Allahabad High Court
Balwant Rao And Others vs State Of U.P. on 5 April, 2019
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved Case :- CRIMINAL APPEAL No. - 206 of 1998 Appellant :- Balwant Rao & Others Respondent :- State Of U.P. Counsel for Appellant :- Virendra Singh,A.B. Singh,Akhilesh Kumar Mishra,Bishram Tiwari,Jagdish Singh Sengar,Nikhil Kumar,Prashant,Ramesh Chandra Yadav Counsel for Respondent :- Govt.Advocate,Dilip Kumar,J.P.Singh,Rupak Chaubey,Viresh Mishra Hon'ble Naheed Ara Moonis,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava,J.)
1. This criminal appeal has been filed against the judgement and order dated 29.01.1998 passed by learned IIIrd Additional District Judge, Deoria in Sessions Trial No. 43 of 1979, (State vs. Ram Asrey and others), under sections 302/149, 147, 148 and 324/149 I.P.C., P.S. Nebua Naurangia, District Deoria (Presently District-Kushinagar), by which the appellant Balwant Rao has been convicted and sentenced for six months and two years rigorous imprisonment respectively for the offence under sections 147 and 324/149 I.P.C. and life imprisonment and sum of Rs. 5000/- as fine for the offence under section 302/149 I.P.C. and appellants Lal Sahab, Mahendra Pratap Rao, Manvendra Pratap @ Manvendra Pratap Rao and Daya Nand @ Daya Bania have been convicted and sentenced for one year and two years respectively for the offence under sections 148 and 324/149 I.P.C. and life imprisonment and sum of Rs. 5000/- as fine for the offence under section 302/149 I.P.C.
2. This is a case of fratricide where Balwant Rao was involved along with his sons in committing murder of his own brothers Dheer Rao and Jheen Rao. During pendency, the appeal in respect of appellant no. 1 Balwant Rao and appellant no. 2 Lal Sahab Rao has been abated vide order dated 15.09.2008 passed by this Court.
3. Brief facts giving rise to this appeal, as per prosecution version, are that the complainant Jaiprakash village Madar Bind, Baliya Tola, Srinagar, P.S. Nebua Naurangia, District Deoria (Presently District-Kushinagar) lodged an FIR at 1:30 AM in the mid-night of 2/3.4.1978 by giving a written report at the police station stating that his uncle Balwant Rao sold Shisham tree grove a month ago to the contractor concealing it from his father Jheen Rao and uncle Dheer Rao. When the contractor started cutting the trees and his father and uncle asked him, the contractor informed that he has purchased it from Balwant Rao in Rs. 13200/-. His father and uncle, claiming their share, prevented the contractor from cutting the trees. Immediately thereafter, a Panchayat took place in the village and it was decided that all the three brothers will get their share. Contractor Farrukh agreed to make the payment accordingly and cut down the trees leaving the woods in the field of Balli Ahir.
4. On 02.04.1978 at about 8 AM, Farrukh Miyan came there with three tyre vehicle and started loading the woods. On being informed by his younger brother, complainant Jaiprakash, his father Jheen Rao, uncle Dheer Rao, younger brother Munna @ Tej Pratap, mother Dulari and grand mother went there and prevented the contractor from loading the woods. The Contractor said that he has already paid Rs. 8000/- to Balwant Rao who asked him to give remaining amount to him only. Accused Balwant Rao and Ram Ji Rao reached there and started quarrelling loudly with father and uncle of the complainant. On noise, Munna Mallah, Mahesh, Shyam Dev and many more persons of that locality gathered there. Meanwhile, accused Lal Sahab, Manvendra Pratap and Daya Baniya with country made pistol and Mahendra Pratap with spade came there. They discussed with Balwant Rao, Farukh and Ram Ji Rao at some distance and thereafter, accused Balwant Rao and Ram Ji Rao exhorted to kill them saying that "सालो को जान से मार दो आज हिस्सेदारी का झंझट खत्म हो जाए ।". Accused Lal Sahab with intention to kill Dheer Rao fired upon him, who fell down and when the grand mother of complainant tried to save him, accused Manvendra pushed her away and fired on Dheer Rao by his pistol, who sustained injury and died on spot. Accused Daya Baniya fired with country made pistol on Jheen Rao, the father of the complainant, who sustained injuries and fell down whereupon accused Mahendra caused injuries on his neck by spade. Mother Dulari Devi came for his rescue on whom accused Lal Sahab fired again causing injuries to her who fell down there. Accused Mahendra Pratap gave second blow to his father by spade who sustained injuries and died. After committing the incident all the accused persons fled away from the place. The incident took place at 3:30 PM and according to complainant the whole incident was planned by accused Ram Ashrey. Nobody came for help and therefore, the complainant went to his brother-in-law who resided in village Rudhiya Deoria, near Hata and after making arrangement of a vehicle and leaving behind the village watchman Paramhans to look after the dead body of his father and uncle, he took his injured mother to P.S. Nebua Naurangiya at 1:30 midnight, where he lodged FIR. On the basis of written report a case was registered against the accused persons for the offence under section 147, 148, 149, 307, 302, 120B I.P.C.
5. The case was investigated by SO Laxmi Narain Chaturvedi, injured Smt. Dulari was medically examined in the District hospital, inquest report of both the deceased Dheer Rao and Jheen Rao were prepared on 03.04.1978 and the dead bodies were sealed and sent to district hospital where post-mortem was conducted. The Investigating Officer, during investigation, took into possession the blood stained sari of Smt. Bhagwanta Devi, recorded the statement of the witnesses, prepared site plan and collected blood stained earth, Pellets and blood stained bark of the Sheesham tree from the spot. After taking them into possession, recovery memos were prepared. After completing investigation, charge-sheet was submitted by the IO. Accused persons appeared before the court and they were released on bail. Charges were framed against accused Balwant, Ramji Rao and Farrukh Miyan for the offence under sections 147, 302/149, 324/149 I.P.C. and under sections 148, 302/149, 324/149 I.P.C. against accused Lal Sahab, Manvendra Pratap Rao, Udai @ Dayanand, and Mahendra Pratap Rao and under section 120B IPC against accused Ram Ashrey who denied the charges and claimed trial.
6. In order to prove charges, the prosecution examined 12 witnesses. PW-1 Jai Prakash, informant and eye witness, proved his written report which is Ext.-Ka-1. He has also proved towel, dhoti and kurta taken from the body of deceased Dheer Rao Mat. Ext. I, II & III and shirt and dhoti of Jheen Rao Mat. Ext. IV & V. PW-2 Munna Mallah, and PW-4 Mahesh are eye witnesses. PW-5 Dulari Devi is injured and eye witness. PW-10 Bhagwanta Devi, mother of deceased is allegedly an eye witness whose examination has not been completed as in view of the learned Sessions Court that she was not capable of being examined because of her old age (75 years), resulting in loss of hearing and inability to answer the questions put to her relating to incident. PW-9 Narayan is witness of Panchayat which was held prior to the incident for distribution of sale price of trees between the three brothers. Dr. R.S. Singh, who conducted post-mortem of the dead bodies has been examined as PW-3 and has proved the post-mortem reports as Ext.-Ka-2 & Ka-3. PW-6 Head Moharir Vishwanath Tiwari, has proved chick FIR Ext.Ka-4, GD report Ext. Ka-5, GD report of consigning case property Ext. Ka-6, GD report of consigning case property after post-mortem Ext. Ka-7 and GD report of sending case property to Sadar Malkhana Ext. Ka-8. PW-7 Constable Ram Karan Yadav is a formal witness to whom the dead bodies were entrusted for taking to district hospital for post-mortem. PW-8 Constable Janak Singh is a witness who delivered the case property in Sadar Malkhana, Deoria and thereafter, from there to CMO office where from the case property was sent to Agra for scientific analysis. He has also given evidence that so long as the case property was in his possession, the seal was intact. PW-11 Dr. M.S. Alam has proved the medical report of injured Dulari Devi as Ext. Ka-9.
7. PW-12 S.I Laxmi Narayan Chaturvedi, Investigating Officer who has identified his signature on chick FIR Ext.Ka-4, and has also proved inquest reports Ext.-Ka-10 and Ext.-Ka-11, Challan dead body of Dheer Rao Ext.-Ka-12, report to CMO for post-mortem Ext.Ka-13, photo dead body Ext. Ka-14, sample seal Ext.-Ka-15, report for obtaining post-mortem and other articles Ext.Ka-16, Challan dead body Jheen Rao Ext.Ka-17 report to CMO for post-mortem Ext.Ka-18, photo dead body Ext. Ka-19, sample seal Ext.-Ka-20, report for obtaining post-mortem and other articles Ext.Ka-21, Memo of towel & pen taken during inquest report Ext. Ka-22 & 23 & Mat. Ext.-I & VI, memo of Sari of Bhagwata Devi Ext. Ka- 24 and sari Mat. Ext. VII, cite-plan Ext. Ka-25 Memo of blood stained and plain earth Ext. Ka-26 & 27 and Mat. Ext. IX, X, XI & XII, Memo of one pellet etc. taken from spot Ext. Ka-28 and Mat. Ext. XIII, Memo of bangles taken from spot Ext. Ka-29 and Mat. Ext. VIII, Memo of blood stained bark of Sheesham tree Ext. Ka-30 & Mat. Ext. XIV, Memo of attached properties in compliance of Section 82 & 83 of accused persons Ext. 31, 32, 33, pellets recovered from the dead bodies during post-mortem Mat. Ext. XV&XVI and Charge-sheet Ext. Ka.-34.
