Allahabad High Court
Rahat Ali vs State Of U.P. on 4 March, 2021
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 15.12.2020 Delivered on 04.03.2021 Court No. - 2 Case :- CRIMINAL APPEAL No. - 2834 of 2008 Appellant :- Rahat Ali Respondent :- State of U.P. Counsel for Appellant :- Vivek Shrotria,Akhter Abbas,Arumendram Shukla,Maneesh Kumar Singh,P K Punhani,S.M. Jafar Counsel for Respondent :- G.A.,Ekramul Hasan Siddiqui along with Case :- CRIMINAL APPEAL No. - 2835 of 2008 Appellant :- Raish Respondent :- State of U.P. Counsel for Appellant :- Vivek Shrotria,Akhter Abbas,Arunendram Shukla,Maneesh Kumar Singh,P K Punhani Counsel for Respondent :- G.A.,Ekramul Hasan Siddiqui Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellants and learned A.G.A. for the State and perused the record.
Instant criminal appeals no. 2834 of 2008 and 2835 of 2008 have been preferred by appellant- Rahat Ali and appellant- Raish, respectively, against the judgment and order dated 06.12.2008 passed by Additional Sessions/Special Judge E.C. Act, Sitapur, in Sessions Trial No. 1485 of 1997 (State of U.P. vs. Rahat Ali and two others), arising out of Crime No. 65 of 1997, under Section 302 I.P.C., Police Station Ataria, District Sitapur, whereby both appellants namely Raish and Rahat Ali were convicted for committing offence under Section 302 I.P.C. and each appellant was accordingly sentenced for Rigorous life imprisonment and fine of Rs. 5000/- in default whereof they are to undergo simple imprisonment of 06 months. However, co-accused Moharram Ali was acquitted of all the charges framed against him.
Both above mentioned appeals are connected and are being decided simultaneously by passing instant judgment.
Shorn of unnecessary details criminal proceedings in the instant case were put in motion by the informant Shahid Ali S/o Shri Wahid Ali, who had presented a written application (Exhibit-ka-1) on 15.05.1997 at 15:00 hours to S.H.O. Ataria, District Sitapur stating therein that on 15.05.1997 at 1:30 pm. when he, after shifting the fodder, was washing his hands at a hand-pump situated near his house, he saw that Rahat Ali of his village and Raish of ''Kasava', on account of enmity because of a judgment passed in a civil litigation, were dragging his grandfather (Bade Dada) towards the south of an orchard. Appellant Raish was carrying a ''favda' (spade) while appellant Rahat Ali was possessing a ''banka' and Moharram Ali was standing at a little distance near the fodder and exhorting/instigating. Appellant Rahat Ali and Raish started assaulting his grandfather Cheddu S/o Badkau with ''Favda' and ''Banka' and till he along with his brother Sajid Ali, father Wahid Ali and others villagers had reached the spot, accused persons had fled towards south. He (informant) placed his grandfather immediately on a ''thela' (carriage) and when he was carrying him to the police station, Cheddu succumbed to the injuries and he had brought his dead body to the police station.
On the basis of above written application, F.I.R. (Exhibit-ka-8) was lodged at Case Crime No. 65 of 1997, under Section 302 I.P.C. against Raish, Rahat Ali and Moharram Ali. Substance of this information was also entered in G.D. No. 30 of 15.05.1997 (Exhibit-ka-9) and the investigation of the case was entrusted to Shri Imtiyaz Ahmad, the then Station House Officer of Police Station Ataria. Inquest (Exhibit-ka-12) of the dead body of the deceased Cheddu was prepared at Police Station Ataria by Sub Inspector Ghanshyam Bajpai and he also prepared necessary papers i.e. letter R.I. (Exhibit-ka-13), letter C.M.O. (Exhibit-ka-14), Form No. 13 (Exhibit-ka-15), Photo lash (Exhibit-ka-16), Sample Seal (Exhibit-ka-17), for the purpose of postmortem of the deceased .
The postmortem on the dead body of the deceased Cheddu was conducted on 16.05.1997 at 3:00 pm. by PW-3 Dr. A.K. Agrawal at District Hospital Sitapur, who found the dead body of the deceased as thinly built, ''rigor mortis' had passed from the upper limbs and was present in lower limbs. Mouth of the deceased was half open and eyes were closed.
Following ante-mortem injuries were found on the person of the deceased at the time of the postmortem:-
(i) Incised wound 14 cm. x 1.5 cm. x bone deep on back of neck horizontally placed at level of C-7 Vertebra.
(ii) Abrasion contusion in an area of 30 cm. x 08 cm. on right upper hand, right shoulder and underneath right humerus bone was found broken.
(iii) Contusions in an area of 30 cm. x 20 cm. on whole of right side of chest on back and lateral aspect, underneath ribs from 02 to 12 were fractured on posterior side.
(iv) Incised wound 08 cm. x 01 cm. x muscle deep on right thigh, 01 cm. above right knee.
(v) Incised wound 07 cm. x 01 cm. x muscle deep on lower part of left thigh, 02 cm. above the left knee.
(vi) Contusion 06 cm. x 03 cm. on lower part of left leg, 03 cm. above the left knee.
