Yaseen And Others vs State Of U.P.
2015 Latest Caselaw 1808 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
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Court No. - 46                                                              Reserved                                                           
 

 
Case :- CRIMINAL APPEAL No. - 5223 of 2004
 

 
Appellant :- Yaseen And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.N. Pandey,A.K. Singh,A.K. Srivastava,Apul Mishra,Aradhana Chauhan,Devendra Swaroop,Haider Zaidi,Hemendra Pratap Singh,Janardan Prasad Tripathi,Kamlesh Kumar Yadav,Madan G. Sharma,Noor Mohd.,P.N. Mishra,Prabhat Kumar Srivastava,Ram Babu Sharma,Shashi Dhar Pandey,Sheetla Sahai,Sudhir Dixit,Yogesh Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
A N D 
 

 
Case :- CRIMINAL APPEAL No. - 6207 of 2004
 
Appellant :- Devi Saran
 
Respondent :- State Of U.P
 
Counsel for Appellant :- Dharmendra Singhal,Anil Kr. Singh,Aradhana Chauhan
 
Counsel for Respondent :- Govt. Advocate
 

 
A N D
 
Case :- CRIMINAL APPEAL No. - 5241 of 2004
 
Appellant :- Ramesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.C. Pandey,Amit Kr. Singh,Aradhana Chauhan,Devendra Swaroop,Hemendra Pratap Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Raghvendra Kumar, J.

(Delivered by Raghvendra Kumar, J.)

1. All these three criminal appeals arise from the judgment and order dated 5.10.2004 passed by Additional Sessions Judge, Court No.8, Aligarh in Sessions Trial No.1973 of 1994 (State Vs Yaseen and others u/s 147/148/149/302 IPC in Case Crime No.339 of 1994 of P. S. Quarsi, District-Aligarh), therefore, these are being disposed of by a common judgment and order.

2. Heard learned counsels for the accused-appellants, learned A. G. A. for the State of U. P. and perused the material available on record.

3. The Criminal Appeal No. 5223 of 2004 has been filed on behalf of accused-appellants namely, Yaseen s/o Rafiq, Yasen s/o Ali Mohd., Ahsan, Karua, Babu Kha, Janardan, Subhash and Kalicharan the Criminal Appeal No.5241 of 2004 has been filed on behalf of accused-appellant Ramesh and the Criminal Appeal No.6207 of 2004 has been filed on behalf of accused-appellant Devi Saran against the judgment and order dated 5.10.2004 passed by Additional Sessions Judge, Court no.8, Aligarh in Sessions Trial No.1937 of 1994 (State Vs. Yaseen & Others) u/s 147, 148, 149, 302 , 307 IPC in Case Crime No.339 of 1994, P. S. Quarsi, District-Aligarh whereby the accused-appellants have been convicted for the offence u/s 148 and 302 read with Section 149 IPC and each of the accused were awarded rigorous imprisonment for two year for the offence u/s 148 IPC and imprisonment for life for the offence u/s 302/149 IPC along with a fine of Rs.3000/- to each of the accused with default stipulation of one month additional imprisonment for each of the appellants.

4. Accused Jaiveer Singh and Ramveer Singh have been acquitted in the above referred Sessions Trial for the offence u/s 120 B IPC. Accused Daulat Ram is reported to have died during the course of trial. Accused Karua is reported to have died during pendency of this appeal. This fact has not been disputed by the learned A. G. A.

