Chaman & Others vs State Of U.P.
2014 Latest Caselaw 4973 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved									A.F.R.
 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 1253 of 1994
 

 
Appellant :- Chaman & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- D.N. Wali,D.R. Choudhary,Daya Ram Yadav,Prem Prakash
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan, J.)

Present appeal has been filed by accused appellants Chaman, Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan against judgement and order dated 18.8.1994, passed by Shri C.B.D. Misra, 6th Addl. District and Sessions Judge, Meerut in Sessions Trial No. 21 of 1991, State Vs. Chaman and 4 others under Sections 147,148,149,336,324,307,302 I.P.C. P.S. Kithore, District Meerut, whereby 6th Additional District and Sessions Judge, Meerut convicted accused Chaman for offences punishable under Section 148, 324/149, 302/149 I.P.C., and accused Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan for offences punishable under Section 147, 302/149, 323/149 and 324/149 I.P.C..

Learned 6th Additional District and Sessions Judge, Meerut sentenced accused Chaman for offence punishable under Section 148 I.P.C. to rigorous imprisonment for one year, for offence punishable under Section 324/149 I.P.C. to rigorous imprisonment for one year and for offence punishable under Section 302/149 I.P.C. to life imprisonment. Learned 6th Additional District and Sessions Judge, Meerut sentenced accused Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan for offence punishable under Section 147 I.P.C. to rigorous imprisonment for one year, for offence punishable under Section 324/149 I.P.C. to rigorous imprisonment for one year, for offence punishable under Section 323/149 I.P.C. to rigorous imprisonment for six months and for offence punishable under Section 302/149 to imprisonment for life. Learned 6th Additional District and Sessions Judge, Meerut directed that all the sentences of all the accused shall run concurrently.

Accused appellant no.2 Jeetu alias Jeet Singh and accused appellant no.5 Faggan have expired. Appeal abated in respect of them.

Sri Prem Prakash Yadav, Advocate appeared on behalf of accused appellants no. 1,3 and 4 namely Chaman, Kailash and Om Singh. Learned A.G.A. appeared for State respondent.

We have heard learned counsel for the parties and perused the record.

According to F.I.R. Ext.Ka-1 in brief prosecution version is that on 20.3.1989 Bishambar uncle of complainant Kiran Singh was constructing a stair case in his house, known as Dadalai. Accused appellant Chaman and others prohibited him from making construction of stair case. On this very issue at 9.00 P.M. during night there took an altercation between them, whereupon Bhondu Grand-father of complainant Kiran Singh called Bishambar and Ram Ratan, uncles of complainant Kiran Singh in his Baithak. Thereafter said Bishambar went to drink water at the handpump where accused Bhopal, Chaman, Jeetu, Kailash, Om Singh and Faggan were standing in street, concealing their presence. Accused Chaman and Bhopal were armed with Tabal and rest accused were armed with lathies and Balkati. All of them jumped upon Bishambar and assaulted him. Witnesses Beer Singh and Lalji, who were standing at the same place raised alarm, whereupon complainant Kiran Singh, who was on his shop, went to see his uncle Bishambar. At the same time his uncle Ram Ratan ran to the house of accused Chaman where he was caused to death with Balkati, Tabal and Farsa. Complainant Kiran Singh also went behind his uncle Ram Ratan. Accused threw bricks also on them. Witness Jaswant was also on the spot and who also suffered injury of Balkati in rescue. Thereafter Brahm Singh, Om Prakash and Amar Singh brought injured Bishambar and Balu Ram for medical examination and complainant Kiran Singh went to police station for lodging report leaving dead body of his uncle Ram Ratan in the house of accused Chaman.

Complainant Kiran Singh got written First Information Report Ext.Ka-1 by Suraj Pal Singh and after making signature presented it to police station Kithore, District Meerut on 20.3.1989 at 10.15 p.m., whereupon Crime No.82 of 1989 under Sections 147,148,149,336,324,307 and 302 I.P.C. was registered against accused Bhopal, Chaman, Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan and police started investigation.

Inquest report Ext.Ka-6 of deceased Ram Ratan was prepared and dead body was sent for post-mortem in sealed cover after having completed other formalities.

Injured Bishambar also died till he reached Medical College, Meerut. Inquest report Ext.Ka-23 of his dead body was also prepared and dead body was sent for post-morten in sealed cover after having completed other formalities.

Police concluded investigation in accordance with law and submitted charge sheet Ext.Ka-19 against accused Bhopal, Chaman, Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan under Sections 147,148,149,336,324,307 and 302 I.P.C.. Accused Bhopal died before committal proceeding, therefore, after compliance of Section 207 Cr.P.C. concerned Magistrate committed the case to the court of Sessions for trial of remaining accused. Thereafter Sessions Trial No. 21 of 1991, State Vs. Chaman Singh and five others was registered in the Sessions court of District Meerut.

Later on, said Sessions trial was transferred to the court of 6th Additional District and Sessions Judge, Meerut, who framed charges against accused Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan for offences punishable under Section 147, 302/149, 323/149 and 324/149 I.P.C. and against accused Chaman for offences punishable under Section 148, 324/149, 302/149 I.P.C.. All the accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W.-1 Kiran Singh, P.W.-2 Balu Ram, P.W.-3 Jaswant Singh, P.W.-4 Dr. S.C. Gupta, P.W.-5 Dr. I.P. Singh, P.W.-6 Kali Ram Malik, P.W.-7 Chandveer Singh, P.W.-8 Tejveer Singh, P.W.-9 Mohan Singh and P.W.-10 Dr. V.K. Sharma and closed his evidence.

