Suresh Pal Singh vs State Of U.P.
2014 Latest Caselaw 5367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 2195 of 1993
 

 
Appellant :- Suresh Pal Singh
 
Respondent :- State Of U.P.

Counsel for Appellant :- J.S. Tomar,Satish Trivedi

Counsel for Respondent :- Aga

Coram: Hon'ble Arun Tanodn, J

Hon'ble Mrs. Ranjana Pandya,J

(Delivered by Hon'ble Mrs. Ranjana Pandya,J)

1. Challenge in this appeal is to the Judgment and order dated 10.12.1993 passed by the IV Additional Sessions Judge, Budaun in ST No. 324 of 1990, State Vs. Suresh Pal Singh, Police Station Hazratpur, Distruct Budaun whereby the appellant was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and further was directed to pay fine of Rs.5,000/- with default stipulation.

2. The prosecution story in nutshell is that the watchman of the village Bakhtpur lodged an oral report at the police station mentioning that his name was Banwari Singh, his father's name was Kallu and he was resident of Bakhtpur, Police Station Hazratpur, District Budaun. It was further alleged that at the previous night at about 11.30 p.m., Jagat Singh son of Sher Singh, who was lying inside the house, was shot dead by someone. His dead body was lying in the house and his children were near his dead-body, hence, legal action may be taken.

3. After the report was lodged, the police came into action. This report was lodged at 7.30 a.m. on 28.7.1987 and on the basis of oral complaint, a case was registered and investigation was entrusted to S.I. S.N. Mishra.

4. After committal of the case to the court of sessions, charge under Section 302 I.P.C. was framed against the accused, who denied his guilt and claimed trial.

5. In order to prove its case, the prosecution has examined P.W.1 Prem Lata, wife of the deceased, who is said to be an eye witness of the occurrence. This witness proved the recovery memo of torch (Ext.Ka-1) by which she had seen the occurrence. P.W. 2 is Sunita, the daughter of the deceased and P.W. 1, who is also said to be a witness of the occurrence. P.W. 3 is Banwari, watchman of the village, who is said to be the complainant. He has proved the report (Ext. Ka-2). P.W. 4 is Ram Pal, who is witness about the motive of the offence. P.W.5 is S.I. S.N. Mishra, who is the Investigating Officer of the case in whose presence the case was registered. He has proved chik report (Ext. Ka-2) and copy of G.D. (Ext. Ka-3). He has also proved the copies of inquest report (Ext. Ka-4), khaka lash (Ext.Ka-5), challan of dead body (Ext. Ka-6), letter of C.M.O. (Exts. Ka-7 & Ka-8), seal (Ext. Ka-9) and site-plan (Ext. Ka-10). This witness also prepared recovery memo of the country made pistol and cartridges (Exts.- 1 & 2). This witness has further proved the site plan of place from where country made pistol and cartridges were recovered and proved it to be Ext. Ka-12 and further proved the charge sheet (Ext.Ka-13).

6. P.W. 6 is Dr. Awadhesh Sharma, who conducted the post mortem on the body of the deceased. He found the following ante mortem injuries on the dead body of the deceased:-

" Gun shot wound on entry present on the left side of the chest 1 c.m. x 1 c.m. x cavity deep situated 04 c.m. below and laterally to the left nipple at 4 O-clock position. The wound is surrounded by blackening on the area of 08 c.m. X 07c.m. marks of tattooing were also present around the wound. Margins of the wound were inverted underneath the injury shows laceration of intercostal muscles and fracture of 5th & 6th ribs of left side, pleura and middle low of the left lump located heart lacerated, laceration of right lung present. Two litres of clotted blood found in the right and left chest, cavity one long bullet found in right lung. "

7. On internal examination, 200 gms. semi digested food was found present in the mucous membrane. The doctor opined that the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries.

8. The accused in his statement under Section 313 Cr.P.C., denied the allegation of having committed the offence and has stated that the Investigating Officer had not conducted any investigation. The investigation was false and he has been implicated due to enmity.

9. The learned trial court, after hearing the counsel, through the impugned Judgment and order has convicted the accused appellant under Section 302 I.P.C.

10. I have heard learned counsel for the accused appellant and the learned A.G.A. for the State.

11. Learned counsel for the appellant has vehemently argued that:-

The accused is not named in the F.I.R. and there is no explanation about the inordinate delay in lodging the F.I.R.