8. All the accused persons, denying the prosecution version, have alleged their ignorance about the incident in their statement under section 313 Cr.P.C. and have said that they have been falsely implicated. Accused Farroq Miyan has stated that the prosecution version is false and he had purchased the trees from Balwant Rao. Deceased Dheer Rao and Jheen Rao prevented him from cutting the trees. Accused persons Manvendra Pratap Rao and Mahendra Pratap Rao have admitted about the existence of a joint grove of three brothers Dheer Rao and Jheen Rao (both deceased) and accused Balwant Rao. They are sons of accused Balwant Rao. Dheer Rao was not married. Accused Lal Sahab and accused Balwant Rao have stated that the said grove was given to Balwant Rao in mutual partition. Accused Ram Jee Rao has stated that in a case between Vindhyachal and deceased persons and accused Balwant Rao which was pending in the court of Munsif, he had given evidence from the side of Vindhyachal and that was the reason why he was falsely implicated by the complainant side. In addition to it, accused Daya @ Daya Nand has raised the plea of alibi stating that at the time and date of incident he was in Nepal, far away from the place of occurrence.
9. In addition to it, defence has also filed documentary evidence viz Ext. Kha-1 to Ext. Kha-5 which are the extracts of the statement recorded by the Investigating Officer under section 161 CrPC which was used for the purpose of contradiction during cross-examination of all the witnesses of prosecution, namely, PW-1 Jai Prakash, PW-2 Munna Mallah, PW-4 Mahesh and PW-5 Smt. Dulari. Ex. Kha-6 is the affidavit given in Mutation Appeal No. 18/60 by witness Nagina Singh, Ext Kha-7 is recovery memo of pistol and cartridges recovered from Dheer Rao, Ext-Kha-8 is copy of charge-sheet filed by Police under section 395, 397 IPC against PW-2 Munna & others, Ext Kha-9 is certified copy of extract of serial no.7 Case register Gram Panchayat Madar, Bindwallia, Ext Kha-10 certified copy of complaint filed by Moti of Madar, Bindwallia against Dheer Rao, Munna & others, Ext Kha-11 certified copy of complaint against Dheer Rao, Dulari & others by Chandrika Yadav and Ext Kha-12 certified copy of Report of Nyay-Panchayat, Madar sent to SDM, Hata.
10. After hearing both prosecution and defence and taking into consideration the evidence on record, the learned trial court convicted and sentenced the appellants. Hence, this appeal.
11. The learned counsel to appellants has submitted that the impugned judgement dated 29.01.1998 is against the evidence on record and is bad in the eye of law. The prosecution has failed to establish charge the manner in which the offence was alleged to have been committed by prosecution is totally different to what comes out from the evidence given by the eye witnesses. Their evidence is full of contradiction and discrepancies. From the oral and medical evidence, the time of lodging FIR and the time of incident has become improbable. The nature of injury found on the body of deceased persons was not possible by the weapon used and it has become highly doubtful that the injuries allegedly caused by sharp weapon was possible by spade. The learned counsel has referred to the judgement in Madan Rai vs State, 1997 (34) ACC 248 (DB), Solanki Chimmanbhai Ukabhai vs State of Gujrat, AIR 1983 SC 484 and Abdul Sayeed vs State of MP, 2010 (10) SCC 259 to support his argument that where gun is fired at right angle, only round shaped firearm injuries would result and where fire is oblique or from upper side to lower side, the injury would be oval shaped. He has also submitted that in a case where medical evidence completely rules out all possibility of ocular evidence being true, the ocular evidence ought to be disbelieved. The conviction and sentence is not only contrary to law but also they are too severe. The learned Sessions Court has misread and misconstrued the material on record. The statements of the eye witnesses examined on behalf of the prosecution are self-contradictory, against the medical evidence on record and against the site plan/spot inspection memo prepared by the Investigating Officer. Therefore the conviction and sentence imposed by the learned Sessions Court are not sustainable and are liable to be set aside and quashed and the appellants are entitled for acquittal.
12. The learned AGA has submitted that the prosecution version is supported by four eye witnesses and one of them is injured witness whose presence at the time and place of occurrence cannot be doubted. The contradiction and discrepancy pointed out by defence is not so as to go to the root of the matter and can be safely ignored. He has argued that the trial court has correctly appreciated the evidence and there is no valid reason to interfere in the impugned judgement.
13. We have considered the submissions advanced by the learned counsel to appellants Sri Manish Singh and Sri R.C. Yadav and learned AGA Sri Vikas Sahai and perused the record.
14. It needs mention that the prosecution has examined four eyewitnesses, including one injured witness, in support of prosecution version. PW-1 Jaiprakash has stated on oath that one month before the incident, accused Balwant had sold sheesham trees of joint grove to accused Farukh in Rs. 13200/- who started cutting tree. On being informed, his father Jheen Rao and uncle Dheer Rao prevented him whereupon a panchayat was convened in the village and it was decided that Farukh will distribute the sale amount equally among the three brothers Jheen Rao, Dheer Rao and accused Balwant Rao. Then, Accused Farukh cut away and gathered the woods in the land of Balli Ahir, but did not pay the share of sale amount to deceased persons.
15. PW-1 has stated that on 2.4.1978, accused Farukh came with a three tyre vehicle and started loading the woods. On being informed by younger brother Munna alias Tejpratap, Jheen Rao and Dheer Rao went there and asked to pay money first. Meanwhile, accused Balwant and Ramji reached there and in their presence, Farukh said that Rs. 8000/- has been already paid to Balwant and the remaining amount will be also paid to him only. A quarrel took place on it between his father and uncle with accused Balwant Rao and on hearing the noise, Munna Mallah, Mahesh and Shyam Dev reached there. Sons of Balwant Rao namely, Manvendra and Lalsahab with country made pistol in their hands and Mahendra having a spade and Daya, a friend of Lal Sahab with pistol also reached there. Accused persons talked together and thereafter, Balwant and Ramji exhorted to kill them to end the dispute of share. Thereupon, accused Lalsahab fired on his uncle Dheer Rao, who fell down. Accused Manvendra also fired on him. Accused Daya fired on his father Jheen Rao who also fell down and then Mahendra caused injury by spade twice and when his mother tried to save him, Lalsahab fired at her who also fell down sustaining injury. PW-1 has stated that in the incident, because of injuries sustained, both Dheer Rao and Jheen Rao died on spot. Thereafter, accused persons ran away. The incident took place at about 3-3.1/2 PM.
16. PW-2 Munna Mallah is an eyewitness who has stated that it was about one year before when Jheen Rao and Dheer Rao were killed and the incident took place at about 3:30 PM in the afternoon. Their murder took place in the north of grove of Dheer, Jheen and Balwant in the field of Balli. He was going to Dhudhli market and when he reached near the grove, on the noise, he reached there with P.W.-4 Mahesh. Accused Balwant, Farooq and Ram Ji and deceased Dheer and Jheen were present there and they were quarrelling. Mother of Jheen, wife of Jheen, his son Jai Prakash and Munna @ Tej Pratap also came there and thereafter accused Lal Sahab, Daya, Mahendra and Manvendra also reached there. Mahendra was having spade in his hand and other three were having pistol. Accused Balwant and Ramji conversed with each other and thereafter accused Farooq, Balwant and Ram ji exhorted and on their exhortation accused Lal Sahab fired on Dheer Rao, who fell down and when his mother tried to save him, she was pushed away by accused Manvendra who also fired on Dheer Rao. Meanwhile accused Daya Baniya fired on Jheen Rao who fell down. His wife came to save him then accused Lal Sahab fired on her and she fell down sustaining injuries. Accused Mahendra hit Jheen Rao by spade and in the incident both Jheen Rao and Dheer Rao lost their lives. Accused persons escaped from there with their respective weapons. He did not try to save the deceased because of fear. He has also stated that during investigation the police collected bangles Mat. Ext.-VIII and memo was prepared in his presence.