On internal examination Right ribs 02 to 12 and right humerus bone were found fractured. Right lung and right pleura were also found ruptured. Both side posterior neck vessels were also found cut, stomach was found empty. However, in the small intestine, gases and in large intestine, gases and faecal matter was found. Urinary bladder was found empty and according to the opinion of the doctor, death of the deceased had been caused due to ''shock and hemorrhage', as a result of above ante mortem injuries.
On 15.05.1997 under the instructions of the S.H.O. (Investigating Officer) and on the pointing of the informant, PW-5 Sub Inspector Ghanshyam Bajpai arrived at the spot and after inspecting the same prepared a Site Map (Exhibit-ka-18). He also collected blood stained and simple soil from the spot and prepared a memo of the same (Exhibit-ka-20). On 16.05.1997 accused Moharram Ali was arrested and on his pointing one ''Favda' was recovered from his house and a memo (Exhibit-ka-19) and Site Map (Exhibit-ka-21) of the place from where the ''Favda' was recovered was also prepared. The investigating officer after recording the statement of the eye witnesses and other witnesses found sufficient material/evidence against accused persons and submitted the charge-sheet (Exhibit-ka-22) against all the accused persons under Section 302 I.P.C.
On the case being committed to the Sessions Court charges under Section 302 I.P.C. were framed against the instant appellants, however, they denied the charges and claimed trial.
Prosecution in order to bring home the charges framed against the appellants testified following prosecution witnesses:-
P.W.-1/Shahid Ali (Informant/eye witness), P.W.-2/Sajid Ali (Eye witness), P.W.-3/Dr. A.K. Agrawal (Doctor, who conducted the postmortem of the deceased), P.W.-4/Constable Deshraj Yadav (Scribe of Chik F.I.R. and G.D. Qayami), P.W.-5/Sub Inspector Ghanshyam Bajpai, who prepared the inquest, site plans and other necessary papers for postmortem. P.W.-6/Sub Inspector Imtiyaz Ahmad (Investigating Officer).
Prosecution has also produced following documentary evidence:-
(i) ''Tehrir' F.I.R. (Exhibit-ka-1), (ii) Sale deed executed by deceased Cheddu (Exhibit-ka-2), (iii) Registered will (Exhibit-ka-3), (iv) Order of Civil Court (Exhibit-ka-4), (v) Affidavit of deceased Cheddu (Exhibit-ka-5), (vi) Certified copy of plaint (Exhibit-ka-6), (vii) Copy of statement of deceased Cheddu (Exhibit-ka-7), (viii) Postmortem report (Exhibit-ka-8), (ix) Chik F.I.R. (Exhibit-ka-9), (x) G.D. Qayami (Exhibit-ka-10), (xi) Copy of F.I.R. (Exhibit-ka-11), (xii) Inquest Report (Exhibit-ka-12), (xiii) Letter R.I. (Exhibit-ka-13), (xiv) Letter C.M.O. (Exhibit-ka-14), (xv) Challan Lash (Exhibit-ka-15), (xvi) Photo Lash (Exhibit-ka-16), (xvii) Sample Seal (Exhibit-ka-17), (xviii) Site Map (Exhibit-ka-18), (xix) Recovery memo of ''favda' (Exhibit-ka-19), (xx) Recovery memo of blood stained and simple soil (Exhibit-ka-20), (xxi) Site Map of the recovery of ''favda' (Exhibit-ka-21), (xxii) Charge-sheet (Exhibit-ka-22).
Forensic report dated 17.07.1997 was also placed on record pertaining to the ''dhoti, baniyan', blood stained and simple soil as well as regarding the ''Fawda'. Human blood was found on ''dhoti, baniyan and blood stained soil', however on ''Fawda' disintegrated blood was found and the origin of the same could not be determined.
After closure of the evidence of the prosecution, statements of the appellants/accused persons were recorded under Section 313 of the Cr.P.C., wherein they denied the occurrence as well as the evidence of the eye witnesses. The recovery of ''blood stained favda' was also denied and it was stated that they had been falsely implicated on the basis of enmity. However, despite being provided an opportunity to produce evidence in their defense appellants neither tendered any written statement nor produced any evidence in their defence.
The trial court after appreciating the evidence available on record found that the prosecution has successfully proved its case beyond reasonable doubt and thereby convicted the appellants for commission of the offence under Section 302 I.P.C. and sentenced them in the manner mentioned in the 2nd Paragraph of this judgment.
Learned counsel for the appellants while referring to the judgment and order of the trial court submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has ignored the material contradictions, omissions occurring in the testimony of the eye witnesses and has convicted the appellants in complete disregard to the evidence available on record .
It is further submitted that having regard to the statements of the eye witnesses, the place of occurrence is disputed as the place which has been stated in the F.I.R. and the place of which the site plan has been prepared by the investigating officer at the pointing of the informant are different and in the site plan it is not mentioned as to from which place P.W.-1/Shahid Ali and P.W.-2/Sajid Ali had seen the occurrence.
It is also submitted that the ocular evidence and medical evidence are contradictory. In the F.I.R., time of occurrence is shown as 1:30 pm. while the doctor, who conducted the postmortem has deposed that time of death was over 36 hours before the time of postmortem and by this time the death of the deceased appears to have occurred in the morning of 15th, which is also evident in the background of the fact that stomach of the deceased was also found empty and also for the reason that faecal matter has been found in the large intestine, which suggest that the deceased had not attended the call of nature, therefore due to this dent the case of the prosecution has become extremely doubtful.