5. As per prosecution version the FIR of this case was lodged with Reporting Out Post (R. O. P.) Bypass, Jwalapuri, P. S. Quarsi on 28.7.1994 at 10.45 am with respect to the incident that took place on the same day at 8.30 am. From perusal of FIR it is revealed that one Ravi Shankar lodged the information of the incident with police. According to prosecution Ram Singh (informant's father), Veer Pal Singh (informant's brother) had friendship with appellant Yaseen and others of the village, who are also criminals. Further it is revealed that Ram Singh and Veer Pal Singh have earlier been challaned by police on many occasion. Last year one criminal was murdered whereupon Yaseen and others suspected that the murder was got done by Veer Pal Singh, which resulted in differences between them. In the last December a fire was discharged upon informant's brother Veer Pal Singh in which Yaseen and others were challaned. The proceedings u/s 107 Cr. P. C.are also pending against Yaseen & others. On 28.7.1994 father of informant Ram Singh was taking meal in a thatch (chappar) and Veer Pal (informant's brother), one relative Mangal Singh @ Udal s/o Lekhraj, r/o Bai Kala, P. S. Barla and aunt of Mangal Singh, Laungshree were also sitting by the side of Ram Singh. Informant, his mother Ram Bala, Pushpa, Vimlesh, son Bhanu Prakash, relative Rajveer were also present. At about 8.30 am Yaseen s/o Ali Mohd. equipped with pounia (illicit arm), Janardan equipped with gun, Devi Saran equipped with axe, Babu equipped with gun, Yasen s/o Rafiq equipped with gun, Ramesh Nai equipped with farsa, Ahsan equipped with country made pistol, Subash equipped with pounia (illicit arm), Kalicharan equipped with country made pistol, all being natives of informant's village and Karua equipped with gun, Yaseen equipped with country made pistol came to the house and informant and started abusing. Informant's father and Mangal Singh immediately rushed into the house. Informant's father was caught by accused Janardan, Babu, Devi Saran, Karua and were assaulted by fire arm and axe. Mangal Singh was assaulted in the courtyard of the house by accused Yaseen s/o Ali Mohd., Yasen s/o Rafiq r/o Sherpur, Ramesh Nai surrounded him and shots were discharged and he was also assaulted by farsa. Veer Pal jumped from the roof and tried to escape and he was chased by the accused persons and he was murdered near the house of Bhajan Lal by accused Ahsan, Subash, Kalicharan, Yaseen s/o Ali Mohd, who discharged fire and Devi Saran attacked by axe. Jaiveer, Ramveer and Daulat Ram hatched the conspiracy of murder of informant's father and brother. All the accused persons assembled at the house of these accused persons. The aunt of Mangal Singh @ Udal, who was present at the place, also sustained fire arm injuries. So many persons of the village have witnessed the incident but, no one is prepared to be the witness because of the terror of accused persons.

6. The FIR of this case was lodged with the Reporting Police Outpost, Jwalapuri of P. S. Quarsi, District-Aligarh. After registration of the case, the investigation proceeded in accordance with law. The inquest reports of all the deceased person were prepared and the formalities were completed for post mortem examination of dead bodies of the deceased. The investigation of the case culminated into filing of the charge sheet.

7. After complying with the procedure contemplated in law, the charges were framed against the accused persons for the offence u/s 148, 302/149, 302, 120 B IPC. The accused persons have denied the charges and claimed for trial.

8. The defence has taken a plea of total denial. As per the defence, the deceased were having criminal background and they might have been murdered by someone else but, because of enmity the accused persons have been falsely implicated.

9. To substantiate the charges levelled against the accused-appellants, the prosecution has examined PW 1 Ravi Shanker (informant), PW 2 Bhanu Prakash, PW 3 Smt. Harveji, PW 4 Dr. R. P. Singh, who has conducted the medical examination of Smt. Laungshree, PW 5 Dr. C. B. Garg, PW 6 S. I. Shyam Sunder.

10.(a) PW 5 Dr. C. B. Garg has conducted post mortem examination upon dead body of Ram Singh on 28.7.1994 at 10.25 pm and noted following ante mortem injuries :

(i) Incised wound 6 cm x 3 cm x bone cut on (lt.) cheek

(ii) Incised wound 1 ½ cm x ½ cm x bone cut on (lt.) side face 2 cm below injury no.(i).

(iii) Fire arm wound of entry 8 cm x 4 cm x cavity deep on (lt.) side front of chest 6 cm inner to (lt.) nipple at 10 O'clock position margins inverted and lacerated. Fracture of sternum and 6th, 7th ribs.

(iv) Incised wound 2 cm x 1 cm x bone cut on chin

(v) Incised wound 1 ½ cm x ½ cm x muscle deep on front of (lt.) shoulder.

Internal examination :

PW 5 has given statement in the Court about fracture of sternum and 6th, 7th ribs on the left side. Pleura, lungs were found ruptured. Chest cavity was full of blood from which 2 tickuli (part of bullet) and 19 pellets were recovered. Cause of death has been assigned shock and haemorrhage as a result of ante mortem injuries. PW 5 has proved the post mortem examination report of Ram Singh marked as Ext Ka.3.

10. (b)This witness has also conducted post mortem examination upon the dead body of Mangal Singh @ Udal on 28.7.1994 at 11 pm and noted following ante mortem injuries :

(i) Incised wound 3 cm x ½ cm x bone fractured on (lt.) side fore head, 2 ½ cm above (lt.) eyebrow

(ii) Incised wound 1 ½ cm x ½ cm x bone deep on (lt) side face in front of (lt) ear.

