Bhawar Singh And Others vs State Of U.P.
2012 Latest Caselaw 6102 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
		        Criminal Appeal  No.144 of 2011
 
1.	Bhawar Singh son of Jahar Singh
 
2.	Indradev son of Tej Singh
 
3.	Rajan Singh son of Munshi Singh
 
	All residents of Village-Darigapur Bharaul, 
 
	P.S.-Sirsaganj, District-Firozabad 	 				 										  .........Appellants.
 
					Vs. 
 
State of U.P. 							   .....Respondent.
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Justice Rakesh Tiwari)

Heard Sri Satish Trivedi, Senior Counsel, assisted by Sri A.R. Gupta, for appellant no. 1, Sri V.P. Srivastava, Senior Counsel, assisted by Kavita Tomar and Sri Ajit Kumar Srivastava, for appellant no. 2, Sri V.S. Parmar, holding brief of Sri Vivek Singh, for appellant no. 3, Smt. Usha Kiran, learned A.G.A. for the State, and perused the record.

This criminal appeal challenges the judgment and order dated 22.12.2010 passed by the District & Sessions Judge, Firozabad in Session Trial No. 314 of 2002 (State Vs. Bhawar Singh and others) arising out by Case Crime No. 268 of 2000. By the judgment impugned in the present appeal, the appellants have been convicted under section 302/34 IPC and awarded sentence for life imprisonment and fine of Rs.10,000/- each. The judgment further provides that in case of default in payment of fine, the appellants shall serve one year additional imprisonment in lieu thereof.

Counsel for the appellants has assailed the impugned judgment on the ground that conviction and sentence of appellants is wholly unjustified and against the evidence on record; that the prosecution has failed to establish any motive of the appellants for committing the alleged offence, and that there is no independent witness to support the version of prosecution and the witnesses P.W. 1 and P.W. 2 who are close relatives of the deceased and highly partisan. It is also challenged that the court below has not only erred in convicting and sentencing the appellants by not appreciating the evidence of the prosecution witnesses properly, but has not considered that medical evidence also does not support the oral evidence as well as prosecution story and has convicted and sentenced the appellants on the basis of the statement of P.W.1-Santosh Kumar and P.W.2-Ram Das; that sentence awarded is too severe and in any case is liable to be set aside as the prosecution has failed to establish its case beyond reasonable doubt against the appellants.

The case of prosecution in brief is that a written report was submitted to the Station House Officer, Sirsaganj, District-Firozabad, on 18.6.2000 by the complainant-Santosh Kumar son of Sri Mukut Singh, R/o Village-Darigapur, P.S. Sirsaganj, alleging therein that on 17.6.2000 at about 11.00 P.M., the complainant along with his brother Dinesh Kumar S/O Sri Mukut Singh, R/O Village-Darigapur, were going from his house to sleep at the tube-well. When they reached in the front of house of Raghuvir Singh son of Sri Pitamber Singh, Ved Prakash son of Sri Genda Lal, Rajan Singh son of Sri Munshi Singh, Indradev Singh son of Sri Tej Singh, Bhamar Singh son of Sri Jahar Singh, all R/O village-Darigapur (Bharol) having country made pistol met them and said to his brother Dinesh that he is living with Prem Kumar and doing pairvi in his case. On this, Dinesh Kumar said that Prem Kumar is his brother so they live together. Thereafter, on the signal of Rajan Singh, one of the accused, all the accused persons fired from their country made pistol upon Dinesh Kumar who died on the spot. Upon hearing the sound of firearm, Ram Das, Raj Bahadur and other residents of the village reached at the place of occurrence who recognized the accused persons at the place of incident in the light of torches and moon light and report of the incident was given to the police station-Sirsaganj. On the basis of written report, chick report was prepared and entry in G.D. was made on 18.6.2000 at 1.15 A.M. registering criminal case against the accused persons.