It is also vehemently submitted that the case of the prosecution is also doubtful on the score that the prosecution case is of assault by the appellants with ''banka and spade' and these are sharp edged weapons but deceased had sustained several multiple contusions and the same, as per the doctor's opinion, could not be caused by reverse side of spade and these injuries could only be caused by hard and blunt object like ''lathi'. Therefore, there is material contradiction in the ocular version of the incident and the medical evidence.
It is further submitted that the F.I.R. of the instant case has been lodged ''ante-timed' for the reason that Mohd. Islam, who was an inquest witness had came from Lucknow after getting an information of the death of deceased and had reached the village at about 3:10 pm., when the inquest was prepared. However, P.W.-1/Shahid Ali and P.W.-2/Sajid Ali had stated that it was P.W.-2/Sajid Ali , who had gone to Lucknow at the time when they were at Police Station Ataria with the body of the deceased and it could only be possible when the information of the death of the deceased would have been sent at least 4 to 5 hours earlier. Therefore the case of the prosecution is also doubtful on this score.
It is also submitted that both eye witnesses are interested witnesses and their testimony could not be believed in the background of the fact that incident is said to have occurred in broad day-light and if the incident had occurred in the manner stated by the prosecution witnesses there would have been other independent witnesses of the crime, however, no such independent witness has been produced by the prosecution.
Learned counsel for the appellants has relied on following case laws:-
(i) Deepak Kumar Vs. Ravi Virmani and another 2002 SCC (Cri) 470
(ii) Shailendra Kumar Vs. State of Bihar and others 2002 SCC (Cri) 230
(iii) Surendra Pratap Chauhan Vs. Ram Naik and others 2002 SCC (Cri) 443
(iv) Joginder Singh Vs. State of Haryana (2014) 3 SCC (Cri) 366
(v) Narendra Singh and another Vs. State of Madhya Pradesh 2004 SCC (Cri) 1893
(vi) State of Haryana Vs. Ram Singh 2002 SCC (Cri) 350
(vii) Hallu and others Vs. State of Madhya Pradesh 1974 SCC (Cri) 462
(viii) Mahavir Singh Vs. State of Madhya Pradesh (2017) 1 SCC (Cri) 45
(ix) Ramesh and others Vs. State of U.P. [2018 JIC (Supp) 777 (All)] Allahabad High Court
(x) Jasbir Vs. State of U.P. [2018 (1) JIC 762 (All)] Allahabad High Court
(xi) Krishnegowda & others Vs. State of Karnataka [2017 JIC (Supp) 427 (SC)].
(xii) Raghunandan Vs. State of U.P. 1974 Supreme Court Cases (Cri) 355.
Learned A.G.A. on the other hand submits that the trial court has not committed any error or illegality in appreciating the evidence available on record. Appellants have committed the offence in broad day-light and the informant as well as P.W.-2/Sajid Ali are the natural eye witnesses of the crime and the injuries, which have been found on the body of the deceased corresponds with the weapons assigned to the appellants and one of the weapon namely ''spade' has also been recovered from the house of Moharram Ali, who is the father of appellant Rahees and, therefore, there is no doubt that the crime has been committed by the appellants.
It is also submitted that the appellants were also having motive as civil litigation was pending between the parties and deceased Cheddu had appeared before the Civil Court and have denied the fact that he ever authorized appellant Rahat Ali or any other person to file suit as his next friend and on this basis the suit was dismissed and also the nature of the evidence of the prosecution witnesses is such that no doubt could be raised about the presence of the prosecution witnesses at the seen of the crime and, therefore, the appellants could not escape the liability and the appeals preferred by them are liable to be dismissed.
A brief survey of the prosecution witnesses produced before the trial court would reveal that P.W.-1/Shahid Ali is the informant and eye witness of the incident, who had deposed about the manner in which the incident had happened as also the enmity between the parties and has also described the place of incident. He has further stated to have placed the corpus of the deceased on a ''carriage' and had taken the same to the police station.
P.W.-2/Sajid Ali is another eye witness, who had claimed to be present on the spot and according to him, the whole incident had happened in front of him. He had categorically stated that Raish was carrying a ''favda' while Rahat Ali was possessing a ''banka' and when they (he, informant Shahid Ali and father of the informant, Wahid Ali) started moving towards the appellants, they started assaulting the deceased with ''banka and favda'.
P.W.-3/Dr. A.K. Agrawal, who has conducted the postmortem on the body of the deceased Cheddu has categorically stated that the injuries found on the dead body of the deceased were sufficient in the ordinary course of nature to cause his death and the death of the deceased is possible on 15.05.1997 after 1:30 pm. and before 3:00 pm. It is also stated by him that injury no.1, 4 and 5 could be caused by ''banka and favda' and the other injuries could be caused by the back side of ''favda and danda'.
P.W.-4/Constable Deshraj Yadav is the person who had prepared the Chik F.I.R. (Exhibit-ka-9) and had also made an entry in the General Diary. He has proved these documents to be in his handwriting.
P.W.-5/Ghanshyam Bajpai is the Sub Inspector who was posted at the Police Station Ataria at the time of incident and had prepared the inquest and necessary papers and memos for the purpose of postmortem and also the site plans.
