Allahabad High Court
Ram Shanker And Others vs The State on 22 December, 2022
Bench: Ramesh Sinha, Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A. F. R. Reserved on: 21.11.2022 Delivered on: 22.12.2022 Court No. 1 Case: - CRIMINAL APPEAL NO. - 500 of 1984 Appellants: - Ram Shankar and others Respondent: - The State of U.P. Counsel for Appellant: - Subudh, K. Shukla,Kr. M. Rakesh,Kr. Mukul Rakesh, Shanti Parkash, Prachi Counsel for Respondent: - G.A. Hon'ble Ramesh Sinha, J.
Hon'ble Mohd. Aslam, J.
(Per Mohd. Aslam, J. for the Bench)
1. Heard Ms. Prachi Trivedi, learned counsel for applicant No.3, Sri Dharm Trivedi, learned counsel for appellant No.4 as well as Sri Umesh Chandra Verma, learned Additional Government Advocate for State of U.P. and perused the record.
2. This criminal appeal is preferred on behalf of the appellants (1) Ram Shankar, (2) Gokaran Shukla, (3) Jageshwar, (4) Sabit, and (5) Mukaddar under Section 374 (2) Cr.P.C. against the impugned judgment of conviction and order of sentence dated 27.06.1984 passed by learned Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Sessions Trial No. 168 of 1984 (State of U.P. Vs. Ram Shanker and 4 others), arising out of Case Crime No. 146 of 1981, Police Station- Dhaurahra, District- Lakhimpur Kheri, whereby the appellants were convicted for offence punishable under Section 302/149 Indian Penal Code (in short "I.P.C") and were sentenced to undergo imprisonment for life, they were also convicted for offence punishable under Section 148 I.P.C. and were sentenced to undergo rigorous imprisonment for one year, also convicted for offence punishable under Section 307/149 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and they were also convicted for offence punishable under Section 449 I.P.C. and were sentenced to undergo rigorous imprisonment for eight years, further convicted for offence punishable under Section 323/149 I.P.C. and were sentenced to undergo rigorous imprisonment for one month. It was further directed that all the sentences shall run concurrently.
3. During the pendency of appeal, appellant no.(1) Ram Shankar, (2) Gokaran Shukla and (5) Mukaddar died and the appeal in respect of them was dismissed as abated vide order dated 29.09.2021, now the present appeal survives only against appellant no. (3) Jageshwar and (4) Sabit.
4. In brief, the prosecution case is that informant Devi Charan Mishra (PW-1) son of Ram Swaroop Mishra, resident of village Shekhan Purwa, Police Station- Dhaurahra, District- Lakhimpur Kheri lodged the first information report on 06.07.1981 at 7.00 a.m. at Police Station- Dhaurahra alleging therein that he was living with his cousin Lalji Prasad son of Santram in the same house. His second marriage took place about 12 years ago with Vidya, daughter of Babu Ram Shukla, resident of village Murasa, Police Station- Mitauli. His wife Vidya was a lady of easy virtue on account of which his relation with her was not good and she parted company with him and was living at her paternal house. It is also alleged that due to this his father-in-law, brother-in-law Ram Shankar and others had suspicion that Lalji Prasad and his wife Smt. Ram Shree were behind all this trouble so that they made repeated unsuccessful attempt to persuade Devi Charan to separate himself from Lalji Prasad. One year before the incident, his wife had also exhorted that as long as Lalji and his wife would not die or be killed she would not come to her matrimonial home. His wife Vidya had developed illicit relation with accused Sabit and Mukaddar, who were living in the neighborhood, and on account of this unholy activity the aforesaid accused had exchange of words with Lalji Prasad. In the night of 5/6.07.1981 he and his cousin Lalji Prasad were sleeping in the courtyard after taking dinner and his sister-in-law (Bhauji) Ram Shree, niece Shravan Kumari and nephew Dinesh Kumar were sleeping on the terrace and his another brother Shrikant and his servant Arjun Lodh (PW-3) were sleeping in the western side of the same courtyard. A lantern (lamp) was burning in the courtyard (ANGAN). In the mid of night, informant woke up and sat down on CHAUKI and at around 12:30 hrs. in the night, 5-6 persons infiltrated from the north side of TATIHAR (thatched) gate flashing torches, thereupon, informant accosted them, then the miscreants commanded him to sit quietly. Then he saw in the flashes of torch that his brother-in-law Ram Shankar armed with gun, Shyam Bihari Shukla armed with country made Addhi and his brother-in-law's son Jageshwar armed with stick, Sabit armed with spade, Mukaddar armed with stick. Accused Sabit and Mukaddar caught hold of him but as soon as his brother-in-law and Shyam Bihari said not to kill him otherwise his sister will become a widow, they had to kill Lalji Prasad and his wife. On his alarm, Shrikant and Arjun Lodh woke up and Basudev flashed torch from adjacent terrace, then Sabit exclaimed that Lalji Prasad was sleeping nearby on which Ram Shankar and Shyam Bihari opened fire on Lalji Prasad resultantly he died, then Sabit said that wife of Lalji Prasad is sleeping on the terrace, thereupon, all the miscreants run towards the terrace. Informant and Arjun Lodh also went on the terrace to save his sister-in-law (BHABHI), then Ram Shankar opened fire on his BHABHI. The informant Debi Charan hugged his BHABHI then Jageshwar and Mukaddar assaulted with stick as a result of which he, his BHABHI Ram Shree and niece sustained injury. Meanwhile, Sunder Lal Tiwari and many other people of the village came armed with stick, flashing torches and raised alarm. Then all the accused persons fled towards north while firing. They identified the accused persons clearly and by their names also. His brother's dead body was lying at home and the injured were also at home. He prayed that his first information report be lodged and legal action be taken against accused persons.
5. Head Constable Raghunath Singh scribed the chick report (Exhibit-Ka-5) on 06.07.1981 at 7 a.m. at Police Station- Dhaurahra on the basis of Tehir (Exhibit-Ka-1) of informant and by making necessary entry in GD vide report No. 9 at 7 a.m. on 06.07.1981, registered Case Crime No. 146 under Sections 147, 148, 149, 449, 302 I.P.C. at Police Station- Dhaurahra.
