HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Court No. - 46 Reserved Case :- CRIMINAL APPEAL No. - 7742 of 2006 Appellant :- Chheda And Others Respondent :- State Of U.P. Counsel for Appellant :- A.K. Rai,D.K. Rai,D.K. Singh,Deepak Kumar Srivastava,G.S.Hajela Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore, J.
Hon'ble Raghvendra Kumar, J.
(Delivered by Hon'ble Raghvendra Kumar, J.)
1. Heard Sri Deepak Kumar Srivastava, learned counsel for the accused-appellants, learned A. G. A. for the State of U. P. and perused the material available on record.
2. The instant criminal appeal has been preferred on behalf of accused-appellants Chheda, Lajja Ram, Guddu and Govind assailing the judgment and order dated 24.11.2006 passed by Additional District & Sessions Judge, Court No.7, Shahjahanpur in Sessions Trial No.1001 of 2006 (State Vs. Chheda & Others) u/s 147, 148, 149, 302 IPC in Case Crime No.147 of 2004, P. S. Sehramau South, District-Shahjahanpur were sentenced to imprisonment for life along with fine of Rs.2000/- each. In default of payment of fine the accused-appellants were ordered to undergo additional imprisonment for one year each.
3. The accused-appellants Chheda, Lajja Ram, Guddu and Govind have been acquitted for the offence u/s 148, 149 IPC in the aforesaid case crime number.
4. Co-accused Sarvesh was tried for the same offence along with accused-appellants Chheda and others in above referred case crime number and he was acquitted vide order dated 24.11.2006.
5. Admittedly, acquittal of co-accused Sarvesh has not been challenged by the State. As such, no appeal is pending against the said acquittal.
6. From perusal of FIR it reveals that the incident took place on 26.8.2004 at 17.00 hours and the FIR (first information report) of the incident has been lodged with the police at 19.00 hours on the same day by one Prasadi s/o Nokhe Lal, r/o vill.Chanda, P.S. Sehramau South, District-Shahjahanpur on the basis of tehriri report (written report) Ext Ka.1. As per the FIR the son of complainant-informant Kamlesh used to plough the field of accused-appellants Chheda and Lajja Ram and in turn used to get the share in the yield. When accused-appellants Chheda and Lajja Ram kept the yield of wheat crop in their house after harvesting and did not provide share to Kamlesh, some altercation took place between them. On the date of incident i.e. 26.8.2004 at about 5 pm Kamlesh was coming along with his son Chavi Ram (grandson of informant) after purchasing vegetables. Deceased Kamlesh asked his son to go and that he would come after some time. Chavi Ram, son of deceased started moving ahead of his father Kamlesh, who was following him. Accused-appellants were hiding in the sugar cane field of one Amit Kumar. When Kamlesh approached near the field, the accused-appellants equipped with country made pistol and rifle came out and discharged shots upon him and caused injuries, which resulted into his death. After hearing the sound of fire one Sreepal, Ram Ladete, Ram Bhajan and several passer by reached on the spot and saw the occurrence, who challenged the accused-appellants, whereby the accused-appellants escaped from the spot. Thereafter, informant-complainant leaving the dead body under supervision of his family members, lodged the FIR with P. S. Sehramau South whereupon Chik FIR was drawn and the relevant entries were made in the general diary (G.D.).
7. The investigation of the case has been conducted. Inquest report was prepared and certain documents were executed and dead body of the deceased was transmitted to District Hospital for post mortem examination in sealed condition. The post mortem examination of the deceased was conducted by Dr. A. K. Singh on 27.8.2004, who has noted following ante mortem injuries on the person of deceased :
(i) Fire arm wound of entry size 2 cm x 1 cm x chest and abdominal cavity deep on right front of chest.
