Atar Singh And Others vs State Of U.P. on 7 February, 2020

[Cites 47, Cited by 8]

Allahabad High Court

Atar Singh And Others vs State Of U.P. on 7 February, 2020

Equivalent citations: AIRONLINE 2020 ALL 828

(Delivered by Hon'ble Naheed Ara Moonis,J.) The abovementioned two appeals have been filed on behalf of the appellants, namely, Atar Singh, Mansha Ram, Phulwari and Nawab Singh against the judgment and order dated 22.7.2009 passed by the learned Additional Sessions Judge, Court No.2, Farrukhabad in Sessions Trial No.327 of 1989 (State of U.P. Vs. Atar Singh & others) arising out of case crime no.158 of 1985 whereby they have been convicted and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.15,000/- under Section 302 IPC and three years rigorous imprisonment for the offence punishable under Section 148 IPC. Both the sentences were directed to run concurrently and in case of default of payment of fine they were directed to further undergo simple imprisonment of six months.

The prosecution was launched against seven accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh (sons of Pyare Lal), Phulwari S/o Vijay, Mansha Ram S/o Shankar, Kaptan Singh and Deshraj (sons of Babu Ram) in pursuance of the FIR lodged against them registered by Bahaar Singh as Case Crime No.158 of 1985, under Sections 147,148,149,302 IPC at police station Kayamganj, District Farrukhabad on 18.5.1985 at 6.50 P.M. The Sessions Trial No.327 of 1989 pertains to the trial of accused appellants, namely, Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari.The trial of accused Sughar Singh was separated at the fag end, on his plea of juvenility, who was acquitted by the court below. Kaptan Singh and Deshraj are the accused persons of Sessions Trial No.129 of 1995.

Appellants, namely, Atar Singh, Mansha Ram and Phulwari have preferred appeal bearing Criminal Appeal No.4576 of 2009, Nawab Singh has preferred appeal bearing Criminal Appeal No.4664 of 2009 against their conviction in Sessions Trial No.327 of 1989. The appellant Kaptan Singh and Deshraj have preferred separate appeal bearing Criminal Appeal Nos.4639 of 2009 & 4404 of 2009 respectively against their conviction in Sessions Trial No.129 of 1995. As stated in opening paragraphs all the accused persons were convicted by the judgment and order dated 22.7.2009 passed by the learned Additional Sessions Judge, Court No.2, Farrukhabad and each were directed to undergo rigorous imprisonment for life and also to pay fine of Rs.15,000/- under Section 302 IPC and three years rigorous imprisonment for the offence punishable under Section 148 IPC. Both the sentences were directed to run concurrently and in case of default of payment of fine they were further directed to undergo simple imprisonment of six months.

It is pertinent to mention here that due to passing away of appellant Atar Singh on 19.9.2018, the appeal on his behalf has stood abated by order dated 3.12.2018.

The prosecution case in short conspectus is that the First Information Report was lodged on 18.5.1985 at 6.50 P.M. by Bahaar Singh S/o Ram Sahay in respect of an incident occurred on the same day at 4.30 P.M. which was registered as Case Crime No.158 of 1985, under Sections 147,148,149,302,201 IPC at police Kayamganj, District Farrukhabad. He divulged in the FIR that his father Ram Sahay was Pradhan of his village Lakhanpur for about 35 years. In the last election, Chandrakali, the wife of Kaptan Singh @ Kamta Prasad S/o Babu Ram Yadav had contested election against his father. His father had lost the election for which a petition was filed which is pending. About two & half years ago a dacoity had been committed in the house of Saudan Singh, who had named Atar Singh S/o Pyarey Lal and Mansha Ram and two others of which the case is pending. Besides this, two years ago a case under Section 396 IPC was filed by Sohan Lal Nunre of village Lakhanpur in which two persons were killed by dacoits. In the said case, Mansha Ram, Atar Singh and Deshraj, the brother of Kaptan Singh were named in the FIR by Sohan Lal. Atar Singh and Kaptan Singh were under the impression that the complainant's father has implicated them in the case of dacoity. About two years ago, Kaptan Singh, Mansha Ram and Atar Singh had fired upon his father and his brother Tahar Singh with intent to kill them but luckily they had escaped from there. In this case all the three accused persons were challaned by the police. On account of the above reasons, Kaptan Singh and Atar Singh were bearing enmity with his father. Two and half months ago family member of Kaptan Singh was murdered in the village in which Kali Charan S/o Ram Naresh Yadav had filed a false report against Vijayee and Mansha Ram along with Tahar Singh who is the brother of the complainant at the instance of Kaptan Singh and on account of which, his brother is in jail. After 2-4 days, the dead body of Nahar Singh, the elder brother of Atar Singh was found in a well in which Atar Singh had implicated the complainant, his father, Nanhey, Rajendra, Tejram etc. of his village in the case, on the basis of mere suspicion that they had committed murder of Nahar Singh. A case under Section 107 IPC was also filed by Kaptan Singh and others, which is still continuing and on account of these reasons Atar Singh and Kaptan Singh were inimical with his father Ram Sahay.

Today (on 18.5.1985) in the evening at about 4.30 P.M. his father Ram Sahay was sitting on a cot on the platform situated in front of his baithak. Atar Singh, his younger brother Sughar Singh, elder brother Nawab Singh, Phulwari and Mansha Ram of his village as well as Kaptan Singh and Deshraj emerged out from the house of Atar Singh and passed through the baithak of Rajju and reached at the platform. Atar Singh, Phulwari and Mansha Ram were armed with rifle, Sughar Singh, Kaptan Singh and Deshraj having double barrel gun and Nawab Singh was armed with countrymade pistol came over chabootra. As soon as his father saw them he got up and tried to run towards baithak, at this Atar Singh, Mansha Ram and Kaptan Singh had fired upon his father. After receiving gun shot injury his father ran towards baithak and fell down there. Sughar Singh, Nawab Singh and Phulwari went behind him and entered in the baithak. There too, they had again fired upon him. Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately outside which had created reign of terror. His father had succumbed to the injuries in the baithak. All the accused persons thereafter dragged the dead body of his father from baithak and put him on the heap of wood of Arhar kept in an open vacant land of Sahab Singh. Atar Singh and Deshraj exerted that "Sale Ko Jalakar Rakh Kar Do" (burn him to ashes) and set the heap of wood of Arhar on fire. Other persons put dry leaves (patai) of sugarcane on fire. Thereafter they went towards the house of Kaptan Singh unleashing reign of terror by firing. This incident was witnessed by his mother who was standing at the door he himself, Sahab Singh S/o Bhawani Singh of his village and Brijender Singh who is the son of his brother's 'Sarhu' Soney Lal who resides there but they all were helpless seeing the murder of his father due to fear of accused persons armed with rifles and guns. The dead body of his father burnt to some extent has been lying on the spot, hence action be taken by lodging the FIR.

On the basis of the aforesaid FIR lodged by Bahaar Singh S/o Ram Sahai, police swung into action. A case was registered against Atar Singh, Sughar Singh, Nawab Singh, Phulwari, Mansha Ram, Kaptan Singh and Deshraj under Sections 147,148,149,302,201 IPC as Case Crime No.158 of 1985 on 18.5.1985 at police station Kayamganj, which was written by Constable Clerk Babu Ram marked as Ext. Ka-8 & Ext. Ka-9. S.S. Yadav, Inspector (C.B.C.I.D.) posted as Sub-Inspector at police station Kayamganj on 19.5.1985 had been entrusted to investigate the case. He along with in charge Inspector Jagdamba Prasad Mishra and SSI K.L. Verma with police force reached at the place of occurrence where the deceased Ram Sahay was done to death by firing upon him and his body was burned by the accused persons which was kept on the wood of Arhar. The inquest of the deceased was conducted in the presence of the witnesses and the inquest report was marked as Paper No.16-A/1,16-A/2, 16-A/3. It was duly signed by the Sub-Inspector S.S. Yadav who proved his signature and the same was marked as Ext. Ka-3. Thereafter the dead body was sealed, of which sample seal was prepared. He had further prepared papers of challan nash, police form no.13, letter to Chief Medical Officer, I/C Fatehgarh, letter to R.I., photo nash, chik FIR, copy of GD, site plan, memo of empty cartridges, memo of ashes of heap of Arhar, memo regarding search and arrest of accused persons, recovery of illegal firearm, memo of plain & blood stained earth, which were marked as Ext. Ka-4 to Ext. Ka-17. The recovery memos as mentioned above were made in the presence of Sahab Singh and Soney Lal which were signed by them.

The statement of the complainant and other witnesses were recorded under Section 161 Cr.P.C. The papers relating to the inquest of the deceased were handed over to Constable Lal Mani and Constable Balram along with the dead body and sent to the District Hospital for autopsy of the deceased. After conducting the investigation by SSI K.L. Verma, the charge sheet was submitted on 30.6.1985 against the accused persons, namely, Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari, under Sections 147,148,149,302,201 IPC. The charge sheet was marked as Ext. Ka-18. The charge sheet had been submitted separately on 13.2.1986 against Kaptan Singh and Deshraj by SSI Bhanwar Pal Singh, under Sections 147,148,149,302,201 IPC, which was marked as Ext. Ka-20.

On submission of charge sheet, as usual the cognizance was taken by the concerned Magistrate and after compliance of provisions of Section 207 Cr.P.C. the case was committed to the court of sessions. The case was transferred to the Special Judge/Additional Sessions Judge, Farrukhabad. The charges were framed against Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari on 30.6.1990, under Sections 148,302/34 IPC in Sessions Trial No.327 of 1989.

Against accused Kaptan Singh and Deshraj the charges were separately framed on 29.9.1995 by the Second Additional Sessions Judge, Farrukhabad in Sessions Trial No.129 of 1995. Both the trials were consolidated on 17.9.1998.

The charges were read over to the abovementioned accused persons who abjured the charges and claimed to be tried. Even though the accused persons Kaptan Singh and Deshraj of Sessions Trial no.129 of 1995 were appearing intermittently in Sessions Trial No.327 of 1989. but the prosecution witness P.W-1 was again examined and cross-examined in Sessions Trial no.129 of 1995. The accused persons were on trial for murder hence there was no justification to have a criminal trial pending for so long when the charges were already framed against them.

To bring home guilt of the accused persons, the prosecution has examined Bahaar Singh (complainant) S/o Ram Sahay as P.W-1, Brijendra Singh as P.W-2, who is the son of maternal uncle of informant, Dr. C.N. Bhalla who conducted the autopsy of the deceased Ram Sahay as P.W-3, S.S. Yadav (Retired Inspector) as P.W-4 and Phool Chandra, Pairokar as P.W-5.