6. Investigation of the case was entrusted to Sub-Inspector Sardar Singh. He copied the chick report and GD registering the case in the case diary and recorded the statement of Head Constable Raghunath Singh, scriber of the chick and GD, on 06.07.1981. Sub-Inspector Sardar Singh along with Sub-Inspector Irshad, Constable Ram Prakash, Constable Ragini, Constable Gayatri Prasad Yadav and Constable Uday Narayan proceeded for the place of occurrence thereafter. He appointed Shrikanth, Basudev, Sri Krishna,Vansh Gopal and Parashuram as witnesses of the Panchayatnama. The dead body of the deceased Lalji Prasad was found lying in a room of the house of informant. The head of the dead body was towards South and the foot was towards North. The elbow was found on side of dead body. The fingers were found bend. Eyes were opened and mouth was closed. Blood stained Janeu, Kurta and Dhoti were found on the body of deceased. The matting (Kathari) and cot were found blood stained. Blood stained firearm injury was found on the left side of the chest. Injury with blood-stain was also found on the right side of the chest. The Panch witnesses opined that deceased died due to injury and for ascertaining the exact cause of death postmortem of the dead body is needed. Sub-Inspector Sardar Singh prepared the Panchayatnama (Exhibit-Ka-7), photo nash (Exhibit-Ka-8), Challan lash (Exhibit-Ka-9), sample seal (Exhibit-Ka-10), letter to CMO (Exhibit-Ka-11) and sent the dead body for postmortem examination by Constable Ram Prakash (PW-4) and village Chowkidar Kunj Bihari. He also took plain soil and blood stained soil from the place of occurrence and sealed them into containers. He also took blood stained towel, piece of matting, piece of rope of cot and sealed them. He further took a used old lady's Dhoti and sealed it. He took four empty cartridges (red in colour) and two tickles of cartridge and sealed it. The investigation of the case was later on undertaken by Station Officer Sub-Inspector K.D. Singh (PW-5). On 06.07.1981 he recorded the statement of informant Debi Charan (PW-1) who supported the prosecution case, inspected the place of occurrence at the instance of Debi Charan and prepared the site-plan (Exhibit-Ka-13). On 07.07.1981 Sub-Inspector K.D. Singh recorded the statement of eyewitness Shrikant, Arjun Lodh (PW-3), Smt. Ram Shree (PW-2), Shravan Kumari, daughter of the deceased.
7. Injured Shravan Kumari, daughter of Lalji, aged about 14 years was medically examined by Dr. R.P. Rathore, Medical Officer, in-Charge Primary Health Center, Dhaurahra on 06.07.1981 at 02:45 p.m. At the time of medical examination, following injuries were found on her body:
"(i). Contusion 5 cm x 4 cm on the middle of the forehead.
(ii) C/o pain both buttocks."
Dr Rathore prepared the injury report in his own handwriting (Exhibit-Ka-2) and had identified the thumb impression RTI of Sharvan Kumari.
8. On the same day at 03:00 p.m. he also examined Ram Shree, wife of Lalji Prasad, aged about 40 years. Following injuries were found on her body:
"(i) contusion 5 cm x 4 cm on back of left forearm, 4 cm below left elbow,
(ii) abrasion 4 cm x 2 cm on the back of left ankle,
(iii) contusion 7.5 cm x 2.5 cm on the front of left knee,
(iv) gunshot wound of entry 8 cm x 4 cm x muscle deep on the inner and lower quadrant of left buttock extending upto vulva, charring and tattooing present, and
(v) gunshot wound of entry 5 cm x 3 cm x muscle deep on the lower and inner quadrant of right buttock, charring and tattooing present."
Dr. Rathore prepared the injury report of Ram Shree (Exhibit-Ka-3) in his own handwriting. He also identified the RTI of Ram Shree on the injury report.
9. Dr. R.P. Rathore on the same day at 3:15 p.m. also medically examined Debi Charan aged about 30 years. At the time of medical examination, following injuries were found on his body:
"(i) contusion 4.5 cm x 1 cm on the upper face right angle, and
(ii) contusion with abrasion 10 cm x 1.5 cm."
10. Dr R.P. Rathore prepared the injury report of injured Debi Charan (Exhibit-Ka-4) in his own handwriting. He also identified the RTI of Debi Charan.
11. The postmortem of the deceased Lalji Prasad was conducted by Dr. Kamlesh Kumar (PW-6) on 07.07.1981 at 2:40 p.m. At the time of post-mortem examination, the age of the deceased was found to be 55 years. The deceased was found having average body built. Rigor mortis passed off from upper parts and present in the lower parts. Post-mortem staining was found present over back. Body of the deceased was found distended. Blister present all over body. Skin peeled off at certain places. Eyes were found opened. Following ante-mortem injuries were found on the body of the deceased Lalji Prasad:
"(i) gunshot wound of entry 9 cm x 5 cm x chest cavity deep over front of upper part of left side chest just below inner end of collar bone. Blackening and tattooing were found present around the wound, margins were irregular, everted. Clotted blood present in the wound.
(ii) gunshot wound of exit 11 cm x 7 cm x chest cavity deep over front of left side chest and shoulder, 2 cm to the left of injury no.1. Margins irregular, everted. Clotted blood present.
Injury No. 1 is communicating with injury No. 2 while track of wounds contains clotted blood, bone fragments from broken ribs and extensive laceration of muscles, vessels and nerves as found on dissection of wounds 1st to 6th ribs of left side found fractured into multiple pieces. 75 small irregular metallic shots found embedded in the posterior muscle of left side axila muscle of inner side of left arm, shoulder joint, muscle of arm on back portion of shoulder and arm and taken out the injuries and muscles in which shots were embedded contains clotted blood.
(iii) penetrating wound 4 cm x 2 cm x chest cavity deep over front of upper part of left side chest, 3 cm below right collar bone, elliptical in shape, margins clear-cut sharp, clotted blood found present."
12. Doctor opined that the deceased died due to shock and hemorrhage as a result of ante-mortem injuries at about one and a half day before. Dr. Kamlesh Kumar (PW-6) prepared the post-mortem report (Exhibit-Ka-16) in his own handwriting. He handed over one sealed bundle containing Dhoti-1, Kurta-1, Janeu-1, all blood stained to constable who took the dead body for post-mortem. He also sealed one envelope containing 75 small metallic shots (pellets) recovered from the body of the deceased and sent it to S.P., Kheri.
13. On 17.07.1981, the Investigating Officer came to know that accused Jageshwar and Ram Shankar surrendered in the court of Additional Munsif Magistrate, Court No.8 and accused Shyam Bihari, Gokaran, Mukaddar and Sabit were arrested and sent to the jail. On 05.08.1981, he recorded the statement of Basudev Tiwari. Later on, investigation was transferred to the Station Officer, Sub-Inspector Laeeq Ahmed. He recorded the statement of witnesses Sunder Lal Tiwari and Babu Ram Tiwari on 01.03.1982. Investigating Officer also recorded the statement of Ram Shankar and Shyam Bihari wherein they denied the incident. The Investigating Officer recorded the statement of witnesses of the Panchayatnama, namely, Vansh Gopal, Shrikanth, Parashuram and Sri Krishna on 20.05.1982 and also recorded the statement of Dinesh Kumar. The Investigating Officer after investigation submitted the charge-sheet against the accused Sabit and Mukaddar (Exhibit-Ka-14) and another charge-sheet against accused Ram Shankar, Gokaran Shukla and Jageshwar (Exhibit-Ka-15) in Case Crime No. 146 of 1981, under Sections 147, 148, 149, 302, 449 I.P.C.
14. The cognizance of offence on the basis of aforesaid charge-sheet was taken on 18.06.1982 by Additional Judicial Magistrate, Lakhimpur Kheri and after complying the provision of Section 207 Cr.P.C. the case was committed to the Court of Sessions for trial. The charges for offence punishable under Section 148 I.P.C., 302 I.P.C. read with 149 I.P.C., 307 I.P.C. read with Section 149, 323 read with 149, and section 449 I.P.C. were framed against Ram Shankar, Gokaran Shukla, Jageshwar, Sabit and Mukaddar. The accused-appellants pleaded not guilty and claimed to be tried.
