Allahabad High Court
Kishan Veer Singh vs State Of U.P. on 3 January, 2023
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 45
CRIMINAL APPEAL No. - 3773 of 2019
Kishan Veer Singh ----- Appellant
Vs.
State of U.P. ----- Respondent
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For Appellant : Sri Apul Misra
For Respondent/State : Sri H.M.B. Sinha, AGA
__________________________________________________
With
CRIMINAL APPEAL No. - 2914 of 2019
1. Natthu Singh
2. Bachchan Singh ----- Appellants
Vs.
State of U.P. ----- Respondent
__________________________________________________
For Appellants : Sri Apul Misra
For Respondent/State : Sri H.M.B. Sinha, AGA
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Hon'ble Pritinker Diwaker,J.
Hon'ble Nalin Kumar Srivastava,J.
Per : Nalin Kumar Srivastava, J.
(03.01.2023)
1. Heard Sri Apul Misra, learned counsel for the appellants and Sri H.M.B. Sinha, learned A.G.A. for the State.
2. These Criminal Appeals have been preferred by appellants - Kishan Veer Singh, Natthu Singh and Bachchan Singh against the judgment and order dated 28.3.2019 passed by Additional Sessions Judge / Special Judge (E.C. Act), Budaun in Sessions Trial No.103 of 2003 (State Vs. Kishan Veer Singh and Others) arising out of Case Crime No.190 of 2002 and Sessions Trial No.809 of 2003 (State Vs. Kishan Veer) arising out of Case Crime No.200 of 2002, Police Station Faizganj Behta, District Budaun, whereby the appellant Kishan Veer was convicted and sentenced to undergo imprisonment for life under Section 302 IPC with a fine of Rs.10,000/-, in default thereof, to further undergo six months additional simple imprisonment and appellants Bachchan Singh and Natthu Singh to undergo imprisonment for life under Section 302/34 IPC with a fine of Rs.10,000/- each, in default thereof, to further undergo six months additional simple imprisonment. Further, appellants Kishan Veer Singh, Bachchan Singh and Natthu Singh were convicted and sentenced to undergo four months rigorous imprisonment under Section 323/34 IPC with a fine of Rs.1000/- each, in default thereof, to further undergo one month additional simple imprisonment.
3. The prosecution case, as culled out from the FIR, is that on 25.7.2002, Dinesh s/o informant Bhoop Singh s/o Kallu Singh Yadav had cut some grass from the sugar cane field of Bhoop Singh s/o Gumani, which was taken for agricultural work by Natthu Singh s/o Brijpal Singh, which caused annoyance to the accused persons and at about 6:00 P.M. on that very day, accused persons Kishan Veer, Bachchan and Natthu Singh came over the house of the informant using abusive language. When Girish, son of the informant asked them not to abuse, they assaulted him with lathi and danda. When Bhurey s/o Punni came for rescue, he was also beaten by the accused persons. At about 7:15 P.M., accused Kishan Veer opened fire by his desi Pistol, which inflicted upon the back of Girish resulting into his instantaneous death. The occurrence was witnessed by Mahindra and Harpal. On the written tehrir of informant Bhoop Singh, F.I.R. was lodged on 25.7.2002 at 22:25 P.M. and registration G.D. was prepared. The inquest of the deceased was performed on 26.7.2002 at 12:30 in the night at the house of the informant and the autopsy was conducted by Dr. V.P. Bhardwaj on 26.7.2002 at 4:00 P.M. and postmortem was prepared.
4. In the autopsy of the deceased, following injuries were found:
1. One firearm wound of entry 4 cm. x 4 cm. on right shoulder. Blackening was present. On dissection, shoulder blade and 2nd , 3rd, 4th ribs were found fractured.
Nerves, vessel, muscles, chest wall were found lacerated, right lung from back side was found badly lacerated. One litre blood in anterior aspect of right side chest cavity and 288 pellets recovered from the wound.
It was opined by the Doctor that the death was caused due to shock and hemorrhage as a result of ante-mortem firearm injury, which was sufficient to cause his death. It was also opined that the death of the deceased might have been occurred on 25.7.2002 at 7:15 P.M.
5. Injured Bhurey was medically examined on 25.7.2002 at 10:53 P.M. by Doctor Shivaram Singh and following injury was found over his body:
1. A lacerated wound of 2 cm. X 0.5 cm. x muscle deep 8 cm. above the wrist joint and the injury was found in the 1/3rd part of the upper part of left hand.
The injury was simple and fresh. It might have been caused by some hard and blunt object. The medical examination was conducted on 25.7.2002 at 19:53 PM.
6. The proceedings of investigation were conducted by the Investigating Officer S.O. Man Singh Yadav and S.O. Rajbir Sharma. During investigation, statement of the witnesses were recorded and site plan was prepared. Murder weapon desi Pistol was also retrieved on the pointing out of accused Kishan Veer and recovery memo and site plan of the place of recovery were also prepared.
7. After completion of the investigation, charge-sheet was filed in the Court against accused Kishan Veer Singh, Bachchan and Natthu Singh under Sections 302, 323, 504 IPC.
8. The investigation of the case under Section 25 Arms Act was handed over to S.I. Gangaram Som of Police Station Faizganj, who after performing the investigation of the case, prepared the site plan and submitted the charge-sheet against accused Kishan Veer Singh under Section 25 Arms Act.
9. The matter, being exclusively triable by the Sessions Court, was committed to the Court of Sessions for trial.
10. Charges under Sections 302, 323/34 of IPC were framed against accused Kishan Veer Singh and under Sections 302/34, 323/34 of IPC against accused Bachchan and Natthu Singh. Charge under Section 25 Arms Act was also framed against accused Kishan Veer Singh. The accused persons pleaded not guilty and claimed to be tried.