Bahaar Singh who is the son of the deceased and the informant of the case was examined as P.W-1 on 17.1.2001. He deposed that the name of his father was Ram Sahay. The incident took place 15 years & 6 months ago. On the day of incident i.e. 18.5.1985 when his father was killed he was sitting in front of his baithak at the platform. At about 4.30 P.M. Atar Singh, Sughar Singh, Nawab Singh, who are real brothers, Phulwari, Mansha Ram, Kaptan Singh and Deshraj emerged out from the house of Atar Singh and passed through the baithak of Ragghu and suddenly came at the platform of his house. Atar Singh (since deceased), Mansha Ram and Phulwari were armed with rifle, Sughar Singh (declared juvenile), Kaptan Singh and Deshraj armed with gun and Nawab Singh was having countrymade pistol. When the accused persons climbed over his chabootra, then after seeing them, his father stood up to run towards inside baithak, at this juncture Atar Singh, Mansha Ram and Kaptan Singh fired upon his father which hit him. On receiving firearm injury his father fell down in baithak. Thereafter Sughar Singh, Phulwari and Nawab Singh entered into baithak and there too fire was shot at his father. Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately who had created fear and terror. His father had succumbed to the injuries in the baithak. Thereafter all the accused persons dragged the dead body of his father and brought in the open field of Sahab Singh and had put the dead body on the heap of wood of Arhar. Atar Singh and Deshraj after using vituperative words, exerted to burn him to ashes (Sale ko Jala Kar Raakh kar do) and set him on fire on the heap of wood of Arhar. Other accused persons picked up dry leaves of Sugarcane and put over the fire and after unleashing reign of terror by firing they went away towards the house of Kaptan Singh. This incident was witnessed by his mother Nisar Devi who was standing at the door. Besides her the complainant P.W-1 himself, Sahab Singh and Brijendra Singh of his village and other witnesses were present who had witnessed the incident. No one could dare to come forward to stop the accused persons as they were having rifle and gun. He reached near the half burnt dead body of his father. He left him at the spot and went to lodge the FIR. After the incident, he had written the report which was taken by him and handed over to the police of police station Kayamganj. The report paper no.5-A was proved by him and was marked as Ext. Ka-1.

He further deposed that his father Ram Sahay was murdered as there was deep rooted enmity between the accused persons and his family, detail about the enmity was written in the report.

The witness was put to lengthy cross-examination on behalf of the accused persons, namely, Atar Singh (since deceased), Mansha Ram and Nawab Singh by the defence counsel. In his cross-examination P.W-1 deposed that his father Ram Sahay was Pradhan of Lakhanpur which consist of Akhunpur Lakhanpur, Nagla Akhunpur, Karim Nagar, Pattiya, Eidgah Nagla, Nagla Thakur. Since 1972 Babu Ram, the father of accused Kaptan Singh who contested the election of Pradhan was defeated constantly. He does not know as to whether Babu Ram had filed any petition or not. He denied that any parti-bandi is going on since long. In 1982 accused Kaptan Singh's wife Chandrakali had contested the election of Pradhan against his father, but election was won by Chandrakali and his father had lost the election. He was not aware that Atar Singh, Nawab Singh, Sughar Singh, Mansha Ram and Phulwari had supported in the election. He denied that those persons had opposed his father. In his knowledge Atar Singh and others were neutral in the said election of Pradhan. He did not know as to who were other persons, except Babu Ram and Chandrakali, contested election against his father. He denied that other candidates were opposing his father Ram Sahay. He also denied that he is deliberately not disclosing the name of the other persons.

In his cross-examination P.W-1 further deposed that prior to the death of his father 2 & 1/2 years ago there was dacoity and murder in the house of Saudan Singh. In that case a report was lodged against accused Atar Singh, Mansha Ram, Albele, who is the brother-in-law of Atar Singh and one another person. He showed his ignorance that in that case Tahar Singh was a witness from the side of Saudan Singh. The accused persons were acquitted.

The dacoity in the house of Sohan Lal Nunre of village Lakhanpur happened two years ago prior to his father's murder in which two persons, namely, Data Ram and Shripal were killed. In that case Atar Singh, Mansha Ram and Deshraj were the accused who were acquitted. He denied that his father was involved in the dacoity in conjunction with his associates. His father had lodged an FIR under Section 307 IPC against the accused Atar Singh, Mansha Ram and others who had fired upon him. In that incident his father had not sustained any injury. In the said case his brother Tahar Singh and Nanhey Singh S/o of Saudan Singh were the witnesses. In this case also they were acquitted.

He further deposed that in the murder of Ram Naresh S/o Chiraunji of Nagala Akhunpur, Kali Charan had lodged the report in which his brother Tahar Singh, Asharam, Vijayee and Janaki were made accused. In this case his brother Tahar Singh was convicted for life imprisonment under Section 307 IPC and it is correct to say that they had been falsely implicated in the said case. He showed his ignorance that a case under Section 107 Cr.P.C. was filed against his father at police station Kayamganj and Akhunpur. His father was living on rent in Kayamganj for a certain period. He had taken contract of countrymade liquor in Kayamganj. He was not aware about Rameshwar Sahay and Vittan Lal had been in transport business along with his father and it is wrong to say that there was dispute regarding liquor and transport with his father. He denied that his father had any connection with any gang of dacoits. He denied that any gang used to take shelter at his place. He denied that his father had illicit relation with the female of the dacoit's family. Smt. Nisar is his mother and was not concubine. She was not muslim. Her father was Thakur named as Bachan Singh who had expired. There is no family alive in the family of Nisar. He denied that his mother had came along with gang and was kept by his father. He denied that when his father was murdered gang of Sultan Dhanuk was active and the gang used to get shelter by him. He denied that gang of Sultan used to take shelter at his place. He also denied that on the arrival of the police on the information of his opponent, gang of Sultan escaped from there. It is also wrong that they had offered shelter to members of the gang and looted booty and when gang of Sultan came to get back Rajjo and looted booty, his father had refused to return them. He denied that the gang of Sultan had exerted pressure to get back Rajjo and the booty and his father had committed murder of Rajjo and burnt her dead body. It is also wrong to say that his father had not returned the looted cash, jewelry and weapon with ill intention. He deposed that he is not aware that the case of murder of his father was committed to sessions court in one time and rest case of Kaptan Singh and Deshraj was committed subsequently. He deposed that the date is fixed today in respect of all the seven accused persons in this Court. He cannot say as to whether the statement is being recorded for all the accused persons. He is not being told whether his statement has to be recorded on behalf of Kaptan Singh and Deshraj.

P.W-1 in his cross-examination further stated that the name of his grandfather was Umrao and he had two sons, namely, Ram Sahay and Bhawani Sahay. Sahab Singh who is the son of Bhawani is witness in this case. Tahar Singh is his real brother who got married in Silah not in Jasrathpur. Brijendra Singh (P.W-2) is the son of Tahar Singh's Sarhu. Brijendra Singh is the resident of Jasrathpur (now Dashrathpur) which is 25-30 Km. away from his village. He further deposed that beside Soney Lal several other persons were residing in his village. The nearest house is of Soney Lal, Raghu and others are at a distance of 100-150 meters towards north. At the time of incident his mother, Sahab Singh and Brijendra Singh came over there, thereafter 2 to 4 persons also arrived there among them Ram Prakash, Soney Lal and several women and children were present. He remained at the spot 10-15 minutes. Fire extinguished with water by him, Ram Prakash, Soney Lal, Brijendra and children. The inquest of the dead body was conducted in the morning. At the time of conducting inquest, he was at his house and was not at the site. He had not signed the inquest report at the time of inquest. He had not seen that smoking was coming out or not. Till 9-10 AM in the morning the police remained there. The dead body was taken by the police on the bullock cart to Kayamganj. He did not go to the police station along with the dead body. Ram Prakash, Soney Lal and others were present there. The police station Fatehgarh was at the distance of about 4 Km from his village. He is not aware that Fatehgarh was 30-40 Km. The dead body came on a taxi from Fatehgarh at about 1.30 P.M. After postmortem of the dead body cremation was done on the same day. After cremation, he did not go to the police station. He could not remember that the police went to his village on the next day or not.

The site plan was prepared by the police on the next day after cremation. The police had recovered empty cartridges, tikli and shots in his presence. When the dead body was sent for postmortem on the same day, empty cartridges and blood stained earth etc. were taken into custody by the police. The police had not taken his signature on any paper.

Main door of his house is situated towards east. Platform is in front of the door, which is about 10/12 feet in length and width. Platform of Dabbu is adjacent to the northern side of platform which is towards north and south. There is one more platform in the southern side of his house which is about 15/12 feet wide. On this platform, his baithak is towards west. One window is also in the said baithak on the northern side to this platform. On southern side of his baithak one platform of two brothers, namely, Ram Prakash and Soney Lal is lying. The police had collected the empty cartridges from the south-west corner of platform of Ram Prakash as well as on his platform and from inside the baithak. The empty cartridges which were lying at the platform of Ram Prakash was at a distance of 5-6 feet. He showed his ignorance about how many cartridges were lying at the chabootra and inside the baithak. Empty cartridges were of 12 bore and 315 bore. The distance where the dead body was recovered was 50-60 meters away from this platform on the eastern side of the baithak. He had also mentioned in the FIR place from where the incident was seen. During the entire incident he was at a distance of 20-25 meters away in the southern side from the place where his father was sitting. He remained there for 15-20 minutes after the incident. Earlier he was in his house. Brijendra Singh was with him prior to the incident. Brijendra Singh was along with him and Sahab Singh was present on southern side adjacent to the house of Ram Prakash. He had himself seen the shots of 10-5 fire hitting to his father. When his father got up and ran towards baithak he had received gun shot which was hit at his chest. He could not say as to which firearm hit his father first as several shots were made simultaneously. When his father was sitting on the cot he did not receive any fire. When he was about to rise to run from there then he received the fire. His father ran towards baithak which is towards west from the place where his father was sitting on a cot. Baithak was at a distance of 3-4 feet where he was sitting. His father received 2-4 fire which was fired from the northern side as he was about to run. His father could not close the door while entering into baithak. Three accused persons entered into the baithak. He could not say as to how many shots were fired inside baithak. The place from where he was seeing the firing, he was not able to see the fire made inside the baithak. He showed his ignorance as to how many fire were made at his father inside the baithak.

P.W-1 was further cross-examined on 9.2.2001 who stated on oath that he did not ask from anyone till he scribed the FIR as to how many shots were fired upon his father. When the first shot hit to his father the assailants were towards north side of his father. At that time, father was running towards western side. First fire hit to his father on his chest. He could not see that the fire was hit at the chest of his father from right or left side. When firing took place his father was sitting at his platform. 7-8 fire was made from all around in which some fire hit to his father, some at door step and some on wall of the outer side of the baithak. Fire shot also hit on the entrance of the upper side of the door. Besides 7-8 fire at the platform, several other shots were also made. 4-5 shots were made so that nobody could dare to come forward. The fire was made from north of the door of the baithak. No fire was made upon him or upon any witness. On receiving first shot his father did not fell on the ground, later on he fell in the baithak. Accused persons remained inside 4-5 minutes. When they came out from the baithak then they did not fire. His father was dragged from baithak 50-60 meters away. When they dragged him at that moment they had not fired. They put his father on the heap of woods of Arhar and set him ablaze. Thereafter again they fired. When his father was put on fire, he was already dead. He died inside baithak.