17. PW-4 is Mahesh, an eyewitness, who has stated that about 13 months ago he and Munna Mallah were going to Dhudhli market. On hearing noise coming from the grove of deceased persons, they went there, where he saw Dheer, Jheen, Balwant, Farooq and Ram Ji quarrelling on the point of loading of wood. One saying to load the woods and other were trying to prevent them. Jai Prakash, Tej Pratap, an old woman of the family of Jheen Rao and wife of Jheen Rao were also present. Meanwhile, accused Lal Sahab, Mahendra, Manvendra and Daya came there. Mahendra was having spade in his hand and other three were having country made pistol. Identifying the accused persons who were present in the court, the witness has stated that on the exhortation of accused Balwant and Ram Ji that "सालो को जान से मार दो आज हिस्सेदारी का झंझट खत्म हो जाए," accused Lal Sahab fired at Dheer, his mother raising cry, tried to save him but she was pushed away by accused Manvendra and eventually, he fired on Dheer. Accused Daya Baniya fired at Jheen. When his wife came to save him and entreated not to kill, accused Lal Sahab fired on her and she sustained injuries and fell down. When Jheen Rao was injured by fire arm, accused Mahendra hit him by spade and both Dheer and Jheen succumbed to death on the spot. Accused persons equipped with weapons fled away from there after committing the incident.
18. PW-5 is Dulari Devi who is an injured witness and widow of Jheen Rao. She has stated that more than a year passed, her husband and brother-in-law were killed in the afternoon. Earlier Munna informed that the grove woods are being loaded and on being so informed, Dheer Rao and Jheen Rao went there. Balwant Rao and Ram Ji Rao also reached there. Accused Mahendra, Lal Sahab, Daya and Manvendra were talking to each other that today they will see them. Mahendra was having a spade. The witness has stated that she and her mother-in-law Bhagwanta Devi reached there, some quarrel was going on between Dheer Rao, Jheen Rao and Balwant Rao, RamJi and Farooq. When Mahendra, Manvendra, Daya and Lal Sahab reached there the other accused persons started talking with them. Daya, Lal Sahab and Manvendra were having country made pistol and on the exhortation of Balwant accused that ' maar dalo salon ko, hamesha ki jhanjhat hi chhoot jaye', Lal Sahab fired on Dheer Rao, who fell down and when her mother-in-law tried to save him she was pushed away and accused Manvendra fired on Dheer Rao again. Accused Daya Baniya fired on Jheen Rao, who fell down and thereafter, accused Mahendra hit him by spade. The witness has stated that believing that she would be able to save him, ran towards him and accused Lal Sahab fired on her. Accused Mahendra hit Jheen Rao by spade and thereafter they went away. Dheer Rao and Jheen Rao died on the spot. Her son Jai Prakash went to village Ratiya P.S. Hata, where her son-in-law resided and he came back with him and took her to P.S. Nebua Naurangiya. The police sent her to hospital, where she was admitted. She has also stated that in the incident her bangles got broken. The witness proved her broken bangles as Mat. Ext.-8.
19. PW-6 ASI Vishwanath Tiwari has stated that on 03.04.1978 he was deputed in P.S. Nebua Naurangiya as Head Moharir. At about 1:30 AM, the informant Jai Prakash with her injured mother Smt. Dulari and Shri Bhishm Pratap Rao came to police station. The informant gave a written report on the basis of which the offence was registered against accused persons, chik FIR Ext.Ka-4, which is in his writing and signature, the entry thereof was made on the same day by him in the General Diary, which is Ext.Ka-5. The injured was sent to hospital with constable Parmanand Bharti by making entry in the General Diary of the same date and time. That apart, this witness has also stated that he also went to the spot with Investigating Officer/SO. The case property was consigned to the police station with reference to GD Report Ext. Ka -29, which is in his writing and signature as Ext.Ka-6. On 04.04.1978, constable Ram Karan Yadav and constable Moti Singh consigned the case property which was given to him after post-mortem, an entry of which has been made in GD Report at about 5:40 PM which is Ext.Ka-7 and special report was prepared by constable Ramashanker Tiwari on 3.4.1978 at 6.10 AM. He has also proved G.D. Report No. 6 of 22.08.1978 which shows that the case property was sent from the police station to Sadar Mal Khana through Constable Jagat Singh and the GD entry was made by constable Ramashankar Tiwari.
20. PW-7 Constable Ram Karan Yadav has has stated that the dead bodies of both Dheer Rao and Jheen Rao were sealed and given to him and constable Moti Singh on 3.4.1978 at 10.30 AM and the same were taken to post-mortem house in sealed condition. Both the dead bodies so long as they were in their possession were in sealed condition. He was also accompanied by Constable Moti Singh. The dead bodies were taken to Deoria which is situated 70 km away from place of occurrence and they reached there in about 7 to 8 hours by tractor-trolly.They first reached to Police Lines, Deoria in the night and stayed there and therefore, the entry in the GD was made on next day at 7 AM in the morning. The witness however, could not reply why did not he go to the police lines in the night itself, nor he could give any reason. He had denied the suggestion of the defence that he is giving false statement with regard to departure from the place of the occurrence. He has admitted that police of police lines, Deoria did not put their signature on Chalan of dead body.
21. PW-8 Constable Janak Singh has stated that in August-November, 1978, he was deputed in police station Nebua Naurangiya and on 22.08.1978 he consigned the sealed case property of this case to Sadar Malkhana, Deoria. On 23.11.1978, the sealed case property was got received in CMO office, Deoria and on the same day the case property was sent to Agra for chemical examination.
22. PW-9 Shri Narain, is the witness of the fact of Panchayat, which took place between accused Balwant and his two brothers Jheen Rao and Dheer Rao. The Panchayat was held with regard to cost of the woods. He was also a Panch and it was decided between three brothers that the cost of the wood will be equally distributed among three brothers. In the Panchayat, accused Farooq, contractor was also present. The decision of the Panchayat was reduced in writing on which three brothers signed and the same was delivered to deceased Dheer Rao.
23. PW-10 is Bhagwanta Devi, whose examination has not been completed because of her inability to depose in the court.
24. PW-12 is IO Laxmi Narayan Chaturvedi who has stated before the court that from 03.04.1978 to 29.05.1978, he was SO of Nebua Naurangiya and this case was registered in his presence. He was entrusted with the investigation. He has also proved the inquest report of the dead bodies of Dheer Rao and Jheen Rao and has stated that five Panches were duly appointed and in their presence the dead bodies of both Jheen Rao and Dheer Rao were taken into possession, inquest reports were prepared and the dead bodies were sealed and handed over to Constable Ram Karan Yadav and Moti Singh for taking them to District Hospital, Deoria for post-mortem. The witness has also deposed about the detail of investigation he has conducted. He has also stated that the statement of the witnesses were reduced in writing by him. The Sari of Bhagwanta Devi was also taken into possession, sealed, and memo was prepared. He also prepared the site map of place of occurrence. He collected blood stained and plain earth from the spot, a memo of which is Ext.Ka-25. He took all the measures in order to arrest the accused persons and after completing the investigation, he filed the charge-sheet before the court which is Ext.Ka-34. He has stated that Smt. Dulari Devi was injured and her treatment was necessary. Therefore, she was sent to hospital with informant Jaiprakash. She had sustained injuries in her hand. It is why statement of both was not taken immediately.
25. The first point which has been raised by defence is with regards to delay in lodging FIR. PW-1 Jaiprakash is an eye witness who lodged FIR by giving a written report in police station. The incident took place on 2.4.1978 at about 3-3 ½ PM whereas FIR was lodged in the midnight of 2/3.4.1978 at 1.30 AM. The place of occurrence is 2 miles away from the Police Station. Therefore, the learned counsel to the appellants has pointed out that the FIR was lodged after a delay of about 10 hours and the delay was not reasonably explained by prosecution. In the written report on the basis of which FIR was registered, it has been mentioned that after the incident, no one came forward for help and therefore, the informant went to village Radiya of Hata, Deoria to his brother-in-law with whom he came back by his car and thereafter, he lodged FIR by giving a written report which was written by him. In his cross-examination, he has stated that from his village, Radiya, Hata is about 44-45 KM away and he went there by bus. This has been attacked by defence submitting why PW-1 went to Hata and why did not he lodge FIR in a nearby police station situating on the way to Hata? The reply of PW-1 in his cross-examination is very natural and trustworthy in the given situation. PW-1 has said that in the incident his father and uncle lost their lives and his mother was injured by sustaining firearm injury. He was only 16-17 years old and no one of his village came forward to help him. He went to his brother-in-law, came back with him on his car and went to police station and lodged FIR. This fact has been also disclosed in his written report. He has also stated that he did not know that he could lodge FIR at any police station. There was no adult male member alive in the family from whom he could take assistance, support and guidance. At that time, he was studying only in high-school.