After prosecution evidence, statements of all accused were recorded under Section 313 Cr.P.C.. All the accused stated that they have been falsely implicated due to animosity. Accused Chaman has further stated that accused Bhopal was doing service in Roadways. He was on duty through out whole night of occurrence.

D.W.-1 Gopal Dutt Sharma, J.S.I., Roadways Meerut was also examined on behalf of accused in defence.

After defence evidence learned 6th Additional District and Sessions Judge, Meerut heard the arguments of the parties and passed impugned judgement and order dated 18.8.1994 whereby he has convicted and sentenced accused appellants as mentioned above.

Learned counsel for the accused appellants contended that the judgement and order passed by learned trial court is against law as well as against evidence.

Learned counsel for accused appellants contended that P.W.-1 Kiran Singh and P.W.-2 Balu Ram are family members and P.W.-3 Jaswant Singh is their friend. Their statements are full of contradictions and no independent witness has been examined. Therefore, reliance cannot be placed on these interested witnesses.

Learned counsel for accused appellants contended that source of light is not mentioned in F.I.R. There was darkness of night at the time of occurrence. Therefore, it is difficult to identify assailants.

Learned counsel for the accused appellants contended that incriminating evidence and circumstances have not been put to accused in their examination under Section 313 Cr.P.C., therefore, those evidence and circumstances may not be read in evidence against accused.

Learned counsel for the appellants contended that mandatory provision of Section 313 Cr.P.C. has not been complied with, therefore, conviction recorded by trial court is vitiated and all the accused appellants are entitled to acquittal. Learned counsel for the appellants relied upon following pronouncements of Hon'ble Apex Court in support of his contention:-

1- (1995) 4 S.C.C. 262, State of M.P. Vs. Shyam Sunder Trivedi & others.

2- (2003) 2 S.C.C. 401, Lallu Manjhi & another Vs. State of Jharkhand.

3- (2006) 12 S.C.C. 306, Vikramjeet Singh alias Vicky Vs. State of Punjab.

4- (2007) 12 S.C.C. 341, Ajay Singh Vs. State of Maharashtra.

5- (2008) 8 S.C.C. 395, Latu Mahato & another Vs. State of Bihar(Now Jharkhand).

6- (2009) 6 S.C.C. 595, Ranvir Yadav Vs. State of Bihar.

7- (2009) 7 S.C.C. 404, Ganesh Gagoi Vs. State of Assam.

8- (2011) 8 S.C.C. 80, State of U.P. Vs. Mohd. Iqram and another..

9- (2012) 4 S.C.C. 124, Sampath Kumar Vs. Inspector of Police. Krishnagiri..

10- (2013) 12 S.C.C. 406, Sujit Bisawas Vs. State of Assam.

Learned counsel for accused appellants contended that Section 157 Cr.P.C. as well as paragraphs 27, 101 and 101-A of U.P. Police Regulations have not been complied regarding special report. He further contended that delayed dispatch of F.I.R. creates doubt about the truthfulness of the prosecution case. Learned counsel for accused appellants has placed reliance upon following pronouncements of Hon'ble Apex Court:-

1- (2006) 9 S.C.C. 731, Budh Singh & others Vs. State of U.P.

2- (2004) 9 S.C.C. 193, Kunju Mohd. Alias Khumani and another Vs. State of Kerala.

3- (2003) 4 S.C.C. 128, Suresh Chaudhary Vs. State of Bihar.

4- (2002) 9 S.C.C. 147, Bijoy Singh and another Vs. State of Bihar.

5- (2001) 3 S.C.C. 147, State of Rajasthan Vs. Teja Singh and others.

6- (1994) 5 S.C.C. 188, Mehraj Singh Vs. State of U.P..

7- (1994) Suppl (2) S.C.C. 372, Arjun Marik & others Vs. State of Bihar.

8- (2007) 13 S.C.C. 501, Ramesh Babu Rao Devaskar and others Vs. State of Maharashtra.

Learned counsel for accused appellants contended that there are improvement in statements of witnesses which makes their statements untrustworthy. Learned counsel for accused appellants placed reliance upon following rulings:-

1- (2009) 11 S.C.C. 334, Mahendra Pratap Singh Vs. State of U.P.

2- (2011) 14 S.C.C. 208, Jalpat Rai Vs. State of Haryana.

3- (2014) 3 S.C.C. 412, Vijay Kumar Vs. State of Rajasthan.

4- (2014) 2 S.C.C. 395, Hamraj Vs. State of Haryana.

Learned counsel for accused appellants contended that investigation is unfair and statements of witnesses have been recorded after long delay. This also makes prosecution case unreliable. Learned counsel for accused appellants placed reliance upon following rulings:-

1- (2013) 6 S.C.C. 417, Lahu Kamlakar Patil Vs. State of Maharashtra.

2- (2013) 4 S.C.C. 422, Sunil Kundu Vs. State of Jharkhand.

3- (2014) 4 S.C.C. 54, Chhotan Sao Vs. State of Bihar.

4- (2008) 15 S.C.C. 440, State represented by Inspector of Police,Tamil Nadu Vs. Sait alias Krishnakumar

Learned counsel for the accused appellants prayed that the appeal should be allowed and accused appellants should be acquitted from all charges.

Learned A.G.A. contended that conviction recorded by trial court is based on evidence and sentence awarded by trial court is not excessive, therefore, there is no sufficient ground for interference in conviction and sentence recorded by trial court.

Learned A.G.A. contended that all pronouncements of Hon'ble Apex Court cited by learned counsel for the accused appellants are not applicable on the facts of this case. Learned A.G.A. contended that trial court has recorded statements of accused appellants under Section 313 Cr.P.C. properly and all necessary facts, evidences and circumstances have been put to accused for affording them opportunity to explain evidence adduced against them by prosecution.