(ii) Fire arm wound of entry size 1 cm x 0.5 cm x left chest cavity deep on front of left shoulder
(iii) Fire arm wound of entry size 1 cm x 0.5 cm x muscle deep on lateral aspect of left knee
(iv) Fire arm wound of entry size 1 cm x 0.5 cm x bone deep on back of left forearm
(v) lacerated wound 4 cm x 1 cm x muscle deep on back of right forearm
(vi) lacerated wound 4 cm x 1 cm x bone deep on top of the scalp It has further been mentioned in the post mortem examination report (Ext Ka.14) that four metallic bullets were recovered, one from liver, one from left lung, one from left wrist and one from left thigh muscle. The cause of death has been shown as shock and haemorrhage as a result of ante mortem fire arm injuries.
8. The investigation was conducted in accordance with law, which culminated into filing of police report u/s 173 (2) Cr. P. C. in the shape of charge sheet against the accused-appellants Chheda, Lajja Ram, Guddu, Govind and also against co-accused Sarvesh (acquitted).
9. After complying with the procedural requirements as contemplated under Code of Criminal Procedure, the case was committed to the Court of Sessions and subsequently, the charge was framed against the accused-appellants Chheda, Lajja Ram, Guddu, Govind and accused Sarvesh (acquitted) for the offences u/s 148, 302 read with Section 149 IPC, who denied the charges levelled against them and claimed for trial on merits.
10. The defence case has been set out that the accused-appellants including accused Sarvesh are innocent and they have been falsely implicated in this case because of enmity. The general allegations have been levelled against the accused persons of firing. In view of general allegations fatal injury cannot be attributed to any particular accused.
11. To substantiate the charges against the accused-appellants (as well as accused Sarvesh), the prosecution has examined Prasadi as PW 1, Chavi Ram as PW 2, Ram Bhajan as PW 3, Head Constable Poose Lal as PW 4, S. O. Subedar Singh as PW 5 and Dr. A. K. Singh as PW 6.
12. PW 1 Prasadi has proved the execution of the tehriri report (written report) Ext Ka.1 and has specifically stated about his presence near the place of occurrence in the field where he was cutting grass.
13. PW 4 Head Constable Poose Lal has proved the execution of Chik FIR as Ext Ka. 4 and the relevant entry of the general diary (G.D.) as Ext Ka. 5 dated 26.8.2004. He is a formal witness. His testimony is confined to the execution of above referred documents.
14. PW 5 is the I. O. of the case. He has proved execution of Inquest report as Ext Ka. 6, letter to R. I. as Ext Ka. 7, photo of dead body as Ext ka. 8, sample seal as Ext Ka. 9, letter to Chief Medical Officer as Ext Ka. 10, request for post mortem examination as Ext Ka.11, site plan as Ext Ka.12 and charge sheet as Ext Ka. 13. During course of investigation the sample of blood stained soil and ordinary soil, chappal of deceased were also taken by the I. O. PW 5 is also a formal witness and he is not the witness of fact. His testimony is confined to his role relating to investigation of the case.
15. PW 6 Dr. A. K. Singh has proved the execution of post mortem examination report as Ext Ka.14. He is also not the witness of fact and he is a formal witness.
16. After scrutinizing and appreciating the evidence available on record, the trial Court vide its order dated 24.11.2006 convicted accused-appellants Chheda, Lajja Ram, Guddu and Govind, hence the instant appeal.
17. It has been submitted on behalf of accused-appellants that due to enmity the accused-appellants have been falsely implicated in the case. There is delay in lodging the FIR without any satisfactory explanation. No specific role has been assigned to any of the accused named in the case and general allegations have been made against all the accused persons regarding assault by fire arms and for causing lacerated wounds also. The learned Court below was pleased to acquit accused Sarvesh for want of specific role assigned to any of the accused. As such, on the same ground accused-appellants also deserve acquittal. It has further been submitted that informant-complainant Prasadi (PW 1) was not present on the spot and he has falsely shown his presence just to strengthen the case. As such, he is not the eye-witness. Chavi Ram (PW 2) and Ram Bhajan (PW 3) were also not present on the spot and as such, they are not the eye-witnesses of the incident. It has further been contended that the testimony of Prasadi and Chavi ram do not inspire confidence and cannot be relied upon since they are father and son of the deceased and are related and interested persons. Therefore, the accused-appellants are liable to be acquitted after allowing this appeal.