26. Looking to the nature of crime in which his father and uncle were killed before him and his mother had also sustained firearm injury and considering that PW-1 was very tender in age, we are in agreement with the view taken by the learned court below that there is no delay in lodging FIR. But, if for the sake of argument, it is assumed that there was some delay, the same has been reasonably explained by prosecution. After the incident, PW-1 went to his home, took some money, reached to his brother-in-law by bus to HATA, about 45 KM away and then coming back by car, carrying his injured mother in car to police station and lodging FIR, all this sequence has been stated by him in a very natural and spontaneous way. PW-5 Smt. Dulari Devi who was injured has also stated that his son went to Hata and after his coming back, she went to police station with him where FIR was lodged and thereafter, she was taken to hospital for treatment. Moreover, PW-6 ASI Vishwanath Tiwari who was posted as Head Moharrir on 3.4.1978 in PS Nebua Naurangia has stated before the court that at 1.30 AM informant and injured Dulari came with Bhishmpratap Rao and informant Jaiprakash gave written report on the basis of which FIR was registered and an entry was made in GD report Ext. Ka-5 and that was the first case registered on that date. In the GD, the fact that all the three persons came together and Dulari Devi was injured, has been mentioned by which the time of lodging FIR stands corroborated.
27. The statement of PW-12 IO Laxmi Narain Chaturvedi, SO of PS Nebua Naurangia also supports this fact as he has stated that the case was registered in his presence and he had put his signature on Chick FIR Ext. Ka-4. He has also stated that Dulari Devi was injured and her treatment was more necessary and therefore, she was sent to hospital with his son and due to this reason their statements were not recorded by him immediately. None of these police men have been put even any suggestion during cross-examination on the point of ante-time FIR. In Sher Singh v. State of Haryana; AIR 2011 SC 373, it has been held that delay in lodging the FIR cannot be a ground to doubt the prosecution case. Knowing the Indian condition as they are, it is not expected from a common man to first rush to the police station immediately after a criminal incident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Some time is also spent after such incident in mentally reorganising and taking a decision about the step to be taken after the incident. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
28. A reference of the judgement in Mahmood Vs. State of UP, AIR 2008 SC 515 can be taken in which it has been observed that the behavioural pattern and response of individuals in a given situation may differ from person to person and in a situation where the mother of the informant had suffered fire arm injuries and she was required medical treatment and also that in the criminal incident both father and uncle of the informant were killed, the delay has been enough explained and this fact has also been explained that after filing the written statement in the police station the mother of informant was immediately sent for treatment and it is why her statement was not immediately recorded by the I.O. In such kind of situation no adverse inference can be drawn against the prosecution version.
29. Another ground of attack to discredit FIR has been that it was ante-time, i.e., that it was lodged later on and shown to have been lodged early in time. The only basis for this argument is that in CH-13 Ex. Ka-12 and Ka-17, section 120 IPC is not mentioned. According to the learned counsel to appellants, the omission of Section 120(b) IPC shows that the FIR was not in existence till then. The sequence and timing between the occurrence and lodging of FIR, as discussed above, is not only mentioned in written report, but also it has been very well explained by PW-1 Informant Jaiprakash and that has been further corroborated by the statement of PW-5 injured Dulari Devi, PW-6 Head Moharrir and PW-12 IO in whose presence the FIR was lodged. Thus, the evidence given by the prosecution on this point leaves no room to make any inference that the FIR was ante-time. Even in inquest report which was the first step taken by police towards investigation of the offence, section 120(b) IPC has been clearly mentioned and needless to point out that Challan dead body CH-13 is prepared after the inquest report. Therefore, not mentioning of section 120(b) IPC appears to be simply a clerical omission. Merely because that CH-13 does not mention section 120(b) IPC, it cannot be said that the FIR is ante-time and was not in existence at that time. Moreover, this has been nowhere shown by defence that it has in anyway adversely effected the defence.
30. Learned counsel for the appellant has tried to discredit the FIR on the basis that in the written statement there is interpolation in a different ink by addition " दि". It is pointed out that the informant PW-1 has been cross-examined and he denied the suggestion of the defence that it was added on the basis of some advice in order to conceal the exact timing of the occurrence. It has also been argued that it gives support to the argument of the defence that the incident took place in the mid night and it is why initially the word " दि" was not mentioned in the written report. This appears to be a baseless argument keeping in view that the chick FIR which was written on the same date, the word " दि" finds mention. Similar is the case in the entry in the relevant GD. Needless to say that in chick FIR the word " दि" has been written in the same flow in which the whole chick FIR is written. It shows that the word " दि" was not added after registration of FIR and it was already existed. Since the chick FIR was inscribed soon after the receipt of the written statement, therefore, neither the time mentioned nor the nature of addition indicates that it was a substantive improvement with deliberation in order to add falsity. Moreover, the alleged addition did not cause any adverse impact on the defence and in view of the law laid down in Golla Pullanna Vs. State of AP, AIR 1996 SC 2727, it cannot be given any importance.
31. The defence has not specifically disputed the place of occurrence, except that denying the incident. Some omission has been pointed out in the site map prepared by IO submitting that it has not been shown from where the accused persons fired, where the deceased persons were standing and from where the witnesses saw the incident. The learned trial court, with reference to the judgement of the supreme court in Jagdish vs State of UP, 1996 (33) ACC 495, has very rightly concluded that the IO is expected to show in the map what he has observed on spot. Other details based on saying of some persons are not needed to be mentioned as per legal requirement. This view has been further affirmed by this court in State of UP vs Lakhan Singh, 2014 (86) ACC 82 (All) (DB). During investigation, PW-12 IO prepared site-plan Ext. Ka-25 in the presence of informant on 3.4.1978. The incident took place in the grove and on the border of grove of the complainant and accused side as mentioned in written report. PW-12 has proved the site-plan. All the fact witnesses have also stated that the incident took place in the grove. In the written report Ext. Ka-1, it has been stated that soon after the information by his younger brother that accused Farukh was loading the woods, they reached to their grove where the incident took place before them. PW-1 Jaiprakash has proved the written report and has stated that the incident took place before him. The other eye witnesses PW-2 Munna Mallah has more specifically stated that the murder was committed in the land of Balli which is attached in the north of the grove of Jheen, Dheer and Balwant. The IO has also marked the place of occurrence in the site-plan at the same place. Other witnesses PW-4 Mahesh and PW-5 Dulari Devi have also proved the place of occurrence in their statements. That apart, the officer who has prepared inquest report has found the dead body at the same place. Blood-stained earth & clothes, broken bangles, blood stained bark of sheesham tree and pellet were also recovered and sealed and recovery memos were prepared which have been produced in evidence and proved by the prosecution witnesses. Hence, the place of occurrence has been established by prosecution.
32. Inquest report of deceased Dheer Rao and Jheen Rao were prepared by PW-12 after taking the dead bodies into possession from the place of occurrence. From perusal of inquest reports, it appears that the police team reached there on 8.30 AM and by 10.30 AM the dead bodies were duly sealed and after preparing inquest reports the dead bodies were handed over to PW-7 as deposed by him along with papers, necessary for submitting the same for post-mortem.
33. For preparing inquest report, 5 Panches were nominated by the Investigating Officer. The panches were Hari Narayan Rao, Vindhyachal, Om Prakash Pandey, Bandhu and Sita Ram Harijan. Both the dead bodies were found in the extreme north of the field of Balli Ahir close to the grove of deceased persons and accused Balwant Rao. The dead body of Jheen Rao was lying upturned (flat from mouth side). The right hand was on head side whereas left hand was towards mouth side, eyes were half open. The deceased was of about 48 years in age. Circular wound on the left side of the chest on which blood was found, blood stained injury closed to right eye, blood stained injury in the middle of the neck and in the left side of the neck, on the left side of the back in the middle blood stained injuries below the left eye injuries were found.
34. The dead body of Dheer Rao was also found at the same place. The dead body was lying flat with mouth closed and eyes open and right hand on chest whereas left hand on the earth. The right leg was also turned where as the left leg was straight. He was aged about 45 years. On the dead body blood stained cut injuries were found on the middle of neck and on left side of chin and below the left eye and around it.
35. In respect of the dead body of Jheen Rao the authority preparing inquest report and Panches were of the opinion that the deceased died because of fire arm injuries, whereas in respect of dead body of Dheer Rao they were of the opinion that the death was caused because of fire arm injury and injuries caused by sharp aged weapon. The dead bodies were sealed and after preparing necessary papers, were handed over to the constable to take the dead body to the district hospital for post-mortem. The inquest reports have been duly proved by PW-12. Thus, there is nothing in this regard which can create any doubt on prosecution version to the benefit of the defence.
36. The learned counsel to the appellants has argued that the medical evidence is in contradiction with the prosecution story. The post-mortem of the dead body was conducted by PW-3 Dr. R.S. Singh on 04.04.1978. He has stated before the Court on oath that on the said date he was posted as superintendent District Hospital, Deoria and at 11 AM, he conducted the post-mortem of the dead body of Jheen Rao which was brought to the hospital by constable Ravi Karan Yadav and Moti Singh of Police Station Nebua Naurangia who identified the dead body of Jheen Rao, who was aged about 45 years and he must have died two days before. Following ante mortem injuries were found on the body of Jheen Rao:
1. Punctured wound 1 ½ '' X 1''X3'' deep on the front of the neck over the thyroid region cutting down the soft tissues and thyroid cartilage and upper part of oesophagus blood clot present underneath.