Learned A.G.A. contended that learned counsel for the accused appellants has failed to show that any prejudice has been caused to accused appellants due to defective statement of accused recorded under Section 313 Cr.P.C..

Learned A.G.A. has placed reliance on 2010 (71) ACC 548 (S.C.), Dharampal Singh Vs. State of Punjab.

Learned A.G.A. contended that provisions of Section 157 Cr.P.C. as well as paragraphs 27, 101 and 101-A of U.P. Police Regulations have been complied with and special report has been sent in accordance with law.

Learned A.G.A. has placed reliance on (2014) 2 S.C.C. (Cri) 417, Ashok Debbarma alias Achak Debbarma Vs. State of Tripura.

Learned A.G.A. prayed that appeal should be dismissed.

We have considered the submissions made by the parties.

Out of ten witnesses examined by prosecution, P.W.-1 Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh are the witnesses of fact and occurrence. They have supported the version of prosecution in their statements on oath.

P.W.-1 Kiran Singh is complainant and he has proved First Information Report Ext.Ka-1 also.

P.W.-3 Jaswant Singh has stated in his statement that on the next day of occurrence a blood stained Gandasa, a knife and 4 bottles of liquor were recovered from the house of accused Chaman in his presence.

P.W.-4 Dr. S.C. Gupta has stated in his statement that on 21.3.1989 he was posted as Medical Officer in P.L. Sharma Hospital, Meerut. On that day at 3.00 p.m. he conducted post-mortem of deceased Ram Ratan whose dead body was brought by Constable C.P. 1804 Ashok Kumar. P.W.-4 Dr. S.C. Gupta has further stated that on the same day at 3.30 p.m. he conducted post-mortem of deceased Bishambar also.

P.W.-4 Dr. S.C. Gupta has proved post-mortem report of deceased Ram Ratan Ext.Ka-2 and post-mortem report of deceased Bishambar Ex.Ka-3 in accordance with law.

P.W.-5 Dr. I.P. Singh has stated on oath that he was on emergency medical duty on 21.3.1989. On that day he examined P.W.-3 Jaswant Singh at 1.05 A.M.. He has proved injuries as well as injury report of Jaswant Singh Ext. Ka-14.

P.W.-5 Dr. I.P. Singh has further stated that on 21.3.1989 at 1.30 a.m. he conducted medical examination of Smt. Risalo wife of Dharam Singh resident of Hasanpur Kalan, Kithore, Meerut. He has proved injuries of Smt. Risalo as well as her injury report Ext.Ka-5.

P.W.-6 Retired Inspector Kali Ram Malik has stated that on 20.3.1989 he was posted as Sub-Inspector in P.S. Kithore, District Meerut. On that day at 22.15 p.m. he departed from police station Kithore and reached the place of occurrence on 21.3.1989 at 12.05 a.m.. He has stated that he prepared inquest report of deceased Ram Ratan Ext.Ka-6 on spot. He has proved report to R.I. Ext.Ka-7 and Challan Nash Ext.Ka-8 also. He has further stated in his statement that he made inspection of place of occurrence and collected blood stained earth from the place where Bishambar was caused injuries. He has proved recovery memo of blood stained earth Ext.Ka-9.

P.W.-6 S.I. Kali Ram Malik has stated in his statement that from the place of occurrence of deceased Ram Ratan, he collected blood stained earth and blood stained brick and prepared recovery memo Ext. Ka-10 and Ext.Ka-11 respectively.

P.W.-6 S.I. Kali Ram Malik has further stated in his statement that he collected blood stained earth from the house of accused Chaman and prepared Fard recovery memo Ext. Ka-12.

P.W.-6 S.I. Kali Ram Malik has stated that he sent the dead body of deceased Ram Ratan in sealed cover through Constable Ashok Kumar and Constable Raj Pal Singh for post-mortem.

P.W.-7 H.M. Chandveer Singh has stated in his statement on oath that on 20.3.1989 he was posted as Head Moharrir in P.S. Kithore, Meerut. On that day he registered Crime No. 82 under Sections 147,148,149,336,324,307,302 I.P.C. on the report of complainant Kiran Singh. He has proved Chik F.I.R. Ext.Ka-13 and copy of G.D. relating to registration of the crime Ext. Ka-14.

P.W.-8 H.C. Tejveer Singh has stated in his statement that on 21.3.1989 he was posted in P.S. Kithore, Meerut as Head Constable. On that day he took into possession cloths of accused Chaman and kept them in sealed cover. He has proved recovery memo of cloths of accused Chaman Ext. Ka-15.

P.W.-9 Inspector Mohan Singh Maliwal has stated that in March 1989 he was posted as S.H.O. In P.S. Kithore, District Meerut. He has stated that he made inspection of spot and prepared Site Plan Ext.Ka.-15. He has further stated that on 21.3.1989 he made inspection of the place from where Tabal was recovered and prepared Site Plan Ext.Ka.-16. He has stated that he has inspected the wall of dispute also and prepared site plan of it Ext.Ka-17..

P.W.-9 Inspector Mohan Singh Maliwal has stated that on 21.3.1989 on the pointing out of accused Chaman, he recovered a Tabal containing blood stains. He has stated that he has prepared recovery memo of Tabal. Ext.Ka-21 has been marked on recovery memo of Tabal by trial court. P.W.-9 Mohan Singh Maliwal has stated that after conclusion of investigation he submitted charge sheet Ext.Ka-18 against accused.

P.W.-10 Dr. V.K. Sharma has stated in his statement that on 20.3.1989 he was posted as Medical Officer in Medical College, Meerut. On that day at 10.45 p.m. he conducted medical of Balu Ram P.W.-2. He has proved the injuries of Balu Ram as well as his injury report Ext.Ka-20.