He had disclosed in his statement the place from where he had witnessed the incident. It is wrong to say that the place has not been mentioned in his statement from where he had seen the incident. In the report also he had mentioned the place. He had disclosed to the police that he used to go Jasrathpur. Witness Brijendra Singh (P.W-2) is the resident of Jasrathpur, District Etah who is studying and residing with him since last 8-10 years.

He denied that he and Brijendra Singh were at Jasrathpur on the day of incident and were not present at the time of incident. He also deposed it is wrong to say that mother Nisar was at Shamshabad and was not at the place of incident. He also denied that on account of fear of miscreants his father mostly used to hide and did not live in the house. It is also wrong to say that miscreants on the day of incident had traced out his father and when he entered in the house miscreants chased him and his father closed the door after entering into the baithak. The miscreants pushed and broken the door and thereafter they had committed his murder and also wrong to say that in order to take revenge they (miscreants) dragged him from the baithak and set him on fire. It is wrong to say that he received information next morning in Jasrathpur that miscreants had committed murder of his father. It is wrong to say that people of his village had given oral information in the morning to the police station. It is wrong to say that firstly inquest was conducted and thereafter the report was lodged after consultation. It is wrong to say that on account of enmity he had named all the accused persons falsely and they had not committed murder. It is wrong to say that he had not witnessed the incident and on account of enmity he has falsely deposed against them.

The P.W-1 Bahaar Singh was again examined in Sessions Trial No.129 of 1995. His deposition is discussed in the connected appeal filed on behalf of the accused Kaptan Singh and Deshraj.

Brijendra Singh S/o Soney Lal was examined as P.W-2 on 15.6.2001.Brijendra Singh, P.W-2 affirmed on oath that Ram Sahay, the father of his maternal uncle (Mausa) Tahar Singh, was murdered 16 years ago who was the resident of Akhunpur. At that time Tahar Singh was in jail. He was residing in the house of his maternal uncle Tahar Singh in Akhunpur. His maternal uncle Tahar Singh and father of Tahar Singh, Ram Sahay were inimical with Atar Singh and his family members. On the day of incident, he (P.W-2) and Bahaar Singh (P.W-1) were coming from the field of muskmelon (Kharbooja ). At about 4.30 P.M. in the evening when they reached near the field of Soney Lal, they saw that Ram Sahay Pradhan was sitting on a cot on his chabootra (platform) at once Atar Singh, his brother Sughar Singh, his elder brother Nawab Singh, Phulwari, Mansha Ram, Kaptan Singh and Deshraj emerged from the house of Atar Singh and came through the baithak of Ragghu and reached at the platform of Ram Sahay. Atar Singh, Mansha Ram and Kaptan Singh had fired upon Ram Sahay who ran towards baithak chased by Sughar Singh, Nawab Singh and Phulwari and they fired on him while entering inside bhaitak. Atar Singh, Mansha Ram, Kaptan Singh and Deshraj had fired indiscriminately outside which had created panic and terror. Pradhan Ram Sahay had breathed his last in the baithak. The dead body of Pradhan was dragged by Atar Singh and Deshraj towards the open place of Sahab Singh where the wood of Arhar was lying and kept his dead body on the heap of wood of Arhar. Atar Singh and Deshraj exerted, abusing to set him on fire and burn him to ashes "Sale Ko Aag Laga Kar Rakh Kar Do". Then Atar Singh had ignited the fire. Rest of the accused had put dry leaf on the fire. Thereafter all the accused persons escaped towards the village of Kaptan Singh. This incident was witnessed by him and Bahaar Singh from the gher of Soney Lal. Sahab Singh had witnessed from the outside of the house of Ram Prakash and Nisar had seen from her own door of the house. They could not intervene to save on account of fear and terror of the accused persons. He had completed his education in Akhunpur and he knew all the accused persons since before.

P.W-2 was cross-examined on 16.6.2001 by the defence. He stated on oath that Akhunpur village is 20-35 km. away from Jasrathpur. His village is in district Etah. He has four brothers and two sisters. Elder brother are Raghvendra Singh and Shail Singh. His brothers and two elder sisters had their education in Jasrathpur. His statement under Section 161 Cr.P.C. was recorded by the police in respect of the incident at about 9 A.M. 5-7 minutes before the dead body was sent his statement was recorded. He had deposed in his statement that accused Deshraj had dragged the dead body of Pradhan at the place where the woods of Arhar was lying. He could not disclose the reason as to why the police had not recorded about dragging of dead body by accused Deshraj. He had also disclosed to the police that he had studied in village Akhunpur. It is wrong to say that he did not study at village Akhunpur and it is wrong to say that to show his presence at the time of incident he has disclosed that he was staying for his study in village Akhunpur .

In his cross-examination he deposed that the dead body was taken from the place of incident at about 9 A.M. in the morning. Bahaar Singh who is brother of his maternal uncle (Mausa) and other villagers had accompanied the dead body. He did not go anywhere as there was no one in the house hence he remained in his village. After the incident police remained there till 9.30 A.M. in the village. In his presence in the morning, besides him the statement of Bahaar Singh, Sahab Singh and Nisar were recorded. Thereafter the inquest was conducted. The police left for police station along with the dead body. Again he deposed that he is not aware that the police went along with the dead body or before, but two police personnel had accompanied with the dead body. Later on Bahaar Singh did not go along with the police. Five police personnel remained there after the dead body was taken away. Bahaar Singh returned on the next morning. On the next day police had reached there at about 12 A.M. Site plan was prepared in his presence on the day of incident.

In his cross-examination he further deposed that at the eastern side of platform of Ram Sahay there is an open place which is 50 steps from east and 50 steps from door towards west. There is no wall. Gher of Sahab Singh towards north east about 50-55 meters. Open place of Sahab Singh is about 40-50 yards east and west. On the eastern side of field of Sahab Singh after half Km. agricultural fields of the village and the fields of Soney Lal, Sahab Singh and others are located. 15 minutes prior to the incident he along with Bahaar Singh had gone to see the field of muskmelon. The field of muskmelon is towards the east and south of the village. There is no field of Soney Lal. The field of Soney Lal is lying towards north and in between there is a field of Ram Sahay (Pradhan). P.W-2 was cross-examined at length with respect to the different field of the village situated near the place of incident. Again he was exhaustively cross-examined with respect to the field of villagers lying in the vicinity of the place of incident. He had deposed about the field of various villagers in a natural manner and he further deposed that the platform where Ram Sahay was sitting was 8-10 paces in length and width. The door of his baithak was towards east. His cot was closed to the door. Ram Sahai was sitting on the cot facing east. The cot was lying east to west. When the first fire was shot from the western side, at that moment Ram Sahay was sitting on the cot. 3 shot hit to Ram Sahay. Blood oozed out from the injury of Ram Sahay which fell on the cot and also on the ground. After 3 shots no fire was made at the platform as Ram Sahay ran inside baithak. After he entered in baithak firing had taken place but he could not count. At the platform 10-15 shots were made in the air. After Ram Sahay entered into baithak he heard 4-6 round of fire, but he could not see. The fire made by the accused persons in the air on the chabootra and while running from the place. After 10-15 minutes of firing by the accused persons there was atmosphere of panic and terror. He had deposed before the police that all the accused persons ran towards house of Kaptan Singh while firing in the air. After burning the dead body no fire was shot. The fire was doused by him, Bahaar Singh after arrival of women and children. He had stated about the said incident to the police, but he could not say as to why the same has not been mentioned by the police in his statement. When the police saw the dead body it was wet. No smoke was coming out from the dead body. Wet ashes and half wet wood lying there had been collected by the police. He had seen 10-15 cartridges were found at the place of incident. Cartridges were found only at the place of chabootra and baithak. The blood was only found inside baithak and at the platform. It is wrong to say that he had not seen the incident. It is wrong to say that he received the information about the murder of Ram Sahay in the morning when he was in Jasrathpur. It is wrong to say that on receiving information he and Bahaar Singh came from Jasrathpur to the place of incident. He also denied that he is deposing falsely about the incident on receiving information.

After examining the two witnesses of fact, the prosecution examined Dr. C.N. Bhalla on 18.11.2002 as P.W-3. Dr. C.N. Bhalla, Medical Officer Leprosy Control Unit Fatehgarh, District Farrukhabad deposed on that he was posted on 19.5.1985 as Pediatrician in District Hospital, Fatehgarh. On that date, at about 5 P.M. he had conducted the autopsy of Ram Sahay Yadav S/o Umarao. He was aged about 60 years. The dead body was brought in sealed cover by Constable Lal Mani and Constable Balram of police station Kayamganj, who had identified the dead body. The age of the deceased was aged about 60 years and one day had passed away since his death. His body was average built. Postmortem burn injury 4-6 degree was present. Head was partially burned and mussels were visible on the body. On some parts burned bones were visible and on some parts body was highly scorched.

The following ante-mortem injuries were found on the body of the deceased (Ram Sahay):

1. Lacerated wound 3cm x 2.5cm x chest cavity in the left side 14cm below left ribs. Direction front to back;

2. Lacerated wound 3cm x 2.5cm x abdomen cavity subcortal margin in M.C.L. just below the right ribs. Direction front to back obliquely;

3. Lacerated wound 3cm x 2.5cm x chest cavity left side of back below 8cm of scapula. Direction back to front;

4. Lacerated wound 8cm x 5cm x depth of skull. Skull was cracked. Brain matter and blood was coming out. Right ear was lacerated. Direction right to left.

He found two wedding pieces from brain, one from chest and one from abdomen. Five ticklies were found from brain, four from abdomen and two from chest and 78 small pellets were found from brain,, abdomen and chest.

On internal examination he found except frontal bone of the head all the bones were broken. Brain and its memberances were lacerated and the brain was coming out from injury. Left part of fourth and fifth ribs of the chest were broken. Both liver and its membranes were lacerated. Heart and its membranes were lacerated. Blood was filled in both part of chest. Stomach, small intestine, large intestine and gall bladder, both kidneys and spleen were lacerated.

He had opined that the cause of death was due to haemorrhage as a result of ante-mortem injuries.

The postmortem report was proved by him which was marked as Ext. Ka-2.

He deposed that death of Ram Sahay could have occurred on account of injuries sustained by him at 4.30 P.M. on 18.5.1985. Firstly he was injured by firing shots and thereafter his body was burned down.