The case was investigated by S.O. Omvir Singh Tyagi, P.S. Sirsaganj. He prepared the inquest report. The recovery memo of plain and blood stained earth was prepared and sealed separately in two separate packets and sent the body of the deceased for post mortem which was conducted on the cadaver of deceased Dinesh Kumar on 18.6.2000 at about 11.55 A.M. In the external examination of the body of the deceased he was reported to be aged about 22 years old having average built body. Rigor-mortis had passed out from neck & present in upper and lower extremities and that the deceased had received the following ante mortem fire-arm injuries:

1.Firearm wound of entry 2 cm x 2 cm x brain cavity deep on right parietal surface of scalp, near mid line, 14 cm above the twinges of right ear. Margins are inverted & lacerated.

2.Multiple firearm wound of entry on top of right shoulder, front of right shoulder and front of chest up to right nipple and upper half of right arm outer aspect average size. O. 3 cm x 0.3 cm x muscle deep to chest cavity deep. Margins are inverted & lacerated, in an area of 18 cm x 17 cm.

3.Firearm wound of entry on epigastric surface of front of abdomen, 14 cm below the left nipple, at 7' O clock position, on just left to mid line 2 cm x 2 cm x abdominal cavity deep. Blackening present in the area of 6 cm x 6 cm. Wound margins are inverted and lacerated.

The internal examination showed that right parietal bone of the deceased was fractured. Membranes were lacerated and congested. The right pleura was lacerated and no abnormality was detected in the left pleura and a metallic bullet was recovered from brain cavity which was sealed for scientific examination. About 1/2 litres of blood had collected in the chest cavity of peritoneum membrane of stomach found ruptured which was filled with about a litre of blood and about 6 oz. pasty food and 22 pellets recovered from the brain and left kidney wall also sealed separately for forensic examination. In the opinion of doctor, death was caused due to Coma as a result of ante mortem injuries.

On submission of the charge sheet, the District & Sessions Judge, Firozabad framed charges against the accused persons for the offence under section 302/34 IPC, who pleaded not guilty to the same and claimed to be tried.

Before proceeding further the pedigree of the complainant's family may be given for appreciation of the evidence.

 
				Mauji Ram 
 

 
		
 
Nabab Singh        Bachan Singh   Trilok Singh   Mukut Singh							  (Issue less)	
 

 
Raj Bahadur       
 
(C.W.1)	  Ram Das(P.W.2)  Prem Kumar
 

 
                   Mahesh      Santosh        Mukesh           Dinesh
 
                                  Complainant(P.W.1)              (deceased)
 

 

The prosecution produced 7 witnesses, namely Santosh Kumar- P.W. 1, Ram Das-P.W. 2, Dr. R.K. Pandey-P.W. 3, Ghanshyam Sachan-P.W. 4, Omvir Sing Tyagi-P.W. 5, Ramesh Chandra-P.W. 6, Mohan Singh-P.W. 7 and Raj Bahadur-C.W.1, in support of its' case.

The contention of learned counsel for the appellant is that ;

1.The FIR which was lodged at 1.15 A.M. on 17/18.6.2000 was ante-timed. The incident had actually been given effect on the chabootara of Raghubit Singh, by some unknown persons and not by the accused appellants as has come in FIR for falsely implicating them and it is for this reason that the court witness Raj Bahadur has not shown the place of incident in the site-plan and the injuries do not tally with the version of the eye-witness.

2.The two witnesses P.W.1-Santosh Kumar, who is the brother of the deceased and P.W. 2-Ramdas, though inimical to the appellants, has supported the defence case. Thus, there is material contradiction in the prosecution story.

3.No motive against the appellants has been brought out and proved against them.

4.There is no independent witness to support the version of prosecution.