15. In order to prove its case, prosecution has examined informant Debi Charan (injured) as PW-1 who proved the Tehrir report (Exhibit-Ka-1). Witness Ram Shree, widow of deceased Lalji Prasad, as PW-2 and Arjun Lodh as PW-3, alleged eyewitness of the occurrence. As formal witness, prosecution has examined Constable Ram Prakash who carried the dead body for postmortem as PW-4, Investigating Officer K.D. Singh as PW5. The Investigating Officer proved the steps taken in the investigation and the check report (Exhibit-Ka-5), GD registering the case (Exhibit-Ka-6) by secondary evidence. He also proved that Panchayatnama of the deceased was done in his presence by S.I. Sardar Singh and proved the Panchayatnama (Exhibit-Ka-7), photo lash (Exhibit-Ka-8), challan lash (Exhibit-Ka-9), sample sale (Exhibit-Ka-10), letter to CMO for post-mortem (Exhibit-Ka-11) which was prepared in the handwriting of Sub-Inspector Sardar Singh. He also proved that from the place of occurrence Sub-Inspector Sardar Singh had taken in possession a blood-stained bed sheet, Towel and piece of matting (Kathari), piece of rope of cot (baan) and plain soil and blood stained soil, blood stained lady's Dhoti, four empty cartridges and two ticklies and sealed them separately. He produced the sealed packet in the court from which a piece of Kathari and a towel that was alleged to have been found and taken in possession from the place of occurrence by S.I. Sardar Singh and the sealed bundle was exhibited as Material Exhibit-1. He also produced the sealed container having plain soil and blood-stained soil as Material Exhibits- 2 & 3. He also produced a sealed container having four empty cartridges and two ticklies as Material Exhibit-4 before the Court below. He also proved that these articles were taken in possessed by Sub-Inspector Sardar Singh from the place of occurrence. He also proved the site-plan (Exhibit-Ka-13). He also proved that he was transferred from Police Station Dhaurahra and later on investigation was conducted by Sub-Inspector Laeeq Ahmed who had filed charge-sheet (Exhibit-Ka-14) and (Exhibit-Ka-15) against the accused persons. The prosecution has examined Dr. Kamlesh Kumar, Medical Officer to prove the post-mortem report (Exhibit-Ka-6). He also produced sealed packet from which 75 shots (pellets) were found and stated that these metallic shots were taken out from the body of the deceased. He also proved a sealed bundle from which blood stained Janeu, Kurta and Dhoti were found and it was exhibited as Material Exhibit-6. The genuineness of medical report of Shravan Kumari (Exhibit-Ka-2), Ram Shree (Exhibit-Ka-3) and Debi Charan (Exhibit-Ka-4) was admitted by learned counsel for the accused-appellant before the Court below.
16. The statement of the accused-appellant under Section 313 Cr.P.C. was recorded by learned Court below wherein they denied the prosecution case and stated that they were falsely implicated due to enmity with police. They stated that they have enmity with Basudev regarding land and dispute took place. They did not produce any oral evidence in their defence and filed following documents in their defence and closed their evidence:
"(i). copy of remand application dated 05.07.1981 moved by Investigating Officer in the court of Munsif Magistrate East in relation to Crime No. 117 of 1981, Police Station- Beniganj, District- Hardoi, under Section 60 Excise Act (Exhibit-Kha-1).
(ii) copy of order dated 12.04.1983 passed by Munsif Magistrate East, Hardoi in Case Crime No. 117 of 1981, under Section 60 Excise Act, Police Station- Beniganj, District Hardoi (Exhibit-Kha-2).
(iii) copy of charge-sheet dated 01.08.1981 (State vs Shyam Bihari) under Section 60 Excise Act in Case Crime No. 117 of 1981, Police Station- Beniganj, District Hardoi (Exhibit-Kha-3).
(iv) copy of first information report dated 04.07.1981 registered as Case Crime No. 117 of 1981 against accused Shyam Bihari under Section 60 of Excise Act (Exhibit-Kha-4).
(v) copy of bail application dated 08.07.1981 moved on behalf of accused Shyam Bihari in Case Crime No. 117 of 1981 under Section 60 Excise Act (Exhibit-Kha-5).
(vi) copy of bail order passed by the Munsif East, Hardoi in Case Crime No. 117 of 1981 under Section 60 Excise Act, Police Station- Beniganj, Hardoi (Exhibit-Kha-6).
(vii) copy of order of remand dated 08.07.1981 in Case Crime No. 117 of 1981 under Section 60 Excise Act, Police Station- Beniganj, Hardoi (Exhibit-Kha-7).
(viii) copy of surety bond dated 08.07.1981 filed by surety Raja Baksh in Case Crime No. 117 of 1981 under Section 60 Excise Act, Police Station- Beniganj, Hardoi (Exhibit-Kha-8)."
17. Learned lower court held that after close scrutiny of the circumstances and the evidence adduced the charges against the accused are established beyond reasonable doubt. It was also held that there was no dispute that Lalji Prasad was murdered. On this point there is more than sufficient evidence, (Exhibit-Ka-1) the Tehrir corroborates this fact. The evidence and paper relating to the inquest proceeding give utmost support to it because doctors found gunshot wounds of entry and exit in the chest communicating with each other. Ribs were found broken. Muscles, vessels, and nerves also extremely lacerated and 75 small irregular metallic shots were found embedded in the pectoral muscle left side, axilla muscle of inner side of left arm, shoulder joint, muscle of arm and taken out. The wound and muscles in which shots were embedded contains clotted blood. PW-6 Dr. Kamlesh Kumar proved the post-mortem report (Exhibit-Ka-16) and proved the antemortem injuries of the deceased found at the time of post-mortem. He has also proved that punctured wound on the chest of deceased. It is further held by learned court below that witness Debi Charan PW-1, Ram Shree PW-2 and Arjun Lodh PW-3 have proved the murder of the deceased Lalji Prasad. Sub-Inspector K.D. Singh PW-5 proved the formalities of the investigation. Constable Ram Prakash had taken the dead body in sealed condition to mortuary for post-mortem examination. The defence suggested the witnesses of the fact that dacoity was committed at the house of complainant and in dacoity the murder was committed. In this way murder of Lalji at the given time and place is asserted by the defence also. Blood stained articles were also found on the spot. Blood stained lady's dhoti and empty cartridges were also found at the place of occurrence. The assessment of the time of death as stated by the doctor is also corresponds with the manner in which the occurrence has taken place and the time of incident. Learned court below recorded the finding that all appellants, namely, Ram Shankar, Gokaran Shukla, Jageshwar, Sabit and Mukaddar have committed murder of the deceased Lalji Prasad, attempted murder of Ram Shree, and voluntarily assaulted and caused simple injury to injured in furtherance of common object, unlawful assembly and also committed the offence of rioting armed with deadly weapons and has committed house trespass in order to commit offence punishable with death and held them guilty for offence punishable under Sections 148, 302 read with Section 149 I.P.C., 307 read with Section 149 I.P.C., 323 read with Section 149 I.P.C. and 449 I.P.C. and each were sentenced to undergo rigorous imprisonment for a term of one year for offence punishable under Section 148 I.P.C., imprisonment for life for offence punishable under Section 302 read with Section 149 I.P.C., rigorous imprisonment for a term of seven years for offence punishable under Section 307 read with Section 149 I.P.C., to undergo rigorous imprisonment for one month for offence punishable under Section 323 read with Section 149 I.P.C., and to undergo imprisonment for a term of eight years for offence punishable under Section 449 I.P.C. It was directed that all the sentences shall run concurrently. Feeling aggrieved by it, appellants/convicts Ram Shankar, Gokaran Shukla, Jageshwar, Sabit and Mukaddar have preferred this appeal under Section 374 (2) Cr.P.C against conviction and sentence awarded by learned lower court.