In his cross-examination, he opined that there could be either side 4-6 hours regarding time of death. There could be possibility of receiving injuries at 11 P.M. in the night on 18.5.1985. In the stomach pasty food of 100gm. mixed with blood was found. He might have lastly taken meal prior to two hours before his death. He further deposed that as the dead body was 3-6 degree burnt, as such it was not possible to find out as to whether the injuries were of firearm.

On the internal examination wadding shots were recovered from different parts of the body which proves that the injuries were of firearm. It is not possible that wadding tikli and shots were present in the wounds from any previous injuries. He deposed that wadding tikli and shots were found in huge quantity, on account of which, heart, lung, liver, kidney and other internal organs were lacerated hence his death would have occurred instantaneously. He had not mentioned in his report about gun shot injury as the body was 3-6 degree burnt. He did not mention in his report as to from which part wadding tikli and pellets were recovered. He had found wadding tikli and pellets in all the four injuries. He could not say as to which bore of weapon was used. In pistol, rifle and revolver usually pellets are not used. The fire could have been shot from a distance between 4-12 feet.

The Dr. C.N. Bhalla was again examined in Sessions Trial No.129 of 1995 on 16.7.2009 as P.W-2. His deposition has been discussed in the connected Apeal filed by the accused Kaptan Singh and Deshraj.

S.S. Yadav, Retired Inspector, CBCID was examined on 26.5.2003 as P.W-4. He deposed on oath that he was posted as Sub-Inspector on 19.5.1985 at police station Kayamganj. On 18.5.1985 a case under Sections 302,201,147,148,149 IPC was registered as Case Crime No.158 of 1985. He visited the spot with in-charge Inspector Jagdamba Prasad Mishra and SSI K.L. Verma with police force where the deceased Ram Sahay r/o village Akhunpur, Police Station Kayamganj was murdered by firing and dead body was burnt. He had prepared the inquest report of the deceased in the presence of inquest witnesses which was signed by them who had put the thumb impression and signed the same. Thereafter the dead body was kept in sealed cover and prepared challan nash, letter to CMO, letter to RI and photo nash paper nos.17A,18A/1, 18A/2 & 19A which were marked as Ext. Ka-3, Ka-4, Ka-5, Ka-6 & Ka-7 respectively. He proved the papers relating to inquest No.16A/1 to 16A/3 prepared and signed by him. The chik FIR and the copy of GD prepared by him were proved as Ext. Ka-8 & Ka-9. He prepared the site plan. After preparing the police papers, he had sent the dead body of the deceased for autopsy through Constable Lal Mani and Constable Balram to District Hospital.

The defence had sought adjournment on 26.5.2003 to cross-examine him on the next date. Thereafter the case was adjourned incessantly by the defence and on 10.2.2009 after about six years he was again summoned and was re-examined with the permission of the court on behalf of all the accused persons of both the sessions trial separately.

S.S. Yadav, Retired Inspector of CBCID deposed on oath on 10.2.2009 that he was posted at the police station Kayamganj along with Constable Clerk Babu Lal and SSI K.L. Verma. He proved the chik FIR and rapat no.21-A prepared by Constable Clerk Babu Lal and proved his writing which was marked as Ext. Ka-8 & Ka-9. He proved the paper no.8-A, site plan (paper no.9-A), recovery memo of empty cartridges (paper no.9-A/2 & 9-A/4) in respect of tracing out and raiding to arrest the accused persons and papers relating to efforts made to recover fire arm which were prepared by SSI K.L. Verma. Paper nos.9-A/5, 9-A/6 & 9-A/7 were marked as Ext. Ka-10 to Ext. Ka-17. The charge sheet paper no.3-A in respect of accused Atar Singh, Sughar Singh, Nawab Singh, Mansha Ram and Phulwari under Sections 147,148,149,302,201 IPC prepared and signed by SSI K.L. Verma on 23.6.1985 which was proved and marked Ext. Ka-18. He further deposed that SSI K.L. Verma had already retired in 1998, since then his whereabouts is not known nor he had ever met with him.

In his cross-examination he deposed that SSI K.L. Verma had already retired in 1998. He did not know about his residence. He reached at the place of incident in this case. He could not remember at what time he reached there on 18.5.1985 as the incident is very old. When he reached on 18.5.1985 it was dark. He could not arrange light to conduct the inquest. He denied that he has made any overwriting on the last page of the inquest report. He denied any overwriting in crime number or section. He denied that he had made overwriting in respect of nakal rapat by putting "two" in place of one. He also denied that there is overwriting in case crime number. He had also denied that in the inquest report "Sections 147,148 & 149 IPC" was mentioned later on. He also denied that on the first page of case crime number was mentioned in the inquest report and that the chik report was not inconsistent with the inquest report. He also denied that any oral information was received at the police station about the murder of Ram Sahay on 19.5.1985 and reached at the same time along with the police force at the place of incident. He proved that the inquest was signed by him. He did not mention in the inquest report that it was prepared under the order of SSI K.L. Verma. Border of Police Station Campell is adjoining to District Etah and Budaun. There were known gangs in which gang of Sultan Dhanuk was active at the time of incident. He was not aware that in the gang females were also involved and Rajjo Devi was in the gang of Sultan. He had no information that members of Sultan gang used to take shelter with the deceased. It was also not known that deceased Ram Sahay was man of criminal nature and any criminal history is registered against him. Criminal history of Ram Sahay, deceased was not mentioned in the charge sheet.

This witness was cross-examined on behalf of the accused persons, namely, Kaptan Singh and Deshraj on the same day i.e 10.2.2009 separately in the Sessions Trial No.129 of 1995 (State Vs. Kaptan Singh and another) as the trial had been consolidated with the S.T. No.327 of 1989 (State Vs. Atar Singh & others) on 17.9.1998 which was the leading case.

In his cross-examination P.W-4 S.S. Yadav deposed that he is not aware as to what time they had departed from the police station to the place of incident. SHO and SSI were along with him. He is not aware about other police personnel. He had gone in the police jeep. He did not remember at what time they reached at the place of incident. He went along with SSI K.L. Verma at the place of incident. He did not remember about the nature of work done by SSI K.L. Verma and the Inspector. He is not aware whose statement was recorded by the Inspector and SSI K.L. Verma. He has also not remembered that as to what were the places raided by them. He could not say about the distance from the house where the dead body of the deceased was lying. He did not mention about the injuries of the firearm in the inquest report. Only it is mentioned that the body was burned. He is not aware that village Akhunpur and village Akhunpur ka Nagla are two distinct villages.

Constable Phool Chandra Pairokar of Police Station Kotwali, Farrukhabad was examined on 5.5.2009 as P.W-5. This witness deposed that he knew Babu Lal, Constable Clerk and SSI Bhanwarpal Singh. He was posted along with them and used to see their reading and writing. He knows about their writing and signature. He proved the paper no.4-A/1, 24-A/3, chik FIR and paper no.21-A/1, copy of GD prepared by Constable Clerk Babu Lal which were marked as Ext. Ka-9. Paper no.3-A (charge sheet) in respect of Kaptan Singh and another of Sessions Trial No.129 of 1995 was written by SSI Bhanwarpal Singh was proved by him and the same was marked as Ext. Ka-20. He further deposed that Constable Clerk Babu Lal and SSI Bhanwarpal Singh have been transferred. Since then he had not met with them.

This witness was cross-examined by the defence on the same day. He deposed that it is wrong to say that he was never posted along with Constable Clerk Babu Lal and SSI Bhanwarpal Singh and that no proceeding of this case had taken place before him. He also denied that as a mere formality he is deposing falsely under pressure.

After examining the witnesses of fact and formal witnesses, the accused appellants were examined under Section 313 Cr.P.C.

The statement of accused Atar Singh (since deceased), Sughar Singh, Nawab Singh (sons of Pyarey Lal), Mansha Ram and Phulwari under Section 313 Cr.P.C. were recorded on 8.5.2009. Their case was of denial and false implication due to enmity.

After the arguments were concluded, an application was moved on behalf of accused Sughar Singh on 6.7.2009 and it was pleaded that Sughar Singh was minor at the time of incident. The learned trial court separated the case of Sughar Singh and sent to the Juvenile Justice Board. The judgment in Sessions Trial No.129 of 1995 (State Vs. Kaptan Singh and another) and in Sessions Trial No.327 of 1989, State Vs. Atar Singh and others were pronounced on 22.7.2009.

The learned trial court proceeded to hold them guilty under Sections 148,302/34 IPC and accordingly convicted all the accused appellants for life imprisonment for the offence punishable under Section 302/34 IPC and for three years R.I. for the offence punishable under Section 148 IPC with a fine of Rs.15,000/-. Both the sentences were directed to run concurrently as already stated in the opening paragraph.

We have heard Sri Sukhveer Singh, learned counsel for the appellants and the learned A.G.A. Shri Ashwini Prakash Tripathi appearing on behalf of the State who have taken through the entire record.

Shri Sukh Veer Singh, learned counsel has submitted that due to passing away of Atar Singh, the appeal on his behalf of has stood abated. The accused Sughar Singh, the brother of Atar Singh was also facing trial in Sessions Trial No.327 of 1989 along with other accused appellants. His trial was separated as he was declared juvenile and acquitted by the trial court.

It is argued by the learned counsel Shri Sukh Veer Singh appearing for the appellants that the deceased Ram Sahay who was a man of criminal nature was done to death by unknown person belonging to his rival group of gang of dacoits and the appellants have falsely been implicated due to previous enmity by the complainant Bahaar Singh, who is son of the deceased. There is great inconsistency in the statement of P.W-1 Bahaar Singh with the statement of P.W-2 Brijendra Singh who have alleged to be the eyewitness of the incident. They were not at all present at the time of incident as there is discrepancy in their statement with the postmortem report of the deceased with respect to manner of assault by the accused persons hence it creates serious doubt about their presence. The prosecution has come up with the definite case that Atar Singh (since deceased), Mansha Ram and Phulwari were armed with rifle, Nawab Singh was having countrymade pistol, Sughar Singh who is the brother of Atar Singh and Nawab Singh, was having DBBL Gun, Deshraj and Kaptan Singh were also armed with DBBL Gun emerged out at the place of incident where the deceased Ram Sahay was sitting on a cot in front of his baithak. Atar Singh, Mansha Ram and Kaptan Singh started firing which hit to the deceased. The deceased got up and tried to ran inside his baithak. Three other accused persons, namely, Sughar Singh, Phulwari and Nawab Singh entered and fired shots inside baithak with their respective firearms, whereas the Doctor who had conducted the postmortem of the deceased had found four lacerated wounds on the body of Ram Sahay and from all the injuries wadding tikli and the cartridges were recovered. Dimension of injury nos.1,2 & 3 were 3cm x 2.5cm which could have been caused by single firearm weapon and those injuries could not be said to be the rifle injury. It cannot be said that the death had occurred on account of shot of rifle. As such the shots which were allegedly fired by Atar Singh, Mansha Ram and Phulwari, armed with rifle, could not be the cause of death of Ram Sahay.