18. On the contrary, it has been argued on behalf of State by the learned A. G. A. that it is a broad day light incident of murder. The accused-appellants have not been falsely implicated out of enmity. All the accused persons were equipped with fire arms. One accused Sarvesh has already been acquitted by the learned Court below. The further submission is that the presence of informant-complainant in the adjacent field is natural. Cutting grass in the evening hours is not an unnatural phenomena in the village. The witnesses of fact Prasadi, Chavi Ram and Ram Bhajan all appear to be natural witnesses. The presence of Chavi Ram and Ram Bhajan appears to be reasonable even after hearing the fire shots. Further submission is that all the accused persons have been assigned the role of discharging fire shots. The deceased has sustained four fire arm injuries and two lacerated injuries as noted by doctor in the post mortem examination report and the bullets have also been recovered from the person of deceased. The factual narration of the incident thus, finds corroboration from the medical evidence.
19. In the instant appeal, the incident occurred at 17.00 hours on 26.8.2004 and the FIR of the same has been lodged with the police on 26.8.2004 at 19.00 hours on the same day. The distance of police station from the place of occurrence is 5 km. In the circumstances now the Court has to scrutinize whether there was any delay in lodging the FIR ? The perusal of FIR itself reveals that after the death of deceased complainant-informant gave necessary instructions to the villagers present on the spot for taking care of dead body and proceeded towards police station for lodging the FIR.
20. The main objective of lodging the FIR is to brief the concerned police about commission of a criminal offence so that the investigation may be initiated. As such, no format is prescribed for lodging the FIR. The purpose of disclosing the names of persons, who have committed the crime and, the names of witnesses is to facilitate the investigating agency to investigate the crime and to reach at correct conclusion about commission of offence by a particular person. Time and again it has been propounded by Courts that the first information report (FIR) is not supposed to be an encyclopaedia. It is a piece of evidence but, is not a substantive evidence. It can be used for the purpose of corroboration or contradiction and to test the veracity of testimony of executants with respect to the FIR during the course of examination in Court.
21. Presuming the argument of accused-appellants that FIR would have been lodged earlier keeping in view the distance of police station from the place of occurrence, the Court is expected to analyze the impact of delay on the merits of the case. Time and again it has been reiterated by Hon'ble Apex Court that even presuming the delay, the FIR cannot be discarded outrightly whereas in such circumstance the Courts are enjoined with the duty to scrutinize and appreciate the prosecution evidence keeping well in mind the delay aspect with extraordinary caution.
22. The Hon'ble Apex Court has laid down the following proposition recently in the case of Jai Prakash Singh vs State of Bihar & Another reported in (2012) 4 SCC 379. The relevant paragraph 12 is being reproduced hereinbelow :-
"The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
23. It is settled law that if delay in lodging the FIR cannot be explained satisfactorily it is fatal to the case of prosecution. However, it is obligatory on the part of the Court to take notice of delay and examine the same in the backdrop of the case as to whether any acceptable explanation has been offered by the prosecution and, if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory.
24. The Hon'ble Apex Court in the case of State of Haryana vs Gyan Chandra reported in J. T. 2001 (5) SC 1691 has been pleased to observe that :
"Delay has the effect of putting the Court on its card to search that if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not? If the prosecution fails to satisfactorily explain the delay, the delay would be fatal to prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot itself be the ground for disbelieving and discarding the entire prosecution case."
25. In Ram Dass & Others vs State of Maharashtra reported in 2007 (2) SCC 170 the Hon'ble Apex Court was pleased to observe that mere delay in lodging the first information report is not necessarily fatal to the prosecution. However, the fact that the report was lodged belatedly, is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case.