18. Learned counsel appearing for the appellants has submitted that it is admitted position that there is prior enmity among the deceased and appellants. It is also an admitted position that the witnesses of fact, namely, Debi Charan PW-1, Ram Shree PW-2 are closely related to the deceased and witness Arjun Lodh PW-3 is the servant of brother of the deceased Shrikant, and therefore, they are most interested witnesses and no reliance can placed on their testimony. It is also submitted that the first information report is ante-timed and is lodged after due deliberation and consultation to falsely implicate the appellants/convicts after delay of about six and a half hours of the incident. It is also submitted that since no independent witness has been examined by the prosecution and only on the basis of uncorroborated testimony of PW-1, PW-2 and PW-3, the conviction of the appellants is not warranted. It is further submitted that during autopsy, the doctor has found the stomach of the deceased empty. It is also submitted that the empty stomach suggests that the murder of the deceased has taken place in the early morning and not in the midnight. It is also submitted that the occurrence is alleged to have taken place in the midnight, whereas the first information report has been lodged at 7:00 a.m. in the morning after a delay of about six and a half hours. The delay has not been explained by the prosecution and in above circumstances non-explanation of the delay leads to conclusion that the first information report is concocted. In view of the aforesaid facts, it is submitted by learned counsel for the appellants that the aforesaid finding of the doctor goes to show that the deceased had died about 10 hours after he took his meal. Accordingly, it is submitted that the time of death could not have been at 12:30 a.m. in night, rather the same might have taken place at 5-6 a.m. in the early morning. Accordingly, the evidence of PWs. 1, 2 and 3 are not reliable and the same cannot become the basis for conviction of the appellants. It is further submitted that PW-1 Debi Charan in his statement has admitted that Investigating Officer has not prepared any supurdiginama regarding lantern. It is further submitted that the statement regarding availability of light is not mentioned in the statement under Section 161 Cr.P.C. In the statement before the court, witnesses have stated that there was light of torches of the appellants and light of lantern was also there. Investigating Officer K.D. Singh (PW-5) has deposed that while giving the statement under 161 Cr.P.C. Ram Shree stated that she was weeping badly and could not tell other facts. It is further submitted that in above circumstances it is not established that there was any source of light as to recognize the appellants/convicts. It is also submitted that statement of the witnesses was recorded by the Investigating Officer with delay, therefore, no reliance can be placed on the testimony of prosecution witnesses. It is also submitted that post-mortem examination of the deceased and medical examination of the injured were conducted with delay which cast doubt on the prosecution case. It is further submitted that Investigating Officer had not prepared any Supurdginama of lantern and torches. It is further submitted that for the first time in the court the witnesses deposed that Shyam Bihari had covered his face and his face could not be seen by them. This fact is not mentioned in the Tehrir (Exhibit-Ka-1) and in the statement of the witnesses recorded under Section 161 Cr.P.C. It is further submitted that appellants/convicts Shyam Bihari was arrested on 04.07.1981 in Hardoi under Section 60 Excise Act and remained in jail to 08.07.1981 and Ram Shankar was at police duty. It is further submitted that in above circumstances, it is proved that Shyam Bihari and Ram Shankar were not present at the place of occurrence. Shyam Bihari was detained in jail and appellant Ram Shankar was on duty at the place of his posting. It is further submitted that learned lower court has not considered the documentary evidence produced by defence and has not properly appreciated the evidence on record in right prospective. It is further submitted that there is no mention of injury by Ballam in Tehrir (Exhibit-Ka-1), but in the statement under Section 161 Cr.P.C. the complainant and witnesses have stated that Sabit has given Ballam blow to the deceased. It is further contended that this was an improvement made after seeing the post-mortem report, therefore, the statement of the witnesses are not reliable. It is further submitted by learned counsel for the appellants that admittedly the occurrence took place in the night but there is nothing on record to show that there was any source of light for identification. Accordingly, it is submitted that in the absence of any source of identification of appellants/convicts, as such claim of PWs 1, 2 and 3 appears to be doubtful. It is also submitted that the prosecution has not been able to bring home the charges levelled against the appellants beyond the shadow of all reasonable doubts. Therefore, the impugned judgment of learned court below cannot be sustained in this appeal.
19. On the other hand, learned Additional Government Advocate has submitted that it is well settled that only because the witnesses are related to each other, their evidence cannot be brushed aside. The law only demands that their evidences shall be scrutinized with all care and caution. It is submitted that the court below, keeping in view the aforesaid law, has carefully evaluated the evidence of PWs 1, 2 and 3 and come to the conclusion that their evidences are wholly reliable and acceptable. It is further submitted that on careful scrutiny of the evidence of PWs 1, 2 and 3, it is clear that their statement is consistent with regard to the genesis of occurrence, manner of occurrence, place of occurrence, time of occurrence and during cross-examination the defence has not been able to elicit any material from their evidence on which their credibility can be impeached. It is further submitted that only because of empty stomach of the deceased it cannot be said that the occurrence took place at later point of time than the time stated by the witnesses PWs 1, 2 and 3. It is submitted that as per the Medical Jurisprudence, the process of digestion in normal, healthy person may completed within three hours and passed to intestine. It is submitted that admittedly in the instant case, the post-mortem was conducted on 07.07.1981 at about 2:40 p.m. and fecal matter was found in small and large intestine, thus, the food consumed by the deceased might have been digested during that period and it has passed to small and large intestine. In above circumstances, the aforesaid submission of learned counsel for the appellants appears to be misconceived. It is further submitted that the Doctor (PW-6) has found huge collection of blood and blood clots within the chest cavity. It is further submitted that it has come in evidence that deceased was immediately removed from the place of occurrence and taken to hospital on the motorcycle. It is also submitted that the occurrence took place on 05/06.07.1981 in the night at about 12.30 a.m., thus it is apparent that the occurrence took place during summer, and therefore, the deceased must have been wearing scarf clothes apart from other clothes. Accordingly, it is submitted that because of the aforesaid circumstance, the blood had fallen on the ground, cot, Kathri and baan and the Investigating Officer has collected the same from the place of occurrence. Investigating Officer has also collected four empty cartridges and two ticklies near from the place of occurrence. Under the aforesaid circumstance, it cannot be said that the occurrence might had not taken place at the place of occurrence as claimed by the prosecution witnesses. It is further submitted that it has come in evidence of PWs 1, 2, 3 and 4 that the occurrence also took place at terrace of the house of the complainant. It is also submitted that at the time of occurrence, the deceased was sleeping in courtyard. It has also come in evidence that at that time 5 to 6 persons entered in the house from thatched door to the courtyard where informant PW-1 along with his brother Shrikant, Arjun Lodh (PW-3) and Lalji Prasad were sleeping and lantern was burning there. It is further submitted that in courtyard and at terrace they saw the accused committing the offence in the light of torches of appellants/convicts, lantern and light of torch of neighbours. It is further submitted that the aforesaid circumstance shows that lantern was burning in the courtyard. Accordingly, it is submitted that since the deceased, informant and Shrikant were residing in the same house, therefore, in the said source of light the appellants/convicts can easily be identified by PWs 1, 2 and 3. It is further submitted that the pellets which were taken out from the body of the deceased were also produced in the court below, consequently in view of the fact that the direct ocular evidence coupled with the medical evidence fully supports and establishes the case of prosecution. It is further submitted that learned court below has rightly held that the document produced by appellants/convicts could not be related to Shyam Bihari. Moreover, appellant/convict Ram Shankar, against whom appeal has been dismissed as abated, could not prove that he was on duty at the place of his posting, and accordingly, it cannot be said that surviving appellants were falsely implicated. Accordingly, it is submitted that there is no illegality or irregularity in the judgment of the Court below which may warrant any interference by this Court.