2. incised wound 2 ½ '' x ½ '' x bone deep on the left side of chin ½ '' outer to the mandible (bone exposed).
3. Fire arm wounds of entry in an area of 6'' x 5'' on the left anterior axillary fold (multiple). Two of them are ¼ '' in diameter on outer part and ¼'' in diameter on lower part of it which are chest cavity deep, rest of them are superficial and measuring 1/10 in diameter they are all circular in nature.
Internal Examination :
Thyroid cartilage punctured underneath injury no. 1. left plura punctured. Larynx punctured. Left lung lacerated & punctured at upper part. Blood about 300cc present in chest cavity. Oesophagus cut under injury no. 1. Semi digested food present about 300 gms.
2. bigger size metallic pellet recovered from the posterior wall of the chest cavity.
Cause of death due to shock and haemorrhage due to injury of lungs Trachea oesophagus-due to injury 1 &3.
PW-3 has proved the post-mortem report Ext.Ka-2 and has stated that the cloths of the dead body and pellet were handed over to the constable in a sealed bundle.
37. On the same day PW-3 Dr. R. S. Singh conducted post-mortem of Dheer Rao at 12:30 PM whose dead body was brought by the same constable who identified it to be of Dheer Rao who was aged about 48 years and had died two days before. During post-mortem, following ante mortem injures were found:
1. Fire arm circular wound ¼'' in diameter on the left side chest upper part 3'' below the left clavicle 2'' apart into chest cavity deep (2 in number wound of entrance).
(2) Two firearm circular wound ¼'' in diameter, one on the front of the neck over the suprasternal knotch deep up to the muscle of neck and are on the left side of neck in the middle superficial (wound of entrance).
(3) One firearm wound circular ¼'' in diameter on the left side back outer side in middle. Superficial up to muscle (wound of entrance).
(4) Two firearm wound circular on the left side of chest, outer part, 5 and 6 inches below the left axilla. Superficial in nature up to the skin deep (wound of entrance) (5) Firearm circular wound ¼ '' in diameter on the left side axillary muscles deep. (wound of entrance).
(6)Firearm circular wound ¼ '' in diameter on the left deltoid muscle superficial in nature.(Wound of entrance) Margins of all the firearm wounds are inverted and lacerated.
Internal Examination Second and third rib of left side were found fractured. Left side plura found lacerated, Trachea punctured underneath. Supra sternal knotch. Left Lung punctured on the upper part. About 400 cc blood present in chest cavity. Semi digested food about 200 gms present in stomach.
Cause of death due to shock and haemorrhage due to damage of lungs on account of the firearm wound.
PW-3 has proved the post-mortem report as Ext.Ka-3 and has stated that during post-mortem two pellets were found in the chest cavity which were sealed and were sent to the S.P., Deoriya. The cloths of the dead body were sealed and handed over to the constable.
38. PW-3 has stated that the death of both Jheen Rao and Dheer Rao might have been caused on 02.04.1978 at about 3:30 PM and the injuries which were found on their body were such that the death must have occurred immediately. He has also stated that the injury no.1 of Jheen Rao might have been caused by sharp edged weapon like spade if the same is pointed and of large size. Injury no. 2 must have been caused by spade.
39. PW-3 has been cross-examined by the defence and the main attack of the defence has been on the post-mortem report, nature of injuries, timing of death, number of gunshot injuries, distance from injuries were caused, weapon used and the discrepancies between the medical evidence and ocular testimony. The law on the point of alleged discrepancies needs to be discussed in brief here to arrive at correct conclusion.
40. In Krishnan Vs. State, AIR 2003 SC 2978, the supreme court considered the question how to reconcile where medical opinion suggesting alternative possibilities than ocular testimony? The court has observed:
" The ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently. It is trite that where the eye witnesses' account is found credible and trustworthy, medical opinion pointing two alternative possibilities is not accepted as conclusive. Eye-witnesses 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."
41. Similarly, in Thamman Kumar v. State of Union Territory of Chandigarh, AIR 2003 SC 3975, the Supreme Court has explained the legal principle on the point by making following observation:
"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 is 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 are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in 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 category and third category no such inference can straight-way 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 the ocular testimony."
42. The above view has been referred and quoted with approval in subsequent judgements. Thus, in Abdul Sayeed Vs. State of M.P, (2010) 10 SCC 259 Rakesh Vs. State of UP, 2012 (76) ACC 264 (SC) and Sadhu Saran Singh Vs. State of UP, (2016) 4 SCC 357, it has been held that if the direct testimony of eye witnesses is reliable, the same cannot be rejected on hypothetical medical evidence and the ocular evidence, if reliable, should be preferred over medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. If one doctor forms one opinion and another doctor forms a different opinion on the same fact, it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with the probability, the court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. Ocular evidence would have primacy unless established to be totally irreconcilable with the medical evidence. Testimony of ocular witness has greater evidentiary value.
43. The Supreme Court, while dealing with the medical evidence vis-a-vis eye-witness testimony, in Dayal Singh Vs. State of Uttaranchal, AIR 2012 SC 3046, has made observation that courts normally look at expert evidence with a greater sense of acceptability but it is equally true that the courts are not absolutely guided by the report of the experts especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert opinion is accepted it is not the opinion of the Medical Officer but that of the court. The skill and experience of an expert is the ethos of his opinion which itself should be reasoned and convincing. Not to say that no other view would be possible but if the view of the expert has to find due weightage in the mind of the court, it has to be well authored and convincing.
44. It has been pointed out by defence that in the post-mortem report of Dheer Rao, six firearm wounds have been found, whereas the eyewitnesses have stated that one fire was shot by accused Lal Sahab and when he fell down another gunshot injury was caused by accused Manvendr by his pistol. This is also the version in FIR. PW-3 Dr. Singh has stated in cross-examination that the gunshot wounds found on the body of Dheer Rao may be possible by six shots. On the point of number of gunshot injuries, in Om Pal Singh Vs. State of UP, AIR 2011 SC 1562, where the PW had stated that only single shot from double barrelled gun was fired but medical evidence clearly showing that the deceased had suffered multiple gun shot injuries, it has been held that a single shot can cause multiple injuries & in such cases there can be no inconsistency in between the medical evidence and the ocular evidence. Even a single gunshot can cause multiple injuries. Similarly, in Budh Singh Vs. State of MP, AIR 2007 SC (Suppl) 267, it was remarked that where the wound was caused from gun fire, blackening could be found only when the shot was fired from a distance of about 3 to 4 feet and not beyond the same. In view of above, where all the eyewitnesses have consistently stated that the accused persons fired twice on Dheer Rao which hit him resulting in his death, the opinion expressed by PW-3 is not significant being based only on probability. Regarding blackening etc., it has been nowhere shown or suggested that gunshots were caused from very close range.
45. It has been also argued by the defence that in the post-mortem, semi digested food has been found in stomach of both the deceased persons and PW-3 Dr. Singh has said in his cross-examination that death might have occurred after two and half to three hours after taking food. The incident took place on 3 to 3.30 PM. PW-1 has stated that both the deceased persons used to take meals between 11 to 12 in the day and at 8 PM in the evening. In Suresh Chandra Bahri Vs. State of Bihar, JT 1994 (4) SC 309 the Supreme Court referred "Modis Medical Jurisprudence and Toxicology, 22nd Edition, pages 246, 247 which reads as under :
"Digestive conditions vary in individuals upto 2.5-6 hours depending upon healthy state of body, consistency of food motility of the stomach, osmotic pressure of the stomach contents, quantity of food in the duodenum, surroundings in which food is taken, emotional factors and residual variations and only very approximate time of death can be given."
46. In view of above, we are of the view that semi digested food found during post-mortem of both the deceased persons goes to support and establish the time of death of two deceased persons and time of incident as alleged by the prosecution as they used to take meals between 11 to 12 in day time as stated by PW-1 during his statement.
47. PW-11 M.S. Alam has medically examined the injury of Smt. Dulari Devi (PW-5) on 03.04.1978 who sustained injury in the incident. The following injury was found by him, as per his statement and medical report, on the body of Smt. Dulari Devi:
(1) Lacerated wound 4 cm x 3 cm bone deep, bone was visible. On the right fore arm at upper part on the back side. Tattooing present. Skin scorched.
48. According to the doctor the injury was caused by some fire arm which was ½ day old, X-ray was suggested. P.W.-11 has proved the injury report of Dulari Devi (PW-5) as Ext.-Ka-9 and has stated that the injury must have been caused on 02.04.1978 in the afternoon and must have been caused by fire arm including a country made pistol. The injured was brought to the hospital on 03.04.1978 at 5:30 PM. During the cross-examination he has stated that no pellet was found and he has fixed the duration of the injury on the basis of colour of the injury. He has however admitted that in the injury report, colour has not been mentioned. In our opinion, not mentioning of colour of injury will not make any difference when the injured witness herself and other witnesses have proved the time of occurrence.