The argument of counsel for the appellant is that the offence had been committed by some unknown persons in the night of 17.6.2000 at about 11.00 P.M. of which FIR was lodged at about 1.15 A.M. i.e. after more than two hours of the incident on 18.6.2000 falsely implicating them. The distance of police station from the place of occurrence is about 10 km. It is stated that that even if FIR would have been lodged by 6.00 O' clock after inquest, the names of the accused would have certainly found place in it. Therefore, according to him, the said FIR was lodged at the police station after the inquest. He has then placed evidence of P.W. 1. P.W.2-Ram Das son of Bachan Singh stated that he had seen the accused in moonlight. The complainant-Santosh Kumar who was examined as P.W.1 proved the written report as Ka-1. He has stated that accused Ved Prakash is real nephew of Rajan Singh and Indra Dev also is related to the family of the accused as reported that campaign for election of Pradhan in the village was going on when incident had taken place. In the election, Shanti Devi wife of accused Bhanwar Singh, Indira Devi wife of Shiv Kumar and Urmila Devi wife of Virendra were contesting the election in which Indira Devi was declared winner and before her Bhanwar Singh the accused had been the Pradhan of the village from 1988 to 1995, but does not know that during his tenure as pradhan any case under section 115-D in respect of house built by Bachan Singh, Mukut Singh and Raj Bahadur etc. was filed or not.

Regarding the incident, he has stated that he and his brother had not run away on seeing the accused persons. They had remained standing when accused standing on the chabootra had fired 4 shots at his brother from a distance of about 5 paces and after a minute had ran away. Some persons nearby came at the spot such as Jaiveer Singh, Agyaram and Keshav Singh etc., but the accused ran away in southern direction.

He then described the proceedings of the incident thereafter thus:

^^ eSus vius HkkbZ dks mBkdj ns[kk Fkk fd thor gS ;k e`r ij mudh ekSds ij ekSr gks x;h FkhA esjs diM+ks o gkFkksa esa [kwu ugh yxk FkkA

?kVuk ds djhc 3 ?kUVs ckn ekSds ij iqfyl vk x;h FkhA esjs HkkbZ ¼e`rd½ dks iqfyl us pkjikbZ ij fyVk;k Fkk pkjikbZ dks lM+d ls mBkdj j?kohj flag ds pcwrjs ij lM+d ds fdukjs [kkyh txg ij j[k fy;k FkkA pkjikbZ ij [kwu yxk Fkk rFkk 'kjhj ls [kwu fudy jgk FkkA pkjikbZ ij yk'k j[kh jgh Fkh lqcg 5 cts rd ogha j[kh jgh FkhA lqcg 6 cts iapukek Hkjk x;k FkkA iapk;rukek Hkjus esa djhc vk/kk ?kUVk le; yxk FkkA djhc 7 cts yk'k dks ysdj iqfyl ds lkFk eSa Fkkus igqWp x;k FkkA

Fkkus ls 1 ?kUVs ckn yk'k dks ysdj vLirky fQjkstkckn x;s FksA 10 cts ds djhc fQjkstkckn ljdkjh vLirky igqaps FksA Fkkus ij eSaus fjiksVZ fy[kk;h Fkh fjiksVZ fy[kkus ds ckn gh yk'k vLirky ys x;s FksA

lka; dks djhc 5 cts yk'k dks ysdj vius ?kj vk;s FksA eSa o izse pUnz o latho dqekj losZ'k o ohjHkku flag vkfn yk'k dks ysdj Fkkus x;s Fks rFkk ;gh yksx vLirky rd esjs lkFk x;s FksA

;g dguk xyr gS fd esjk HkkbZ j?kqohj flag ds pcwrjs ij pkjikbZ ij lks jgk gks ;g Hkh dguk xyr gS ogha ij vKkr O;fDr;ksa us esjs HkkbZ dh jkf= esa gR;k dj nh gksA ;g Hkh dguk xyr gS fd eSaus dksbZ ?kVuk u ns[kh gksA ;g Hkh dguk xyr gS fd jaft'k o ikVhZ cUnh ds dkj.k eqfYteku dks >wBk Qalk;k gks vkSj eqfYteku us gR;k u dh gksA