(iii) Incised wound 2 ½ cm x 1 cm x bone cut on (lt.) side skull, 0.7 cm above (lt.) ear

(iv) Incised wound 1 ½ cm x 1 ½ cm x bone fractured on (lt.) side back of skull .03 cm above injury no.(iii)

(v) Incised wound 6 cm x 2 ½ cm x cranial cavity deep on back of skull. Under lying bone fractured and brain matter coming out or seen as oozing out.

(vi) Incised wound 9 cm x ½ cm x skin deep on (rt.) side back in the lower part

(vii) lacerated wound 1 cm x 1 cm x muscle deep on (rt.) buttock.

On internal examination :

PW 5 has given statement in the Court about fracture of frontal, left parietal, occipital bones. The membrane of brain was found ruptured and he has assigned the reason for death as shock and haemorrhage as a result of ante mortem injuries. PW 5 has proved the post mortem examination report of Mangal Singh @ Udal marked as Ext Ka.4.

10.(c) This witness has also conducted post mortem examination upon the dead body of Veer Pal on 28.7.1994 at 11.30 pm and noted following ante mortem injuries :

(i) Incised wound 3 cm x ½ cm x bone deep on (rt.) side face outer to (rt.) eye under lying bone fractured.

(ii) Incised wound 1 cm x ½ cm x muscle deep on (rt) side face, .01 cm below injury no.(i)

(iii) Fire arm wound of entry 1 cm x 1 cm on (lt.) side of face surrounded & burned by gun powder in an area of 07 cm x 06 cm. Margins inverted and lacerated with communicating wound of exit 08 cm x 05 cm on (lt.) side back of skull

(iv) Fire arm would of entry 1 cm x cavity deep on front of chest over sternum, 4 cm above epigastric region. Margin inverted and lacerated surrounded and burned by gun powder in an area of 5 cm x 4 cm with communicating with wound of exit 3 cm x 1 ½ cm near left axilla . Margins inverted.

(v) Abrasion 4 cm x 1 cm on back of (rt.) forearm.

On internal examination :

PW 5 has given statement in the Court about fracture of occipital bone. The membrane of brain was found ruptured. Sternum and third rib on (lt.) were found fractured. Pleura, left lung and its membrane were also found ruptured. Chest cavity was full with 2 litres of blood. The reason for death has been assigned as shock and haemorrhage as a result of ante mortem injuries. PW 5 has proved the post mortem examination report of Veer Pal marked as Ext Ka.5.

11. PW 6 S. I., Shyam Sunder is the I. O. of the case, who has deposed about the registration of the case at R. O. P. Jwalapuri of P. S. Quarsi. He has proved the inquest of Ram Singh as Ext Ka.6 and the connected papers for autopsy as Ext Ka.7 to Ext Ka.12, the inquest report of Mangal Singh @ Udal as Ext Ka.13 and the connected papers for autopsy as Ext Ka.14 to Ext Ka.19 and inquest report of Veer Pal as Ext Ka.20 and connected papers for autopsy as Ext Ka.21 to Ext. Ka.26. This witness has prepared the site plan (Ext Ka.27). Recovery memo of blood stained soil and plain soil of the spot as Ext Ka.28. PW 6 has further proved the recovery memo of two empty cartridges of 12 bore and one empty cartridge of 315 bore, one bullet of 315 bore and executed the recovery memo (Ext Ka.29) and proved the charge sheet Ext Ka.30 and Ext Ka.31. He has also proved the execution of chik FIR as Ext Ka. 32 and relevant G. D. entry as Ext Ka.33. He has also proved the G. D. entry of information of registration of the case received at the police station.

12. After conclusion of prosecution evidence the statements of accused-appellants were recorded u/s 313 CrPC. They have denied the prosecution version and disclaimed knowledge with respect to the question put u/s 313 Cr. P. C. and have stated that deceased persons were murdered by some unknown criminals and a false report has been lodged against them.

13. Sri Vikesh Kumar, Head Mohrir has been examined as DW 1 on behalf of accused-appellants. He has proved the criminal history of deceased Mangal Singh @ Udal and criminal history of deceased Veer Pal.

14. After scrutinizing and appreciating the evidence available on record, the learned Court below, vide its judgment and order dated 5.10.2004, convicted accused-appellants, which resulted into filing of the instant appeals.