11. To bring home the charges against the accused, the prosecution produced in all ten witnesses in oral evidence and they are (P.W.1) Bhoop Singh, informant/eyewitness, (P.W.2) Bhurey, eyewitness/injured, (P.W.3) Dr. V.B. Bhardwaj, (P.W.4) scribe of FIR constable clerk Ram Pal Singh, (P.W.5) S.O. Rajbir Sharma, second Investigating Officer, (P.W.6) S.O. Man Singh Yadav, first Investigating Officer, (P.W.7) S.I. Gangaram, Investigating Officer of the case under Arms Act, (P.W.8) Dr. Shivram Singh, (P.W.9) Chandrasen Gangawar, witness of recovery of murder weapon and (P.W.10) Sumer Singh, witness of recovery of murder weapon.
12. In documentary evidence, Written Report Ex.Ka.-1, Postmortem Report Ex.Ka.-2, Chik F.I.R. of crime no.190 of 2002 Ex.Ka.-3, Registration G.D. Ex.Ka.-4, Chik F.I.R. of crime no.200 of 2002 Ex.Ka.-5, Seizure Memo of weapon Ex.Ka.-6, Site Plan of crime no.200 of 2002 Ex.Ka.-7, Charge-sheet of crime no.190 of 2002 Ex.Ka.-8, Chik F.I.R. of crime no.200 of 2002 Ex.Ka.-9, Registration G.D. Ex.Ka.-10, Inquest Ex.Ka.-11, Photo Nash Ex.Ka.-12, Challan Nash Ex.Ka.-13, Report to R.I. Ex.Ka.-14, Report to C.M.O. Ex.Ka.-15, Sample Seal Ex.Ka.-16, Site Plan of crime no.190 of 2002 Ex.Ka.-17, Fard of blood stained soil and plain soil Ex.Ka.-18, Site Plan of crime no.200 of 2002 Ex.Ka.-19, Charge-sheet relating to crime no.200 of 2002 Ex.Ka.-20, Medical Report of injured Bhurey Ex.Ka.-21, Medical Report of accused Bachchan Ex.Ka.-22 and Medical Report of accused Natthu Ex.Ka.-23 have been produced.
13. Material Ex.-1 Tamancha and Material Ex.-2 Cartridge have also been produced.
14. The incriminating evidence and circumstances were put to the accused persons and their statements under Section 313 CR.P.C. were recorded. A plea of false implication due to enmity was claimed and it was also specifically stated that at the time of the occurrence, deceased Girish and Dinesh were cutting sugarcane of the accused persons and when protested by the accused persons, Dinesh angrily opened fire, which was inflicted over the body of the deceased Girish. No other person was present at the time of the occurrence.
15. D.W.1 Avnish Singh, Deputy Jailor and D.W.2 Pharmacist Krishna Murari were examined as defence witnesses.
16. While going through the oral evidence available on record, we find, in brief, the following narrations in the testimonies of the witnesses :
P.W.1 Bhoop Singh is the informant and eyewitness to the case and he is also the father of the deceased. Supporting the prosecution version, in his examination in chief, he has stated that the occurrence happened about 13 months back when his son Dinesh had cut some grass from the field of Bhoop Singh, which was taken on rent by accused Natthu. Accused Kishan Veer, Natthu and Bachchan were annoyed at this and at 7:00 P.M., on that very day, they came to his house and started abusing his son Girish and on his protest, they began to beat him by lathi and danda. Accused Kishan Veer opened fire by his desi Pistol, which inflicted his son and he fell down in the Verandah (Aangan) inside the house. The occurrence was witnessed by Bhurey, Mahindra, Harpal, Dinesh, etc. and when Bhurey tried to intervene, he was also assaulted by lathi and danda by accused Bachchan. The informant side also used force by lathi in defence, which inflicted injuries to the accused persons Natthu and Bachchan Singh and then they fled away. The report was written by Harish Chandra Gupta on the dictation of the informant, which was given to the police station. PW1 has proved the written report as Ext.Ka.-1.
P.W.2 Bhurey is the injured witness who, supporting the prosecution case, has deposed that in the said incident, Girish sustained firearm injury shot by accused Kishan Veer. He himself has sustained injuries of lathi while intervening. He has made a categorical statement that accused Kishan Veer was having desi Pistol, whereas accused persons Bachchan and Natthu had taken lathi and danda. He has also made a specific statement that to defend themselves, they had also used lathi and danda over the accused persons.
P.W.3 Dr. V.P. Bhardwaj has performed the postmortem of the deceased and he has proved the autopsy report as Ext.Ka.-2.
P.W.4 Constable Clerk R.P. Singh is the scribe of the FIR, who has proved chik FIR and registration G.D. as Ex.Ka.-3 and Ex.Ka.-4 respectively and has also affirmed this fact that the FIR was lodged on the basis of the written report given by informant Bhoop Singh at the police station. He has also proved the letter for medical examination of the injured Bhurey as Ex.Ka.-5.
P.W.5 Rajvir Sharma is the second Investigating Officer of the case, who was handed over the investigation on 31.7.2002. In his deposition, he has proved the proceedings of the investigation and the material fact of recovery of murder weapon on the pointing out of the accused Kishan Veer. He has also proved recovery memo, site plan and charge-sheet as Ex.Ka.6, Ka.-7 and Ka.-8 respectively.