26. In view of propositions cited above inference can safely be drawn that the delay should be explained and if, not explained even then the Court has to consider the aspect of delay in the light of totality of evidence and draw inference about the veracity of prosecution version considering the facts and circumstances of the case, which varies from case to case. In the instant case, the incident took place at 17.00 hours, then the informant gave certain instructions with respect to care and protection of the dead body and thereafter, proceeded to lodge FIR. In view of murder of son of informant-complainant after managing the villagers on the place of occurrence, he proceeded to lodge the FIR. In such extra ordinary traumatic condition covering the distance of 5 km and lodging the FIR at 7 pm by informant-complainant on the day of occurrence, cannot be held as unreasonable delay in lodging the FIR. Thus, the contention of the counsel for the appellant with regard to delay aspect cannot be sustained.
27. The testimony of PW 1 Prasadi and PW 2 Chavi Ram has been assailed on the ground that they are father and son of the deceased respectively, as such, they are related persons, hence, their testimony is not of much avail to the prosecution.
28. In the present social milieu it cannot be denied that in most of the cases accused persons are set free for want of lack of prosecution. It has always been the psychology of related witnesses that the perpetrators should not go unpunished and such persons have the tendency to accuse real assailants so as to satisfy his conscious that the guilty should be rightly punished.
29. The mode of appreciation of evidence of related person has time and again been highlighted by the Hon'ble Apex Court in the case of Shiv Ram Mishra Vs State of U. P. reported in (1998) 1 SCC 149 it has been opined that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased person. But, what is required is that the Court must scrutinize the evidence with utmost care and caution. Time and again, it has also been stated by the Hon'ble Apex Court that civilized people are in general insensitive when the crime is committed even in their presence, they withdraw themselves from both victim and the assailants. They keep themselves away from the Court. Evidence has to be appreciated keeping in view such ground realities. The Court instead of doubting prosecution case when no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for nugget of truth with doubt of probability, if any suggested by the accused.
30. From the law laid down by the Apex Court from time to time it can safely be deduced that the testimony of related or interested witness as a whole cannot be discarded but, a heavy duty is cast upon the Courts to appreciate the evidence with utmost care and caution.
31. It has been argued on behalf of accused-appellants on the basis of defence raised by way of their statements recorded u/s 313 Cr. P. C. that because of village groupism and political enmity, the accused persons-appellants have been falsely implicated. It is noteworthy that nothing has been suggested in this regard to the witnesses of fact. Instead of, it has been suggested to PW 1 Prasadi that the deceased was having relations with the wife of one Lankush, which has categorically been denied by PW 1. It is a case of direct evidence. PW 1 Prasadi, PW 2 Chavi Ram and PW 3 Ram Bhajan have categorically deposed against the accused persons-appellants in the Court. Where there is direct evidence, the motive loses its significance and it does not have the vital role in drawing inference. Even presuming enmity for argument sake, it is a double edged sword, which can be used to cut either way. Out of enmity the probability of false implication may exist but, at the same time the commission of offence out of enmity cannot be ruled out. In the instant case, the motive does not have the significance. The witnesses of fact have corroborated the prosecution version thus, this argument is not of much avail.
32. PW 1 Prasadi has categorically stated that he was cutting grass nearby the place of occurrence. The time of occurrence has been disclosed as 5 O'clock in the evening. He reached on the spot after hearing the sound of fire shot. He has specifically stated that when he reached the spot he saw Chheda equipped with rifle and rest of the accused persons were equipped with country made pistols. He has seen the accused persons fleeing from the spot. He has fully corroborated the FIR version through his oral testimony. There is consistency in examination-in-chief and cross-examination of this witness. He has categorically mentioned the time, place and manner of occurrence. He has specifically mentioned about the accused persons, who were equipped with different types of fire arms. Nothing could be extracted by way of cross-examination from this witness, which could be termed as material contradiction in the testimony of this witness. The presence of this witness appears to be natural and probable. Reaching of the witness on the spot after hearing the fire arm and seeing the accused persons fleeing from the spot, also seems natural. This witness has proved the execution of tehriri report (written report) i.e. Ext Ka 1 and he has fully corroborated the contents of written report through his oral testimony. This witness has nowhere tried to give an evasive reply in his cross-examination.