There was no motive for the accused to have killed the deceased and even no plausible motive has been assigned in the First Information Report.

The witnesses produced in the case are family members and they are interested witnesses, hence, they are not reliable.

12. As far as the First Information Report is concerned, the First Information Report is said to be the backbone of a criminal case. The occurrence is said to have been committed on 27.7.1987 at 11.30 p.m. whereas the report was lodged on 28.7.1987 at 7.30 a.m., the distance of the police station from the place of occurrence being 12 kms. Thus, the report was lodged after a lapse of about eight hours by the watchman of the concerned village.

13. At the threshold, in the facts and circumstances of the case, it is to be seen whether there is inordinate delay in lodging the F.I.R. If there is inordinate delay in lodging the F.I.R., which has not been explained, it casts a shadow of doubt upon the prosecution case.

14. It has been argued on behalf of the appellant that there is inordinate delay in lodging the First Information Report. An early reporting of the occurrence by the informant with all its details gives an assurance regarding its true version. There is no doubt that in cases where there is some delay in lodging the First Information Report, the complainant must give explanation for the same. Undoubtedly, delay in lodging the F.I.R. does not, in all cases, make the complainant's case improbable if such delay is properly explained. However, the delay in lodging the complaint may prove to be fatal in cases where delay is not explained. In every case of delay, it cannot be presumed that the allegations were an after thought or had given a coloured version. As such, the Court has to carefully examine each case on its facts independently.

15. Perusal of the First Information Report of this case shows that it is a very innocent First Information Report in which only the death of the deceased has been reported. Admittedly, no one has been named in the First Information Report and even no witness has been named. The question arises as to why the eye witness P.W. 1 Prem Lata herself did not go to lodge the First Information Report and for this, the statement of P.W. 1 Prem Lata has to be looked into. She has stated that she did not go to the police station to lodge a report because she did not have any male member in the family to accompany her to the police station. She has further stated that nobody was willing to go with her to the police station. The night was not moonlit night., hence, she did not go the police station in the night. She has further stated that, in the morning, the watchman of the village went to the police station to lodge the report. She has further stated that no one from neighbouring vicinity came forward when the shot was fired and when they were weeping even then nobody came but the watchman reached. In the present times, when no body comes forward to help another person, it was not expected that on 10.30 p.m., late in the night, the watchman would rush to the police station to lodge the report. Obviously, at 7.30 in the morning, the watchman went 12 kms to lodge the report.

16. In 2012 Supreme Court 2488, Jitendra Kumar Vs. State of Haryana, the Hon'ble Apex Court has laid down as under:-

"However, the law is well-settled that merely because an accused has not been named in the FIR would not necessarily result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been is attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of the prosecution. Various factors are required to be examined by the Court, including the physical and mental condition of the informant, the normal behavior of a man of reasonable prudence and possibility of an attempt on the part of the informant to falsely implicate an accused. The Court has to examine these aspects with caution. Further, the Court is required to examine such challenges in light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity. The Court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR. The Court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. Vs. Krishna Master and Ors. [(2010) 12 SCC 324] and Ranjit Singh and Ors. Vs. State of Madhya Pradesh [(2011) 4 SCC 336]."

17.In the present case, despite the fact that the accused Suresh Pal has not been named in the F.I.R., a definite role has been attributed to the accused by the wife of the deceased (P.W.1).

18.Some delay in registering the F.I.R. was inevitable and it was not such inordinate delay, which could be construed as a ground for acquittal of the accused. It is well settled principle of Criminal Jurisprudence that mere delay in lodging the F.I.R. may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the F.I.R. can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the F.I.R. cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone. [Ref. Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC229].

19.As noticed earlier a delayed F.I.R. can usher in craftsmanship manipulation and embezzlement and may make the prosecution story vulnerable but when the delay has been adequately explained, the same deserves to be accepted and, accordingly, this is being done. Thus, it cannot be said that the report was belated.

20.The next argument advanced on behalf of the counsel for the appellant is that there was no motive for the accused to kill the deceased and the motive is also wanting in the F.I.R. The F.I.R. has been lodged by the watchman, who would not be in a position to write down the motive. But, at the first instance, motive was set forth by the P.W.1 wife of the deceased. It is also difficult to say that there is hard and fast rule as to how and in what manner a person would react and could go to extent to achieve his motive in the commission of the crime under a particular circumstance. It is not possible to measure the extent of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a given circumstances. The Hon'ble Apex Court in the case of Ranganayaki vs. State, (2004) 12 SCC 521, has held as under:

" The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."