P.W.6 S.O. Man Singh Yadav is the first Investigating Officer of the case, who also performed the inquest of the deceased and prepared and proved the inquest report and relevant papers for postmortem as Ext.Ka.-11 to Ext.Ka.-15 and sent the dead body for postmortem under the specimen seal Ext.Ka.-16. Topography of the place of occurrence was mentioned in the site plan Ext.Ka.-17 and memo of taking of blood stained and plain soil was also proved as Ext.Ka.-18.
P.W.7 S.I. Ganga Ram is the Investigating Officer of the case relating to Arms Act. He has performed the proceedings of the investigation, prepared the map of the place of recovery of murder weapon desi Pistol as Ext.Ka.-19 and also stated that matter ended into charge sheet and proved the charge sheet as Ext.Ka.-20.
P.W.8 Dr. Shiv Ram Singh has medically examined accused Bachchan Singh and Natthu on 26.7.2002, who were taken to him by the police and proved the injury reports as Ext.Ka.-22 and Ext.Ka.-23.
P.W.9 Constable Chandrasen Gangwar is the witness of the recovery of murder weapon. Corroborating the prosecution version, he has deposed that one desi Pistol 12 bore was retrieved on the pointing out of the accused Kishan Veer from the sugar cane field of Bhoop Singh, which was concealed in the root of the Neem Tree existing there along with one khokha of 12 bore. He has affirmed the memo of recovery Ext.Ka.-6 and has also proved the desi Pistol and cartridge as Material Ex.-1 & 2.
P.W.10 Sumer Singh is the public witness of the recovery of murder weapon Desi pistol, who has also supported the factum of recovery of murder weapon on the pointing out of accused Kishanvir and has identified his signature over the memo of recovery as Ext.Ka.-6.
C.W.1 Steno Ravi Prakash Sharma has affirmed this fact before the Court that on the dictation of the Presiding Officer concerned, he had noted down the charge under Section 323/34 IPC and also typed the same against all the accused persons.
D.W.1 Deputy Jailor Avnish Singh has been produced by the defence, who has deposed on the basis of under trial register relating to District Jail, Budaun and stated that on 26.7.2002, accused persons Natthu son of Brij Pal and Bachchan son of Natthu were admitted in the District Jail after their being medically examined at C.H.C. , Bisauli.
D.W.2 Krishan Murari Singh, Pharmacist, posted in District Jail, Budaun appeared before the court alongwith the injury register relating to under trial and convicted accused persons and on the basis thereof, he has stated that injured accused persons Bachchan and Natthu had been examined on 27.7.2002 by the then Medical Officer and they have been medically examined in C.H.C., Bisauli. Attested photo stat copy of this register has been filed by this witness before the court.
17. It is settled law that in a criminal trial, the burden of proof always lies upon the prosecution and the prosecution is under obligation to prove its case beyond all reasonable doubts unless under some circumstances, the onus shifts upon the defence e.g. with the aid of Section 113 B of the Evidence Act, which consists of the provision regarding presumption as to dowry death or Section 106 of the Indian Evidence Act where the burden of proof of the fact, which is specially within the knowledge of any person, lies upon him or in any like circumstances. So far as the present case is concerned, the factual scenario avows that the burden of proof is upon the prosecution.
18. The impugned judgment and order has been assailed by the learned counsel for the appellants on various grounds :
At the very outset, it has been argued that the place of occurrence in this case is uncertain and in the factual matrix of the case, no occurrence happened at the house of the informant, rather it happened in the sugar cane field of accused Natthu. It has been vehemently argued that the accused persons had no motive to do away with the deceased and as a matter of fact, the deceased died due to firearm injury inflicted by Dinesh son of the informant himself. The said Dinesh opened fire upon accused Kishan Veer with intention to kill him, but he anyhow managed to save himself and the firearm injury inflicted upon Girish, which was proved fatal for him and resulted into his instantaneous death in the sugar cane field. It was also impressed upon that the incident occurred in the dark night at about 9:00 P.M. and not at 7:00 P.M. in the evening. The prosecution has miserably failed to explain the injuries occurred upon accused Natthu Singh and Bachchan Singh, who were assaulted by the informant side. The manner of assault is improbable. The total prosecution story is concocted and false and the factum of retrieving the alleged murder weapon at the pointing out of accused Kishan Veer is a false story. There is no FSL report on record to connect the alleged weapon, desi Pistol with the offence charged. No independent witness to the occurrence was produced, whereas the prosecution claims that the occurrence was witnessed by some villagers also. The ocular evidence is not reliable and trustworthy. There are several loop holes in the prosecution story and the prosecution is never entitled to take benefit of the weaknesses of defence version. The learned trial court has discarded the value of the defence evidence adduced by the accused persons. On some other grounds, the impugned judgment has been assailed by the learned counsel for the appellants apart from the above specific grounds.
19. Per contra, learned A.G.A. has argued that the impugned judgment and order is a genuine one, passed on the basis of reasonable and proper scrutiny of the evidence on record. The points raised by the appellants are baseless. The offence committed by the appellants is very grievous in nature, which has been proved by reasonable and cogent ocular evidence corroborated by the medical evidence as well. The appeal has no force and is liable to be dismissed.
20. The place of occurrence is always a significant factor in preparing the foundation of the prosecution case and it can be held without any hesitation that if the place of occurrence is found fluctuating, it always adversely affects the truthfulness of the prosecution story. In the case in hand, the prosecution has come with a specific case that the occurrence happened at the door of the informant's house, whereas contrary to it, the accused persons, in their written statement under Section 313 (5) Cr.P.C. have mentioned that the occurrence happened in the sugar cane field of accused Nathu.