P.W.-6/Imtiyaz Ali is the investigating officer, who had filed the charge-sheet after investigating the allegations of the First Information Report.
So far as the submission of learned counsel for the appellants that the testimony of the prosecution eye witnesses could not be believed in the background of the fact that they are interested witnesses, being related to the deceased, is concerned, the same in our considered opinion is not having any substance. The testimony of any witness could not be rejected outrightly on the score that he or she is related to the deceased. The law in this regard is well-settled that in stead of insisting on independent witnesses, the duty of the court is to look for the reliability of the witnesses.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 Hon'ble Supreme Court held as under :-
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
In Sucha Singh and Ors. vs. State of Punjab, MANU/SC/0527/2003 Hon'ble Supreme Court has observed as follows :-
"15. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely, Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
16. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.
17. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness. should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. It the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan MANU/SC/0036/1951 : 1952CriLJ547 . we find, however, that it unfortunately still persists, it not in the judgements of the Courts, at any rate in the arguments of counsel."
18. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p, 209-210 para 14):
"but it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses .......
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
20. As observed by this Court in State of Rajasthan v. Teja Ram and Ors. MANU/SC/0189/1999 : 1999CriLJ2588 the over-insistence on witnesses having no relating with the victims often results in criminal justice going away. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011 it was held as under :-
"14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).
In view of the law laid hereinabove, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses."
It is therefore settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with the deceased is not a factor that affects credibility of a witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyze the evidence to find out, whether the evidence produced by these witnesses is cogent, credible and trustworthy.
Therefore, having regard to the above settled legal position suffice is to say that even if a witness appears to be interested, his testimony could not be rejected only on that basis and the duty of the court is to analyze the testimony of such witness with care and caution and, therefore, the testimony of P.W.-1/Shahid Ali and P.W.-2/Sajid Ali, who are claiming themselves to be the eye witnesses of the crime would be appreciated with care and caution.
The next submission of learned counsel for the appellants is with regard to the fact that the F.I.R. in this case is ante-timed and the ocular testimony and medical evidence is contradictory on the score that (I) the time of death of the deceased is not corroborating with the version of the prosecution eye witnesses, (II) absence of ''rigor mortis' at the time of postmortem in the body of the deceased, (III) injuries sustained by the deceased could not be caused by ''favda or banka' (IV) presence of faecal matter in the large intestine of the deceased.
Perusal of the record in the background of the aforesaid submissions of learned counsel for the appellants would reveal that in the F.I.R., the time of incident has been stated as 1:30 pm.. P.W.-1/Shahid Ali in his examination-in-chief has also stated the time of incident as 1:30 pm. It is also stated by him that after the incident he placed the deceased on a ''thela' and rushed towards the police station and the deceased had died, while on his way to the police station. Perusal of Chik F.I.R. (Exhibit-ka-9) and G.D. Qayami (Exhibit-ka-10) would reveal that the same has been proved by P.W.-4/Constable Deshraj Yadav, to be in his handwriting. The Chik F.I.R. and G.D. Qayami were prepared by this witness at 15:05 hours (3:05 pm.). The distance of scene of crime from the Police Station Ataria is shown as 07 km. in the Chik F.I.R. and neither in the trial and not before this court any doubt has been expressed by appellants pertaining to this distance.In our considered view to cover a distance of 7 km. time of 1:30 hours could easily be consumed while taking the body of the deceased on a manual ''thela'. Therefore, F.I.R. in the instant case appears to have been lodged within reasonable time and is prompt.
Perusal of Inquest Report (Exhibit-ka-12) would also reveal that the time of lodging of F.I.R. has also been recorded therein as 15:05 hours and starting time of inquest is shown as 15:10 hours (3:10 pm.), which also appears justified, as the dead body of the deceased was present in the premises of police station Ataria. In the inquest report, manner of assault has also been shown i.e.from ''favda and banka' and crime no. 65 of 1997 and penal Section 302 I.P.C. has also been mentioned. This clearly demonstrates that at the time of inquest the F.I.R. had come into existence. The relevant papers prepared for the purpose of postmortem would also reveal that these papers have been prepared on 15.05.1997. P.W.-5/Sub Inspector Ghanshyam Bajpai in his cross-examination while answering a query of the defence has stated that the dead body of the deceased was sent for postmortem on 4:30 pm on 15.05.1997. However, he could not remember as to by which conveyance the dead body was sent. He goes on to state that the District Headquarter is situated about 50 km. away from the Police Station Ataria. In view of above evidence, it is established beyond all reasonable doubt that the F.I.R. in this case was not lodged ante-timed and any other significant fact or circumantance has not been brought in our knowledge, which may, even prima facie, demonstrate that the F.I.R. in this case is lodged ante-timed.
At this juncture, it has also been argued on behalf of the appellants that the F.I.R. appears ante-timed also because one of the ''punch witnesses' of inquest report namely Mohd. Islam is a resident of Lucknow and it has come in the evidence of P.W.-2/Sajid Ali that he had gone to Lucknow to inform about the death of the deceased and on his information, his other relatives including Islam had come and it was not possible for Mohd. Islam to have arrived at 3:05 pm. and it shows that the inquest report has not been prepared at the time stated by the prosecution.