In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:

"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."

21. It has also been argued by the learned counsel for the defence that it has been laid down in 2012 (77) ACC 125, Nanhoon and others vs State of U.P., that if the motive for crime is not established or the motive is very week it may be of no importance. But the Hon'ble Apex Court in Mangaru and others vs. State of U.P., 2008 (62) ACC 40, has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value.

22. Coming to the oral evidence adduced by the prosecution on this issue, P.W.1 Prem Lata is the star witness of the prosecution. She has specifically said that due to fear, she did not disclose the name of the accused to the watchman because prior to the murder of the husband of this witness, the accused had previously also committed one murder in which he was sentenced to undergo imprisonment of 20 years and, thus, the whole village was afraid of Suresh.

23. This witness P.W. 1 Prem Lata has specifically stated that prior to this incident, Suresh was ploughing the fields of the deceased but since he was keeping all the produce with him, the deceased refused to give his fields to the accused and he himself purchased oxen to plough his fields and deputed Ram Pal to do work in his fields. About 8 to 10 days prior to the incident, Ram Pal had ploughed the fields of the deceased and when he was going back after ploughing the fields, the accused said to the deceased that if he would not give his fields to the accused, he would kill him.

24. Now, it has to be seen as to what the other witnesses stated on this point. P.W.2 is Sunita, duaghter of the deceased, who has stated that previously the accused used to plough the fields of the deceased but prior to the incident, the deceased had purchased oxen to plough his own fields and deputed Ram Pal to plough his fields. On this, the accused stated that he would kill the deceased. This witness has not been cross-examined on this point of motive.

25. P.W.4 is Ram Pal, who has stated that about five years ago the occurrence took place, prior to the occurrence, he had started ploughing the fields of Jagat Singh with the help of ox of Jagat Singh. Prior to him, Suresh was ploughing the fields of Jagat Singh due to which Suresh fought with Jagat Singh and stated that Ram Pal will not plough the fields and the the accused had threatened to see the deceased. This witness was cross-examined in which he has stated that he is not related to Jagat Singh but he belongs to the same village and he does not know from where deceased has brought Prem Lata. I do not find any reason how it would matter from where Prem Lata (P.W.1) was brought, as long as it is proved on record that Prem Lata was living as wife with Jagat Singh in his house.

26. Counsel for the appellant has argued that the motive assigned in this case is too weak for a man to commit murder. In Nathuni Yadav and others V. State of Bihar and another, it has been held that motive for doing a criminal action is generally a difficult area for the prosecution. One cannot normally see in the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. Vs. Palmer as under:-

"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties."

27. Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. In the case in hand the motive is set forth in the prosecution and proved by the prosecution witnesses and, thus, the arguments of the counsel for the defence have no legs to stand.

28. It has next been argued that there is only one eye witness in the case who is stated to have seen the murder and one witness is alleged to have seen the accused running away immediately after the occurrence.

29. The counsel for the appellant has argued that the witness, who is said to be the eye witness of the occurrence, is a relative witness and even the witness, who saw the accused running away with the country made pistol, is also a related and interested witness and, thus, they cannot be relied upon.

30. As far as related and interested witness is concerned, in the case of Dalip Singh and others vs. State of Punjab (AIR 1953 SC 364), it has been laid down as under by the Hon'ble Apex Court:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."

31. Observations of the Hon'ble Apex Court Masalti and others vs. State of U.P., A.I.R. 1965 SC 202, are worth mentioning:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

32. The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698, in which Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in Israr vs. State of U.P. [2005(51) ACC 113] in para-12 of the judgement are also important:-

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

33. The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. In this context, I may refere to the case of Sucha Singh and another vs. State of Punjab (2003) 7 SCC 643 wherein their Lordships of the Hon'ble Apex Court observed as under:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity agaisnt the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feeling run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Out observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

34. The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses has observed as under:

"...... By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.:

35. In para-8 their Lordships have further observed:

" The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..."

36. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses.

37. Apex Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7 SCC 759] took the following view :

"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)

"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill- treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint."

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. AIR 1954 SC 704, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same."

11. Similar view was taken by this Court in the cases of Mano Dutt & Anr. v. State of UP [(2012 (3) SCALE 219] and Satbir Singh & Ors. v. State of Uttar Pradesh [(2009) 13 SCC 790]."