It is further argued that the investigating officer has recovered 8 empty cartridges of 12 bore and 3 empty cartridges of 315 bore from the place of incident and on internal examination, the wadding tiklis and pellets were found from different part of the dead body which go to show that the injuries could have been caused by bullet. Learned counsel has also pointed out that the incident had occurred at 4.30 P.M. on 18.5.1985, of which the FIR was lodged at 6.50 P.M. but the inquest was conducted by the investigating officer S.S. Yadav, P.W-4 on the next day between 6 A.M. to 9 A.M. At the time of conducting inquest some sections were added in the inquest report which is mentioned as Section 302/34 IPC and Section 147,148 IPC. Thus the FIR is ante-timed which was registered subsequent to the inquest of the deceased. The investigating officer has not been examined which has caused great prejudice to the defence to cross-examine him on various material points regarding recovery memo and site plan to discredit the testimony of the prosecution witnesses who are said to be the eyewitnesses of the incident. The investigating officer in whose presence the recovery memo of blood stained, plain earth, recovery memo of empty cartridges, memo relating to the raid of the houses of the accused persons was not examined. Those recovery witnesses who are mentioned in the FIR have also not been examined during trial. Non production of the investigating officer who prepared the recovery memos has made the entire recovery as false which corrodes the credibility of the prosecution witnesses.

Relying upon the case of Moti Vs. State of Uttar Pradesh; 2003 Law Suit (SC) 301 it is submitted by the learned counsel that on account of discrepancy between medical evidence with the prosecution case with respect to nature of injuries fired with firearm weapon assigned to the accused persons they were acquitted in the said case. Similarly, the case in hand it is not ascertainable with which firearm weapon injury was sustained by the deceased and who is responsible to cause death. As there is conflict between ocular testimony of P.W-1 Bahaar Singh and P.W-2 Brijendra and the medical evidence, they cannot be considered to be the eye witnesses. The Hon'ble Apex Curt in Ram Narain Singh Jaggar Singh Vs. State of Punjab (1975 AIR SC 1727) has set aside the conviction and held in para 7 "where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit entire case."

In Mohinder Singh Vs. State; 1950 SCR 821 (AIR 1953 SC 415-1953 Cri LJ 1761) this Court observed in similar circumstances as follows:

"In a case where death is due to injuries or wound caused by a lethal weapon, it has also been considered before the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful where the injuries which are attributed to the appellant were caused by a gun or by a rifle."

It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accept the prosecution case without noticing that the evidence of the eye witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case."

In the present case Atar Singh (since deceased), Mansha Ram and Phulwari were allegedly armed with rifle while Nawab Singh was having countrymade pistol. According to the postmortem report of the deceased no rifle injury was found though it was stated by the P.W-1 Bahaar Singh that Atar Singh (since deceased), Mansha Ram and Kaptan Singh had fired upon him. According to the prosecution case, Kaptan Singh was having DBBL Gun and Atar Singh (since deceased) and Mansha Ram were having rifle. After receiving shot of fire Ram Sahay, the deceased tried to run towards baithak and fell down. Thereafter Sughar Singh having DBBL Gun and Nawab Singh having countrymade pistol and Phulwari having armed with rifle entered inside baithak. Except three injuries over right and left chest, one on abdomen and one injury on the head of the deceased from wounds wadding tiklis of the cartridges were found. Injury nos.1,2 & 3 were of the same dimension which could have been caused by single weapon from close contact. As such the surviving accused appellants Mansha Ram, Phulwari and Nawab Singh cannot be made responsible for the cause of death of Ram Sahay. The appellants, namely, Atar Singh (since deceased), Nawab Singh and Sughar Singh are the real brothers and Sughar Singh has already been acquitted whose trial was also separated on account of his juvenility. Phulwari and Mansha Ram belonged to separate family, hence they have also no concern with the accused Kaptan Singh and Deshraj to involve themselves in the commission of offence.

The prosecution has also utterly failed to prove the common object and intention of all to commit the murder of Ram Sahay who hails from different caste and different family to come together sharing common intention and object to eliminate Ram Sahay. Only in order to add colour in the prosecution case, it was mentioned that after Ram Sahay was done to death, his dead body was dragged by the accused persons and brought towards an open land of Sahab Singh and the body was set on fire at the instigation of Atar Singh (since deceased) and Deshraj. When Ram Sahay already killed there was no occasion to bring the dead body in an open place in the broad day light and to set him on fire to destroy the evidence in the presence of the witnesses. It is also unnatural that the deceased's son and his wife who were present there had not uttered a single word or came forward to rescue Ram Sahay, their conduct creates serious doubt that they had seen the incident, even Smt. Nisar, who is the wife of the deceased and mother of the complainant has neither been produced nor examined as a witness of the incident. It appears that none has seen the incident which had taken place during the course of night which supports the testimony of the Dr. C.N. Bhalla, who had conducted the postmortem of the deceased who has deposed that the incident could have taken place during night hours at about 10-11 P.M. In fact the dead body was recovered on the next day. Thereafter the inquest was conducted and an ante-timed FIR was lodged. The site plan was prepared on the next day of the incident whereas the P.W-2 had deposed that the site plan was prepared on the same day of the incident. It has also been argued that according to the site plan, the blood was found at two places; one on the chabootra (platform) and another inside baithak of the deceased but while preparing the recovery memo of blood stained earth, it has not been specified from which place the blood stained earth was collected and has been mentioned that it was found from the place as jaiwaqua. No weapon was recovered from anyone of the accused persons, except the blood and the empty cartridges from the spot which do not connect the appellants in the commission of offence.

Learned counsel for the appellants has laid stress that the trial court only relying upon the ocular testimony of highly partisan witnesses erred in arriving at the conclusion that the accused appellants had shared common intention to kill Ram Sahay and convicted them for the offence under Sections 148,302/34 IPC for maximum sentence of life imprisonment hence the appellants are entitled to be acquitted of the charge mentioned hereinabove.

Per contra, leaned A.G.A. Shri Ashwini Prakash Tripathi appearing for the State has refuted the submissions advanced by the learned counsel for the appellants while supporting the findings recorded by the learned trial court. He has submitted that the appellants along with two other accused persons, namely, Kaptan Singh and Deshraj have been named in the FIR in respect of the incident by the son of the deceased Bahaar Singh who has also been examined as P.W-1. On account of previous enmity, which has already been divulged in the FIR in great detail, the appellants and two other accused persons were bearing grudge and enmity with the father of the deceased, Ram Sahay. On the fateful day on 18.5.1985 at about 4.30 P.M. all the accused persons came armed with lethal weapon and fired with their respective firearms without giving any opportunity to Ram Sahay to save himself who was sitting at the chabootra on a cot he received firearm injuries he ran towards baithak few paces away from the cot, when again received firearm injury over the head thereafter Ram Sahay fell down inside baithak. It is the specific case of the prosecution that three accused persons, namely, Atar Singh (since deceased), Mansha Ram and Kaptan Singh fired firstly when Ram Sahay was sitting at the chabootra and thereafter three other accused persons, namely, Phulwari, Nawab Singh and Sughar Singh fired when he fell down inside baithak. The incident was witnessed by the complainant and his distant relative Brijendra Singh who was examined as P.W-2. Their statement does not find any material contradiction with respect to firing upon Ram Sahay, who was not only murdered by firing he was further mercilessly dragged 40-50 meter away by them. Atar Singh and co-accused Deshraj had exhorted and instigated that Ram Sahay be set on fire and they had lit the fire. In committing such a ghastly incident by all the accused persons, the complainant and other persons who were witnessing the incident could not muster courage to move forward to save his father as they were unarmed.

To prop up his submission, learned A.G.A. has relied upon the decision of Hon'ble the Apex Court passed in Criminal Appeal No.1479 of 2015 (Moti Ram Padu Joshi & others Vs. State of Maharashtra) wherein the Apex Court relied upon Rana Pratap; Vs. State of Haryana (1983) 3 SCC 327 observed in reference to reaction of a witness of an occurrence, as under:

"Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

In the present case the P.W-2 Brijendra Singh who is the relative of P.W-1 was put to lengthy cross-examination by the defence to create doubt about his presence at the place of incident. The credibility of witness would not be effected merely on the score of relationship. In the case of Mohabbat & Ors vs State Of M.P (2009) 13 SCC 630 the Hon'ble Apex Court has held as under:

"12. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version."

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

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To the same effect are the decisions in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] (SCC pp. 81-82, paras 5-9) and Gangadhar Behera v.State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32] ."

The above position was also highlighted in Babulal Bhagwan Khandare v. State of Maharashtra [(2005) 10 SCC 404 : 2005 SCC (Cri) 1553] , Salim Sahab v. State of M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] and Sonelal v. State of M.P.[(2008) 14 SCC 692 : (2009) 3 SCC (Cri) 417] (SCC pp. 695-97, paras 12-13).

In view of the catena of decisions that it would be unreasonable that the evidence given by related witness should be discarded. It is further submitted that all the accused persons have been specifically named in the FIR and the name of other eyewitnesses have also been mentioned therein. Merely because all the witnesses have not been examined would not be fatal to the prosecution as in this particular case the trial proceeding remained pending for a long period and several witnesses who were mentioned in the FIR had died and others refused to depose on account of the pressure of the accused persons hence they were discharged. The evidence of the P.W-1 and P.W-2 cannot be termed as highly partisan and interested or chance witnesses. On the contrary their evidence is consistent and credit worthy.

Learned A.G.A. has further relied upon the decision of this Court passed in Criminal Appeal No.668 of 2002 (Abhilakh Singh Vs. State of U.P.) and contended that in the aforesaid case, the investigating officer was not examined and it was the case of the defence that since the investigating officer has not been examined, it has caused great prejudice to the defence. While relying upon the various decisions of the Hon'ble Apex Court in the said case it was observed that it is always desirable for the prosecution to examine the IO. Non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. If the presence of the eye-witnesses on the spot is established and the guilt of the accused is also proved by their trustworthy testimony, non-examination of I.O. would not be fatal to the case of prosecution. In that case despite the two investigating officers were retired the trial court has taken all efforts to procure their attendance but they could not be examined.

In the present case also in the absence of the examination of investigating officer as he had been retired and his whereabouts could not be known due to long gap, the trial court has proceeded to decide the case on the basis of reliable evidence available on record.