15. It has been submitted on behalf of the defence that no FIR has been lodged with the police at the police station as stated by the informant. It has further been submitted that the written report is addressed to the Thana In-Charge, if it was to be registered at the Outpost it must have been addressed to the Chowki In-Charge. The FIR is ante timed. The place of occurrence has also not been established by the prosecution. No independent witness of the village has been examined. Even the injured Smt. Laungshree has not been examined. The deceased were criminals and it is just possible that out of enmity some unknown assailants committed murder of the deceased persons and the accused-appellants have been roped in falsely because of enmity. The witnesses are related to deceased and are highly interested witnesses, therefore, no reliance can be placed on their testimonies. The place and manner of execution of inquest is also not established. No specific evidence has been led to the effect that who were the accused persons and who committed the murder of a particular deceased. The blood stained and ordinary soil has not been sent for chemical examination.

16. Learned A. G. A., refuting the submissions of the learned counsels for the accused-appellants, has submitted that FIR of the incident was lodged promptly. All the accused persons have been named in the FIR and have been assigned the weapons with which the alleged offence has been committed and the place of commission of the offence has also been disclosed in the FIR. The prosecution has successfully substantiated the guilt against the accused-appellants. As such, these appeals deserve to be dismissed.

17. It has been settled through catena of decisions by the Hon'ble the Apex Court that while dealing with the criminal appeals the High Court is expected to critically appraise the evidences available on record afresh without being influenced by the findings of acquittal or conviction recorded by the Court below. Instead, the Court is under an obligation to see that the findings recorded by the learned Court below are justified on the basis of evidence available on record. (Reference : Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621, Rama & others vs. State of Rajasthan reported in 2002 (4) SCC 571 & Majjal Vs. State of Haryana, 2013 (6) SCC 798).

18. The incident took place on 28.7.1994 at about 8.30 am. The FIR of the incident was lodged with the Reporting Outpost, Jwalapuri of P. S. Quarsi, District-Aligarh. The distance of the police station from village Ikari has been mentioned as 12 km. The FIR of the incident has been lodged by Ravi Shankar whose father, real brother and one relative Mangal Singh @ Udal have been murdered in the incident.

19. It has been submitted on behalf of defence that no FIR in accordance with Section 154 Cr. P. C. has been lodged at the P. S. Quarsi. Legally the FIR cannot be lodged at any Reporting Out Post in terms of Section 154 Cr. P. C. The FIR in the instant case has been lodged at the Reporting Out Post, Jwalapuri of P. S. Quarsi. It is established that there are two types of Out post recognized under the rules of business of the police; one reporting police out post and one non reporting police out post. Reporting out post is within the ambit of rules, competent to register the FIR. To avoid duplication of the crime number in the same police station, the In-Charge of reporting police out post is required to obtain the crime number on which any FIR is proposed to be registered and at the outpost only a serial number is mentioned.

20. From the testimony of PW 6 it is clear that the information of registration of case was passed on to S. O. through R. T. Set. He has further disclosed that the crime number was obtained by police reporting out post from the police station. The opening portion of the evidence of PW 6 categorically discloses that S. I. In-Charge of O. P. Jwalapuri reached the spot at village Ikari and subsequently, the S. O. of P. S. Quarsi reached to the spot.

21. Much emphasis has also been laid on the admission made by PW 1 that the dead bodies were taken by the police on a jeep. PW 1 Ravi Shankar has admitted that he is an illiterate person, who can simply sign. Admittedly, he is a rustic and illiterate witness. While appreciating his evidence we cannot ignore this aspect.

22. The guidelines have been propounded from time to time by the Hon'ble Apex Court regarding appreciation of a rustic witness. It has been held by the Hon'ble Apex Court in the case of State of U. P. vs. Krishna Master reported in (2010) 12 SCC 324 at paragraphs 15 and 17 as follows :

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye witnesses examined in this case proves the prosecution case."

23. This point was also considered by Hon'ble the Apex Court in its earlier judgment in the case of State of Punjab vs. Hakim Singh reported in [2005 (7) SCC 408], wherein Hon'ble the Apex Court has observed in para 7 as under :-

"We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle."

24. From the law cited above, the legal position thus, emerges that the evidence of a witness should be appreciated as a whole. The isolated admissions should not be taken as a basis for drawing any inference. If the evidence in its entirety appears to be credible, reliable, trustworthy and inspires confidence, it can safely be relied upon.

25. PW 1 is the informant, PW 2 is the son of informant and PW 3 is the wife of informant. These are the family members of deceased. On this score their testimonies have been challenged by the learned counsels for the accused-appellants on the ground of witness being related to the deceased as such, they are highly interested.