38. Law on the subject is thus, clear that in reference to appreciation of evidence of interested witnesses, version of interested witness cannot be thrown out but the same has to be examined carefully before accepting the same.

39. With this caution, statement of witnesses are being examined.

40. P.W.1 Prem Lata has specifically stated that she was sleeping on the fateful night in the thatch. Her husband was lying in the 'angan' and her daughter was also lying with her. She heard cacophony (noise), then she flashed her torch towards her husband. She saw that Suresh had fired at her husband and was about to run away. When she and her daughter ran towards the accused, the accused asked them to stay there otherwise he would kill them also. This witness has been cross-examined in which she has stated that she had told the name of the accused to the Sub Inspector when the Sub Inspector asked her to disclose the correct facts and assured that she would be protected. Her torch was also taken into possession by the I.O. and recovery memo thereof was prepared. She had admitted that she is living with Jagat since 1992 and, therefore, the presence of this witness and P.W. 2 Sunita in the night inside the house cannot be doubted. The learned counsel for the defence has took up a stray sentence from the cross-examination of this witness in which she has stated that she did not see the accused killing her husband but saw him running. I think such stray sentences cannot be read in isolation and the whole statement of the witness has to be read. The wife of the deceased had no axe to grind against the accused but the accused had the motive.

41. As far as the statement of P.W.2 Sunita is concerned, she has stated that it was about mid night, she was sleeping with her mother in thatch and her father was sleeping in the angan. At about mid night, she heard sound of fire she got up. He mother flashed the torch and she saw that Suresh was running away with a country made pistol. This witness appears to be a truthful witness because if the prosecution would have wanted, they could have manipulated this witness to show that she saw the fire being shot but she did not say so . Thus, this witness is also truthful witness and her conduct just after the occurrence is relevant under Section 6 of the Evidence Act..

42. As far as under Section 6 of the Indian Evidence Act is concerned, Section 6 of the Indian Evidence Act runs as follows:-

"6.Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."

43. Thus, the fleeing away of the accused with the country made pistol immediately after the occurrence makes his presence relevant and is in corroboration with the statement of P.W. 1. There are minor contradictions in the statements of P.W. 1 Prem Lata and P.W. 2 Sunita as to blood was found on the spot or not but, these minor contradictions are bound to creep in the statement of natural and truthful witness. Thus, the witnesses have been able to prove beyond reasonable doubt and upto the hilt that the accused committed the murder of Jagat.

44. As far as the medical evidence is concerned, the witnesses P.W. 1 Prem Lata and P.W. 2 Sunita have respectively said that shot was fired from front. Post mortem report also supports the ocular evidence in as much as one gun shot was also present on the left side of chest, making the ocular and medical evidence in corroboration with each other.

45. As far as the statement of the Investigating Office is concerned, the Investigating Officer has categorically stated that he recovered the country made pistol at the pointing out of the accused and recovered one empty cartridge from the spot and prepared a recovery memo. He has further stated that he took the statement of Kumari Sunita and Ram Pal on the same day. This witness has not at all been cross-examined by the defence.

46. The doctor has proved the post mortem report and in cross-examination, he has specifically stated that if a man is lying down and someone fires from the standing position, the injuries are possible. This again supports the case of the prosecution.

47. It has come in evidence that the accused is a previous convict. He was undergoing sentence for murder and this murder too has been committed in a dare devil manner.

48. In the statement under Section 313 Cr.P.C. the accused has said that the Investigating Officer had not properly conducted the investigation and he has been implicated due to enmity. But enmity in fact has been proved on behalf of the accused and there is absolutely no motive for the prosecution or the complainant to falsely implicate the present accused who was already undergoing sentence for murder.

49. As have discussed earlier there was a flash of torch in the light of which the accused was seen having committed the murder and was seen fleeing away .

50. In view of what has been stated above and on the basis of evidence on record, it is concluded that the prosecution has brought home the guilt of the accused beyond doubt and the accused has been rightly convicted. Consequently, the appeal is liable to be dismissed.

51. Accordingly, the appeal is dismissed.

52. The accused is on bail. His bail bonds are cancelled and sureties are discharged.

53. Let a certified copy of the Judgment be sent to the trial court for ensuring compliance which should be reported to the court within eight weeks. Court should take him into custody to take all steps for executing of the sentence.

Dt/-29.8.2014

Ram Murti