20. We have given thoughtful consideration to the contentions raised on behalf of the parties and have also gone through the record.
21. First of all we find it necessary to enumerate the principal and the procedure governing the hearing of appeal against conviction by First Appellate Court. Hon'ble Apex Court in Majjal vs. State of Haryana, reported in (2013) 6 SCC 798 has held in paragraph 7 as under:
"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that appellants must be convicted deserves to be confirmed. This exercise is necessary because the personal search holiday report state its reason why it is accepting the evidence on record. The High Court's concurrence with the trial courts view would be acceptable only if it is supported by reasons. In such appeals it is the court of first appeal. Reasons cannot be cryptic. By this, we do not need that High Court is expected to write and unduly long treaties. The judgement may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter. Since this exercise is not conducted by the High Court, the appeal deserves to be remanded for fresh hearing after setting aside the impugned order."
22. Hon'ble Apex Court in Bakshish Ram and Another vs. State of Punjab, reported in AIR 2013 SC 1484 has laid down the law regarding manner for disposal of criminal appeal by First Appellate Court. It has been held that the First Appellate Court has to apply its independent mind and record while making independent assessment of evidence and in absence of independent assessment by the court, its ultimate decision cannot be sustained and has observed in paragraph 14 as under:
"14. The High Court, as a First Court of Appeal, on facts must apply its independent mind and record its own findings on the basis of its own assessment of evidence. Mere reproduction of assessment of the trial court may not be sufficient and in absence of independent assessment by the High Court, its ultimate decision cannot be sustained. The same view has been reiterated by this Court in Sakatar Singh and Others vs. State of Haryana, (2004) 11 SCC 291:"
23. Hon'ble Apex Court in "Phula Singh vs. State of Himachal Pradesh, reported in AIR 2014 SC 1256" has held that where two views on the evidence available on record are possible, one of conviction and other of acquittal, the beneficial to the accused should be taken by the Appellate Court.
24. Keeping in view the law laid down by the Apex Court that the First Appellate Court while deciding the criminal appeal on facts must apply its independent mind and record its own findings on the basis of its own assessment, the evidence is appreciated for our independent assessment of evidence and recording the findings if we reach to the findings that the findings recorded by the trial court is in consonance of our findings, the appeal could be dismissed and if two views are possible after appreciation of the evidence and one view is in favour of acquittal, the appeal would be allowed or on the basis of appreciation of evidence if we find that trial court has not appreciated the evidence while recording the findings of guilt and it is illegal, the appeal would be allowed.
25. In the instant case, now we will proceed to consider the submission of learned counsel for the appellants regarding ante-time as well as delay in lodging the F.I.R. In this case, the occurrence is alleged to have taken place on 5/6.7.1981 in the midnight at about 12:30 a.m., whereas, the first information report is alleged to have been lodged by PW-1 Debi Charan on 06.07.1981 at about 7 a.m. on the basis of written Tehrir (Exhibit-Ka-1) which was scribed outside the police station and handed over to Munshi of police station Dhaurahra, District Lakhimpur Kheri. PW-1 Debi Charan has deposed that in the morning he had gone to police station Dhaurahra and has ascribed the written complaint (Exhibit-Ka-1) outside the police station, and thereafter, handed over the same to Constable Clerk of police station Dhaurahra for lodging of the report. The Chick report (Exhibit-Ka-5 ) and GD registering the case (Exhibit-Ka-6) were proved by formal witnesses. Perusal of the chick report shows that the place of occurrence is six miles away from the police station Dhaurahra. In his written complaint, he has narrated the entire story and has specifically mentioned that the dead body of his brother was laying at his house. The injured were also at his house. PW-1 has further deposed that after lodging of the FIR, Sub-Inspector of the police station took him to place of occurrence by jeep. He has further deposed that from the place of occurrence he along with other injured was sent to hospital for medical examination along with police constable. Perusal of the inquest report (Exhibit-Ka-7) shows that it finds mention that FIR was lodged at 7 a.m. in the morning and Sub-Inspector reached at the place of occurrence for inquest at about 9 a.m. In this case the inquest of dead body was conducted in the morning after lodging of the FIR and the dead body was handed over to Constable Ram Prakash and Village Chowkidar for carrying it for post-mortem at about 11 a.m. Learned counsel for the appellants/convicts has not challenged the time of lodging of the FIR in cross-examination. In above circumstances, it cannot be said that FIR was ante-timed. From the perusal of the chick report, it appears that it finds no mention of time and date of the receipt in the Court of Magistrate. The Hon'ble Apex Court in the case of Anjan Dasgupta vs. State of West Bengal and Others, (2017) SCC 2022 has held that delay in forwarding the FIR to court is not fatal in a case in which investigation has commenced promptly on its basis. It is also held that it is only extraordinary and unexplained delay, which may raise doubts regarding the authenticity of the FIR. The Apex Court in Criminal Appeal Nos. 525-526 of 2012 "Jai Prakash Singh vs. State of Bihar and Another", decided on 14th March, 2012 in paragraphs 11 & 12 has held as under:
"11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/complainant.
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37)."
26. In the case in hand, the occurrence has taken place at about 12:30 a.m. in the midnight. The place of occurrence is six miles away from the police station Dhaurahra. In the occurrence, the brother of the informant was murdered and the wife of the deceased sustained fatal injury and the daughter of the deceased had also sustained injury. In above circumstances, no one could dare to go to police station to lodge first information report due to fear. The counsel of the appellants/convict had only given the suggestion that dacoity has taken place in the night at the house of the informant and they sustained injury in dacoity and due to enmity the appellants were falsely named in the first information report. The time of lodging of the first information report is not challenged by the counsel of appellants before the trial court. Keeping in view the facts and circumstances of the case, it is proved that the first information report was lodged promptly and the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. In above circumstances, learned trial court has rightly held that first information report was lodged promptly which rules out any sort of concoction and deliberation and it gives assurance regarding the truth of informant's version.