26. Hon'ble the Apex Court has time and again considered the question of appreciation of evidence of related witness or interested witness and has been pleased to issue guidelines in this regard.

27. Hon'ble the Apex Court has opined in the case of Shiv Ram and Anr v State of U. P. reported in (1998) 1 SCC 149 that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased person. But, what is required is that the Court must scrutinize the evidence with utmost care and caution. Time and again, it has also been stated by Hon'ble the Apex Court that civilized people are in general insensitive when the crime is committed even in their presence, they withdraw themselves from both victim and the assailants. They keep themselves away from the Court. Evidence has to be appreciated keeping in view such ground realities. The Court instead of doubting prosecution case when no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for nugget of truth with doubt of probability, if any suggested by the accused.

28. Hon'ble the Apex Court in its judgment in the case of Kuria and Another vs State of Rajasthan, (2012) 10 SCC 433 has held in paragraph 34 as under:-

"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly reliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar vs State of Punjab, (2203) 11 SCC 367, Brathi vs State of Punjab (1991) 1 SCC 519 and Alaguapndi vs State of T. N., (2012) 10 SCC 451."

29. In a recent judgment in the case of Gurjit Singh v State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. Apart from it, Hon'ble the Apex Court in the case of Veer Singh v State of U. P. reported in (2014) 2 SCC 455 has observed that court can and may act on the single testimony. Legal system has laid emphasis on value, weight and quality of evidence rather than the quantity.

30. The position has been crystallized with respect to appreciation of evidence of interested or related witness through catena of decisions. In such situation Courts have been enjoined with a greater responsibility of scrutinizing the evidence of related or interested witness with utmost care and precaution and if the Court after considering the evidence of such witnesses in its entirety, is of the opinion that their testimony is credible, reliable and trustworthy, then there would be no legal impediment in placing reliance upon testimony of such a related or interested witness. In the facts of the instant case the incident has taken place inside the house of the complainant so, the inmates of the house are the most natural witnesses.

31. The admission by PW 1 that he lodged the FIR at the police station has been vehemently emphasized by the learned counsels for the accused-appellants. The lodging of the FIR is a matter of documentary evidence. Whenever the tehriri report is given to the police station, the contents of the same are inscribed on the format prescribed by the State Government for lodging of the FIR as has been done in the instant case and Chik FIR has been inscribed by the constable Mohrir Ranglal, who has also appended the certificate after the close of the FIR that he has copied the Chik FIR from the tehriri report (written report) and inscribed the same on the Chik FIR. The presence of informant and persons accompanying the informant has also been noted down in the relevant G. D. of the reporting out post. The evidence of PW 6 categorically discloses that the information of commission of crime was reported to the police station through R. T. Set whereupon he issued the instructions to Reporting Out post Jwalapuri, In-Charge,-S. I. Shishupal Singh, who reached the spot. He has further stated that the crime number was obtained from the police station prior to registration of the FIR. As stated earlier PW 1 complainant is a rustic witness. He has referred police out post as police station as FIR has been lodged there. Difference between police out post (reporting) and police station is very thin and we can't expect it from a rustic and illiterate person.

32. The legal position is settled in this regard that wherever the documentary evidence is possible or available, the oral evidence contrary to documentary evidence, is of no avail.

33. Further it has been submitted on behalf of the accused-appellants that place of execution of inquest is disputed in view of the admission made by PW 1 that the police reached the spot at about 9.30 am, stayed on the spot for 5 to 10 minutes and carried away the dead bodies in the jeep. The admission is to be appreciated in light of the evidence available on record as well as the entire evidence of PW 1 and not on a isolated portion of admission. From perusal of Chik FIR and the relevant G. D. it is clear that FIR of this case was lodged with the reporting out post on 28.7.1994 at 10.45 am. The incident took place at 8.30 am. The inquest proceedings on dead body of Ram Singh commenced on 28.7.1994 at 11.30 am and concluded at 12.45 hours. The details of crime number as mentioned in the FIR, finds place on the inquest report. The place of execution of inquest report is mentioned as village Ikari, P. S. Quarsi. The inquest proceedings on dead body Mangal Singh @ Udal was commenced on 28.7.1994 at village Ikari from 13.00 hours to 14.30 hours. The inquest proceedings on dead body of Veer Pal commenced on 28.7.1994 at 14.45 hours and concluded at 16.45 hours. The place of recovery of dead bodies has been shown as the village Ikari. These inquest reports have been executed by the S. O., who has signed these documents and has proved its execution through his on oath statement.