D.W.-1 Gopal Dutt Sharma has stated in his statement that he was Junior Station Incharge in Roadways, Meerut. He has stated in h is statement that on 20.3.1989 accused Bhopal Singh was Driver of Roadways Bus No.U.T.N. 1455. On that day he had gone with the said Bus from Meerut to Jharina. He stayed with the Bus in village Jharina at night and next day on 21.3.1989 he returned with the said Bus at 9.30 a.m..

D.W.-1 Gopal Dutt Sharma has proved report of Station Superintendent Ext.Kha-1, attendance register Ext.Kha-2, night mileage of Bhopal Singh Ext.Kha-3 and attendance register of Conductor of aforesaid Bus No.U.T.N. 1455 Ext.Kha-4.

We have examined the entire evidence adduced by the parties carefully.

Perusal of Chik F.I.R. Ext.Ka-13 and copy of G.D. relating to registration of crime Ext.Ka-14 as well as statement of P.W.-7 Head Moharrir Chandveer Singh shows that Chik F.I.R. has been prepared by P.W.-7 Head Moharrir 54 Chandveer Singh on 20.3.1989 at 22.15 p.m. on the basis of First Information Report Ext.Ka-1 presented by complainant Kiran Singh.

P.W.-6 Retired Sub Inspector Kali Ram Malik has stated that on 20.3.1989 he departed from police station at 22.15 p.m. and reached the spot on 21.3.1989 at 12.05 a.m..

Perusal of inquest report of Ram Ratan Ext.Ka-6 shows that inquest report Ext.Ka-6 has been prepared on 21.3.1989 at 2.00 a.m. In inquest report Ext.Ka-6 Crime no. 82 under Sections 147,148,149,336,324,307,302 I.P.C. has been mentioned, list of annexures has also been mentioned in which at serial no.2 copy of F.I.R. has been mentioned.

Perusal of statement of P.W.-4 Dr. S.C. Gupta as well as post-mortem report of deceased Ram Ratan Ext.Ka-2 and post-mortem report of deceased Bishambar Ext.Ka-3 shows that post-mortem of both deceased has been conducted on 21.3.1989 at 3.00 p.m. and 3.30 p.m. respectively.

In view of discussion made above, there is no sufficient ground to believe that First Information Report is anti time.

Learned counsel for accused appellants has drawn our attention to the statement of P.W.-7 H.M. Chandveer Singh made by him in cross-examination in which he has admitted that on the Chik report Circle Officer has put his signature on 25.3.1989. By this statement of P.W.-7 H.M. Chandveer Singh learned counsel for accused appellants tried to show that F.I.R. has been sent to Magistrate after a long delay, it means the F.I.R. has been prepared subsequently anti time.

We have considered the argument advanced by learned counsel for accused appellants. In view of Chik F.I.R. Ext.Ka-13, G.D. relating to registration of the crime Ext.Ka-14 and inquest report Ext.Ka-6 as well as statements of P.W.-1 complainant Kiran Singh, P.W.-7 Chandveer Singh, P.W-6 retired S.I. Kali Ram Malik and P.W.-4 Dr. S.C. Gupta there is no sufficient ground to presume that F.I.R. is anti time. Copy of Chik F.I.R. is sent to court through Circle Officer, therefore, delay in transmitting F.I.R. to court may be due to laxity of concerned C.O. or his absence from office. Merely on this ground F.I.R. may not be presumed anti time. Learned Trial court has considered the argument advanced by defence in this respect at length and had concluded that there is no sufficient ground to presume that the F.I.R. is anti time.

P.W.-7 Head Constable 54 Chandveer Singh has stated in his cross-examination made by defence that he sent special report to Magistrate through Constable 104 Megh Raj on 21.3.1989 and the entry has been made on rapat no.10 of G.D.. Paragraph 101 of U.P. Police Regulation provides that report shall be sent to District Magistrate, Sub Divisional Magistrate and Circle Inspector in offences mentioned at serial no.1 to 8. Paragraph 101-A of U.P. Police Regulation says that report shall be sent to District Magistrate and Superintendent of Police in all important cases or category of cases in which they may require special report to be sent.

Statement of P.W.-7 H.C. shows that special report of this crime was sent on the same day, therefore, it is wrong to say that provisions of para 101 and 101 A of U.P. Police Regulation have not been complied with. Facts mentioned above shows that Chik F.I.R. has been sent to Magistrate with delay but in view of discussion made above it is laxity of said police officer i.e. C.O. and therefore, on this ground no adverse presumption should be drawn against prosecution.

In the case of Budh Singh & others Vs. State of U.P., (2006) 9 S.C.C. 731, F.I.R. was forwarded to Magistrate under Section 157 Cr.P.C. with delay, the person who had accompanied complainant to lodge F.I.R. his statement was not recorded by I.O. and provisions of U.P. Police Regulation was not complied. In such circumstances, the Hon'ble Apex Court held that the finding of the trial court that there was possibility of F.I.R. being anti time is sustainable.

In the case of Kunju Mohd. Alias Khumani and another Vs. State of Kerala, (2004) 9 S.C.C. 193, F.I.R. reached Magistrate after more than 36 hour and no explanation was given in respect of the delay while distance between Magistrate and Police Station was very close. In such circumstances, Hon'ble Apex Court held that the said delay on facts of the case creates a serious doubt about the prosecution case.

In the case of Suresh Chaudhary Vs. State of Bihar, (2003) 4 S.C.C. 128, Hon'ble Apex Court held that inordinate delay in sending the report to the Magistrate after registration of complaint, in absence of any explanation therefor contributed to the doubtful circumstances surrounding the prosecution case.