Perusal of the record in the background of the above submission would reveal that no direct question on this point has been asked by the defence from P.W.2/Sajid Ali and when an opportunity to explain has not been provided to a witness pertaining to certain discrepancy occurring in his statement, the same could not be used to discredit his testimony. Moreover, the inquest had started at 15:10 pm. and the process of preparation of the inquest report was over at 4:30 pm. and it has come in the evidence of P.W.-1/Shahid Ali that after lodging of F.I.R., he had gone to inform his relatives and it was on his return that the dead body of the deceased was sent for postmortem. Moreover, the appellants have not summoned Mohd. Islam to know how his name had figured in the inquest report. It is also to be noticed that P.W.-2/Sajid Ali at the time of his statement was only 18 years old and it is quite possible that he under the duress of cross-examination has answered some incorrect facts. Having regard to the evidence which we have discussed herein-before, it is crystal clear that the F.I.R. has not been lodged ante-timed. One more fact which will fortify that the F.I.R. is not lodged ante-timed is the G.D. entry of Police Station Ataria, Sitapur, which has been placed on record as Exhibit-ka-11, which shows that special report pertaining to the instant F.I.R. was sent to the District Magistrate, Superintendent of Police, Additional S.P., etc. on 15.05.1997 at 15:15 hours (3:15 pm.). In our considered opinion, the F.I.R. was not lodged ante-timed.
Perusal of record would also reveal that the postmortem on the dead body of the deceased has been conducted on 16.05.1997 at 3:00 pm. and as per the version of the prosecution, deceased had died on 15.05.1997 between 1:30 to 3:05 pm.. This shows that the postmortem on the dead body of the deceased had taken place about 24 hours after the death of the deceased. In the postmortem, approximate time of death of the deceased has also been shown as about one day before the postmortem, which sufficiently corroborates the time of death of the deceased, as described by the prosecution eye witnesses i.e. after 1:30 pm. but before 3.05 pm., on 15.05.1997.
Coming to the submission of learned counsel for appellants with regard to non-presence of ''rigor mortis' in the dead body of deceased, it is pertinent to mention here that the presence of ''rigor mortis' and duration of its passage from the dead body depends on many factors including the built of the deceased and the season or weather. In postmortem report, it has been stated that "rigor mortis passed upper limb, present in lower limb". P.W.-3/Dr. A.K. Agrawal in his cross-examination has stated that according to the Modi's book of medical jurisprudence, ''rigor mortis' starts passing after 18 hours of death and after 36 hours, the same passes through both the limbs (upper and lower). By this statement of the doctor, the time of death of deceased also comes about 24 to 26 hours before the postmortem and the same fully corroborates the ocular version of the incident.
It is also evident that it has been specifically mentioned in the postmortem report that ''rigor mortis' had not passed from the lower limb of the deceased and in view of this, the statement of P.W.-3/Dr. A.K. Agrawal that ''rigor mortis' had passed through both limbs of the deceased is of no significance, as the same is against his finding recorded in the postmortem report (Exhibit-ka-18). P.W.-3/Dr. A.K. Agrawal appears to be in some kind of illusion that ''rigor mortis' in the case of the deceased had passed through both the limbs while in the postmortem report, it has been categorically recorded by him that the same was present in the lower limb. It is also worthwhile to record that character of the evidence of a doctor, who has conducted the postmortem is only of an opinion of an expert and is relevant under Section 45 of the Indian Evidence Act, however, the same is not conclusive. Moreover, the opinion of an expert given either on the basis of incorrect facts or on hypothetical situations is of no significance.
In Ramkant Rai v. Madan Rai and Ors. as reported inMANU/SC/0780/2003 : 2004CriLJ36, the Apex Court has observed in Para No. 22 as under:
"22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence Including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance In the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
Now coming to submission of Ld. Counsel for appellants pertaining to the empty stomach of deceased at the time of incident and presence of faecal matter in large intestine of the deceased, it is worth stating that deceased was aged about 85-90 years and it is not expected from a person of his age to have taken a very heavy breakfast. Moreover, in villages, people awake quite early and if, in the absence of any contrary evidence, it is presumed that deceased, being a villager, had taken light breakfast in between 06-08 am., the same might have digested within next 05 to 06 hours and as the incident had happened at about 1:30 pm., non-presence of any material in the stomach of the deceased is of no consequence.
Likewise presence of faecal matters in the large intestine alone is not sufficient to raise a presumption that incident had happened in the early hours of the day for the reason that the presence of faecal matter in large intestine alone is not a decisive or conclusive factor to draw an inference that the deceased had not eased himself. Presence of faecal matter in the large intestine, even after some one has eased, is not rare and it depends on so many factors including the digesting system of the person concerned, his age and also as to whether he is suffering from constipation, as well as also on the quality and time of food taken by him. Many healthy persons are usually seen going more than once, in the morning to ease themselves.