34. Considering the educational background or the social milieu in which the informant-complainant is residing, it appears quite natural that the witness might have made isolated admissions by way of cross-examination. In this case the incident has taken place on 28.7.1994 whereas PW 1 has been examined in the court for the first time on 3.2.1995 and subsequently, on 21.5.1996 and thereafter on 11.7.2002 and 16.7.2002. PW 2 has been examined for the first time in the Court on 22.3.2001, his cross-examination was deferred and was conducted on 6.2.2002 and 27.2.2002 and 17.4.2002. PW 3 Smt. Harveji has been examined in the Court on 20.9.2002. The cross-examination of PW 1 and PW 2 has been deferred and was recorded on different dates. This aspect is to be kept in mind while appreciating the testimony of witnesses, who have been cross-examined in fraction. If the examination-in-chief and cross-examinations are recorded on different dates having sufficient time gap, the chances of variations cannot be ruled out and variation if any occurs it is always treated to be natural unless it goes to the root of the case. Time gap takes its toll on the memory of witnesses and we cannot ignore this aspect.

35. Prior to appreciation of the evidence of eye witnesses, who are inter se related to each other, it should be borne in mind that the post event conduct of each of the person would not be identical. The post event conduct of a witness varies from person to person. There cannot be a cast iron formula regarding reaction of a person, who was a witness of such an incident. Different persons would react differently on seeing any such violence and their behaviour and conduct would be different. [Ref : Rammi @ Rameshwar vs. State of M. P., 1999 (8) SCC 649]. Hon'ble the Apex Court in the case of Main Pal and Another v State of Haryana reported in 2004 Cr.L.J 2036 has observed that the post event conduct of a witness varies from person to person. It cannot be a cast iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. The conduct of witness cannot be regarded as abnormal.

36. Some of the illustrated behaviour has earlier been cited by Hon'ble the Apex Court in the case of Rana Pratap and Ors V State of Haryana reported in AIR 1983 SC 680 wherein it has been held that :

"Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnessed on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

37. Keeping in view these propositions of law, the evidence of PW 1, PW 2 and PW 3, who are alleged to be the eye witnesses, would be appreciated.

38. On the basis of discussions made above it is evident from the evidence available on record that the FIR of the case was lodged at the Reporting Out Post, Jwalapuri of P. S. Quarsi, District-Aligarh. It is also clear that the inquest report of all the three deceased was prepared at village Ikari. The isolated admission of PW 1 is contradicted by the documentary evidence of inquest reports of all the three deceased marked as Ext Ka.6, Ext Ka.13 and Ext Ka.20 respectively. Whereas when the question was put regarding to lodging of FIR to the accused-appellants during recording of their statements u/s 313 Cr. P. C. before the Court, the accused-appellants disclaimed knowledge (by saying " irk ugh"). Subsequently, when the question regarding execution of inquest reports of deceased Ram Singh, Mangal Singh @ Udal and Veer Pal by the I. O. was put to accused-appellants, the accused-appellants disclaimed knowledge (by saying " irk ugh"). The accused-appellants had the opportunity of challenging the existence of FIR by putting the suggestion to the witnesses, who have been examined before the Court, by way of their statement u/s 313 CrPC. In the same manner the execution of inquest reports could have been challenged by putting the suggestion to the witness, who has executed the inquest reports. Considering the legal proposition and factual matrix of the case, the documentary and oral evidence available on record, we are of the view that the learned counsels for the accused-appellants have failed to convince us that the FIR is ante timed and it was not in existence at the time the inquest proceedings were drawn. Evidence on record clearly establishes that the inquest reports were prepared at the place of occurrence by the police. Such plea of defence cannot be sustained.

39. It has been stated that the deceased were of criminal antecedents. They have been murdered by their enemies and the accused-appellants have been falsely implicated in this case.

This argument at least leads to the inference that the time and place of occurrence is not challenged by the appellants. It is impliedly admitted.

40. So far as the plea that the offence has been committed by someone else and the accused-appellants have been falsely roped in is concerned, before coming to any conclusion it would be incumbent upon us to scrutinize the evidence of PW 1, PW 2 and PW 3 and to appreciate their examination-in-chief and cross-examination, inter se testimonies as well.