;g Hkh dguk xyr gS fd eqfYteku us dksbZ gR;k u dh gksA

Thereafter in his cross-examination he stated that Prem Kumar is son of his 'Tau' (father's elder brother) who had a quarrel with Ved Prakash in Holi festival in which Ved Prakash had injured Prem Kumar by firing upon him, but he (P.W.1) has no enmity with Ved Prakash and he is falsely implicating him due to this or on ground of party-bandi in the village. He had left his house along with Raj Bahadur at about 11.00 P.M. for going to his tube-well to sleep. His house is at a distance of about 35 meters from the house of Raghubeer Singh. He had heard noise from about 20 meters and had reached the place of incident within 2-3 minutes and heard noise of 4 firearm shots when he was about 15 meters from the place of occurrence from when he could see the incident taking place. He further stated in his cross examination that Dinesh was injured by his shots on stomach, shoulder and hold, but could not tell which accused's shot hit where and that the shots were fired from about 4-5 paces. It was moonlight and he had switched on his torch on hearing the firearm shot; that the chabootra of Raghubeer is 2 ft. higher than the way and he had seen the accused and Dinesh (since deceased) who were wearing pants & shirts.

He also then proceeded to give the factual details of proceedings with regard to the incident thus:

^^e`rd fnus'k tgkW fxjk Fkk mlds mRrj esa flj rFkk nf{k.k fn'kk esa iSj FksA

eSa ?kVukLFky ij jkf= ij :dk FkkA ?kVukLFky ij iqfyl djhc 1 cts jkf= esa vk;h FkhA lwpuk ifgys nh Fkh ckn esa iqfyl vk;h FkhA

lwpuk nsus ds fy;s lUrks"k lqHkk"k vkfn eksVj lkbfdy ls x;s ;s yksx djhc ?kVuk ds vk/kk ?kUVs ckn x;s FksA

esjs igqWpus ds cn izse pUnz] vkKkjke] t;ohj vkfn yksx vk x;s FksA eSa yk'k ds lkFk iksLVekVZe rd jgk FkkA yk'k pdjksM ij lqcg 6]7 cts rd iM+h jgh FkhA vkSj yk'k ds ikl izsepUnz lqHkk"k] lUrks"k] eqds'k vkSj Hkh yksx lqcg rd yk'k ds ikl cSBs jgs FksA

iqfyl jkf= ds djhc 1 cts vk;h FkhA jkf= esa 2 njksxk o flikgh dqy 6&7 yksx iqfyl ds vk x;s FksA dN le; ds fy;s iqfyl okil pyh x;h FkhA iqfyl lqcg 5 cts pyh x;h Fkh vkSj 7 cts iqfyl fQj vk;h FkhA iqfyl us yk'k dk iapukek Hkjk FkkA fQj eSa o iqfyl okys yk'k dks ysdj Fkkus x;s FksA Fkkus ij ge yksx djhc 1 ?kUVk :ds FksA mlds ckn yk'k dks ysdj fQjkstkckn vLirky pys x;s FksA yk'k ds lkFk o esjs vykok lUrks"k Hkh FkkA lUrks"k ls Fkkus esa fy[kk i<+h djk;h Fkh blfy;s ,d ¼dk0QVk½ Fkkus esa yx x;k FkkA

Fkkus ls vLirky ds fy;s 8 ¼dk0QVk½ djhc pys Fks rFkk vLirky ¼dk0QVk½ esa ge yksx 10 cts igqWp x;s ¼dk0QVk½ yk'k dks VSªDVj esa j[kdj ys ¼dk0QVk½ Fks rFkk yk'k dks ?kj ¼dk0QVk½ VSªDVj ls ys x;s FksA

According to Sri Satish Trivedi, learned Senior Counsel, appearing for appellant no. 1, there is material contradiction in the evidence of witnesses for the prosecution. In this regard he had drawn our attention to the statement of Santosh Kumar-P.W. 1, complainant and brother of the deceased and Raj Bahadur-C.W. 1. who have stated in their statement that when they along with their younger brother Dinesh (since deceased) reached near the house of Raghuvir Singh, they met with Ved Prakash, Rajan Singh, Indra Dev and Bhawar Singh who had country made pistol with them. The counsel then placed the FIR before the Court pointing out that that aforesaid persons have met with them infront of house of Raghuvir Singh with country made pistol which is material contradiction in the story of prosecution.