21. P.W.1 Bhoop Singh, informant and eyewitness to the incident, has made a categorical statement that at the time of the occurrence, Kishan Veer, Natthu and Bachchan Singh came over his house where his son Girish was standing and the occurrence happened at the same place. Accused Kishan Veer opened fire upon Girish, which inflicted upon his body and he fell down in the verandah (aangan) of the house from the entry door of his house. In the cross-examination, he has specifically stated that when sugar cane was plucked by his son, no marpeet took place and even his son Dinesh did not tell him about any quarrel at the time of plucking the sugar cane. Further, he has stated that he did not see any blood at the place of occurrence neither on the front of the door nor inside the house. His son was shot, over the door of his house. He has further stated that the accused persons also sustained injuries and bleeding took place, but no blood dropped over the ground. The right hand of injured Bhurey was also full of blood, but it was soaked in his clothes and hand.
22. P.W.2 Bhurey, the injured has also stated that all the three accused came to the door of Girish and the occurrence took place at the same place. When firearm injury was inflicted upon the body of Girish, he fell inside his bakhri. In his cross examination, he states that both the parties were bleeding on account of injuries inflicted by lathis. Girish, Dinesh, Harpal, Bhoop Singh and he himself received lathi injuries and the blood oozed out and all this happened at the door of the house of Bhoop Singh.
23. P.W.6, who is the first investigating officer of the case and has prepared the site plan Ex.Ka.-17 on the pointing out of the informant, has taken the blood stained and plain soil from the place of occurrence. On being suggested by the defence, he has categorically affirmed that the place of occurrence was at the house of the informant, as shown in the site plan, and not in the sugarcane field.
24. The topography of the place of occurrence finds place in the Site Plan Ex.Ka.-17, wherein it has been explicitly shown that the occurrence happened at the door of the house of the informant Bhoop Singh and after receiving firearm injury, the deceased fell down in his house at place ''A'. The place, wherefrom the witnesses saw the occurrence and tried to rescue as well as the place of entry and exit of the accused persons has also been shown in Ex.Ka.-17. P.W.1, who has been cross-examined on the point of topography of the place of occurrence, makes the statement similar to that shown in the Site Plan Ex.Ka.-17 and there is no contradiction between the two. If we examine the defence version that the occurrence took place in the sugar cane field of accused Natthu, we find that no evidence in support of the aforesaid contention has been adduced by the defence, which falsifies the defence contention. It is quite possible that under the impact of the fatal incident, the informant (P.W.1) was unable to see any blood over the place of occurrence, but the investigating officer (P.W.6) has made a categorical statement that blood stained soil was taken by him from the place of occurrence and he also proves the memo thereof as Ex.Ka.-18. None of the prosecution witnesses says that the occurrence took place in the sugar cane field and the fact, which emerges out from the analysis of the evidence on record, is that prior to the present occurrence, the sugar cane was plucked from the field of accused Natthu, but no such occurrence took place there.
25. On the basis of the aforesaid discussion, we find that evidence on record elucidates that the place of occurrence was on the door of the house of the informant Bhoop Singh and no evidence contrary to that has been adduced by the defence side.
26. Motive, as we gather from umpteen of cases, takes a back seat in a case of direct ocular evidence and the reason behind it is that it is always in the mind of the accused as to why he is committing any offence and the prosecution in so many cases is unable to explain the mental state behind the offence committed. Thus, motive is never a sine qua non for the commission of a crime. However, in the factual scenario of this case, the motive has been assigned in the F.I.R. itself. The prosecution comes forward with the specific story that when grass was cut from the sugar cane field of Natthu, the accused persons came over the house of the informant using abusive language and when his son Girish protested to that, the offence was committed. P.W.1, who is the father of the deceased, has made similar statement in his deposition. In his cross-examination, P.W.1 admits that there is no enemity between him and the accused persons. Kishan Veer, Bachchan and Natthu had seen his son plucking the sugar cane, but no altercation took place at that time.
27. P.W.6, the investigating officer, in his examination, has affirmed this fact that the dispute arose between the parties over the issue of cutting the grass by Dinesh, the brother of the deceased, which supports the prosecution version. In this way the prosecution has also proved the motive of the case, as mentioned in the FIR. This fact also gets support from the defence version also when the accused persons in their statement under Section 313 Cr.P.C have clearly stated that the dispute arose when Girish and Dinesh were cutting sugar cane from the field of the accused persons.
28. The trial Court has discussed the various aspects of motive and enmity existing between the parties in the present case. Reliance has been placed upon Bikau Pandey Vs. State of Bihar (2003) 12 SCC 616 by the learned State counsel, wherein it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance.
29. In Anil Rai Vs. State of Bihar (2001) 7 SCC 318 it has been held that enmity is a double edged weapon, which can be a motive for the crime as also the ground for false implication of the accused persons.
30. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma Vs. State of Himachal Pradesh (2011) 10 SCC 129, it has been held as under.
"........Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence."
31. It is desirable for the prosecution to ascertain whether the medical evidence is in corroboration with the ocular evidence or not. P.W.1 and P.W.2 both state in clear terms that the accused Kishan Veer opened fire upon the deceased, which inflicted upon his back and was proved fatal to him and he died when after receiving the gunshot injury, he ran into the house and fell in the verandah (aangan) there.
32. P.W.1 and P.W.2 make the similar statement in respect of the fire made by accused Kishan Veer and its injury inflicted upon the deceased. P.W.2 also states that he too received injuries from lathi, which accused Bachchan and Natthu were having. P.W.1, at the same time, states that when the accused persons came there, they started beating his son Girish by lathi and danda and then accused Kishan Veer opened fire upon him. Further, he states that when his son was attacked by lathi, he tried to save himself in the shade of the wall and the lathi blows were inflicted upon the wall. However, P.W.7, the investigating officer, has denied that witness Bhoop Singh had made any such statement to him. P.W.1 also states that the fire was made at a distance of one step. P.W.6, the investigating officer, has stated that in the photo nash of the deceased, it has been shown that the firearm injury was inflicted over the back of right shoulder of the deceased. However, he states that he has not mentioned the distance where from the deceased was fired.
