, which had taken place 7-8 months back between Dhara Singh and Satya Pal, as it has been proved by the evidence of PW-3. The injuries on the body of witness PW-1 was of simple in nature. The circumstances indicate that he has been assaulted when he stood between the accused persons and Satya Pal. Witness PW-1 has stated in FIR that he was given Lathi blow by accused-respondents Sahab Singh. Witness PW-4 has also corroborated the above fact that accused Sahab Singh had given the Lathi blow to informant Mahak Singh, therefore, charges of Section 323 I.P.C. is also proved against accused respondent Sahab Singh.

107. All the accused-respondents were named in the FIR, who were carrying weapons in their hand. The medical evidence connect the injuries with weapons alleged. The occurrence is of day-light, which has been witnessed by eye witnesses including injured witness. The accused persons had constituted the unlawful assembly and attacked on Satya Pal with their common intention as well as knowledge about severity of injuries. The evidence of prosecution witness, so far as the role of accused persons is concerned, have no contradiction or discrepancy. No evidence is on record, which may bifurcate the role of any of the accused persons. The trial Court has not rightly appreciated the evidence on record and reached to a wrong conclusion holding the accused-respondents to be not guilty for committing the murder of deceased Satya Pal. The impugned judgment and order being against the settled law is unreasonable, based upon surmises and conjunctures, unreasonable and it is found that the relevant and convincing materials have been unjustifiably eliminated. The conclusion/findings recorded by learned trial Court in the impugned judgment and order are perverse and the same are not sustainable in the eye of law.

108. In the light of above discussions and taking into consideration the entire facts and circumstances of the case and reappreciating the evidence available on record in accordance with settled law, we are of the considered view that the prosecution has succeeded to prove the guilt of accused persons beyond any shadow of doubt and to the satisfaction of the judicial conscience of the Court. So, the impugned judgment and order of acquittal dated 22.06.1985 passed by the trial Court, which has been sought to be assailed, call for and deserves interference. The Government Appeal is liable to be allowed and the impugned judgment and order is liable to be set-aside.

109. Accordingly, Government Appeal is allowed and the impugned judgment and order of acquittal dated 22.06.1985 is set aside.

110. Since the occurrence does not come under the purview of rarest of rare cases, therefore, all the surviving accused persons, namely, Sahab Singh, Charan Singh, Dharamvir and Shri Pal are hereby convicted for the offence under Sections 147 IPC and sentenced for two years imprisonment, for the offence under Section 302/149 IPC, they are sentenced for life imprisonment with fine of Rs. 25,000/- each, in default of payment of fine, they will undergo six months additional simple imprisonment. Accused-respondent Sahab Singh will also served the sentence for one year imprisonment for the offence under Section 323 I.P.C. All the sentences shall run concurrently. Earlier period of their detention in jail shall be counted in period of imprisonment imposed by this judgment and order.

111. In case the accused persons deposit the fine, half of fine amount shall be paid to the legal heirs and representatives of deceased Satya Pal forthwith.

112. All the surviving accused-respondents, namely, Sahab Singh, Charan Singh, Dharamvir and Shri Pal, shall put their appearance immediately before Chief Judicial Magistrate concerned. If the accused persons appear before the Chief Judicial Magistrate, they shall be sent to jail to serve out the sentence, However, if they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.

113. Let a copy of this judgment alongwith lower court record be sent forthwith to the Trial Court as well as Chief Judicial Magistrate, concerned for necessary compliance and further action. A compliance report be sent to this Court.

Allahabad :

Date : July 19, 2022 ML/-Shafique

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