Regarding false implication of the accused as the murder was committed by Ved Prakash (since deceased), the case of the appellants was that Bhawar Singh (accused) had been pradhan of the village from 1988 to 1995 at the time of incident. The election process was going on and voting was scheduled for 23rd June. In this election, Shanti Devi, wife of Bhawar Singh, Indra Devi wife of Shiv Kumar and Urmila Devi wife of Virendra, were candidates in which Indra Devi was victorious. He has further argued that in the circumstances there was no occasion for the complainant or his brother for going to the tube-well to sleep, whereas the case of the prosecution is that deceased was shot dead by the accused persons from the Chabutara when they were going on the way. He has also argued that since Ved Prakash, Rajan Singh and Indra dev are relatives of the appellant and Bhawar Singh is not related with the accused-appellant, therefore, there was no motive to join hands with other accused.

Sri Vivek Singh has adopted the arguments of Sri V.P. Srivastava, regarding bringing of the dead body to the police station and ante-timed FIR. In addition, he has stated that injuries suffered by the deceased are not supported by medical evidence and that conduct of the first informant going with the deceased is also to be seen. It is emphatically argued that presence of witnesses and the manner of assault belies the possibility of implication of one accused; that statement of P.W. 1 and P.W. 2, are contradictory; that P.W. 1 has stated that there was no blood on his clothes though he had picked up his brother. As regards, statement of P.W. 2 is concerned, it is argued that he was highly interested and partisan witness related to the deceased by blood. In the statement recorded under section 161 Cr. P. C., P.W. 2, has stated that he was going to his agricultural field and not at the tube-well as mentioned in the written report, therefore, there is contradiction in the statement of P.W. 1 and P.W. 2, who also introduced a Charpai on the chabutra on which Investigating Officer had found the dead body. He has further stated that there is contradiction in the statement of prosecution evidence and that presence of accused-appellant is doubtful at the place of occurrence. The incident could not be verified from G.D. as the same was weeded out after five years, hence benefit should go to the appellants.

Per contra, Smt. Usha Kiran, learned A.G.A. has stated that FIR is not ante-timed as the incident took place at 11.00 p.m. on 17.6.2000 and the report was itself lodged in the night at 1.15 a.m., i.e. in about two hours. Therefore, there is no reason for the witnesses P.W. 1-Santosh Kumar and P.W.2-Ramdas to have falsely implicated the appellants; and that the post mortem report itself shows that there are three distinct fire arm injuries on the deceased which have been proved by the Dr. R.K. Pandey who in his cross-examination not only described the ante mortem injuries in his examination-in-chief but has explained in detail. The relevant extract placed by the learned A.G.A. in this regard reads thus:

 
	^^pksV ua- 1 xksyh dk Mk;jsD'ku nk;s ls cka;s vksj lh/kk FkkA 
 
	pksV ua- 2 NjsZ dh pksV gS tks Nkrh ,oa nkfgus dU/ks ds lkeus dh vksj gsa NjsZ fofHkUu fn'kkvksa esa tkrs gS NjsZ lkeus ls ihNs dh vksj dh fn'kk fn'kkZrs gSA vyx&2 NjksZ dh fn'kk ugh fy[kh gSA izR;sd NjsZ dh vyx&2 fn'kk ugh crk ldrkA
 