The FIR was promptly lodged within two hours of the incident. There was strong motive for the accused persons to kill Ram Sahay which has already been given in detail in the FIR. There is no reason for the P.W.-1 being the son of the deceased to falsely implicate the innocent persons leaving behind the actual culprit. The incident had taken place in broad-day-light in a dare devil manner. The charge sheet was submitted in two parts as the accused persons, namely, Kaptan Singh and Deshraj were absconding against whom the process u/S 82/83 Cr.P.C. was initiated. Ultimately the charge sheet was submitted against Atar Singh (since deceased), Nawab Singh and Sughar Singh on 1.6.1985 who had surrendered on 30.6.1985 and Kaptan Singh and Deshraj surrendered on 18.6.1985 who were absconding against whom proceeding u/S 82/83 Cr.P.C. were initiated. Thereafter the case was successively adjourned for a long period of ten years when the charges were framed against present five accused persons on 30.6.1990 and against Kaptan Singh and Deshraj on 29.9.1995. Two separate trials were proceeded as Sessions Trial No.327 of 1989 & Sessions Trial No.129 of 1995. P.W-1 was firstly examined on 17.1.2001 and thereafter on 20.5.2004 again in the aforesaid trials separately.

Thus minor discrepancies are bound to occur in the statement of the witnesses due to long lapse of intervening period. The testimony of P.W-1 and P.W-2 in the present case is consistent which is fully corroborated by the postmortem report, according to which firing had taken place from close range and internal parts of the body were extensively damage muscles and burnt bones were visible and on some places body was highly scorched. No blackening and tattooing found by the Doctor as the body was burnt. The site plan also shows that the blood was recovered from the platform where Ram Sahay was initially sitting on the cot and when he tried to save himself he was fired at from a very close range which hit him over his head and thereafter he fell down inside baithak. This vivid description given by the two witnesses has proved beyond doubt that Ram Sahay was killed by the accused appellants, who died on the spot on account of indiscriminate firing by all accused persons. It could be difficult to say with certainty as to whose firearm hit the deceased first, but the nature of injuries received by the deceased clearly shows that the fire was made by DBBL Gun as 78 tikli were recovered though the shots which were recovered from the different parts of body of the deceased.

The Doctor had recovered all the wadding tikli from the dead body which was sealed by him. The investigating officer had also recovered 8 empty cartridges of 315 bore from the place of incident and inside baithak which shows that all the firearm weapon were used in firing indiscriminately. As such the learned trial court has rightly held that all the accused persons who were armed with deadly weapon arrived at the spot and had fired with a common object to kill Ram Sahay.

Accused Sughar Singh whose trial was separated as he had raised his plea of being juvenile at the fag end of the trial and was later on acquitted. The prosecution has proved the guilt of the accused appellants including Atar Singh (since deceased) to the hilt. Hence Atar Singh (since deceased), surviving accused appellants, namely, Nawab Singh, Mansha Ram and Phulwari along with Kaptan Singh and Deshraj of the connected appeals have rightly been convicted by the learned trial court. Their conviction deserves to be maintained.

We have given anxious consideration to the submissions advanced by the learned counsel for the appellants and the learned A.G.A. on behalf of the State and have gone through the record.

It has been contended that the appellants had no immediate motive to commit the murder of Ram Sahay even the suggestions made by the prosecution that wife of appellant Kaptan Singh had won the election of Pradhan against Ram Sahay prior to two years of the alleged incident, remained unsubstantiated. Where the positive evidence against the accused is clear and cogent omission of motive is of no importance. It is always an impossible task for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended as held in this connection by the Hon'ble Apex Court in the case of State of Himanchal Pradesh Vs. Jeet Singh 1999 (38) ACC 50 Supreme Court observing that "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution."

The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of accused persons. In case of inimical witnesses, court is required to scrutinize their evidence with utmost care to find out whether their testimony inspires confidence notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of crime, accused cannot urge that despite proof of motive of the crime, the witnesses proved to be inimical, should not be relied upon. Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that deceased was related to eye-witnesses or previously there had been some disputes between accused and deceased or the witnesses. Mere existence of enmity in this case particularly when it is alleged as a motive for the commission of crime cannot be made a basis to discard or reject the testimony of the eye-witnesses deposition of whom is otherwise consistent and convincing. If direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence. If medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statement of the eye-witnesses has to be accepted.

Learned counsel Shri S.V. Singh submitted that the investigating officer was not examined in this case which has caused serious prejudice to the accused persons as it has deprived them to examine him on material points.

We see no substance as the investigating officer was not an eyewitness.

In Ram Ghulam Chaudhary Vs. State of Bihar; 2001 (43) ACC 929 the Hon'ble Apex Court in paras 25, 26 & 27 has held as under:

"25. In the case of Ram Dev v. State of U.P, reported in [1995] Supp. 1 SCC 547, this Court has held that it is always desirable for the prosecution to examine the Investigating Officer. However, non examination of the Investigation Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses.

26. In the case of Behari Prasad v. State of Bihar, reported in [1996] 2 SCC 317, this Court has held that for non examination of the Investigating Officer the prosecution case need not fail. This Court has held that it would not be correct to contend that if the Investigating Officer is not examined the entire case would fail to the ground as the accused were deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. It was held that the case of prejudice likely to be suffered must depend upon facts of each case and no universal strait- jacket formula should be laid down that non-examination of Investigating Officer per se vitiate the criminal trial.

27. In the case of Ambika Prasad v. State (Delhi Admn.), reported in [2000] 2 SCC 646, it was held that the criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over criminal trial merely to see that no innocent man is punished. It was held that a Judge presides over criminal trial also to see that guilty man does not escape. It was held that both are public duties which the Judge has to perform. It was held that it was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. It was held that this conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of P.Ws. 5 and 7 whose presence on the spot was established beyond any reasonable doubt. It was held that non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses."

In the case of Ram Ghulam Chaudhary (Supra) the prosecution did not examine the investigating officer, however, all the accused persons were convicted by the trial court which was affirmed by Hon'ble the Apex Court.

Learned counsel for the appellant has pointed out various infirmities regarding investigation of the case.

There are umpteen pronouncements of the Hon'ble Supreme Court that investigation lapses, cannot provide ground of rejection of the prosecution and acquittal by a court in given case cannot be allowed to stand, solely, on the probity of investigation.

We will quote a few:

State of U.P. Vs. Harbhan Singh; 1998(37) ACC14 Supreme Court;

State of Karnataka Vs. K.Y. Reddy; 2000 SAR crime (37) Supreme Court;

State of Rajasthan Vs. Kishore; 1996(33) ACC 284 Supreme Court;

Karnail Singh Vs. State of Madhya Pradesh; 1995(32) ACC 742 Supreme Court.

In the aforesaid cases it was observed that any lapse during investigation of the case cannot be considered sufficient to discredit the prosecution version and if the eyewitnesses testimony is consistent and dependable, it is sufficient to sustain conviction. If there is any lacuna in the site plan, it will also not provide a ground for throwing out the prosecution case as weak and in co-inherent. It is indisputable in the present case that the occurrence took place in front of the house of the informant and at the time of incident, P.W-1 was present near his house. The learned trial curt has rightly held that the testimony of the eyewitnesses inspire confidence of the Court and ruled out possibility of being tortured or not being the eyewitnesses to the occurrence.

Failure to mention the exact place from where the blood was collected by the investigating officer cannot be doubted about the place of incident as it has been mentioned in the site plan that the same has been found from place B which has been shown as platform where the deceased was firstly fired at by the accused persons. The investigating officer had collected blood from the place of incident which is mentioned in the site plan that spillage of blood was found inside baithak as well as trail of blood was found up to the place where the dead body was burnt. Thus the argument of the learned counsel for the appellants is unrealistic and far-fetched and the Court cannot draw any inference for such imaginative doubt.

It is further argued that misfired cartridges and fired cartridges were not sent to the Ballistic Expert, Forensic Science Laboratory and the firearm weapon used by the appellants were never seized to corroborate the prosecution case.

The said lapses on the part of the investigating officer would not necessarily proved fatal to the case of the prosecution where the direct testimony of the two prosecution witnesses is on record.

Such omissions or lapses in the investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

In Nankaunoo Vs. State of U.P.; 2016(1) SC Cr.R 237 it was held as under:

"Any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise it would shake the confidence of the people not merely in the law enforcing agency, but also in the administration of justice."

In V.K. Mishra and another Vs. State of Uttrakhand and another; 2015(2) SC Cr.R it was held as under:

"The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event any omission on the part of the investigating officer cannot go against the prosecution. The interest of justice demands that such acts or omissions of the investigating officer should not be taken in favour of the accused or otherwise. It would amount to placing a premium upon such omissions."

In Appa Bhai and another Vs. State of Gujarat; 1988 (25) ACC168 Supreme Court had emphasised while appreciating the evidence the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal error of perception or observation should not be given importance. The so called omission of not mentioning exact portion of the body of deceased where the shot had been fired cannot be said to be the significant omission. The evidence of the two witnesses stands corroborated by the medical evidence which clearly goes to show that several shots were received by the deceased and after firing they set on fire to the deceased to erase the evidence. The accused appellants and two others fled away after firing in air creating an atmosphere of terror and fear. The post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by every one witnessing such an incident. Different persons would react differently on seeing any serious crime of such a nature and their behaviour and conduct would be different. Therefore, having witnessed a dastardly murder, it was not unnatural for the son or mother of the deceased to go near to the dead body. Learned trial court was justified in not rejecting the testimony of P.W-1 merely on that score.

In the present case where all the accused persons who were armed with firearm weapons emerged from the house of Atar Singh and after reaching on the platform when the deceased was sitting on the cot started firing resulting into his death in such a scenario it could not have been possible to meticulously observe all the action of each and every accused. The trial court cannot expect from the witnesses to depose in a parrot like fashion. The overall evidence of the witnesses appears to be untainted. The improvements, if any, made for the first time before the court ,no doubt need, to be eschewed but that does not mean that the entire evidence of the witnesses should be disbelieved only on the said ground.

It is well settled proposition of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. This Court as well as Hon'ble the Apex Court has endorsed the in applicability of the doctrine falsus in uno, falsus in omnibus, which means "false in one things, false in everything". The Doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". The evidence has to be sifted with care. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration or embellishments. But the Court has to separate the grain from the chaff, truth from false. If after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt, the Courts are bound to give effect to the result flowing from it and not throw it over board on hypothetical and conjectural ground. Minor variations of the evidence will not effect to the root of the matter. Such minor variations need not be given major importance.

The prosecution is not obliged to prove its case by leading separate evidence with respect to the common object of all the accused persons. Those factors found by the learned trial court on the available evidence on record, hence we have no reason to ignore the same with regard to the ocular testimony vis-a-vis conflict between the ocular testimony and the medical evidence. It is by now well settled that the medical evidence cannot override the evidence of ocular testimony of the witnesses. If there is a conflict between the ocular testimony and medical evidence naturally the ocular testimony prevails.