33. This statement cannot be taken as adverse to the prosecution case as P.W.1 has made a categorical statement that the fire was made from a distance of one step. It is noteworthy that the deceased has not received any lathi injury, but only one firearm injury, which was caused by accused Kishan Veer. Although the other two co-accused persons were having lathis and the same position we find in respect of statement of P.W.1 where he has been contradicted with his statement under section 161 Cr.P.C. and we also note that the aforesaid contradiction also does not falsify the prosecution case.
34. In the aforesaid context, the medical evidence, if examined, says that the deceased sustained only one injury and that was the firearm entry wound over his right shoulder wherein blackening was present and the ribs were fractured and a total of 288 pellets were recovered from the wound. While proving the autopsy report as Ex.Ka.-2, the Doctor (P.W.3) states that the death is caused due to shock and haemorrhage as a result of antemortem firearm injury. It is pertinent to mention here that finding of blackening over the wound is a proof of the fact that the fire was shot from a close range. P.W.3 says that the blackening might have caused if the fire was made from a distance of one or two feet. This opinion is corroborated by the testimony of P.W.1, who says that fire was made from a distance of one step. It is true that P.W.3 states that no injury of lathi or danda was found over the body of the deceased and the learned counsel for the appellants highlighting this point has argued that according to the prosecution evidence, the deceased had also sustained injuries of lathi and danda, but the medical evidence speaks contrary to it, but we find no material contradiction in this respect. P.W.1 has stated that the deceased was attacked with lathi also and anyhow he managed to save him from the lathi blows by hiding himself in a shade of a wall, which was higher than his height. It is true that P.W.2 states that the deceased Girish also sustained injuries by lathi, but specific statement is found in his deposition that the deceased was fired by accused Kishan Veer and died. The statement of P.W.2 regarding lathi blows over the deceased may simply be taken as an exaggerated statement, which is negligible because the rustic witnesses have a normal tendency to exaggerate the situation, but that does not make their whole testimony as unreliable. There is no contradiction in the ocular evidence adduced by the prosecution that the deceased sustained firearm injury, which resulted into his death and the medical evidence corroborates the same.
35. The theory promulgated in respect of appreciation of evidence of rustic eyewitness and illiterate villager witness in State of U.P. Vs. Chhotey Lal, A.I.R. 2011 Supreme Court 697 and State of U.P. Vs. Krishna Master, 2010 (5) ALJ 423 (Supreme Court) very well applies in the facts of this case, which means to say that in case of rustic eyewitness, the Court should always keep in mind his rural background and the scenario in which the incident had happened and should not appreciate the evidence from rational angle and discredit his otherwise, truthful version on technical grounds. It should also be taken into account that where the rustic eyewitness of murder was subjected to the grueling cross-examination for many days, inconsistencies are bound to occur in his evidence and they should not be blown out of proportion. The Court should also consider this aspect that such rustic eyewitness cannot be expected to such precision the exact distance / direction from which he had witnessed the incident and the description of incident happened in a few minutes and his evidence cannot be rejected.
36. P.W.2, in this case, has not been cross-examined in one day and has been called on subsequent dates also as appears from the record of the case. It deems proper to us that the ocular version of eyewitnesses in this case should be taken in light of the aforesaid legal theory.
37. Apart from this, we can safely rely upon the Apex Court judgment in Gangadhar Behera and Others v. State of Orrisa, (2002) 8 SCC 381 wherein it has been held as under.
"Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550].
38. P.W.2 Bhurey, is the injured witness. He has also been medically examined by P.W.8 on 26.7.2002. He, in his deposition, states that when he was trying to defend himself, he also sustained lathi injuries and bleeded and accused Bachchan and Natthu were having lathi and danda. P.W.1 corroborates this fact that in the incident, Bhurey received lathi injuries and his right hand was bleeding. P.W.8 proves the injury report of injured Bhurey as Ex.Ka.-21. He has found a lacerated wound of 2 cm. x 5 cm. x muscle deep 8 cm. above the wrist joint and the injury was found in the 1/3rd part of the upper part of left hand. The injury was simple and fresh. It might have been caused by some hard and blunt object. The medical examination was conducted on 25.7.2002 at 19:53 PM.
It is pertinent to mention here that the injured Bhurey has been medically examined at C.H.C., Bisauli on the basis of letter of injury (chitthi majroobi) dated 25.7.2002, Ex.Ka.-5 prepared by P.W.4 at the time of lodging of the F.I.R.
39. A scrutiny of the aforesaid evidence takes us to the logical conclusion that the prosecution case is fully supported by the medical evidence.
40. The prosecution often has to face a challenge as to the non production of independent witnesses regarding any criminal activity. Answering to the appellants' plea in this regard, the learned A.G.A. has vehemently stated that though several persons of the village were present at the time of occurrence, the prosecution was not under obligation to produce all of them. In the F.I.R. itself, it has been mentioned that at the time of the occurrence, the villagers Bhurey, Mahindra and Harpal reached there and exhorted the accused persons. It was stated by P.W.1 and P.W.2 that during the course of occurrence, P.W.2 also got injury by use of lathi. P.W.1, in his cross-examination, admits that all the witnesses belong to his family and caste. Witness Harpal is the real brother of Mahindra and Bhurey happens to be the member of his family. To put a glance over the charge Ex.Ka.-20, we find that many witnesses have been named as ocular witnesses of the incident e.g. Surnam, Dinesh, Mahesh, Harpal, Bhurey, Smt. Sridevi, Brahmdevi, Sukhdei etc. Out of the aforesaid witnesses, one injured Bhurey has been examined as P.W.2 apart from the informant P.W.1 Bhoop Singh.