27. In this case, the witnesses PW-1 Debi Charan, cousin of the deceased, PW-2 Ram Shree, wife of the deceased and PW-3 Ajun Lodh, servant of his brother Shrikant, are eyewitnesses of the occurrence. The witnesses Debi Charan and Ram Shree are alleged to be injured witnesses.
28. PW-1 Debi Charan has stated in his deposition that he was living with his cousin Lalji Prasad son of Santram in the same house. His second marriage took place about 12 years ago with Vidya, daughter of Babu Ram Shukla, resident of village Murasa, Police Station- Mitauli. His wife Vidya was a lady of easy virtue on account of which his relation with her was not good and she parted company with him and was living at her paternal home. Due to this his father-in-law, brother-in-law Ram Shankar and others had suspicion that Lalji Prasad and his wife Smt. Ram Shree were behind all this trouble so that they made repeated unsuccessful attempt to persuade him to separate himself from Lalji Prasad. One year before the incident, his wife had also exhorted that as long as Lalji Prasad and his wife would not die or be killed she would not come to her matrimonial home. He has further stated that his wife Vidya had developed illicit relation with accused Sabit and Mukaddar, who were living in the neighborhood, and on account of this unholy activity the aforesaid accused had exchange of words with Lalji Prasad. In the night of 5/6.07.1981 he and his cousin Lalji Prasad were sleeping in the courtyard after taking dinner and his sister-in-law (Bhauji) Ram Shree, niece Shravan Kumari and nephew Dinesh Kumar were sleeping on the terrace and his another brother Shrikant and his servant Arjun Lodh (PW-3) were sleeping in the western side of the same courtyard. A lantern (lamp) was burning in the courtyard (ANGAN). In the mid of night, he woke up and sat down on CHAUKI and at around 12:30 hrs. in the night, 5-6 persons infiltrated from the north side of TATIHAR (thatched) gate flashing torches, thereupon, he accosted them, then the miscreants commanded him to sit quietly. Then, in the flashes of torch he saw his brother-in-law Ram Shankar armed with gun, Shyam Bihari Shukla armed with country made Addhi and his brother-in-law's son Jageshwar armed with stick, Sabit armed with spade, Mukaddar armed with stick. Accused Sabit and Mukaddar caught hold of him but as soon as his brother-in-law and Shyam Bihari said not to kill him otherwise his sister would become a widow, they had to kill Lalji Prasad and his wife. On his alarm, Shrikant and Arjun Lodh woke up and Basudev flashed torch from adjacent terrace, then Sabit exclaimed that Lalji Prasad was sleeping nearby on which Ram Shankar and Shyam Bihari opened fire on Lalji Prasad resultantly he died, then Sabit said that wife of Lalji Prasad is sleeping on the terrace, thereupon, all the miscreants run towards the terrace. He and Arjun Lodh also went on the terrace to save his sister-in-law (BHABHI), then Ram Shankar opened fire on his BHABHI. He hugged his BHABHI then Jageshwar and Mukaddar assaulted with stick as a result of which he, his BHABHI Ram Shree and niece sustained injury. Meanwhile, Sunder Lal Tiwari and many other people of the village came armed with stick, flashing torches and raised alarm. Then all the accused persons fled towards north while firing. They identified the accused persons clearly and by their names also.
29. In cross-examination, he has supported the version of the prosecution that he has no other house. He has further deposed that he and deceased Lalji Prasad were living together in the same house. He has further deposed that his first marriage had taken place in village Naye Gaon and his first wife is alive and one son was born from their wedlock. He has further supported the version of first information report that after his second marriage with Vidya, his first wife had left him and she started living separately. He has denied the suggestion of the accused's counsel that because of his illicit relation with the wife of Lalj Prasaad his first wife had left him. He has further deposed that he had not mentioned that appellant Shyam Bihari had concealed his face by scarf. He has further deposed that he had shown lantern to Daroga ji, but he is not aware whether Daroga ji had prepared the memo regarding it or not. He has further clarified that lantern was burning in the South of Chhapper. He has further clarified that he raised alarm on seeing the accused persons, but Lalji Prasad could not awakened and meanwhile he sustained firearm injury. He has further explained that at that time Lalji Prasad was sleeping facing mouth towards South. He has further deposed that the fire was made from his side on the deceased. He has further explained that the fire was opened on his brother Lalji Prasad from a close range. During cross-examination, he has further explained that when the fire was opened on his brother Lalji Prasad, his brother Shrikant and his servant Arjun Lodh woke up. He has also corroborated that the fire on Ram Shree was opened by Ram Shankar. Certain omission like non-mentioning of covering of the face by Shyam Bihari by scarf and certain other minor omissions in FIR does not go to the root of the prosecution case, therefore, that is not fatal. Moreover, the FIR cannot be said to be an encyclopedia. It is not expected that all the details must find in FIR. Therefore, it will not affect the prosecution case. From the perusal of the statement of PW-1 Debi Charan, it is apparent that nothing came in his cross-examination which makes his testamentary unreliable. The statement of PW-1 Devi Charan is corroborated by the written complaint (Exhibit-Ka-1), injury report of informant, daughter and wife Ram Shree of the deceased genuineness of which were admitted by the counsel of the appellants before the trial court. The statement of PW-1 Debi Charan is also supported by the post-mortem report, site-plan and by the depositions of PW-2 Ram Shee and PW-3 Arjun Lodh. The manner in which the deceased and injured Ram Shree, her daughter and informant sustained injury is corroborated by medical evidence. The statement of PW-1 Debi Charan inspires confidence and the same is liable to be relied on. Therefore, learned lower court has rightly relied on the deposition of witness PW-1 Debi Charan.