Hon'ble Supreme Court in Ram Praksh and others vs. The State of Uttar Pradesh reported in Manu/SC/0062/1968, while dealing with a similar argument held in pargraph 5 of the report as under:-
"5. On the second point, it is urged, that according to the medical evidence the death might have been caused on the night intervening 18th and 19th July, 1966, Dr. S. P. Gulati P.W. 4, who had performed the postmortem examination stated that faecal matter and gas were present in the small and large intestines of Ganeshi Lal; owing to this reason he thought it probable that the deceased had not eased himself till the time of receiving the injuries. Mr. Anthony says that it is well-known that a person with normal habits particularly in villages empties his bowels early in the morning. The presence of the faecal matter in the small and large intestines showed that Ganeshi Lal must have died within some hours of his taking food on the previous night namely by the midnight of 18th and 19th July, 1966. This, according to Mr. Anthony, established that the prosecution case about the time of death cannot be accepted. Reliance has been placed on the statement in Modi's Medical Jurisprudence and Toxicology, 10th Ed., p. 151, that one can give an opinion that the death occurred some time after the deceased go up in the morning if the large intestines was found empty of faecal matter. It is submitted that conversely it can well be said that if the large intestine is found full of faecal matter it should be inferred that death did not take place in the morning. The learned trial judge discussed this matter in his judgment and disposed it of by saying that there was no proof that before the occurrence Ganeshi Lal had eased himself and that even if he had gone for that purpose there was no presumption that his bowels had moved. According to him, the question of time had to be decided on the basis of direct and other evidence on the record. We concur in that view and find it difficult to accept that the question of time should be decided only by taking into consideration the fact that faecal matter was found in the intestines of the deceased. This may be a factor which might have to be considered along with the other evidence but this fact alone cannot be decisive."
Keeping in view the above factual and legal position, presence of faecal matter in the large intestine of the deceased alone could not be conclusive or determinative circumstance to disbelieve the prosecution story.
Now we deal with the next submission of learned counsel for the appellants pertaining to the alleged abnormal conduct of P.W.-1/Shahid Ali and P.W.-2/Sajid Ali in not attempting to save the deceased from the appellants.
Perusal of the record in the light of the above submission of learned counsel for the appellants would show that it is stated in the F.I.R. as well as in the statement of the eye witnesses that the deceased was dragged by the appellants towards south-west of the orchard and on an alarm raised by P.W.-1/Shahid Ali, P.W.-2/Sajid Ali and other persons had assembled and when they started moving towards the appellants, appellants fled away towards south after assaulting the deceased with ''banka and favda'. The evidence of these prosecution witnesses, which is otherwise reliable would show that firstly, there was no opportunity for these witnesses to rescue the deceased from the clutches of the appellants and secondly, the appellants were armed with ''banka and favda'. It is also to be kept in mind that witnesses of the serious crime do not always react in a normal manner, nor do they react uniformly. They react in their own way.
Hon'ble Supreme Court in Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 The Supreme Court held as under:-
"The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
In Rana Pratap and Ors. v. State of Haryana 1988 (3) S.C.C. 327. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed; (at p. 330).
Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
11. These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
In State of Uttar Pradesh vs. Devendra Singh, MANU/SC/0343/2004 while discussing the issue of behavior of witness commented as under :-
"Human behavior varies from person to person. Different people behave and react differently in different situations. Human behavior depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Some may remain tight-lipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. (See Rana Partap and Ors. v. State of Haryana MANU/SC/0137/1983 : 1983CriLJ1272 )."
In view of above facts and legal position, we are of the considered view that at first there was no opportunity available to the prosecution eye witnesses to intervene and secondly, simply on the basis of that the witnesses have not reacted in the manner suggested by the defence, their testimony could not be held unreliable.
So far as the next submission of learned counsel for the appellants with regard to the fact that the nature of injuries found on the person of the deceased are contrary to the version of the eye witnesses and, therefore, the oral evidence and medical evidence is contradictory, is concerned, it is evident that the deceased had received 03 incised wounds, one on the back of neck and one on the right thigh and another on the lower part of right thigh, while abraisons and contusions have been sustained on the right upper limb, right shoulder where under right humerus bone was found broken and also on the back at lateral aspect beneath which right side 2nd to 12 ribs were found fractured. Certainly injury no. 01 could be caused by a heavy cutting weapon like ''favda' and injury no. 03 may also be caused by the blunt part of ''favda' or even by the use of ''fists and kicks', and injury no.4 and 5 may be caused by the use of ''banka'. Having considered the testimony of two eye witnesses namely P.W.-1/Shahid Ali and P.W.-2/Sajid Ali as well as the postmortem report prepared by P.W.-3/Dr. A.K. Agrawal, we are not in agreement with the answers given by P.W.-3 in his cross-examination to the tune that injury no.2 and 3 are not possible by using the blunt part of the ''favda' especially when he had, in his examination-in-chief, categorically stated that injury no.2 and 3 found on the person of the deceased may be caused by the blunt side of ''favda' or by the ''stick' attached to it.
Hon'ble Supreme Court in Thaman Kumar Vs. Union Territory of Chandigarh reported in (2003) 6 SCC 380 in Para 16 has held as under:-
"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."
In view of above, we are of considered opinion that injuries found on the person of deceased correspond to the weapons of assault shown in the hands of appellants at the time of incident.
The next submission of learned counsel for the appellants is that there are contradictions in the evidence tendered by the eye witnesses with regard to the place of occurrence and in the site plan, which has been prepared by the investigating officer on the pointing of the informant and, therefore, the discrepancy with regard to the place of occurrence has rendered the incident as doubtful and there are material contradictions in the evidence of the prosecution witnesses and therefore their evidence is not reliable.