On the bare perusal of the First Information Report lodged against the accused persons, namely, Atar Singh, Mansha Ram, Phuwari, Nawab Singh, Deshraj and Kaptan Singh on 18.5.1985 at 6 P.M. relating to the incident occurred at 4.30 P.M. on the same day. The complainant Bahaar Singh who is the son of the deceased Ram Sahay has mentioned about the previous cases pending between the parties to show their animosity with the deceased which prompted them to reach at the spot together in a pre-planned manner to execute their evil design.

In our opinion, there was nothing unusual on the part of the complainant to narrate the previous animosity and ill-will of the accused persons who were involved individually and collectively in the cases mentioned therein in the First Information Report.

It was argued that no detail of any case has been mentioned in the FIR as to when such crime had taken place or what was the case crime number and what was the sessions trial number. It was highly impossible for a person to give such details soon after an incident which had occurred suddenly and executed in a barbarous manner, not only shooting the deceased with their respective firearm weapons by the accused appellants, the deceased was dragged by them in a most diabolic manner in broad-day-light up to 50-60 meters away from the actual place of incident which had occurred in front of house of the deceased and was kept on the heap of wood and was set on fire in order to efface the dead body. The entire episode which had occurred in a few minutes it could not have been possible for the son of the deceased who had lodged the FIR to depose the case crime number or the sessions trial number or the dates of incident in which the accused appellants were involved jointly or individually. However, he has broadly narrated the reasons for committing the murder of his father by the accused appellants. In these circumstances, it cannot be said that the FIR has been registered after due deliberation developing false story on the basis of misconceived facts.

It has also been argued that the FIR was lodged after conducting the inquest of the deceased as the crime number as well as Sections of IPC have not been mentioned in sequence.

We are again not impressed by such arguments of the learned counsel for the appellants as the FIR has promptly been lodged, of which detail account has been given in the FIR and on this point P.W-1 Bahaar Singh had also articulated in examination-in-chief in the witness box has narrated and has also with stood lengthy cross-examination. It has also been specifically mentioned by the Inspector S.S. Yadav, who was examined as P.W-4 that the police personnel arrived on the spot on 18.5.1985 but due to darkness, the inquest was started on 19.5.1985. It started at 6 A.M. on the next day and prepared in three hours and concluded at about 9 A.M. The inquest report shows that there is no addition or alternation in the section mentioned in it which has been prepared on 19.5.1985 as it could not be prepared on 18.5.1985 due to darkness. It was prepared in the same hand writing by the same person. The other police personnel who had accompanied after lodging the FIR has also been mentioned in the inquest memo. Hence it cannot be said that the FIR was ante-timed. Mere description of the Sections 302,201 along with Sections 147,148,149 IPC in particular manner , it cannot be said that the said FIR was lodged after great delay or ante-timed.

Learned counsel has pointed out infirmity in the statement of the complainant P.W-1 Bahaar Singh to doubt about his presence that if he claims himself to be the eyewitness of the incident and the place from where the first informant seen the incident but it has not been mentioned in the FIR nor it has been mentioned that the mother of the complainant had also seen the incident which has been developed during trial. FIR is not an encyclopedia of the case. A witness testimony need not be disbelieved only because certain facts did not find mention in the FIR.

There is no material omission in the statement of the prosecution witnesses as regards the firing by the appellants on the deceased. It has to be borne in mind that some discrepancies in the ocular account of a witness, unless they are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in the evidence, it is not sufficient to impair the credibility of the witness. It is only when the discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence.

Minor discrepancy in the statement of witnesses is not necessarily a false evidence. Such evidence is subject to close scrutiny. No evidence should be at once discarded simply because it came from the interested parties like P.W-1 Bahaar Singh being the son of the deceased Ram Sahay whose evidence cannot be discarded which is natural and trustworthy.

Even in the absence of actual assault of members by the unlawful assembly they can be held vicariously liable as there was common object to commit a crime. Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the act of each and every other in execution and furtherance of their common object, as the purpose is common so must be the responsibility The prosecution cannot perform miracles and it is not always possible to adduce clinching evidence as to the common bond between or amongst culprits of a particular crime. The prosecution case could not suffer a setback simply because all accused are not related to each other.

In Nathuni Yadav and others Vs. State of Bihar; 1997 (34) ACC 576 Supreme Court it was held that motive for doing criminal act is very difficult area for prosecution as one cannot see into the mind of another.

The P.W-1 and another witness Brijendra Singh was not examined in connected sessions trial have stated that they had witnessed the incident together from the gher. Merely because P.W-1 has not explained that he was coming along with him (P.W-2) from the field of muskmelon it can not be presumed that his presence is doubtful as the same was also not put during the course of cross-examination from him that at that time from where he was coming. Their presence has been amply shown in the site plan prepared by the investigating officer which has been indicated as southern of gher of Soney Lal. They were standing at a distance of 20-22 ft when the accused persons reached at the chabootra (platform) where the deceased Ram Sahay was sitting on a cot facing towards east. The cot was at a distance of 3-4 ft from the baithak. The accused Atar Singh and Mansha Ram having armed with rifle and Kaptan Singh having DBBL gun fired at Ram Sahay, the father of the P.W-1 when they reached on the platform. As soon as his father had seen them he at once got up to run inside baithak at that time Atar Singh, Mansha Ram and Kaptan Singh had fired from their respective firearm. Then another shot was fired upon him which hit to his father and he fell down inside his baithak. Exact mathematical calculation with respect to distance between the assailants and the deceased would not be possible to arrive at the conclusion that the presence of witnesses is doubtful. When the accused persons arrived near the cot then the distance from which they had fired would be in close contact with the body of the deceased because of the length of the barrel and hence there was no occasion that when the shot was made aiming towards from close distance the wads would fall down and would not pierce in the body rather wads and powder blast had caused laceration penetrating in the organs of the body. The shape of the abrasion of the entrance wounds also varies either circular or oval according to the angle the bullet strike at the body. The question regarding the direction of fire where from right to left or to back, it is necessary to ascertain the position of the victim at the time of the discharge of the bullet when the wound of entrance is present wad would lodge in the body. Wadding pieces, tikli and shots were found lodged in the body. No blackening or tattooing detected by the Doctor as the body was burn 4-6 degree.

The injury was hit to the deceased on his forehead when he turned around he made an attempt to save himself by entering into baithak. The Doctor had found two wadding pieces from brain; one from chest and another from abdomen. Five tiklis were found from brain; four from abdomen and two from chest. Besides this, 78 small pellets were found from brain, abdomen and chest. The Doctor has only given an opinion with regard to entering of the wadding into the body and had given approximate distance of firing from less than 4 ft. The wadding pieces which had entered into the body of the deceased clearly goes to show that the fire was made from very close range. It's barrel may or not may be touching the body of the victim while firing indiscriminately at the deceased. It is not necessary that the fire made by all the three accused persons firstly hit to the deceased. The nature of injury goes to show that firing made by rifle might have deflected owing to the fact that it was not fired at an immobile object. Some fire missed hence empty cartridges were found at platform as well as inside the baithak.

From the postmortem report it is quite evident that the first shot made from behind at the deceased as he tried to stood up who was sitting on the cot which is injury no.3 as it's direction is from back to front. Injury nos.1 & 2 which were on front of chest and abdomen when the deceased had turned around and his face was towards baithak and the assailants were standing facing towards east the direction is front to back. Injury no.4 was on his head hence direction was from right to left when the deceased tried to ran inside baithak the assailants were on his right side near the cot. The description of accused persons when they fired has been narrated by P.W-1 which fully supports the injuries described in the postmortem report.

It has been pointed out by the learned counsel for the appellants that it is alleged that Sughar Singh, Phulwari and Nawab Singh entered into the baithak after the deceased fell down and they had also fired and at the same time, Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately outside to unleash the reign of terror. Though Kaptan Singh did not enter into the baithak but his presence along with other accused persons making fire indiscriminately cannot be doubted.

The Doctor has also opined that the dimension of injury nos.1, 2 & 3 were the same meaning thereby it was fired by the same weapon by one person. Inside the body, one wadding piece was recovered from chest and one from abdomen, four tiklis from abdomen and two from chest and 78 small pellets were found from brain, abdomen and chest. The Doctor has also opined that injury may be caused by several weapons depending upon the distance. The learned counsel for the appellants has tried to make a mountain out of the mole.

The fact remains that as the body was burnt by the accused persons it was not possible to the Doctor to find blackening, tattooing and scorching. The site plan indicates that after killing the deceased at platform his dead body was dragged from the baithak by the accused persons and was taken to an open land 50 yards away. The trail of blood was found by the investigating officer which has been specifically mentioned in the site plan in red ink, which further corroborates the testimony of the P.W-1 Bahaar Singh and P.W-2 Brijendra Singh showing that the victim Ram Sahay was killed by firing and his dead body was mercilessly dragged by them and was set ablaze. Hence the ocular testimony has greater evidentiary value which cannot be disbelieved.

The cases which have been cited are not applicable under the present facts and circumstances of the case as in the present case the incident had taken place in the broad-day-light when all the accused persons in a pre-planned manner emerged out at the place of incident and started firing aiming at the deceased, out of them, two accused persons, namely, Atar Singh and Mansha Ram were armed with rifle and Kaptan Singh was armed with DBBL Gun which was specifically narrated by the complainant in the FIR and in his statement recorded before the trial court. Hence we find that there is no material infirmity in the ocular testimony with the medical evidence and the site plan. The plea of Kaptan Singh in statement under Section 313 Cr.P.C. that P.W-1 was not present at the time of incident cannot be accepted as it has to be proved with absolute certainty so as to exclude his presence anywhere else from the place of incident.

There is yet another material aspect of the case with respect to the post trial conduct of the accused appellants when they were held guilty of the crime and convicted for life imprisonment. All the accused persons preferred appeals before this Court with prayer for consideration of bail during pendency of the appeal u/S 389(i) Cr.P.C. and the learned counsel for the appellants has also tried to take the benefit with respect to the description of guns and rifles in the hands of various accused persons to obtain bail.

Thus only for the purpose of somehow getting bail one set of accused have shifted burden upon others for causing injury with gun and vice versa. But the fact remains that they had shared common intention and the firing had taken place and Ram Sahay, the deceased was done to death on the fateful day. It would be very difficult to fix liability upon one person only i.e. Sughar Singh in the entire episode who was pleaded juvenility and acquitted by the court below. All of them had come jointly with prior meeting of mind to eliminate Ram Sahay but whose shot of fire was fatal cannot be deciphered. Dragging of dead body from baithak to the field of Sahab Singh where he was put on fire further shows that all the accused persons were having common intention and involved in dragging the dead body as such the contention on behalf of other accused appellants has no substance that they had not fired at the deceased who had suffered homicidal death and the injuries sustained by him were all ante-mortem in nature as a result of firing with gun. It is common experience that in the confusion of the moment the witnesses are prone to make some error when they were seized by sudden fear.