41. The contention arose by the learned counsel for the appellants find its answer in State of Andhra Pradesh Vs. S. Rayappa and Ors. (2006) 4 SCC 512, wherein the Hon'ble Supreme Court examined several aspects of a criminal trial and this fact was also taken into account as to why independent witnesses ignore to depose in favour of the prosecution and in what circumstances the probability of false implication may be ruled out. It was also clarified as to why the prosecution in so many cases is bound to rely upon the witnesses, who happen to be the relative to the deceased (victim). It was held in para 6 and 7 as under.
"6.........By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.
7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of PW 1 and PW 2 on the sole ground that they are interested witnesses being relatives of the deceased."
42. As discussed above, P.W. 2 Bhurey is the injured witness. Undoubtedly, the testimony of an injured witness is always accorded a special evidentiary status.
43. In Shivalingappa Kallayanappa and Others Vs. State of Karnataka, 1994 Supp. (3) SCC 235, it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence at scene stands established in case it is proved that he suffered the injury during the said incident.
Similar dictum of law was reiterated in State of U.P. Vs. Kishan Chandra and others, (2004) 7 SCC 629 by observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon [vide Krishan v. State of Haryana (2006) 12 SCC 459 ].
44. We may reiterate that P.W.2 Bhurey, the injured witness, has rightly been relied upon by the trial court and injuries caused to him is an inbuilt guarantee of his presence at the scene of the crime and also because being an injured person, he will not want to let his actual assailants to go unpunished merely to falsely implicate a third party for the commission of the offence. We also do not find any major contradictions or discrepancies in the testimony of P.W.2.
45. It is also pertinent to mention that the law of evidence does not require in particular, number of witnesses to be examined in proof of a given fact, as is evident from the language of Section 134 of the Evidence Act. It was so pronounced in Chacko Vs. State of Kerala, (2004) 12 SCC 269 that Section 134 of the Evidence Act, 1872 clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.
46. In the case in hand, we have ocular evidence of two witnesses, who corroborate with each other and in the light of the credible and reliable evidence, the prosecution was not under obligation to adduce any other witness in the form of an independent witness.
47. In this context, we can quote Jayabalan Vs. U.T. of Pondicherry, (2010) 1 SCC 199 wherein the Hon'ble Supreme Court had occasion to consider whether the evidence of interested witness can be relied upon and the Court held as under.
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
Taking a similar view in Ram Bharosey Vs. State of U.P., A.I.R. 2010 SC 917, the Hon'ble Supreme Court clarifying the dictum of law held that close relative of the deceased does not, per se, become an interested witness. The law relating to appreciation of evidence of an interested witness is well settled, according to which the version of an interested witness cannot be thrown over board, but has to be examined carefully before accepting the same.
48. In the written statement filed by the accused persons under Section 313 (5) Cr.P.C. it is stated that at the time of the occurrence, which happened in the sugar cane field when Girish and Dinesh were cutting the sugar cane crop and the same was protested by accused Bachchan, other companions of Girish and Dinesh came over there and they assaulted over accused Nathu and Bachchan Singh with lathi and danda. Kishan Veer was not present at that time and as soon as he came, Dinesh opened fire upon him which unfortunately inflicted upon Girish, who died in the sugar cane field. It is further stated that the accused persons were having no lathi and no lathi injury was caused to Bhurey. However, the report from the accused side was not lodged by the police and they were falsely implicated in this matter. It is further stated that although the accused persons Natthu and Bachchan Singh were medically examined, but the police, with an ulterior motive, did not prepare the medical report in proper manner.
49. P.W.8 in his deposition states that on 26.7.2002, when injured Bachchan Singh and Natthu were brought to C.H.C., Bisauli by Home Guard Atar Singh, he had medically examined them and he has proved their injury report as Ex.Ka.-22 and Ex.Ka.-23. He states that following injuries were found over the body of Bachchan Lal s/o Nathu :
1. Lacerated wound measuring 04 cm. x 0.5 cm. x scalp deep on u-side head which is 05 cm. above the left eye brow. Margins are lacerated irreglar inverted. Bleed on touch.
2. Contusion measuring 09 cm. x 2 cm. on right shoulder which is 02 cm. medial to the right shoulder joint. Shape is cylindrical. Oblique tenderness present. Injury is kept under observation.
As per opinion of the doctor, all the injuries are caused by some blunt and hard object and are simple in nature except injury no.2 which is kept under observation and advised x-ray of right shoulder joint for any bony injury.
50. In the same manner, following injuries were found over the body of Natthu s/o Brij Pal Singh :
1. Lacerated wound measuring 02 cm. x 0.5 cm. x scalp deep on right side head which is 07 cm. above the right eye brow. Margins are lacerated irreglar inverted. Bleed on touch.
As per opinion of doctor, injury is caused by some blunt and hard object and is simple in nature. Duration is fresh.
P.W.8 has further opined that the injuries might have been caused by lathi or any hard object on 25.7.2002 at 7:15 P.M.
51. We have considered this fact that date and time of the present occurrence is said to be on 25.07.2002 at 7:15 P.M. and the same has been opined by the doctor also and hence the medical evidence also corroborates this fact that the injuries to the aforesaid two accused persons might have been inflicted in the occurrence of this case.