49. The learned counsel to appellant has referred the judgement in Solanki Chimanbhai Ukabhai vs State of Gujrat, AIR 1983 SC 484 in which it has been laid down:
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that injuries could possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
50. The learned counsel has also referred the judgement in Abdul Sayeed vs State of MP, 2010 (10) SCC 259 in which the above passage from Solanki (supra) has been quoted affirmingly to lay down:
" Thus, the position of law in cases where there is contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. However, where medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
51. With reference to the above two judgements, the learned counsel for the appellant has argued that in case the fire is oblique or from upper side to lower side then injury would be of oval shape. The prosecution witnesses have stated that on the firing of first shot by the accused Lal Sahab, the deceased Dheeer Rao fell on the ground and then subsequently the accused Manvendra Singh fired second time on him. The argument of the learned counsel is that when Dheer Rao fell down on the ground, therefore, the subsequent fire arm injury must be in an oval shape. In the above referred judgement Madan Rai (supra) by the defence, the accused climbed over the roof of the room for firing and the court took the view that the gun shot found on the body of the deceased were round in the shape and that shows that the shot was not fired from the ground as in case the shots were fired from upper side to lower side the injury would have been in oval shape. The fact of this case is entirely different. It has been no where shown, even by way of suggestion to the eyewitness, that on first fire deceased Dheer Rao fell flat on the ground and thereafter other fire arm injuries were caused. The whole incident took place in the grove land and there is no question of any oval shape injury. Moreover, the setted principle is that if there is some difference of such nature between the ocular testimony and medical evidence, ocular testimony being direct evidence will be preferred over the medical evidence.
52. Another argument has been with regard to the condition of the dead body, in view of the post-mortem report. It has been pointed out from the side of the defence that in the post-mortem report it has been mentioned that both eyes of the deceased persons were closed, which is not possible as the post-mortem was conducted after 45 hours from the time of death. On this basis he has argued that the incident must have taken place much after the time which has been alleged by the prosecution. It needs to be mentioned that the doctor who conducted post-mortem was cross-examined by the defence and he has not been put to cross-examination on this point. Even no suggestion to that effect has been advanced to the doctor during cross-examination. Only on the basis that eyes were found closed at the time of post-mortem is not sufficient to show that the incident took place at a time much after what has been alleged by the prosecution. In Mahavir Singh Vs. State of Haryana, (2014) 6 SCC 716, it has been laid down that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be questioned.
53. Another ground for attack from the side of the appellant has been that in his cross-examination PW-3 Dr. R.S. Singh has stated at one place that the death may have occurred in the early morning on 3.04.1978 subject to 7 to 8 hours difference in the either side. This appears to be a strange statement given by the doctor as in his examination-in-chief, he has clearly stated that the injury sustained by both the deceased persons were possible to have been sustained on 02.04.1978 at about 3 and ½ PM. Moreover, all the three eye-witnesses who have been examined by the prosecution have clearly stated that the incident took place on 02.04.1978 at about 3 to 3 and ½ PM. So far as the discrepancy in the statement of the doctor is concerned, it is well settled that doctor can never be absolutely certain on point of time of duration of injuries and death. In Ramjee Rai Vs. State of Bihar, 2007 (57) ACC 385 (SC), it has been held that the medical science has not reached such perfection so as to enable a medical expert to categorically indicate the exact timing of death. In Ram Swaroop Vs. State of U.P., 2000 (40) ACC 432 (SC), the Supreme Court has further held that the doctor can never be absolutely certain on point of time so far as duration of injuries and death are concerned.
54. It is also pertinent to mention that PW-3 Dr. Singh who conducted the post-mortem has written in his report that the death must have occurred two days before. It has also supported the version of the prosecution so far as the time and date of the offence is concerned, as post-mortem was conducted on 04.04.1978 from 11 AM to 12:30 PM. Therefore, the statement of the doctor that death might have occurred on 3.4.1978 appears to be a mistaken statement and if read as a whole no importance can be attached to it and the time of occurrence appears to have been established to be at about 3 to 3 and ½ PM on 02.04.1978. This conclusion finds support from the fact that in the incident PW-5 Smt. Dulari Devi also sustained fire arm injury and she was medically examined on 03.04.1978 in the morning at 5:30 AM and PW-11 Dr. Alam has stated that the injury was ½ day old and it is possible that it occurred on 02.04.1978 in the afternoon. The injured witness PW-5 Dulari Devi has also corroborated the prosecution version on the point of date and time of occurrence. She is an injured witness and her presence during the incident is established because of the injury, she sustained. It is settled principle of law that the evidence of the injured witness is put at a very higher footing and without any substantial reason the statement of such injured witnesses cannot be disbelieved.
55. Here the learned counsel for the appellant has pointed out that the injuries sustained by Jheen Rao is punctured wound, whereas according to medical evidence and the statement of the witnesses, for causing that injury spade was used as weapon and spade is not that kind of weapon by which punctured wound could be caused. All the witnesses have stated that one accused Mahendra Pratap Rao was having spade by which he gave two blows to Jheen Rao. The injury no. 2 is incised wound which is bone deep on the left side of chin, exposing the bone and there cannot be any doubt that this injury was certainly caused by a sharp weapon like spade. So far as the punctured wound is concerned PW-3 Dr. R.S. Singh has stated that the injury no. 1 of Jheen Rao might have been caused by a sharp pointed weapon such as spade, if the same is pointed and of larger size. No fruitful cross-examination has been conducted by defence on the size and shape of the spade. It is pertinent to mention that the spade has not been recovered so that the shape thereof cannot be determined, but the doctor has not ruled out the possibility of that injury to be caused by a sharp weapon like spade. PW-3 Dr. R.S. Singh has stated in the cross-examination that the injury no. 1 can only be caused by stabbing sharp weapon. He has stated the there was no tailing of wound and he had not written whether edge of the injury were clearly cut or not but the tissues were cut. It has been pointed out that PW-1 has stated that the spade was used by the accused like stick or bamboo and therefore the statement is in contradiction with the medical evidence. Needless to point out that the spade was used when the deceased had already sustained firearm injury and had fallen down and it cannot be ruled out that when such weapon is used on a person who was already fallen down the impact might be of piercing nature when it is on the neck over the thyroid region.
56. In view of aforesaid discussion, in our considered opinion, the observations in three cited judgements namely, Madan Rai vs State, 1997 (34) ACC 248 (DB), Solanki Chimmanbhai Ukabhai vs State of Gujrat, AIR 1983 SC 484 and Abdul Sayeed vs State of MP, 2010 (10) SCC 259 and quoted above do not render any support to the defence argument as the facts were different and the medical evidence in this case is not of that nature which completely rules out all possibility of ocular evidence being untrue or renders it false.
57. The other aspect is of motive for the incident. In Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role asto cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
58. It is pertinent to mention that where case is based on direct evidence it is not incumbent for the prosecution to allege or prove motive. It can, however, be pointed out that even then the motive was very much present with the accused persons. There was enmity with regard to the partition of the ancestral property and grove. Moreover, from the perusal of the FIR, it is clear that motive has been alleged and the witnesses have proved it. It has been alleged in the FIR that accused Balwant Rao sold the Sheesham trees to Farooq who started cutting the trees. The grove was joint property of the deceased persons and accused Balwant Rao having equal share and, therefore, it was objected from the side of the deceased persons that their share of the sale price should be given to them. A Panchayat took place and it was decided that all three brothers will get equal share in the sale price. The fact of the Panchayat has been proved by PW-9. On the date of occurrence, when the contractor started loading the woods, and was asked by the deceased persons, he informed that Rs. 8,000/- have already been paid to Balwant Rao and as per his direction remaining amount will also be paid to him alone. Then the quarrel started leading to the commission of the ghastly incident. Therefore, there was existing motive and immediate motive for the offence.
59. The plea of motive has been more strongly raised from the side of accused Daya Baniya as he does not belong to the family of accused persons nor had any interest in the woods and he is of other village. But prosecution witnesses knew him, identified him at the time of commission of offence and during trial and have proved that he had close relation with other accused persons, particularly Lalsahab, and belonged to closely situated village, which falls in district Gorakhpur. From the evidence of the prosecution witnesses, it is also clear that he came with other accused persons with country made pistol and actively participated in firing and in committing offence. Therefore, the learned trial court has rightly concluded that even though it is not necessary to establish motive in case of direct evidence, even then the prosecution has been able to prove motive for the commission of the offence.