We do not find any difference between the case of all the accused appellants. The prosecution has established that common object of the unlawful assembly was to commit the offence of rioting armed with deadly weapon punishable under Section 148 IPC.

It has also been argued that very detail account has been given in the FIR with regard to the previous cases but no detail description of the cases have been mentioned in the FIR hence does not prove the immediate motive on the part of the different sets of accused.

The description about the enmity has been made in the FIR by the informant without mentioning the details of the criminal cases. The prosecution case cannot be disbelieved only because it did not find mention in detail. We cannot expect from a grief stricken person to give better particulars of the case. The contents of the FIR has given an exhaustive account by the P.W-1, the son of the deceased as such possibility of inventing a story at that juncture trying to implicate all the accused persons is absolutely ruled out. The investigating officer had gathered material of two cases in which the accused persons were involved; one is Case Crime no.301 of 1983 relating to the FIR under Section 307 IPC pending in the court of IInd Additional District Judge as Sessions Trial No.90 of 1984 pertaining to a case filed by Ram Sahay, the deceased against Kaptan Singh, Mansha Ram and Atar Singh (State Vs. Kaptan Singh & others) and another is Case Crime No.300 of 1983, under Section 396 IPC which was against Nakse, Mansha Ram and Atar Singh pending in the court First Additional Chief Judicial Magistrate as Sessions Trial No.229 of 1983 (State Vs. Nakse & others). In spite of cross-examination of prosecution witnesses nothing fragile surfaced in their statement in this regard. Pre and post conduct of all the accused persons while committing crime has left no room of doubt that they had not formed an unlawful assembly sharing common object to eliminate the victim. The court can visualize the common object of the unlawful assembly from the entire evidence on record. Due to prolong continuation of the trial some embellishments in the testimony of the prosecution witnesses has bound to occur. We notice in this case, that there is sufficient evidence to show that barbaric incident had happened on 18.5.1985. It was the appellants and none others who had committed the crime to satiate their evil design.

There is nothing in the cross-examination of P.W.1, the first informant Bahar Singh that his attention was called to that part of his statement recorded u/s 161 Cr.P.C. in which he had omitted either to describe himself as an eyewitness of the incident or to name the place from where he had witnessed the same. We do not find any reason to disbelieve the evidence of P.W.1. Mere inconsistency in evidence is not sufficient to impair the credit of the witness.

Section 145 of The Indian Evidence Act, 1872 Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

A conjoint reading of the aforesaid provision indicates that any police officer making an investigation under chapter 12 of the Code of Criminal Procedure, 1973 or any police officer making any investigation under this chapter examines any person believed to be acquainted with the facts and circumstances of the case, the police officer may reduce into writing any statement made to him in the course of examination u/s 161 Cr.P.C. and if it is true, he shall make separate entry to record all the statements of such person whose statement he records.

Section 162 (1) of Cr.P.C. stipulates that no statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Proviso to Section 162 (1) of Cr.P.C. mandates that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Section 162 (2) of Cr.P.C. excludes any statement falling within the provisions of clause 2 of the Indian Evidence Act, 1872 and 27 of that Act from the application of the aforesaid proviso.

The object of Section 145 of the Evidence Act is to give a witness a chance of explaining the discrepancy and inconsistency and to clear up the point of ambiguity and dispute.

The Hon'ble Apex Court in the case of Karan Singh & Ors. Vs State of Madhya Pradesh, Judgement Today 2003, Suppl. Vol. 2 SC 261, has held that when a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement, it does not amount to any admission and if it is to be proved that he had given such a statement, the attention of the witness must be drawn to that statement. The object behind this provision is to give a witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute.

The question of contradicting the evidence and the requirements of compliance in Section 145 of the Evidence Act has been considered by the Apex Court in the case of Tahsildar Singh and Another Vs The State of Uttar Pradesh, 1959 SCR Supl. (2) 875. The Apex Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it was also indicated as to how a witness can be contradicted in respect of his former statement by drawing his attention to that portion of the former statement.

This question was again considered in the case of Binay Kumar Singh Vs The State of Bihar, 1997 Vol. 1 SCC 283. The Apex Court taking note of the earlier decision in Bhagwan Singh Vs The State of Punjab, 1952 AIR 214, explained away the same with the observation that on the facts of that case, there could not be a dispute with the proposition laid down therein. But while elaborating the second limb of Section 145 of the Evidence Act, it was held that if it is intended to contradict a witness, his attention must be called to those part of his writings of his earlier statements which are intended to be used for the purpose of contradicting him. It was further held that if the witness denies having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145 of the Evidence Act.

Hence, the procedure prescribed u/s 145 of the Evidence Act if having not been complied, we do not find any reason to discredit the evidence of P.W.1 informant or to hold either that he is not a fully reliable witness or he had not seen the occurrence. The statement of the first informant, P.W-1 stands fully corroborated from the facts deposed by P.W.-2 in his examination-in-chief, who was not examined in Sessions Trial No.129 of 1995. Thus in view of the legal principles propounded hereinabove by the Apex Court, we are not inclined to reject the evidence of P.W.-1 & P.W-2. There is no law which lays down that a conviction cannot be recorded on the basis of the evidence of solitary witness.

The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only it is the right of the accused to shake the credit of a witness, but it is also the duty of the court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule.

In our opinion, relevant and material omissions amount to vital contradiction which can be established by cross-examination and confronting the witness with his previous statement. The alleged omissions in the statement of the witnesses to the police could not have made their evidences in court unreliable with respect to material particular concerning the occurrence or identifying the accused. In the present case, there is ample evidence in the shape of oral testimony of P.W-1 Bahaar Singh who is the son of the deceased and P.W-2 Brijendra Singh, on the basis of which, the conclusion has rightly been drawn by the learned trial court that the witnesses had in fact seen the accused persons and their devilish act of dragging the dead body, hence we are in full agreement which does not require any interference.

We are of the opinion in a case like the present one the relatives and friends of the deceased would not spare the real culprits and falsely implicate others. We are of the considered view that the relationship is not a factor to affect the credibility of the aforesaid eye witnesses.

In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held 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 relative 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 generalisation. 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."

In the case of Veer Singh and others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held as under:-

"Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but-quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section-134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."

On the analysis of the evidence, it is fully established that the victim succumbed to unnatural death with gun shot injuries whose dead body was dragged and burnt down so as to efface the evidence. Hence the prosecution case cannot be doubted or suspected merely that the witnesses are related to the deceased or on account of some minor variation or aberration in their testimony. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulate manner. The overt act of the accused appellants at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt that within all human probability the act has been done by the accused appellants. The foul play of destroying the evidence by putting the corpse of the deceased on fire in the field of Sahab Singh after dragging him from his baithak and was decimated on account of bitterness has portrayed very inhuman and gruesome state of mind of the accused appellants. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. It cannot be doubted that the eye witnesses had not seen the accused appellant who had perpetuated the crime in a very relentless and devilish manner. The delay if any, in lodging the first information report will not falsify the entire prosecution version. The trial court has appreciated the evidence in the right perspective. We find from the record that the statement of the prosecution witnesses cannot be said to be untrustworthy simply on the basis that some of the facts deposed for the first time before the Court.

From the perusal of the charge sheet it clearly shows that the murder of Ram Sahay had taken place on 18.5.1985 at about 4.30 P.M. and the FIR was lodged on the same day at 6.50 P.M. The criminal law was set in motion and the police started investigating on 19.5.1985. The investigating officer raided the houses of Nawab Singh, Atar Singh and Sughar Singh (sons of Pyarey Lal), Mansha Ram, Phulwari, Kaptan Singh and Deshraj in the presence of Sahab Singh and Soney Lal, but they were not found at their houses nor any weapon was recovered. However, the memos were prepared and handed over to the wives of the accused persons which were marked as Ext. Ka-13, Ext. Ka-14, Ext. Ka-15 & Ext. Ka-16. The appellants had absconded after committing murder from their houses. Atar Singh (since deceased), Mansha Ram, Nawab Singh and Sughar Singh surrendered before the court below on 29.5.1985 and Phulwari was surrendered on 3.6.1985 while Kaptan Singh and Deshraj surrendered on 5.2.1986 & 10.2.1986 respectively. This is the conduct on the part of the accused persons that they had disappeared from the scene of occurrence to some unknown place for considerable period. The charge sheet was submitted on 30.6.1985 against Atar Sing, Nawab Singh, Sughar Singh, Mansha Ram and Phulwari wherein it was mentioned that accused Kaptan Singh and Deshraj are absconding. Thereafter the process under Section 82/83 Cr.P.C. was initiated to secure the presence of the accused appellants Kaptan Singh and Deshraj against whom ultimately charge sheet was submitted on 13.2.1986. Thus the act of absconding is relevant factor to be considered along with other evidence. Such circumstance may also leads to a proof of a guilty mind attempting to evade justice which is inconsistent with their innocence.

The long abscondence of the appellants who were seeking adjournment at the pre trial stage by moving exemption application for one reason or the other on each and every date separately and jointly leads to interference about their conduct that they were of guilty mind. Though it is true that even an innocent man may feel panicky and try to evade arrest when suspected of a grave crime such is the instinct of self-preservation. Normally the courts are not inclined to attach much importance to the act of absconding, treating it as a very small and insignificant in the evidence for sustaining conviction and it can scarcely be held as a determining link in completing the chain of evidence determining guilt of the accused. But in the present case soon after lodging of the FIR all the accused persons had absconded for a long period which is quite unnatural showing their guilty conscience. Such act of absconding on the part of all the accused appellants is no doubt relevant piece of evidence to be considered along with other evidence in the present case.

In view of the above conspectus, unusual sympathy to the accused persons merely because of long lapse of time would do more harm than justice from the point of view of the victim and the society at large as delay defeats justice. The prolong trial like in the present case has caused gross miscarriage of justice. We are shocked that the trial remained pending for about 24 years as it has been concluded in 2009 whereby the accused persons were convicted by the learned trial court in both the sessions trial.

On the basis of verbose and prolix discussions made above and after going through the materials available on record, we are of the considered opinion that findings of conviction recorded by the learned trial court are well substantiated and the accused persons well appropriately sentenced. Therefore, the conviction recorded by the trial Court against the accused appellants, Mansha Ram, Phulwari and Nawab Singh under Section 302/34,148 I.P.C. is hereby maintained and affirmed.

The appeals are devoid of merit and are accordingly dismissed.

Let a copy of this judgment and order along with original record be transmitted to the learned trial court for information and compliance.

Judgment certified and be placed on record.

 
Order Date :-7.2.2020
 
M. Tariq
 
			       
 

 
  (Anil Kumar-IX, J)     (Naheed Ara Moonis,J)

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