33. It has been submitted on behalf of defence that the witness PW 2 Chavi Ram is a minor aged about 13 years. He does not have the perfect maturity and much reliance cannot be placed upon his testimony by virtue of his age. His testimony cannot be relied upon without corroboration.
34. From time to time the Hon'ble Apex Court has considered the aspect of appreciation of evidence of child witness and has issued guidelines for the appreciation of testimony of such witness.
35. In the cases of Shivasharanappa and others vs State of Karnataka and Jagadevappa and other vs State of Karnataka and others decided on 7.5.2013 in Criminal Appeal No.1366 of 2007 and Criminal Appeal No.508 of 2007 respectively in paragraph 16 of the judgment, the Hon'ble Apex Court has propounded as follows :
"Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness, who is competent and whose version is reliable."
36. In the case of Alagupandi @ Alagupandian vs State of Tamil Nadu in reference to Criminal Appeal No.1315 of 2009 decided on 8.5.2012, the Hon'ble Apex Court in paragraph 23 has pleased to observe as follows :
"It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence."
37. In the case of State of Rajasthan vs Chandgi Ram & Ors reference to Criminal Appeal no.937 of 2008 decided on 9.9.2014 the Hon'ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below :
"The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. The law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. It is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The priniciples that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."
38. In view of above propositions laid down from time to time it can safely be discerned that for appreciating the evidence of a child witness it must be kept in mind that the testimony of a child witness should be credible, truthful and it should inspire confidence. Corroboration by an independent witness is a rule of prudence and it is not a cogent precedent for discarding the evidence of a child witness. Reliance can be placed upon the solitary statement of a child witness if, the statement is true and correct and is of quality and his deposition is found to be reliable and is away from the shadow of tutoring.
39. PW 2 Chavi Ram aged about 13 years is the son of deceased, has also supported the prosecution version. He has specifically mentioned that he had seen the incident from a distance of 10-15 paces from the spot. After hearing the sound of fire he reached on the spot and raised alarm. Mere admission in cross-examination that he reached on the spot after 2-3 minutes to his father, does not appear to be significant since, he was hardly 10-15 paces away.
40. The testimony of PW 2 Chavi Ram has been assailed on the score of the witness being directly related to the deceased and also on the pretext that the witness is a child witness and thus, not competent. The relationship cannot be the sole ground for discarding the testimony of a witness but, in such circumstance an onerous duty is cast upon the Court to scrutinize the testimony of the witness with utmost care. There is consistency in the examination-in-chief and cross-examination of the child witness, PW 2. The witness was accompanying his father at the time of incident. His presence appears to be natural and he is supposed to be one of the best witness. Nothing has been extracted by way of cross-examination from the witness whereby it can be inferred that the witness was neither present nor is trustworthy. No material contradictions have been brought to the notice of the Court. Nothing has been put to the witness by way of cross-examination whereby it can be discerned that he deposed on the basis of tutoring. The age of PW 2 is 13 years so, in the absence of contrary evidence it cannot be held that he was not capable of reproducing the things, which he had witnessed. There is no material discrepancy in the cross-examination statement as compared to the examination-in-chief of the witness. The witness PW 2 has fully corroborated the prosecution version with respect to time, place and manner of occurrence as has been alleged in the FIR and by other witnesses. The solitary evidence of this witness (PW 2) appears to be natural, reliable and truthful and inspiring confidence. Moreso, his testimony is also corroborated by the testimonies of PW 1 Prasadi and PW 3 Ram Bhajan. Thus, we are of the considered view that PW 2 even being a related and child witness inspires confidence and relaince can be placed upon his version.