30. PW-2 Ram Shree is the wife of the deceased Lalji Prasad. She in her statement has stated that Debi Charan is her cousin (Devar) who was living with her husband in joint family. Devi Charan had solemnized his second marriage with Vidya who had illicit relationship with accused/appellant Sabit. She has further stated that Devi Charan had left her due to it and she was living at her parental home. She has further deposed that Vidya had organized dacoity many times. When Vidya was about to leave she had said that she will not come to Shekhanpurwa until Ram Shree and her husband Lalji Prasad would be murdered. She was lady of easy virtue and she got angry when she was pointed out. She has also deposed that occurrence has taken place three years ago at about 12 o'clock in the midnight. Her husband Lalji Prasaad and Devi Charan were sleeping in the courtyard. She was sleeping on the terrace along with her daughter Shravan Kumari and son Dinesh Kumar. A lantern was burning in the courtyard. When Devi Charan shouted and fire broke out, she woke up and saw that Ram Shankar, a man concealing his face who was probably Shyam Bihari, Jageshwar, Gokaran, Sabit and Mukkadar was there. Ram Shankar armed with gun, Shyam Bihari armed with big country made pistol, Gokaran armed with country made pistol, Jageshwar armed with lathi, Sabiit having Ballam and Mukaddar armed with lathi were there in the courtyard. Ram Shankar and Shyam Bihari opened fire with gun and big country made pistol on her husband Lalji Prasad due to which he succumbed to injuries. Then, all the accused persons climbed up on the terrace. Debi Charan and Arjun Lodh also followed them on terrace. The accused persons started beating her. Ram Shankar opened fire on her and Jageshwar started beating her with lathi also. She was saved by Debi Charan and Arjun Lodh. Her daughter Sharvan Kumari and Debi Charan had also sustained injuries. Basudev had flashed his torch from his roof on hearing the hue and cry. She had seen the faces of the accused in the light of lantern and torches. After getting down from the terrace, the accused fled from there. She, her daughter and Debi Charan were medically examined. The dead body of her husband was sealed there and sent for post-mortem. During cross-examination, she has denied the suggestion of the accused's counsel that Vidya had strong suspicion that she (Ram Shree) had illicit relation with Debi Charan. If this was the case then why Debi Charan married to second wife Vidyawati? Vidyawati used to taunt her and Debi Charan. Vidyawati had developed illicit relation with Sabit and she (Ram Shree) had seen them with her own eyes. She had also seen Sabit and Mukaddar secretly. They used to visit her secretly. She had also seen her (Vidyawati) secretly in the room locked from inside. These persons used to come as soon as Ram Shree went out for latrine, etc. When she used to go for latrine, etc. Sabit and Mukaddar used to come to courtyard and bungalow and talk to Vidyawati and also used to lock themselves in a room. When she used to tell Vidyawati not to have illicit relationship with them, Vidyawati used to say that she will make her to taste the fruit. Vidyawati used to listen when she rebuked Vidyawati about this. She has denied the suggestion of the accused's counsel that when she reprimanded Vidyawati in this regard she used to say, of course it that she has also illicit relation with Debi Charan. She has further deposed that due to this enmity Vidyawati took away her box, etc. by robbing her. Before occurrence, all the accused persons had also committed robbery at her house ten years before the murder of her husband, in which she was assaulted by Ganasi, but no report was lodged. She has further deposed that after opening fire on her and after assaulting her daughter and Debi Charan, the accused persons fled from there. She has further deposed that Ram Shankar has fired on her from a distance of only one step. She has further deposed that she had heard three rounds of fire in the courtyard below. She has further deposed that two shots were fired on terrace. Recently ten days back, she had gone to complain that the accused came to her house and threatened that they will throw acid on the witnesses, if they wold depose against them and also said that the witnesses would be killed like they killed her husband and acid would be poured in their eyes. She has further deposed that her blood stained clothes was taken by the Investigating Officer. She has denied the suggestion that Sabit and Mukkadar were falsely implicated due to disputes regarding road (Rasta). Nothing came in her cross-examination which makes her statement unreliable. The statement of PW-2 is corroborated by the first information report, post-mortem report and the injury reports. Therefore, her statement is liable to be relied on and learned lower court has rightly held that the deposition of PW-2 Ram Shree is trustworthy and liable to relied on.
31. The third eyewitness Arjun Lodh PW-3 is the servant of informant's brother Shrikant. This witness as PW-3 has stated on oath that he is living with Shrikant for 25 years. Lalji Prasad, Debi Charan and Shrikant are real brothers and they are living in the same house. He has also stated on oath that occurrence had taken place three years back in the midnight. He and Shrikant were sleeping in the courtyard in the Western side while Lalji Prasad and Debi Charan were sleeping in the Southern side of the same courtyard. Sharvan Kumari, Dinesh and Ram Shree were sleeping on the terrace and a lantern was burning in the South of courtyard. He woke up when he heard the shouting of Debi Charan and sound of shot of the firearm. He saw 5-6 men in the courtyard amongst them a man was covering his face, who was Shyam Bihari. Ram Shankar, Shyam Bihari, Gokaran, Jageshwar, Sabit and Mukaddar were along with him. Except Shyam Bihari, all the accused persons had opened their face. They were flashing their torches. Ram Shankar was armed with gun, Shyam Bihari was armed with a small country made gun, Gokaran was armed with country made pistol, Jageshwar and Mukaddar were armed with lathi and Sabit was armed with Bhali. When he got up, he heard the sound of firearm shot and found Lalji Prasad injured in the courtyard. Then all the accused persons climbed up on the roof. He and Debi Charan had followed them. Ram Shankar had opened fire on the injured Ram Shree and the rest accused had assaulted her with their respective weapons. He tried to save Sharavan Kumari and Debi Charan tried to save Ram Shree in which they also sustained injuries. They had recognized the accused in the flash of torches of the accused who were flashing their torches also on terrace. Meanwhile, Babu Ram and Sunder Lal came on their terrace, which was adjacent to the terrace of the informant, with flashing their torches. Thereafter, accused fled from there. In cross-examination, he has stated that he has two nephews and one brother. His house is situated in the north direction of Lalji's house leaving 10-20 houses. He used to sleep in the courtyard in night to keep eye on the animals. He woke up when he heard the sound of shot of firearm and shout of Debi Charan. When the accused persons climbed up on the terrace they had also followed them. He has further clarified that Ram Shree had sustained firearm and other injuries after their reaching on terrace. He heard sound of two shots of fire on the terrace. When the fire was shot on Ram Shree, Debi Charan was behind. He has further clarified that they were not hitten by the shot of firearm. Debi Charan and Sharvan Kumari were also assaulted by Sabit and Mukaddar. He has denied the suggestion that he is giving evidence against the accused under the pressure of Ram Shree and police. He has also denied the suggestion of the accused's counsel that he had not seen the incident. From the perusal of the cross-examination, it transpires that the testimony of PW-3 Arjun Lodh was not challenged on the point that he was not sleeping in the courtyard to keep eyes on animals. His testimony was also not challenged that he was not servant of Shrikant, brother of the informant. His presence on the place of occurrence is unshaken. Nothing came in his cross-examination which makes his testimony unreliable. He has given a vivid description of the incident. The factum that accused were identified in the light of lantern and in the light of torch of the accused was not challenged in the cross-examination. Therefore, the testimony of this witness inspires confidence and is liable to be relied on and learned court below has rightly relied on the testimony of PW-2 Arjun Lodh. The testimony of this witness is corroborated by the testimony of injured witnesses PW1 Debi Charan, PW-2 Ram Shree and by the first information report, injury report of the injured and the post-mortem report of the deceased. Therefore, PWs 1, 2 and 3 are also reliable and their depositions can be relied on for recording conviction of the appellants.