In the case of Bijoy Singh and another Vs. State of Bihar, (2002) 9 S.C.C. 147, Hon'ble Apex Court has held that delay in sending the copy of F.I.R. to Magistrate in compliance of Section 157 Cr.P.C. does not render the entire prosecution case doubtful but would put the court on guard. In this case Hon'ble Apex Court has further held that in case of non-explanation the court should be cautious and should minutely examine the prosecution version to ensure that there was no false implication of innocent persons.

In the case of State of Rajasthan Vs. Teja Singh and others, (2001) 3 S.C.C. 147, Hon'ble Apex Court held that requirement of law is that the F.I.R. should reach the Magistrate concerned without any undue delay. In this case Hon'ble Apex Court has held that holidays cannot be ground for the delay in sending F.I.R. to Magistrate.

In the case of Mehraj Singh Vs. State of U.P., (1994) 5 S.C.C. 188, Hon'ble Apex Court held that delay in sending special report to the Magistrate or failure to send copy of F.I.R. to the Medical Officer alongwith dead body for post-mortem and in absence of its reference, can give rise to an inference that the F.I.R. has been anti time.

In the case of Arjun Marik and others Vs. State of Bihar, (1994) Suppl (2) S.C.C. 372, Hon'ble Apex Court considered the provisions of Section 157 Cr.P.C. and held that on the facts and circumstances of the case, delay in sending F.I.R. leads to the conclusion that the Fard Beyan and F.I.R. had been recorded much later than one as shown in the said documents.

In the case of Ramesh Babu Rao Devaskar and others Vs. State of Maharashtra, (2007) 13 S.C.C. 501, copy of F.I.R. was sent to Magistrate after four days. In such circumstances, Hon'ble Apex Court held that requirement of Section 157 Cr.P.C. is not satisfied.

Perusal of aforesaid pronouncement of Hon'ble Apex Court shows that delay in sending F.I.R. to Magistrate in compliance of Section 157 Cr.P.C. may lead to an inference that F.I.R. was not in existence at the time alleged but inference arising out of such delay is rebuttable.

In view of discussion made above, it is apparent that special report of the crime has been sent on the same day and a copy of F.I.R. has been enclosed with inquest report and has been sent alongwith dead body, therefore, in view of principle laid down in the case of Mehraj Singh Vs. State of U.P. (supra), F.I.R. may not be presumed anti time.

In view of above, trial court has rightly held that F.I.R. is not anti time and is prompt.

In the case of Vithal Vs. State of Maharashtra (2008) 1 SCC Crl. 91 Hon'ble Apex Court has held that the testimony of mother of deceased should not be discarded on the ground that she is an interested witness.

In the case of Kapildeo Mandal & others Vs. State of Bihar; AIR 2008 SC 533, Hon'ble Apex Court held that "The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence."

In view of above pronouncement of Hon'ble Apex Court, testimony of P.W.-1 Kiran Singh and P.W.-2 Balu Ram may not be discarded merely on the ground of relationship.

P.W.-2 Balu Ram and P.W.-3 Jaswant Singh both are injured witnesses. Injury report of P.W.-2 of Balu Ram Ext.Ka-20 has been proved by P.W.-10 Dr. V.K. Sharma, while injury report of P.W.-3 Jaswant Singh Ext.Ka-4 has been proved by P.W.-5 Dr. I.P. Singh. Perusal of injury reports of these witnesses shows that they have suffered injuries at the time of occurrence as alleged by prosecution.

Perusal of statement of P.W.-10 Dr. V.K. Sharma and injury report Ext.Ka-20 of P.W.-2 Balu Ram shows that three incised wounds and a contused abrasion has been found on his body, while perusal of injury report Ext.Ka-4 of P.W.-3 Jaswant Singh and statement of P.W.-5 Dr. I.P. Singh shows that injured Jaswant Singh had two lacerated wounds.

Medical examination of P.W.-2 Balu Ram was conducted at 10.45 P.M. on the same day within 1.45 hour of occurrence. Medical examination of P.W.-3 Jaswant Singh has been done on 21.3.1989 at 1.05 A.M. meaning thereby within 4.05 hour of occurrence. Thus it is apparent that medical examination of these witnesses is prompt and there is no chance of fabrication. In view of above, presence of these witnesses at the time of occurrence may not be denied.

P.W.-1 complainant Kiran Singh has stated in his cross-examination in para-26 at page-6 (Page 30 of paper book) that when Bishambar went after two minutes, he heard the noise. At that time he was on his shop. In para-27 on the same page, he has further stated in his cross-examination that after having heard the noise, at once he went near Bishambar. Bishambar was surrounded by many people and he was lying on the land. He was breathing at that time. He arranged to send him hospital.

Learned counsel for the accused appellants has argued that the above statements made by P.W.-1 complainant Kiran Singh shows that he has not seen the occurrence.

P.W.-3 Jaswant Singh has stated in examination in chief in para-1 that he was on his shop. He heard the noise of 'Bachao-Bachao', he ran near the house of accused Chaman. In cross-examination he has stated in para-16 at page-4 and 5 (page nos.44 and 45 of paper book) that his shop is on the main road and his shop remains open till 10 O' clock in night. In para-17 of his cross-examination at page-5 (page-45 of paper book) he has stated that when he reached near Bishambar, he saw him lying on land. He did not see Kiran Singh and Balu Ram at that time.

On the basis of above statements of P.W.-3 learned counsel for defence has argued that P.W.-3 Jaswant Singh has also not seen the occurrence.

We have considered the arguments advanced by learned counsel for the accused appellants carefully.