41. PW 3 Ram Bhajan has also proved the presence of PW 2 Chavi Ram, who was moving ahead of his deceased father. He has also assigned role of fire arm shot to all the accused persons. Chheda was equipped with rifle and rest accused persons were equipped with country made pistols. He has also corroborated the prosecution version regarding time, place and manner of occurrence. He has also stated that he had seen the occurrence. He has denied the suggestion of deposing against the accused persons on the ground of party politics. He has mentioned that when he reached on the spot, the accused persons were assaulting deceased Kamlesh and he saw fire shots being discharged by the accused persons from a distance of 14-15 paces. He has not made any admission which is against his deposition recorded by way of examination-in-chief.
42. PW 1, PW 2 and PW 3 all the witnesses of facts have unanimously supported the prosecution version. There is neither any material contradiction in their individual testimony nor, it has been brought to the notice of this Court. There is complete coherence in the entire testimonies of PW 1, PW 2 and PW 3. On complete analysis of these witnesses, their presence on the spot appears to be natural and probable. They are the eye-witnesses and their testimonies inspire confidence.
43. All the witnesses of fact have categorically stated on oath that fire shots were discharged by the accused persons. The deceased Kamlesh had sustained gun shot injuries.
44. PW 6 Dr. A. K. Singh has conducted the post mortem examination and has proved the execution of post mortem examination report as Ext Ka.14. The ante mortem injuries no. (i) to (iv) have been mentioned as fire arm injuries and injuries no.(v) and (vi) have been mentioned as lacerated wound. Chheda has assaulted the deceased by the back side (butt) of the gun, which corresponds to the ante mortem injuries of lacerated wound. Thus, the medical evidence also corroborates the nature of injuries sustained by the deceased before his death as stated by PW 2.
45. The story of fire arm shot has further been corroborated from the testimony of PW 6. He has noted the presence of four metallic bullets, which he recovered during post mortem examination from liver, lung, left wrist and left thigh of the deceased respectively. Even for argument sake if the suggestion of defence that injury no.(v) can be sustained by fall is presumed even then nowhere it has been suggested by defence to the doctor that injury no.(v) can also be caused by way of fall. The seat of injury no. (v) and (vi) are different, both injuries are lacerated wounds. The location of the injuries are different hence, it cannot be inferred that injury no.(v) and (vi) could be sustained by fall. All the injuries on the person of the deceased would be appreciated in the light of factual matrix of case as well as the medical evidence. In veiw of totality of circumstances the argument of appellant's counsel about the injuries being sustained by fall does not appear to have substance in view of specific averment of assault by accused Chheda from the butt of the gun.
46. PW 4 Head Constable Poose Lal and PW 5 S. O. Subedar Singh are formal witnesses. PW 5 has conducted the investigation. Nothing has been suggested during cross-examination or nothing has been extracted by way of cross-examination by which it could be inferred that the I. O. has committed any illegality in conducting investigation, which has adverse bearing on the prosecution case.
47. Considering the materials available on record we are of the considered view that the prosecution has successfully substantiated the charges levelled against the accused-appellants and has proved its case beyond all reasonable doubts and the learned Court below has committed no illegality or irregularity in recording the findings of conviction against the accused-appellants Chheda, Lajja Ram, Guddu and Govind.
48. Accused Sarvesh has been acquitted of the charges levelled against him u/s 148, 302/149 IPC. Since, no appeal by the Government has been instituted hence, nothing can be observed with respect to the findings recorded by the learned Court below in favour of the accused Sarvesh, who has been acquitted.
49. In view of aforesaid discussions the appeal fails and is accordingly, dismissed.
50. The judgment and order dated 24.11.2006 passed by the learned Court below convicting and sentencing the accused persons-appellants Chheda, Lajja Ram, Guddu and Govind is hereby affirmed. Accused persons-appellants namely Chheda, Lajja Ram, Guddu and Govind are in jail. They shall serve the sentence awarded by the learned trial Court.
51. Let the lower Court's record be sent back to the Court concerned forthwith.
Order Date :- 10th July 2015 M. Himwan