32. It is proved by the deposition of Debi Charan PW-1 who has deposed that after the incident in the morning, he had gone to the police station along with village Chowkidar and written the Tehrir (Exhibit-Ka-1) outside the premises of police station and handed over it to the police for lodging of the first information report. Learned counsel for the defence has admitted the genuineness of the injury reports of Sharvan Kumari (Exhibit-Ka-2), PW-2 Ram Shree (Exhibit-Ka-3) and PW-1 Debi Charan (Exhibit-Ka4). It is also proved by the Sub-Inspector K.D Singh PW-5 that the chick report (Exhibit-Ka-5) was scribed by Raghunath Singh Head Constable in his absence on the basis of written Tehrir of informant Debi Charan and registered the after making entry in GD (Exhibit-Ka-6). He has also proved by secondary evidence that investigation of the case was taken up by Sub-Inspector Sardar Singh who had visited the place of occurrence and conducted the inquest proceedings of the deceased and had prepared the Panchayatnama (Exhibit-Ka-7), photo lash (Exhibit-Ka-8), challan lash (Exhibit-Ka-9), sample seal (Exhibit-Ka-10), letter to CMO (Exhibit-Ka-11). PW-5 Sub-Inspector K.D. Singh has also proved that Sub-Inspector Sardaar Singh had also collected Towel, piece of Kathari, baan of cot, blood-stained and simple soil from the place of occurrence and also took in possession the lady's blood stained Dhoti, four empty cartridges and two ticklies and sealed all the articles separately and prepared memo (Exhibit-Ka-12). Before the lower court, the sealed packet was also produced and opened in which there were baan of cot, piece of Kathari, Chadar and he proved it as Exhibit-1, the other sealed bundle containing lady's Dhoti was proved by him as Exhibit-2. The plain and blood stained soil taken from the place of occurrence sealed separately were also produced and proved as Exhibit-3, the empty cartridges and the ticklies were also produced in sealed packet and proved by Sub-Inspector K.D. Singh as Exhibit-4. All these articles were taken into possession by Sub-Inspector Sardar Singh from the spot in respect of which memo (Exhibit-Ka-12) was prepared. The witness K.D. Singh has further stated that he took up the investigation and inspected the place of occurrence at the instance of Debi Charan and prepared the site-plan (Exhibit-Ka-13). He has also proved that Sub-Inspector Sardar Singh dispatched the dead body in a sealed cover by Constable Ram Prakash and village Chowkidar with police papers and he himself sent the injured Sharvan Kumari, Ram Shree and Debi Charan for medical examination by Constable Uday Narayanan to PHC, Dhaurahra on 07.07.1981. He has also proved that on 19.10.1981 he was transferred and later on the charge-sheet (Exhibit-Ka-14) and (Exhibit-Ka-15) were submitted by Sub-Inspector Laeeq Ahmed.
33. PW-6 Dr. Kamlesh Kumar has proved the post-mortem report of the deceased (Exhibit-Ka-16). He has also proved that 75 shots (pellets) were recovered from the dead body of the deceased which were sent in sealed cover to SSP, Kheri and proved it as Exhibit-5 and also proved blood stained Dhoti, Kurta, Jeneu which were found on the body of the deceased at the time of post-mortem. He has also proved the ante-mortem injuries of the deceased and the cause of death that the ante-mortem injury was caused by fire of firearm and Ballam which was sufficient to cause death in the ordinary course of nature. He has further proved that injury nos. 1 and 2 were caused by firearm and injury no.3 was caused by Ballam. The genuineness of injury report of injuries of Debi Charan, Sharvan Kumari and Ram Shree was admitted by learned counsel for the accused/appellants before the court below. Firearm injuries were found on the body of Ram Shree which was fired from a close range. The post-mortem report of the deceased also establishes that injury no.1 is entry wound, which was also fired from close range, and injury no.3 was caused by Ballam. The details of the injury report and post-mortem report are mentioned above, in the body of judgment. From the statement of Investigating Officer and Dr. Kamlesh Kumar (PW-6) and injury report of injured Debi Charan, Sharvan Kumari and Ram Shree, it is proved that they had sustained injuries in the incident in the manner as alleged by the prosecution. The post-mortem report shows that stomach of the deceased was found empty and fecal matters were found in the small and large intestine, which establishes that the occurrence has taken place more than four hours after taking dinner by the deceased. This fact also establishes that the occurrence has taken place at the time as alleged by the prosecution. The ocular testimony of the eyewitnesses Debi Charan, Ram Shree and Arjun Lodh is corroborated by the injury report of Debi Charan, Sharavan Kumari, Ram Shree, by the post-mortem report of deceased Lalji Prasad and is also corroborated by the version of FIR, therefore, detailed appreciation of the evidence proves that appellants Ram Shankar, Gokaran and Mukaddar (who died during the pendency of the appeal) along with Sabit, Jageshwar and Shyam Bihari in prosecution of common object of the unlawful assembly they had committed murder of the deceased Lalji and had caused injuries to Ram Shree, Devi Charan and Sharvan Kumari, therefore, the offence punishable under Sections 148, 302 I.P.C. read with Section 149 I.P.C. is proved beyond reasonable doubt against Sabit, Jageshwar and Shyam Bihari.
34. So far as the contention of learned counsel for the appellants that all the witnesses PW-1 Devi Charan, brother of the deceased, PW-2 Ram Shree, widow of the deceased, and PW-3 Arjun Lodh, servant of brother of informant Shrikant are interested witness and no reliance can be placed upon their depositions is concerned, The Apex Court in Gangadhar Behera and Others vs. State of Orissa, reported in (2002) 8 SCC has held as under:
"......Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent ad credible."
35. In Dalip Singh and Ors. v. The State of Punjab, (AIR 1953 SC 364), it has been laid down as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
36. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras, (AIR 1957 SC 614) was also relied upon.
37. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in ''Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
38. Again in Masalti and Ors. v. State of U.P., (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. (emphasis supplied) [38]. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations and courts due to fear of insult and harassment. Generally, people avoid to become a witness of an incident for the simple reason that deposing against the a culprit involved in a crime would endanger their life. In the present social setup, it is least possible that a third person deposes against the culprit."
39. The Apex Court in Sandu Saran Singh v. State of Uttar Pradesh and Others, reported in (2016) 4 SCC 357 has held as under:
"29. .....In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."
40. In the wake of aforesaid, the prosecution has proved its case beyond reasonable doubt against the accused-appellants for offence punishable under Sections 302/149, 307/149, 148, 323/149 and Section 449 I.P.C. The learned lower court has rightly convicted and sentenced the appellants for the offences as mentioned above, according to law, which requires no interference.
41. Considering the overall facts and circumstances of the case, we are of the opinion that there is no illegality or perversity in the impugned judgment of conviction and order of sentence dated 27.06.1984 passed by learned Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Sessions Trial No. 168 of 1984 (State of U.P. Vs. Ram Shanker and 4 others), arising out of Case Crime No. 146 of 1981, Police Station- Dhaurahra, District- Lakhimpur Kheri, whereby the accused-appellants have been convicted and sentenced to undergo R.I. for a term of one year under Section 148 I.P.C., R.I. for life under Section 302/149 I.P.C., R.I. for a term of seven years under Section 307/149 I.P.C., R.I. for a term of one month under Section 323/149 I.P.C. and R.I. for a term of eight years under Section 449 I.P.C. Consequently, the impugned judgment of conviction and order of sentence dated 27.06.1984 passed by learned Additional Sessions Judge, Court No.1, Lakhimpur Kheri is, hereby, upheld.
42. The instant criminal appeal in respect surviving appellant no.3- Jageshwar and appellant no.4- Sabit is, accordingly, dismissed.
43. The appellants Jageshwar and Sabit are on bail. Their bail bonds and surety bonds are cancelled and the sureties are discharged. The lower court concerned shall cause them to be arrested and lodge in jail to serve out the remaining sentence awarded to them by court below.
44. Certify this judgment along with lower court record to the lower Court concerned immediately for information and necessary compliance.
Order Date :- 22.12.2022 Vikas/-
[Mohd. Aslam, J.] [Ramesh Sinha, J.]