60. Another argument is with regard to PW-2 Munna Mallah and PW-4 Mahesh and it has been argued that they are chance witnesses on whom much reliance cannot be placed. As laid down in Kallu Vs. State of Haryana, AIR 2012 SC 3212, Ramesh Vs. State of U.P., 2010 (68) ACC 219 (SC) and Jarnail Singh Vs. State of Punjab, 2009 (67) ACC 668 (SC), it is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. Evidence of chance witness requires very cautious and close scrutiny. It has been stated by PW-2 that at the time of occurrence, he was going to market and by the pathway he was going was closer to the grove of the deceased persons and field of Balli, where the occurrence took place and his attention was attracted by the hue and cry made there. He has also stated that he was with Mahesh who has also been examined by the prosecution as PW-4. From the statement of these two witnesses, it is clear that these two witnesses were very much acquainted with the accused persons and the deceased side. Because the grove and the place of occurrence was situated on the way to market where these two witnesses were going, therefore, it cannot be said that they were chance witnesses. It was day time and therefore, their presence at the time of occurrence on spot appears to be natural. Both have narrated the whole incident giving full support to the prosecution version. So far as the law in respect of appreciation of evidence of chance witness is concerned, even if it is assumed that both were chance witnesses, though they were certainly not, the evidence given by them is required to be scrutinized carefully. Their testimony appears to be trustworthy and despite a lengthy cross-examination by the defence nothing has come out, on the basis of which their testimony can be discredited.
61. Next argument has been that PW-1 and PW-5 being son and wife of one of the deceased, they are related witnesses and because of enmity there is all possibility that in order to frame the accused persons for the charge they have given evidence against them. The law in this regard is very clear that the testimony of a witnesses cannot be discredited only on the basis that they are relatives, although their testimony is required to be scrutinized carefully.
62. In Masalti V. State of U.P. (AIR 1965 SC 202) Supreme Court Observed:
"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"
63. The above observation has been affirmingly quoted in subsequent judgements. Thus, for instance, in M.C. Ali v. State of Kerala:: AIR 2010 SC 1639; and Himanshu v. State (NCT of Delhis) (2011) 2 SCC 36: 2011) 1 SCC (Cri) 593, (Bhajan Singh and others Vs. State of Haryana; (2011) 7 SCC 421, it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Such evidence is carefully scrutinised and appreciated before reaching to a conclusion on the conviction of the accused in a given case.
64. Again, in Jayabalan vs. U.T. of Pondicherry; 2010(68) ACC 308 (SC), Jalpat Rai v/s State of Haryana AIR 2011 SC 2719 and Waman v/s State of Maharashtra AIR 2011 SC 3327, it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away.The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analysing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted on the basis of testimony of such related witness.
65. Again, in Shyam Babu Vs. State of UP, AIR 2012 SC 3311, Dhari & Others Vs. State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537, it has been laid down that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analysing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted on the basis of testimony of such related witness. Recently, in Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been reiterated by the supreme court that relationship by itself will not render the witness untrustworthy.
66. It is true that PW-1 Jaiprakash and PW-5 Smt. Dulari are son and wife of deceased Jheen Rao and Dheer Rao who is other deceased is the real brother of deceased Jheen Rao and uncle of informant PW-1. But, there is nothing in their statements which can create any amount of doubt, although, both have been cross-examination at length on every point very minutely. Their deposition is natural and trustworthy and they have been rightly relied upon by the learned trial court in view of the judgement in Aganu vs State of UP, AIR 1971 SC 296 in which it has been held that the testimony of a witness, otherwise reliable can not be rejected merely on the basis that he is a related witness.
67. The next argument from the side of the appellant has been that PW-1 Jaiprakash is real son of one of the deceased, but he did not incur any injury nor he made any attempt to save his father and uncle. The accused persons were allegedly armed with deadly weapons and nothing could prevent them to even kill PW-1 who was not only son of one of the deceased but also, eventually an eyewitness. It is notable that on this point, PW-1 has been cross-examined and he has given a very natural reply that in the age of only 16-17, he was enough frightened as he saw his father and uncle being killed and mother sustained firearm injury while trying to save his father and uncle. Other eyewitnesses have also given similar statement. Referring to the judgement in Angad vs State of Maharashtra, 1981 SCC (Cri.) 813, the learned trial court very rightly took the view that in such a tender age, the conduct of the witness was justified and on this ground his testimony cannot be disbelieved. We are of the view that in the given fact and situation, the conduct and reason given by the witnesses is natural and trustworthy.
68. In Sucha Singh Vs. State of Punjab, (2003) 7 SCC 643, where eye witnesses did not come to the rescue of the deceased, it has been held that such reaction, conduct and behaviour of the witnesses cannot be a ground to discard their evidence when they are unarmed and the accused are armed with deadly weapons. Both the witnesses have in a very natural way stated about the whole incident and have stated that the accused persons on the date, time and place of occurrence caused death of Jheen Rao and Dheer Rao by causing fire arm injury and injuries by sharp weapon.
69. Pleading alibi, accused Daya @ Daya Nand has said that he was not present at the time of incident nor he fired during the incident. He has said that there was some dispute with his brother regarding partition of ancestral property. His brother Sachidanand and the deceased Dheer Rao had very good relation and therefore, he has been falsely implicated. He has also said that he is a resident of Bundali and he has a shop in Bundali. A Nepali resident Rameshwar had purchased certain articles on credit from his shop and on 01.04.1978 the accused went to Sukrauli Nepal to ask for payment. On 02.04.1978, when he demanded money from Rameshwar, he had badly beaten him by lathi, kick and fists. About this incident his FIR was not lodged in police station Nawal Parami as it was written in Hindi. Therefore, by the help of local person there, he lodged FIR in Nepali language and thereafter, he was taken to District Hospital, where he was medically examined. He has also stated that the place of incident is about 5 to 6 km. away from his home and no witness knew or recognized him. He has filed copy of FIR in his defence and medical report about injuries he had sustained.
70. In Binay Kumar Singh vs State of Bihar; AIR 1997 SC 322 and State of Haryana vs. Sher Singh; AIR 1981 SC 1021, it has been laid down that the initial burden to prove its case is always on the prosecution and the burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases needs to be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence.
71. Alibi is not an exception (special or general) envisaged in the IPC or any other law. It is only a rule of evidence recognized in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
72. Furthermore, it has been held in Sandeep Vs. State of UP, (2012) 6 SCC 107 and Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 that burden of proving the plea of alibi lies upon the accused. If the accused has not adequately discharged that burden, the prosecution version which was otherwise plausible has, therefore, to be believed. It has been further laid down in Shaikh Sattar Vs. State of Maharashtra, (2010) 8 SCC 430 that plea of alibi has to be established by accused by leading positive evidence. Failure of said plea would not necessarily lead to success of prosecution case which has to be independently proved by prosecution beyond reasonable doubts. In this case accused Daya has, though, taken the plea of alibi, has not produced any witness in his support. He placed reliance on the FIR filed by him in respect of alleged marpit committed by some person in Nepal, but the same is not in his handwriting and the attendance of alleged inscriber has not been possible despite all efforts made by court. Thus, accused Daya has failed to establish his plea of alibi. On the contrary, all the four eye-witnesses have proved his presence and active participation in commission of crime in this case.
73. The learned counsel for the appellant has also argued that investigation in the present case is highly defective as it is not fair and impartial nor it has started immediately after lodging of the FIR. The accused, Daya @ Daya Nand has not been subjected to the identification and the statement of P.W. 1-Jai Prakash and P.W. 5-Smt. Dulari Devi was not recorded although they were present in the police station at the time of lodging of the FIR. The driver of three wheeler Ramroop and Paramhans were not made witnesses nor their statement under Section 161 Cr.P.C. was recorded. So far as identification of accused Daya @ Daya Nand is concerned, it was not necessary as it is clear from the statement of witnesses that he was known to them and was identified at the time of occurrence by them. This finds further support from the fact that he has been named in the FIR. It has come in the statement of P.W.12-I.O. that he could not take the statement of P.W.1 and P.W. 5 at the time of lodging of the FIR as P.W. 5 was injured and her treatment was required and, therefore, she and the informant being her son were sent to the hospital. Needless to mention that P.W.5-Smt. Dulari Devi sustained injury in the incident which is very much established from her medical report proved by P.W. 11-Dr. Alam, hence the prosecution has sufficiently clarified this aspect. Before the trial court, the defence had raised the issue of identification of accused Daya Nand with reference to his bail application. The law is very much settled on this point that if the accused is known to complainant side and witnesses, there is no need for having identification proceedings. With reference to the judgement of the Supreme Court in Yadunath Singh Vs. State of UP, 1970 SCCR (Vol. 6) 141, the learned trial court has very rightly turned down this argument.