There can not be any doubt in the proposition that while appreciating the evidence available on record the court is required to exercise due diligence though the standard of such exercise would be of a prudent person. The Court must bear in mind the facts and circumstances in which crime has been committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. The quest must be to find out the truth from the evidence on record. At the same time, it must remain in the mind that there cannot be a prosecution case with a cast iron perfection. Nevertheless, obligation lies on the court to analyze and assess the evidence on record with reference to trustworthiness and truthfulness of the prosecution winesses by a process of sincere judicial scrutiny adopting the yard stick of settled principles of appreciation of the evidence. What is to be insisted upon is proof beyond reasonable doubt. The contradictions, infirmities which might have been pointed out in prosecution case, must be assessed at the yardstick of probability. Unless, infirmities and contradictions are of such a nature so as to undermine the root of the evidence and which goes to the core of the prosecution case, over-emphasis may not be applied to minor contradictions and infirmities. To judge the credibility of the evidence of a witness, one has to look into his entire evidence, and if any minor discrepancies are found in the ocular account of the witnesses not affecting the root of the case, the witness may not be labeled as not credit worthy. Even honest and truthful witnesses may sometimes differ in some details, which may not be material or related to the core of the prosecution case and their evidence, therefore, must be appreciated keeping in mind the power of observation, retention and reproduction as well as the natural human conduct and the occurrence of incident in ordinary course of nature.
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 held as under :-
"As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand."
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. Reported in MANU/SC/0897/2013 held as under:-
"In State of U.P. v. Naresh MANU/SC/0228/2011 : (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. MANU/SC/0053/1959 : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police MANU/SC/0761/2012 : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) MANU/SC/0333/2013 : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 has held In para-5 that as under:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
We have perused the evidence of prosecution witnesses in the background of the submissions of learned counsel for the appellants in view the above well settled legal position and find that in the First Information Report lodged by the informant, P.W.-1/Shahid Ali, it has been specifically stated that at the time of incident the deceased was being dragged by the appellants towards south of the orchard and Mohrram Ali was standing near fodder. It is also stated therein that after commission of the crime, appellants had also fled towards south. P.W.-1/Shahid Ali in his evidence has stated that after shifting the fodder he was washing his hands on the hand-pump, when he saw that appellants were dragging the deceased towards the orchard and Moharram Ali was standing near the fodder and was giving exhortation. At Page N. 09 of his cross-examination, he had stated that accused persons had assaulted the deceased at the eastern-southern corner of the orchard and towards western corner of the field of ''Bharose Lodh'. It is also stated by him that at the same place, he had shown blood stains to the investigating officer. P.W.-2/Sajid Ali at Page No. 04 of his cross-examination he has described topography of his house and also of the spot and surrounding places. At Page No. 10 of his cross-examination, he has stated that at first he saw that appellants were dragging the deceased towards south of the orchard and deceased had fallen on the ''chakroad', situated towards south of the orchard. P.W.-5/S.I. Ghanshyam Bajpai in his examination-in-chief has proved the site map (Exhibit-ka-18) by stating that he prepared this site map at the pointing of the informant (P.W.-1/Shahid Ali) under the directions of the investigating officer and the same is in his hand writing and under the signatures of investigating officer Imtiyaz Ahmad. It is also stated by this witness that on 15.05.1997 he had also collected the simple soil as well as the blood stained soil from the spot under the direction of the investigating officer and has also prepared a memo of the same (Exhibit-ka-20). The containers along with the soil were also presented before the trial court. In his cross-examination, he had stated that he had not shown the place in the site map from where the witnesses had seen the incident and he did not find witness Sajid at the seen of the crime. Perusal of the testimony of this witness would reveal that much cross-examination has not been done by the appellants on the point of place of incident with this witness. P.W.-6/Sub Inspector Imtiyaz Ahmad (Investigating Officer) has also corroborated the evidence of P.W.-5/Ghanshyam Bajpai when he stated that on the pointing of the informant the crime spot was visited by him and the site map of the same was prepared by S.I. Ghanshyam Bajpai (P.W.-5) under his directions and the blood stained and simple soil were also collected. Perusal of the evidence of this witness would also reveal that this witness has been cross-examined on the point of presence of ''kanda' at the spot. Perusal of site map (Exhibit-ka-18), which has been prepared by P.W.-5/Ghanshyam Bajpai under the directions of P.W.-6/Imtiyaz Ahmad also reveals that it has been shown in this map that the deceased had come at point-D from point-C and the appellants had come from point-E and they had dragged the deceased from point-D to the point- FX, where they had assaulted the deceased with Fawda and Banka. The point- FX, in the site map is shown to have existed towards south-east of the orchard and towards west of the agricultural field of ''Bharose Lodh'. The above evidence clearly demonstrates that there is no contradiction either amongst the eye witnesses or in the version of the eye witnesses vis a vis the site plan prepared by S.I. Ghanshyam Bajpai with regard to the place of incident, rather the site plan prepared by P.W.-5/S.I. Ghanshyam Bajpai, in material terms, corroborates the version of the prosecution eye witnesses. The spot where the assault had been given to the deceased is established to be situated towards south-east of the orchard and towards west of the agricultural field of ''Bharose Lodh'. The deceased, according to the version of the prosecution eye witnesses, was dragged from point-D, which is situated towards south-west of the orchard and, therefore, the place of occurrence has been clearly identified by the prosecution eye witnesses. Moreover, the blood stained and simple soil were also collected from the same spot and were also sent for forensic examination. Forensic examination report dated 12.07.1997 is also available on record which, in view of Section 293 of the Cr.P.C., is admissible in evidence without any formal proof. Perusal of this report would clearly reveal that in the blood stained soil collected by P.W.-5/Ghanshyam Bajpai under the supervision of P.W.-6/Imtiyaz Ahmad, human blood had been found.