41. PW 1 has categorically stated that on 28.7.1994 at about 8.30 am the accused-appellants armed with illicit country made weapons like gun, farsa and axe came to his house where deceased Ram Singh, Mangal Singh @ Udal and Veer Pal were sitting and talking to each other. The accused-appellants assaulted by fire arms and sharp edged weapons. He has specifically stated that none of the deceased has taken meal. The meals served in the utensils was scattered because of the incident. He has stated that he has seen the incident by hiding himself. He has denied how many injuries were sustained by each deceased and by whom the injuries were caused and he is also silent on the fact as to how many assault were made by whom. There appears no material contradiction in the cross-examination of the witness as compared to his examination-in-chief.

42. PW 2 Bhanu Prakash disclosing the background of 20.12.1993 has categorically stated that on 28.7.1994 at 8.30 am while his grandfather Ram Singh, uncle Veer Pal and relative Mangal Singh @ Udal were sitting below a thatch (chappar) and his grandfather Ram Singh was taking meal, the accused-appellants armed with fire arm weapons, farsa and axe came to his house and assaulted them. From perusal of examination-in-chief and cross-examination of PW2, it appears that he has not made any material admission, which may create any doubt on the veracity of his testimony.

43. PW 3 Smt. Harveji has also identified the accused-appellants, who were equipped with arms and who have committed the murder of Ram Singh, thereafter of Mangal Singh @ Udal and lastly, of Veer Pal. Her statement has been recorded after a period of eight years of the incident. She has also materially corroborated the FIR version. She has also corroborated the evidence of PW 1 that he had hidden himself in kothala. She has also stated that the assailants did not assault her and her son. She has stated that she had seen the empty cartridges and pellets on the spot. She has not made any admission by way of cross-examination, which may be categorized as material contradiction. No such material contradiction has been brought to the notice of the Court on behalf of counsels for the accused-appellants. There is complete consistency in the statement of PW 1, PW 2 and PW 3 as compared to their examination-in-chiefs and cross-examinations. There is sufficient coherence inter se statements of PW 1, PW 2 and PW 3 with respect to date, time, place and manner of occurrence and by whom the offence is alleged to have been committed. The motive of commission of offence has also been stated. Even if, it is presumed for argument sake that there are contradictions in the cross-examination of each of the witnesses of fact i.e. PW 1, PW 2 and PW3, these contradictions are natural and of trivial nature and no importance can be attributed to them. While appreciating the testimonies of PW 1, PW 2 and PW 3 it is to be kept in mind that PW 1 and PW 2 have been cross-examined on different occasions and there has been a time gap of several years between their examination-in-chief and cross-examination. They all are the persons of village background. More so, three murders have been committed in front of them and that too of their close relatives. The psychology of the witnesses after seeing the incident, cannot be said to remain unaffected. The chances of emotional set back can also not be ruled out. Keeping all these factors in view the evidence of PW 1, PW 2 and PW 3 is to be appreciated for drawing the inference. There is complete coherence with respect to the identity of the accused-appellants, who have committed the offence of murder of deceased Ram Singh, Mangal Singh @ Udal and Veer Pal on 28.7.1994 at 8.30 am in the house of informant at village Ikari within P. S. Quarsi, District-Aligarh.

44. On careful scrutiny, we are of the considered opinion that the witnesses PW 1, PW 2 and PW 3 are wholly reliable and their testimonies are credible and trustworthy. There is no legal impediment in placing reliance upon the testimonies of these witnesses, even if they being the close relatives of the deceased persons.

45. The next argument is with respect to non-examination of the village people in this case and the second argument is with respect to non-examination of injured Smt. Laungshree. It has been specifically written in the FIR that the incident was witnesses by so many people but, out of fear they did not become the witness. The factum of three murders in the same transaction by the accused-appellants has a significance and would have the impact on psychology of the inhabitants of the vicinity. Murder is a most heinous offence and wherever a murder is committed it spoils the peace and tranquillity of the place and also the psychology of the people residing thereby. Here in the instant case, three murders have been committed simultaneously one after another. It appears natural that the people of village might have been terrified and they could not gather the courage to be a witness of the incident. This conduct appears to be natural. As such, non-examination of the witnesses of the village in the instant case, in our considered opinion, would have no oblique impact on the prosecution version and the argument in this regard, does not have substance.

46. So far as the non-examination of Smt. Laungshree is concerned, it is submitted that she has not been examined by the prosecution though, she is an injured witness. Her testimony may have some weight. However, it is worth mentioning that Smt. Laungshree was taken to the doctor by police constable Ganga Prasad for her medical examination. Her medical examination report i.e. Ext Ka.2 has been proved by PW 4 Dr. R. P. Singh, Senior Medical Officer, M. S. Hospital, Aligarh. Her medical examination report discloses three injuries as follows :

(i) Gun shot wound 0.5 cm circular cavity deep on the left side back of chest. Blackening present on margins.