52. In this context, it is explicit to scrutinize the evidence of P.W.2, the injured witness, who deposes that when he was trying to defend themselves, he also sustained lathi injuries. They had also used lathi and danda in their defence over accused Natthu and Bachchan. Both the sides were using lathi. Girish was having danda and accused Kishan Veer was holding tamancha and both were attacking to each other.
53. P.W.1 also states that when the witnesses were trying to pacify the accused persons, Bhurey was assaulted by lathi and danda by accused Bachchan. He has admitted that when they used lathi in their defence, accused Nathu and Bachchan sustained injuries. This witness states that the deceased Girish made no effort to defend himself rather lathi was used by Dinesh, Harpal, Mahindra and Bhurey and by him as well. A total of 10 or 12 blows of lathi were inflicted by them due to which the accused persons also got injured. However, Harpal, Mahendra and he himself sustained no injury, but the injuries of Dinesh were not visible and Bhurey also got injured and the injury was bleeding. He also admits that the lathi, by use of which he has defended himself, is still with him. He had used the lathi by throwing it.
54. P.W.6, the investigating officer, has stated that accused Natthu and Bachchan were arrested in the same night at 11:00 P.M. and they were medically examined at hospital.
55. Apart from P.W.8, who medically examined the accused persons Nathu and Bachchan, the depositions of D.W.1 and D.W.2 are also on record. D.W.1 Avnish Singh, the Deputy Jailor has affirmed this fact that on 26.7.2002, accused Natthu and Bachchan were admitted in the district jail in connection with the present case. It was mentioned in the under trial register, which he produced before the court that they were medically examined at C.H.C. Bisauli. Likewise, D.W.2 Krishan Murari Singh, Pharmacist, District Jail, Budaun has also affirmed this fact that in the injury register relating to under trial and convicted accused persons, the medical examination of Bachchan Lal and Natthu at C.H.C., Bisauli is mentioned.
56. In the light of the aforesaid evidence, we find that the prosecution comes with a specific case that when the accused persons attacked over the son of the informant, the informant and his witnesses trying to defend themselves also used force over the accused persons with lathi and danda and in that fight, accused persons Natthu and Bachchan sustained injuries. They were medically examined by Government doctor at the instance of the police and P.W.8 states that the injuries sustained by both the accused persons were simple and fresh and it might have been caused on 25.7.2002 at 7:15 P.M. The medical examination of Bachchan Lal and Natthu was conducted on 26.7.2002 at 12:30 P.M. and 12:50 P.M. respectively.
57. Hence, we find that the prosecution is not silent over the issue of injuries sustained by the accused persons Bachchan Lal and Natthu nor this fact has been concealed by the prosecution witnesses, rather it is clearly buttressed by the evidence as to how both the accused persons sustained injuries.
58. The sequence of incident in this case as came into light, is that when accused Kishan Veer taking desi pistol, alongwith the co-accused Natthu and Bachchan having lathi and danda with them, came over the house of the informant, a fire was made by accused Kishan Veer upon the deceased and he fell down. The informant alongwith Bhurey, Mahendra, Har Pal, Dinesh etc. tried to rescue and in the meantime, accused Bachchan also applied lathi over the injured Bhurey and then the informant side, to defend themselves, used lathi over the accused persons and co-accused Natthu and Bachchan sustained injuries. This sequence has been narrated by P.W.1 in his deposition and is well corroborated by the eyewitness / injured P.W.2 Bhurey. In this backdrop, the informant and his fellows had certainly a reasonable apprehension that if they do not defend themselves, they might also be caused injuries by the accused persons, who were having desi pistol, lathi and danda.
59. Section 96 of Indian Penal Code provides specific provision as to "Nothing is an offence which is done in the exercise of the right of private defence."
In the same fashion, Section 97 of Indian Penal Code also provides that "Every person has a right, subject to the restrictions contained in Section 99, to defend - (First) - His own body and the body of any other person, against any offence affecting the human body............"
However, Section 99 of Indian Penal Code is required to be referred here, which provides as under.
"99. - Acts against which there is no right of private defence.--There is no right of private defence against an act, which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act, which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised.--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded."
60. For the sake of better appreciation of the facts of the case, a perusal of Sections 101 and 102 of Indian Penal Code is also desirable. The duo Sections provide as under.
101. When such right extends to causing any harm other than death.--If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.
102. Commencement and continuance of the right of private defence of the body.--The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
61. Hence, we do not find ourselves in agreement with the plea raised by the learned counsel for the appellants that the injuries sustained by the accused persons Natthu and Bachchan remained unexplained and the prosecution has failed to accord any plausible explanation to the injuries sustained by both the accused persons.
62. Now, if we return to the facts and circumstances of the case, we gather from the evidence adduced on record that the informant side started using their right of private defence when one fire was shot over the deceased and the two accused persons were aggressive with lathi and danda in their hands. It is very pertinent to mention that when the son of the informant fell down after receiving the gunshot injury, it was very natural and probable for the informant side to have a reasonable apprehension that the accused might have fired again, which could be fatal for anyone and they had also under reasonable apprehension that by use of lathi and danda, they could further inflict injuries to any person from the informant side and this reasonable apprehension forced the informant and his fellows to defend themselves and in exercise of private defence, they inflicted simple injuries to the accused persons Bachchan and Natthu. It is also to be mentioned that injured Bhurey has also sustained simple injuries in the occurrence and thus we find that exercise of right of private defence was never exceeded by the informant side and they genuinely used their right of private defence in order to defend themselves as soon as a reasonable apprehension of danger to the body arose in their mind.