74. The subsequent judgment of the Supreme Court in Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench), Harpal Singh Vs. State of Punjab, (2017) 1 SCC 734 and Noora Hammad Vs. State of Karnataka, (2016) 3 SCC 325 also confirms the above view by laying down that even where the accused was not known to the witnesses from before the incident, first time identification of the accused by the witnesses in the court during trial is sufficient and acceptable identification of the accused. Therefore, we find no force in this argument of the defence. Moreover, none of the witnesses examined by the prosecution have been given even suggestion by the defence that accused Daya Nand was not known to them. If no question has been put on this point during cross-examination, the argument in this regard becomes insignificant. The defence has also pointed out the anomaly regarding giving custody of the cut down trees and non-production thereof before court during trial. This is again an insignificant fact and no importance can be given to it. It can also be pointed out that defect in investigation, if any cannot give any advantage to the defence unless such defect goes to the very root of the prosecution version. In Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been remarked by the supreme court that even if there is lapse in investigation, the same cannot be used to give advantage to accused person in cases where prosecution has led credible evidence, as it is difficult to determine that the investigative defect occurred due to general inefficiency of system or deliberated to shield the accused. In our considered view, the defect pointed out on behalf of the defence appears to be very minor and insignificant in nature and no force can be attached to that part of the argument.
75. So far as trustworthiness of the fact witnesses is concerned, it needs to be pertinently mentioned that P.W. 5-Smt. Dulari Devi is an injured witness and law gives a very higher value to a witness who has sustained injury in the same incident. As held in State of Haryana Vs. Krishan, AIR 2017 SC 3125,Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench), Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 and Jarnail Singh Vs. State of Punjab, 2009 (6) Supreme 526, deposition of an 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 on the scene stands established in the case and it is proved that he suffered the injuries during the said incident. Moreover, PW-5 is an illiterate villager or rustic lady and keeping in view the law laid down in State of U.P. Vs. Chhoteylal, AIR 2011 SC 697, Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239 the court should keep in mind her rural background and the scenario in which the incident had happened and should not appreciate her evidence from rational angle and discredit her otherwise truthful version on technical grounds.
76. From the statement of doctor who has examined P.W.5, it is clear that her injury was possible by firearm and it can also be pointed out that including P.W.5, other three witnesses have also stated that she sustained injury of firearm which was caused by the accused Lal Saheb. So far as duration of injury and discrepancy on the point of statement of doctor is concerned, it is very insignificant and where the fact witnesses including injured have stated that P.W.5 sustained injury of firearm during the incident caused by the accused Lal Saheb, such discrepancy cannot be given any importance. The fact that no pellet was recovered from the injured is also not significant as it has been rightly pointed out by the learned trial court that doctor has not been given any suggestion that alleged injury could not have been caused by any weapon other than firearm. No suggestion has been given to P.W. 5 with regard to her injury by the defence. It is notable that P.W.-5 has sustained injury of firearm which was caused during this incident by the accused Lal Sahab and this fact also corroborates that P.W.5 also sustained injury of firearm during the incident. It is also clearly established from the fact that on her injury, the doctor has found tattooing and scorched skin.
77. It has been pointed out by defence that in her examination-in-chief, PW-5 has said nothing regarding presence of informant Jaiprakash and witness Munna at the place of occurrence when offence was committed. PW-5 has, however, stated in her cross-examination that she told about their presence to the IO. Even if, it is taken to be a discrepancy, it is very minor in nature considering the fact that P.W. 5 is a rustic lady and if any minor variation comes in her statement that cannot be given much importance. About her own presence, she has stated that, being an illiterate lady, she reached there so that to bring back Jheen Rao and Dheer Rao. This appears to be very natural, more so, she has also sustained gunshot injury. PW-5 has been cross-examination in detail on the point of weapon used and distance, but, nothing except some minor contradiction has come out. The learned trial court has very rightly referred the judgement in Nathu vs State of UP, AIR 1977 SC 2096 to conclude that minor contradiction shows that the witness is not tutored and is reliable. The learned trial court has also placed reliance on this witness in view of the law laid down in Maksudan vs State of UP, 1983 SCC(Cri.) 176 that the testimony of injured witness is to be kept on higher footing as the presence of such witness at the place and time of occurrence is established because of the injury.
78. The learned counsel for the appellants has mentioned certain discrepancy and contradiction in the testimony of witnesses with regards to who reached first, from what distance and angle accused persons fired and caused injury and the like. It needs to be pointed out that where two persons of the same family died on the spot and other received gunshot injury, in such a horrendous situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident. Some sort of contradiction, improvement, embellishment is bound to occur in the statement. As laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), 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. 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.
79. In Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion.
80. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068, Shivappa v. State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench) and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the Prosecution Witness are bound to be there and in fact they go to support the truthfulness of the witnesses.
81. The plea of defence of false implication on account of enmity and family dispute has been rightly disbelieved by the learned trial court in absence of any cogent evidence. Certain documents were filed to show enmity, but, they could not render the account of trustworthy eyewitnesses. Moreover, these accused persons were close relatives and family members, or closely associated with them, and there is no reason why they will be falsely implicated by complainant side.
82. From the above discussion we are of the view that the learned trial court rightly concluded that the prosecution has been able to prove the charges beyond shadow of any doubt. Excluding the accused persons who have been acquitted, the number of the convicted accused persons/appellants has been five and four eyewitnesses out of which one was injured and two were independent witness have stated the whole incident in a very natural and spontaneous way. It has been established that out of these five appellants, three of them reached on the place of occurrence with country made pistols and other was having spade which are deadly weapons indicating their intention to cause death in the incident. On exhortation of one of the accused namely Balwant Rao, all other four accused persons namely Lal Sahab, Mahendra Pratap Rao, Manvendra Pratap @ Manvendra Pratap Rao who are sons of Balwant Rao and Daya Nand @ Daya Bania caused gun shot injuries to the deceased persons and injuries by spade on vital parts of the body. It has come in the evidence that on reaching on spot all the accused persons entered into a short conversation and thereafter accused Balwant Rao exhorted his sons to kill his own brothers. It goes to establish that the accused persons formed an unlawful assembly with common object to kill the deceased persons and to cause gun shot injury to PW-5 Smt. Dulari Devi. It is also clear that the FIR for the horrifying occurrence was lodged without any delay and even if for the sake of argument there was any delay, the same has been reasonably explained by the prosecution witnesses and circumstances of the case. The injuries found on the body of the deceased persons namely Dheer Rao and Jheen Rao and Smt. Dulari Devi find support from the medical evidence and from the post-mortem report by which the date and time of causing the injuries is very much corroborated. Medical evidence clearly indicates that because of gunshot injuries and incised and punctured wound, both Dheer Rao and Jheen Rao must have died immediately. The place of occurrence has been fully established. There is no substantial contradiction or discrepancies in the evidence of the prosecution and some of the minor contradiction and discrepancies which have been discussed above goes to establish the reliability of the witnesses and that also shows that they are not tutored. Thus, the witnesses examined by prosecution are natural, credible and trustworthy. Amongst the appellants, two appellants Balwant Rao and Lal Sahab Rao died during the pendency of this appeal. After accused Daya Bania fired from his country made pistol at Jheen Rao who fell down whereupon Mahendra caused injurieswith spade on his neck. Mahendra Pratap gave second blow to Jheen Rao and Manvendra Pratap also fired at Dheer Rao after he was fired by Lal Sahab (since deceased).
83. As such, in view of the above discussion, the remaining accused persons namely Mahendra Pratap Rao, Manvendra Pratap @ Manvendra Pratap Rao and Daya Nand @ Daya Bania have been rightly convicted for the offence under section 148, 324/149, 302/149 IPC. All these convicted persons have been awarded life imprisonment which is liberal option of punishment under section 302 IPC. For the gun shot injury caused to Smt. Dulari Devi, the accused persons have been convicted under section 324 IPC, finding that the injury was on the hand and the impact of the injury was not so serious on Smt. Dulari Devi. They have been convicted and sentenced for two years and one year imprisonment respectively for the offence under section 324 and 148 IPC. The convicted persons have also been awarded a fine of Rs. 5000/- each.
84. In our considered view, the judgement/finding of the learned trial court is sound and based on settled principles of law and the sentence awarded to the accused persons is adequate. There is no illegality or perversity in the judgement of the trial court, nor there is any misreading and wrong appreciation of the evidence on record. Therefore, we are of the view that the learned trial court has very rightly convicted the accused-appellants and adequately awarded sentence.
85. The appeal has got no force and is liable to be dismissed.
86. The appeal is dismissed.
87. Appellants Mahendra Pratap Rao, Manvendra Pratap @ Manvendra Pratap Rao and Daya Nand @ Daya Bania are directed to surrender before the learned trial court forthwith where from they will be sent to jail to undergo the sentence.
88. The convicted persons have also been awarded a fine of Rs. 5000/- each. Under the provision of section 357 Criminal Procedure Code, three fourth of the fine so deposited by the convicted persons shall be payable to the PW-1 informant Jaiprakash and PW-5 injured Smt Dulari Devi in equal proportion by way of compensation.
89. Lower court record be transmitted back to the court below. Office is directed to send a copy of this order to the court below for communication and compliance. .
Order date 5.4.2019
Bhanu
(Pradeep Kumar Srivastava, J) (Naheed Ara Moonis, J.)