In view of above, in our considered opinion, there is no substance in the submission of learned counsel for the appellants that there are contradictions with regard to the place of occurrence in the testimony of the eye witnesses vis-a-vis the site plan prepared by the investigating officer. There are minor contradictions occurring in the testimony of prosecution witnesses with regard to the presence of ''kandas' at the spot where the deceased was initially standing but minor discrepancy with regard to the fact that whether the ''kandas' were scattered at the place-C shown in the site map is of no significance in the light of the fact that the place of assault has been amply fixed by the evidence of prosecution eye witnesses as well as by the formal witnesses.
So far as motive for committing the crime is concerned perusal of the testimony of P.W.-1/Shahid Ali and P.W.-2/Sajid Ali and of documentary evidence brought on record by the prosecution, would reveal that the deceased Cheddu had sold certain land to the father of the informant and also executed a will in his favour of remaining land. Both the original sale deed as well as the original will has been broght on record by the prosecution. The record would also reveal that appellant Rahat Ali had also filed a civil suit for the cancellation of this sale deed and registered will on behalf of the deceased Cheddu acting as his next friend. However, the deceased Cheddu had appeared in that case before the Civil Judge, Junior Division and had deposed to the tune that he had not authorized appellant Rahat Ali to institute any suit on his behalf and also that he had sold his land in favour of Shahid Ali and also had executed ''will' of the remaining agricultural land whereon the civil suit was dismissed. The above established facts would reveal that as the deceased Cheddu had appeared before the court of Civil Judge, Junior Divison Mahmoodabad and on that basis the civil suit, which was filed on behalf of the deceased by appellant Rahat Ali, acting as his next friend, was dismissed, the appellant Rahat Ali might be annoyed from the deceased and that may be sufficient motive for commission of the murder. But apart from the aforesaid motive, the instant incident had been seen by the eye witnesses and, therefore, in the cases where the version of the prosecution is based on the direct evidence of the eye witnesses, motive looses its significance and the case must be decided on the quality of evidence of eye witnesses.
We have also very carefully perused the law reports relied on by learned counsel for the appellants and we are in agreement with the ratio laid down in those cases but due to difference in factual matrix appellants could not claim any benefit of the same.
The above discussions would clearly reveal that on the fateful day at about 1.30 pm. P.W.-1/Shahid Ali was washing his hands, after shifting the fodder, at a hand-pump and he saw the appellants dragging the deceased towards south of the orchard and thereafter he raised an alarm, on which P.W.-2/Sajid Ali and other persons had assembled and in their sight appellants had assaulted the deceased by ''banka and favda' on a ''chak road' situated towards south-east of the orchard. Injuries sustained by the deceased clearly demonstrate that the same could be caused by ''favda and banka' and the other injuries in the nature of contusions could also be caused by the blunt side of the ''spade'. In the postmortem report 2nd to 12th ribs of the deceased were found broken beneath the contusions and this also corroborates the version of the prosecution to the effect that deceased could have sustained abrasions and contusions beneath which ribs have been found fractured, by use of blunt side of ''favda', which is a heavy weapon and in normal course, having regard to the thin build of the deceased. fracture of ribs and rupture of lungs of the deceased was a natural consequence. There is no material contradiction in the testimony of the two eye witnesses namely P.W.-1/Shahid Ali and P.W.-2/Sajid Ali. They have corroborated the core of the prosecution case with their truthful, reliable and trustworthy evidence.
On the over all appraisal of the evidence of the prosecution we do not see any reason to reject the testimony of such truthful witnesses whose presence at the spot is established beyond reasonable doubt. The injuries sustained by the deceased could be received by the weapons used by the appellants and one of the weapon namely ''fawda' has also been recovered from the house of appellant Raish and as per forensic report blood has also been found on it. The spot where the crime was committed has been fixed and in our considered opinion, the prosecution has established its case beyond all reasonable doubts against the appellants and thus we do not have any reason to doubt the findings arrived at by the trial court.
Having regard to our findings as above, we do not find any merit in these appeals and in our considered opinion the same are liable to be dismissed.
The appeals filed by appellants Rahat Ali and Raish against the judgment and order dated 06.12.2008 passed by Additional Sessions/Special Judge E.C. Act, Sitapur, in Sessions Trial No. 1485 of 1997 (State of U.P. vs. Rahat Ali and two others), arising out of Crime No. 65 of 1997, under Section 302 I.P.C., Police Station Ataria, District Sitapur are thus, dismissed and impugned judgment and order is affirmed.
Appellants are lodged in prison in this case and they shall serve the sentence as awarded by the trial court.
A copy of this judgment along with lower court record be immediately sent to the trial court for compliance.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.) Order Date:- 04.03.2021 Praveen