	pksV ua- 3 dk Mk;jsD'ku lkeus ls ihNs dh vksj gS rFkk lh/kk Mk;jsD'ku gSA 
 
	;g lgh gS fd pksV ua- 2 dk QSyko NjksZ dk 18 cm x 17 cm ds {ks= esa gSa 
 
	pksV ua- 2 fdruh nwjh ls igqWpkbZ xbZ gksxh eSa ugh crk ldrk ;g cSysfLVd ,DliVZ crk ldrs gSA eSa ugh dg ldrk      fdruh vf/kd nwjh ls Qk;j fd;k tk;sxk mrus gh cM++s {ks= esa NjsZ vf/kd QSysxsA ;g tkudkjh cSysfLVd ¼'kL= fo'ks"kK½ gh crk ldrk gSA 
 
	'kVZ esa ikap cMs&2 Nsn gS ftudk vkSlr lkbt 2 bap x 2 bap gksxkA vkSj blesa dksbZ Nsn ugh gSA
 
pksV ua- 3 ds pkjks vksj 6 cm x 6 cm ds {ks= esa dkykiu ik;k x;kA 
 
	pksV ua- 3 N% QhV ls de nwjh ls vkuk laHko gSA 
 
dkVZ cksMZ ¼fVdyh½ ,cMkseu ls cjken gbZ FkhA 
 
	eSa ugh crk ldrk fd fudVrk ls (Close range) ls xksyh ekjh tk;s rks dkMZ cksMZ vUnj tk;sxkA ;k ughA 
 
	pksV ua- 1 o 3 dk gfFk;kj o pksfVy lrg dk yxHkx leku Lrj o vkeus lkeus ls gks rks bl rjg dh pksV vkus dh laHkkouk gSA 
 
	pksV ua- 1 lkbM ls vkbZ gSA 
 
	pksV ua- 2 o 3 lkeus ls ekjus ls vkbZ gSA 
 
	Lo;a dgk fd mijksDr fLFkfr;ka ds fy;s gS tcfd ekjus okyk O;fDr pqVSy nksuksa [kM+s voLFkk esa gSA 
 
	vxj e`rd uhps [kM+k gS ekjus okys nks QqV mpkbZ ij gS rks gfFk;kj dk Mk;jsD'ku Mku okMZ o pksVks dk Mk;jsD'ku Mku okMZ gksxkA
 
	lhy cUn fyQkQk ns[kdj fd ml ij yxh lhy ij    M.O. I/c S.N.M. gksLihVy fQjkstkckn Li"V :i ls vafdr gSa 
 
	pksVks ds vof/k esa 2&3 ?kaVks dk nksuks lkbM esa gks ldrk gSAa 
 
	;g dguk xyr gS fd eSus lgh pksVs ntZ u dh gks rFkk ¼vLi"V½ ds dgus ls pksV ntZ dh gksA
 

 

As per her argument, case crime number is mentioned in the Panchayatnama which shows that reference of report having been lodged and details in column have been mentioned. Not only this P.W. 7 has mentioned in his statement about sending of police papers.

Learned A. G.A. stated that two things i.e. occurrence had taken place at about 11.00 P.M. in the night of 17/18.6.2000 and the distance of police station from place of occurrence is about 10 Km., are admitted. According to her, it is evident from cross-examination of Eye-witness-Ram Das that Santosh Kumar and Subhash along with others had gone to the police station by motorcycle after half an hour of the incident. On reaching the police station, report was written and G.D. entry was made, therefore, it cannot be said that there is deliberate delay in lodging of the FIR, rather it is prompt looking into the facts and circumstances of the case that incident had taken place in which a person had died. She again submitted that it is evident from the record that police had reached at the spot in the night of 17/18.6.2000 at the place of occurrence and two police Sub-Inspectors along with a constable reached there at about 5.00 P.M. in the night for assistance in the inquest which was completed. The body carrier had taken body of the deceased at about 7.00 P.M. for post-mortem.