P.W.-1 complainant Kiran Singh has stated in para-26 page-26 (page-30 of paper book) that his shop is situated at the root of handpump, which was not in working condition at that time. He has stated in para-25 at same page that the second handpump where Bishambar went to drink water is situated two or three steps away from the place of handpump, which was not in working condition. Thus, it is apparent from the statement of P.W.-1 that his shop was situated near the place of occurrence.

P.W.-3 Jaswant Singh has stated in his cross-examination at page 4-5 (page-44 and 45 of paper book) in para-16 that his shop is on the main road. In para-17 on page-5 (page-45 of paper book) he has stated that after having heard noise, within a minute he reached near Bishambar. Defence has not tried to ascertain distance of his shop from the place of occurrence. Therefore, statement made by P.W.-3 Jaswant Singh may not be disbelieved.

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, 2012 (IV) S.C.C. 124, Hon'ble Apex Court held that," minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

In the case of State of U.P. Vs. Krishna Master & others, 2010 Cri. L.J. 3889 (SC), Hon'ble Apex Court held that," basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole".

In view of above pronouncements of Hon'ble Apex Court the testimonies of witnesses shall not be discarded on the ground of minor contradictions, statements shall be read as a whole and not in part. Perusal of whole statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh shows that they have seen the occurrence. Description of occurrence given in F.I.R. Ext.Ka-1 as well as in statements of P.W.-1 complainant Kiran Singh, P.W-2 Balu Ram and P.W.-3 Jaswant Singh shows that the whole incident has taken place in two parts; firstly accused Bhopal, Chaman, Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan assaulted Bishambar when he went to drink water at the handpump; and secondly thereafter when Ram Ratan ran to the house of accused Chaman, he was killed with Tabal, lathies and Balkati in the house of Chaman. In such circumstances, both incident must have taken some time, therefore, description of occurrence given by P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh may not be seen with doubt.

P.W.-3 Jaswant Singh has stated in para 17 of his statement that he heard noise of Bachao Bachao. He reached near Bishambar within one minute. He saw him lying on land. At that time he did not see Balu Ram and Kiran Singh there, while in para 18 he has stated that Ram Ratan came from his house. Balu, Risalo and he were with him. Perusal of statements of P.W.-1 complainant Kiran Singh and P.W.-2 Balu Ram shows that they have seen occurrence. Therefore, in view of statement of P.W.-3 Jaswant Singh made in above para 17 presence of complainant Kiran Singh P.W.-1 and Balu Ram P.W.-2 may not disbelieved.

Perusal of Site plan Ext.Ka-16 shows that dead body of deceased Ram Ratan was found in the house of accused Chaman and the place of dead body has been shown with letter 'B'. In site plan blood has been shown at place 'A' also. This place 'A' is near handpump.

P.W.-6 retired S.I. Kali Ram Malik has stated in cross-examination at page-2 (page-56 of paper book) in para-9 that first of all he reached the place where the dead body of Ram Ratan was lying. He has further stated in cross-examination at page-3 (page 57 of paper book) in para-10 that he has taken blood stained earth from the place of occurrence where the dead body of Ram Ratan was lying.

Perusal of site plan Ext.Ka-16 as well as statement of P.W.-6 retired S.I. Kali Ram Malik shows that dead body of Ram Ratan had been found in the house of accused Chaman and blood was also found there. Site plan Ext.Ka-16 as well as statement of P.W.-6 retired S.I. Kali Ram Malik also shows that blood had been found near handpump where deceased Bishambar was assaulted. Thus, the site plan as well as statement of P.W.-6 retired S.I. Kali Ram Malik corroborates the version of F.I.R. Ext.Ka-1 as well as statement of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh.

Perusal of statement of P.W.-4 Dr. S.C. Gupta as well as post-mortem report of deceased Ram Ratan Ext.Ka-2 and post mortem report of deceased Bishambar Ext.Ka-3 shows that 13 ante mortem injuries were found on the dead body of deceased Ram Ratan. Out of which six injuries were incised wounds and 7 injuries were abrasions. On the dead body of deceased Bishambar nine injuries were found. Out of which 5 injuries were incised wounds, three injuries were abrasions and one injury was abraded contusion. According to F.I.R. Ext.Ka-1 accused Chaman and Bhopal were armed with Tabal and rest accused were armed with lathies and Balkati.

P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh all have stated that accused Chaman and Bhopal had Tabals, accused Om Singh and Kailash had Balkaties and accused Jeetu and Faggan had lathies.

P.W.-3 Jaswant Singh has stated in his statement that he saw accused Bhopal, Chaman, Kailash, Om Singh, Jeetu and Faggan were cutting Ram Ratan, he forbade them then he was also assaulted. Ante mortem injuries found on the dead body of both deceased may be caused by Tabal, Balkati and lathi. Therefore, the version of F.I.R. as well as statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram, P.W.-3 Jaswant Singh are corroborated by post mortem reports. Injuries of P.W.-2 Balu Ram and P.W.-3 Jaswant Singh, as is apparent from their injury reports Ext.Ka-20 and Ext.Ka-4 respectively, may also be caused by aforesaid weapons. Therefore, it is apparent that the version of F.I.R. as well as statement of witnesses is corroborated by medical evidence.

After having gone through the whole statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh, we are of the view that there is no sufficient ground to disbelieve the testimonies of these witnesses. Perusal of impugned judgement passed by trial court shows that the trial court has discussed the statements of these witnesses at length and has considered all aspects of the case. After having considered all aspects of the case, trial court has placed reliance on the statements of these three witnesses of occurrence.

In view of conclusion drawn above, we are of the view that P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh are trust-worthy witnesses and the trial court has rightly placed reliance on the statements of these three witnesses of occurrence.