63. P.W.1 states in clear terms that when accused persons Natthu and Bachchan sustained injuries, all the accused persons fled away. It is nowhere deposed in the ocular version of the case that the accused persons were chased by the informant side or when they were fleeing away, any further attempt was made by the informant side to attack over them. Thus, the informant side, no doubt, inflicted injuries upon the bodies of accused persons Natthu and Bachchan, but the same was done in the exercise of their right of private defence, which was never exceeded and was used in a controlled and required manner and at this juncture, we find a proper and plausible explanation of the injuries inflicted upon the two accused persons and we are also of the considered view that for infliction of the injuries to two accused persons, the informant side is entitled for the protection granted under Section 96 of the Indian Penal Code.
64. F.I.R. of the case is prompt. The occurrence happened on 25.7.2002 at 7:15 P.M. and the F.I.R. was lodged on the same day at 22:25 P.M. about 3 hours after the incident.
65. The F.I.R. and registration G.D. has been proved in evidence as Ex.Ka.-3 & Ka-4 and the written report of the case, which was dictated by the informant Bhoop Singh to Harish Chandra Gupta and subsequently read over to him, has been proved as Ex.Ka.-1 by P.W.1 Bhoop Singh, the informant. Hence the circumstances regarding recording of the F.I.R. are natural and genuine.
66. Hence in this case, the F.I.R. was lodged with utmost promptness and virtually there was no delay in lodging the same, which eliminates the chance of false implication.
67. In Mehraj Singh Vs. State of U.P., (1994) 5 SCC 188, while emphasising the importance of recording a prompt F.I.R., the Hon'ble Supreme Court observed as under-
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story."
In Thulia Kali Vs. State of Tamil Nadu reported in (1972) 3 SCC 393 the Hon'ble Supreme Court observed as under.
"..............first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."
Similarly, in Kishan Singh through LRs Vs. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case, there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."
68. It has been impressed upon by the learned counsel for the appellants that the alleged recovery of the murder weapon from the pointing out of appellant Kishan Veer is totally false and the alleged murder weapon - the desi pistol was never sent for any examination to forensic laboratory and the learned trial court has found that it was not used in the commission of the crime and a benefit has been sought for in favour of the appellants on this ground also.
69. A perusal of the record shows that P.W.5, P.W.9 and P.W.10 are the witnesses of the recovery of murder weapon on the pointing out of accused-appellant Kishan Veer and out of them, P.W.10 is said to be an independent public witness of recovery and P.W.9 has proved the desi pistol as Material Ex.-1 and khokha cartridge as Material Ex.-2.
70. In connection with the Arms Act case, the F.I.R., registration G.D., place of recovery of murder weapon and charge-sheet have been proved in evidence. However, the learned trial court, while dealing with the charge under Section 25 Arms Act, has mentioned in the impugned judgment and order that earlier a report regarding demolition of the case property was produced by the prosecution, but subsequently the case property was produced before the Court and was proved as Material Ex.-1 & 2.
71. We also find that the Investigating Officer of the case P.W.5, in his examination-in-chief, has stated that the case property was demolished on 18.01.2007 and a report thereof has been sent by HCP 165 Tejpal Singh of Sadar Maalkhana. The said report has been filed on record by P.W.5, whose statement was recorded before the court on 21.04.2015. However, P.W.9, who was subsequently produced before the court, has proved the desi pistol and khokha cartridge as Material Ex.-1 & 2 respectively. The learned trial court has emphasized on this situation and correctly opined that this makes the prosecution story highly suspicious so far as the recovery of murder weapon is concerned.
72. The prosecution sanction by the District Magistrate is a sine qua non to launch prosecution under Section 25 Arms Act, but the same was also not proved by the prosecution, which is a prominent dent in the prosecution case under the Arms Act.
73. We concur with the learned trial court that charge under Section 25 Arms Act in the aforesaid circumstances is not proved beyond reasonable doubt and accordingly the trial court has rightly acquitted the appellant Kishan Veer under Section 25 Arms Act.
74. On the basis of aforesaid discussion, analysis and scrutiny of the evidence on record and also keeping in view the relevant laws governing this case, we are of the considered view that the learned trial court has not committed any legal or factual error in convicting the accused-appellant Kishan Veer under Section 302 IPC and accused-appellants Natthu and Bachchan under Section 302/34 IPC. The evidence on record is explicit on the point that the crime was committed by these two appellants in furtherance of common intention of all and hence they are also liable for the offence with the aid of Section 34 IPC as "The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself", as held in Sewa Ram and Another Vs. State of U.P., A.I.R. 2008 SC 682. The conviction of the all the aforesaid three accused-appellants under Section 323/34 also requires no interference. However, accused-appellant Kishan Veer has been rightly acquitted under Section 25 Arms Act. No perversity is found in the impugned judgment and order either on any legal or factual point and we have no option but to concur with the learned trial court and hence the conviction and sentence of accused-appellant Kishan Veer under Section 302 IPC and accused-appellants Natthu and Bachchan under Section 302/34 IPC and conviction and sentence of the all the aforesaid three accused-appellants under Section 323/34 and acquittal of Kishan Veer under 25 Arms Act is hereby affirmed.
75. In the light of foregoing discussions, appeals preferred by accused-appellants Kishan Veer Singh, Natthu Singh and Bachchan Singh lack merit and they are, accordingly, dismissed and impugned judgment and order dated 28.03.2019 is confirmed. Accused-appellant Kishan Veer Singh is in jail, however, accused-appellants Natthu Singh and Bachchan Singh are on bail. Their bail bonds stand cancelled. They be taken into custody forthwith for serving the remaining sentence.
76. Let a copy of this judgment along with trial court record be sent to the Court concerned for necessary compliance. A copy of this judgement be also placed in the connected appeal.
Order date :- 03.01.2023
ss
(N.K. Srivastava,J.) (Pritinker Diwaker,J.)