It is vehemently argued by learned A.G.A. that the police had reached at the place of occurrence in the night itself and as such it cannot be said that FIR is ante-timed. As regards name of accused persons having not been entered on ex. Ka-7 to Ka-10 is concerned, it is stated that there were only column for filling sections under which offence has been committed, and there were no column on the aforesaid document for writing the names of the accused, therefore, names of the accused persons do not find place on the aforesaid document.

We find that Santosh Kumar had not anywhere stated that he was the resident of Sirsaganj. On the contrary he has given his address as resident of Dargapur (Bharaul), P.S. Sirsaganj, where he was a teacher in junior high school and he used to teach from the village-Sirsaganj. Even no suggestion has been given to him to this witness in his cross-examination by the appellants that he does not live in Sirsaganj or had not come to the place of occurrence on receipt of information. Admittedly, the police had reached at the place of occurrence in the night of 17/18.6.2000 at around 1.00 A.M. to control law and order situation. Since there was no column in Form-13 for mentioning names of the accused, no advantage can be gained by the appellants by raising the plea that since names of the accused have not been mentioned therein, FIR is ante-timed on the basis of inquest having been made at about 6.30 P.M.

The contention of counsel for the appellant that body of the deceased was kept at police station for about one an hour and then it was sent to the hospital for post-mortem, the court below has recorded a finding that police constable had reached the place of occurrence in the night, therefore, while coming to back they wanted to relieve themselves and have handed over the dead body to another police personnel for carrying it to the hospital. Even otherwise, arguments of counsel for the appellant is taken on face value, the Court had to ensure that in the given circumstances can the FIR be said to be ante-timed, and if so, it has to be ascertained as to whether any interpolation etc. has been made in the report. Therefore, the police on this score were required to show that they have been falsely implicated or any interpolation has been made by adding their names in the FIR.

We, therefore, find from the above discussions that the FIR was lodged at 1.15 A.M. on 17/18.6.2000 and was not ante-timed, rather it was prompt and without any interpolation.

We have thoroughly examined the evidence of P.W. 1 and P. W. 2 and are of the opinion that their presence on the place of occurrence is probable and not doubtful. The statement given by them is wholly reliable. It may be noted that the deceased was not alone. The statement of P.W. 1 and P.W. 2 cannot be discarded merely on the allegation that they are close relatives of the deceased. It is settled law that if dependent witnesses are reluctant to depose before the Court, the testimony of eye-witnesses who are relatives of the deceased should be examined with care. They would be the last person to falsely implicate a person by not deposing against real defender. From careful perusal of statement of P.W. 1 and P.W. 2 produced by the prosecution, we find that there is no major contradiction in the statement given by eye-witnesses.

It may also be noted that statement of C.W.1-Raj Bahadur, was recorded after 9 years of incident and 3 years after the death of accused-Ved Prakash, therefore, it was convenient for the accused persons to put blame upon Ved Prakash. There is no other material to corroborate the statement of C.W. 1. As had Ved Prakash been alive, then C.W. 1 could not mustered courage to depose against him. Although Raj Bahadur was a witness of prosecution but he was not examined by them and the Court has summoned him as witness of Court as his name was mentioned as an eye witness of the incident by the complainant. Therefore, statement of C.W.1 is also of no help to the defence.

The incident in fact had taken place during election campaign and appears to be election rivalry. The incident is corroborated by oral and medical evidence and any defect in investigation by Investigating Officer or in preparation of site-plan by him is not very relevant. It is noteworthy that site-plan prepared by Investigating Officer is here say evidence and cannot be termed as direct evidence.

For all the reasons stated above, we find no force in this appeal which is accordingly dismissed, affirming the judgment and order dated 22.12.2010 passed by the District & Sessions Judge, Firozabad.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.

Dated:18.12.2012

RCT/-

...................... Rakesh Tiwari J.

....................... Anil Kumar Sharma, J.