No source of light has been mentioned either in F.I.R. or in statements of witnesses recorded under Section 161 Cr.P.C.. For the first time P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh have stated before the court that at the time of occurrence, there was light of electric bulb. Therefore, statements of witnesses regarding source of light is quite unreliable.

Learned trial court has considered the statements of witnesses P.W.-1 Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh regarding source of light. The trial court has not placed reliance on the source of light alleged by these three witnesses but the trial court has recorded finding that accused persons and witnesses as well as deceased belonged to one and the same family and they were familiar to each other. The trial court has observed that identity of family members can well be identified even there is no source of light. Trial court is of the view that known persons may be identified even in the night by their movement, voice and also by coming into contact.

We have given our anxious thought to the above observations and findings recorded by trial court. We are of the view that the trial court has rightly held that the accused and witnesses as well as deceased are family members and they are related to same pedigree. They were residing at the same place and each of them were familiar with each other, therefore, during night known and familiar persons may easily be identified by their movement, voice and contact. Therefore, we are of the view that the trial court has rightly held that the accused may be identified by witnesses even without source of light.

In the case of Mahendra Pratap Singh Vs. State of U.P., (2009) 11 S.C.C. 334, Hon'ble Apex Court has held that,"evidence of the eyewitnesses including injured witnesses does not at all inspire confidence and in view of their evidence running in conflict and contradiction with the medical evidence and ballistic expert's report in regard to the weapon of offence.

In view of discussion made above on the facts and circumstances of the case, this pronouncement of Hon'ble Apex Court is not applicable.

In the case of Jalpat Rai Vs. State of Haryana, (2011) 14 S.C.C. 208, Hon'ble Apex Court has considered the evidence of eye witnesses and came to conclusion that in view of material contradiction in their statements the testimonies of eye witnesses are not reliable but as mentioned above in present case there is no material contradiction in the statements of witnesses of occurrence and there is no ground to disbelieve them.

In the case of Vijay Kumar Vs. State of Rajasthan, (2014) 3 S.C.C. 412, Hon'ble Apex Court has considered circumstantial evidence and held that,"In a case based on circumstantial evidence settled law is that circumstances from which conclusion of guit is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.

Discussions made above shows that P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 are eye witnesses of occurrence and this is not a case of circumstantial evidence, therefore, accused appellants may not get any benefit of this pronouncement on the facts of this case.

In the case of Hemraj Vs. State of Haryana, (2014) 2 S.C.C. 395, Hon'ble Apex Court has held that," We are aware that lapses on the part of the prosecution should not lead to unmerited acquittals. This is, however, subject to the rider that in such a situation the evidence on record must be clinching so that the lapses of the prosecution could be condoned.

In view of discussion made above on the facts and evidence of the case, the accused appellants may not get any benefit of this pronouncement also.

In the case of Lahu Kamlakar Patil and another Vs. State of Maharashtra, (2013) 6 S.C.C. 417, Hon'ble Apex Court has held that," Though there cannot be uniformity in human reaction. It is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded."

In the case of Sunil Kundu and another Vs. State of Jharkhand, (2013) 4 S.C.C. 422, Hon'ble Apex Court held that lapses or irregularities in an investigation can be ignored only if despite their existence, evidence on record bears out the case of the prosecution and the evidence is of sterling quality and if the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case.

We have considered the principle laid down by Hon'ble Apex Court respectfully. There appears no lapse or irregularity in investigation to disbelieve the version of prosecution.

In the case of Chhotan Sao and another Vs. State of Bihar, (2014) 4 S.C.C. 54, Hon'ble Apex Court held that having regard to nature of alleged crime of dowry death caused by poisoning, viscera report was very vital document more particularly in absence of any evidence regarding consumption of poisoning of deceased.

In view of facts of present case, this pronouncement of Hon'ble Apex Court is not relevant.

In the case of State represented by Inspector of Police, Tamil Nadu Vs. Sait alias Krishnakumar, (2008) 15 S.C.C. 440, P.W.-8 claimed to have seen the accused after some time of the occurrence with blood stained knife, not mentioning it during investigation but mentioning it for the first time before the Court. In such circumstances Hon'ble Apex Court held his statement unreliable.

As mentioned above, statements made by witnesses P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh regarding source of light for the first time in court has not been relied by trial court.

According to F.I.R. on the day of occurrence on 20.3.1989 Bishambar was constructing a stair case in his house, known as Dadalai. Accused appellant Chaman and others prohibited him for making construction of stair case. On this very issue at 9.00 p.m. during night there took an altercation between them, whereupon Bhondu Grand-father of complainant Kiran Singh called Bishambar and Ram Ratan, uncles of complainant Kiran Singh in his Baithak. Thereafter said Bishambar went to drink water at the handpump where accused Bhopal, Chaman, Jeetu, Kailash, Om Singh and Faggan began to assault Bishambar. While in statement on oath before trial court P.W.-1 Kiran Singh has stated that an altercation between Bishambar and accused Chaman, Bhopal, Jeetu, Om Singh and Faggan regarding staircase took place at 8 a.m. in the morning and thereafter at 9.00 p.m. in night Bishambar went to drink water at the handpump where the accused have assaulted him and present occurrence has taken place. P.W.-2 Balu Ram has also stated that an altercation between Bishambar and accused persons regarding staircase took place before present occurrence which have occurred at 9.00 p.m.. In cross-examination at page 24(page 35 of paper book) in para-5 he has stated that an altercation regarding staircase took place at 9.00 a.m. in the morning.

Thus, there is contradiction regarding time of altercation between parties for staircase but it is apparent from F.I.R. Ext.Ka-1 as well as from statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh that present occurrence had taken place at 9.00 p.m. in night. It is apparent from F.I.R. as well as statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh that before this occurrence, there was dispute regarding staircase for which an altercation has taken place between Bishambar and accused persons.

In his statement under Section 313 Cr.P.C. accused Chaman has admitted that on 20.3.1989 Bishambar was constructing a staircase in his house, known as Dadalai regarding which an altercation has taken place between him and Bishambar. This statement of accused Chaman has come in answer of question no.2 of his statement recorded under Section 313 Cr.P.C.. Thus, it is apparent that an altercation between Bishambar and accused Chaman regarding staircase before present occurrence is an admitted fact. Therefore, considering whole facts and circumstances of the case as well as evidence on record, we are of the view that the difference in F.I.R. Ext.Ka-1 as well as in statements of P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram regarding time of altercation before occurrence is immaterial and on this ground the occurrence alleged by prosecution may not be disbelieved.

Chemical Examiners report Ext.Ka-22 shows that no opinion regarding human blood on Tabal and shirt of accused Chaman has been given because blood stains were disintegrated. Therefore, alleged recovery of Tabal and shirt of accused Chaman has no importance.

In impugned judgement trial court has mentioned that according to chemical examiners report Ext.Ka-21 human blood stains were found on Tabal and shirt of accused Chaman. This observation of trial court is based on mis-reading of chemical examiners report Ext.Ka-22.

Human blood stains on Tabal and shirt may have corroborative effect but according to chemical examiners report Ext.Ka-22 no opinion has been given regarding human blood on above articles due to disintegrated blood stains. Therefore, no adverse presumption shall be drawn against prosecution on the basis of chemical examiners report Ext.Ka-22.

We have perused following pronouncements of Hon'ble Apex Court cited by learned counsel for accused appellants:-

1- (1995) 4 S.C.C. 262, State of M.P. Vs. Shyam Sunder Trivedi & others.

2- (2003) 2 S.C.C. 401, Lallu Manjhi & another Vs. State of Jharkhand.

3- (2006) 12 S.C.C. 306, Vikramjeet Singh alias Vicky Vs. State of Punjab.

4- (2007) 12 S.C.C. 341, Ajay Singh Vs. State of Maharashtra.

5- (2008) 8 S.C.C. 395, Latu Mahato & another Vs. State of Bihar(Now Jharkhand).

6- (2009) 6 S.C.C. 595, Ranvir Yadav Vs. State of Bihar.

7- (2009) 7 S.C.C. 404, Ganesh Gagoi Vs. State of Assam.

8- (2011) 8 S.C.C. 80, State of U.P. Vs. Mohd. Iqram and another..

9- (2012) 4 S.C.C. 124, Sampath Kumar Vs. Inspector of Police. Krishnagiri..

10- (2013) 12 S.C.C. 406, Sujit Bisawas Vs. State of Assam.

In all the above pronouncements Hon'ble Apex Court has considered the provision of Section 313 Code of Criminal Procedure and its importance as well as effect of non-compliance of it. In this respect the principle laid by Hon'ble Apex Court is that it is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons.

Learned A.G.A. has placed reliance upon judgement of Hon'ble Apex Court rendered in the case of Dharampal Singh Vs. State of Punjab reported in 2010 (17) A.C.C. 548 (SC), in which Hon'ble Apex Court has held that as part of fair trial, section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and ilicit answer but only those circumstances which were adverse to the accused and his explanation would help the Court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it does not follow that omission will necessarily vitiate the trial. The trial would be vitiated on this score only when on fact it is found that it had occasioned a failure of justice.

We have examined the statement of accused recorded by trial court under Section 313 Cr.P.C.. Trial court has framed 12 questions for examination of accused under Section 313 Cr.P.C. and the questions framed by trial court contains all evidence and incriminating circumstances appearing against accused except recovery of blood stained shirt of accused Chaman and its recovery memo Ext.Ka-15, therefore, in view of principle laid down by Hon'ble Apex Court in above pronouncements, evidence relating to blood stained shirt of accused Chaman shall not be read in evidence against accused and as discussed above recovery of alleged blood stained shirt of accused Chaman has no importance because according to chemical examiners report Ext.Ka-22 no opinion has been expressed regarding human blood on it.

As discussed above, prosecution has examined three eye witnesses of occurrence. P.W.-1 complainant Kiran Singh, P.W.-2 Balu Ram and P.W.-3 Jaswant Singh and the statements of these witnesses are fully corroborated by medical evidence as well as site plan and statement of I.O..Therefore, even after excluding the evidence of blood stained shirt of accused Chaman, there are sufficient evidence to accept the version of prosecution and to hold accused appellants guilty.

After having considered whole facts and circumstances of the case as well as evidence on record, we are of the view that the learned Trial court has rightly convicted accused appellant Chaman for offences punishable under Sections 148, 324/149, 302/149 I.P.C. and accused appellants Jeetu alias Jeet Singh, Kailash, Om Singh and Faggan for offences punishable under Sections 147,302/149, 323/149 and 324/149 I.P.C..

The sentence awarded by trial court does not appear excessive and no appeal has been filed by State for enhancement of sentence.

In view of discussions made as well as conclusions drawn above, we are of the view that there is no sufficient ground for interference in the impugned judgement and order passed by trial court. The appeal has no merit and is liable to be dismissed.

The appeal is dismissed accordingly.

Accused appellants Chaman, Kailash and Om Singh are on bail. They shall surrender before trial court within one month from the date of this judgement to serve sentence awarded to them, failing which trial court shall ensure their arrest and shall send them jail for serving sentence.

	Let a copy of this judgement be sent to trial court for securing compliance.   	Send back records of trial court immediately. 	      	          
 
Order Date :- 26.08.2014
 
LJ/-
 

 
		(Hon'ble Akhtar Husain Khan,J.)     (Hon'ble Arun Tandon,J.)