(ii) Multiple raised spots on the back of chest (due to gun powder) in area 30 cm x 12 cm.

(iii) Gun shot wound 1 cm x 0.5 cm x muscle deep on the middle of left forearm anterior aspect.

The factum of sustaining injuries by Smt. Laungshree in the commission of offence is established by the testimony of PW 4. What remains is the manner in which the incident took place that could have been proved by the oral examination of Smt. Laungshree and also how and by whom such injuries were caused to her and the incident as well. It is no where the requirement of law that prosecution is bound to examine all the witnesses. Apart from it, in this case, as stated earlier, the inmates of the house were the most natural witnesses as their presence in their house was natural. Injured witness Smt. Laungshree was not a member of that family. How she could have gathered courage to depose against accused persons after witnessing the result of their enmity which resulted into three murders.

47. PW 1, PW 2 and PW 3 have categorically stated about the date, time, place and manner of occurrence as well as about the identity of the accused-appellants, who have committed the murder of three deceased persons namely Ram Singh, Mangal Singh @ Udal and Veer Pal. As held above, the evidence of all these witnesses of fact i.e. PW 1, PW 2 and PW 3 is credible, trustworthy and reliable. These witnesses have specifically assigned the weapons, which were possessed by the accused-appellants prior to the incident and which have been used in the commission of offence. All the post mortem examination reports i.e. Ext Ka. 3, Ext Ka.4 and Ext Ka.5 correspond to the nature of weapon with which such ante mortem injuries were caused and found on the person of deceased Ram Singh, Mangal Singh @ Udal and Veer Pal. As such, there is complete consistency in the ocular testimony and the medical testimony. The ante mortem injuries alleged to have been caused corresponds to the weapons assigned to the accused-appellants. The evidence of PW 1, PW 2 and PW 3 establishes that the incident took place at a place mentioned in the FIR as stated by the witnesses of facts.

48. The attention of the Bench has been drawn towards the judgment passed in Criminal Appeal No.1118 of 2014 (Sudarshan & Anr vs State of Maharashtra) decided on 23rd May 2014 by the Hon'ble Apex Court. The facts of the instant case and the facts of the appeal are not identical to each other. The law relied upon by the counsels for the accused-appellants is not of much avail.

49. It is the settled proposition of law that FIR is not a substantive piece of evidence but, it is an important piece of evidence upon which the entire edifice of the prosecution stands. A prompt FIR rules out all the elements of concoction, colouration and exaggeration. No specific format is provided but, if the FIR discloses the time, date, place and manner of occurrence in the name of accused persons and the witnesses, if any, it certainly facilitates the investigating agency in the process of investigation.

In the instant case, where three murders have been committed in same transaction, keeping this aspect in view, the FIR of the incident that took place at 8.30 am was lodged with the police at 10.45 am, in our considered opinion, it is a prompt FIR and there is no delay in such circumstances.

50. Being a Court of first appeal we are required to go into the minute details even on the points towards which the attention has not been drawn by either of the parties. Ext Ka.27 is the site plan. As per the site plan, 'A' is the place where a thatch (chappar) has been shown. 'B' is the place where murder of deceased Ram Singh has been committed and 'C' is the place where murder of deceased Mangal Singh @ Udal has been committed. 'D' is the place where murder of deceased Veer Pal has been committed. The witnesses have categorically stated by way of oral evidence when the accused persons started abusing and extended threat, the deceased persons rushed towards the house. This fact has been stated right from the stage of FIR and has been reiterated by way of oral testimony and places of murder as alleged in the FIR finds full support from the site plan drawn by the I. O. and further these facts are fortified by the on oath statements of the witnesses, which proves the place of occurrence as stated by the prosecution and the argument of the defence that the place of occurrence is not established, does not appear to have substance. No other point has either been argued or brought to the notice of this Court.

51. In view of the discussions made above, we are of the considered opinion that the learned Court below has not committed any error or misreading of evidence. It has rightly appreciated the evidence available on record and has correctly recorded the finding of conviction against the accused-appellants The findings of conviction recorded by the learned Court below are well reasoned and absolutely correct on the basis of evidence on record. No interference is required in the findings of conviction recorded by the learned Court below.

52. In view of aforesaid reasons and discussions, the judgment and order dated 5.10.2004 passed by the learned Court below convicting and sentencing the accused-appellants is hereby affirmed. Accordingly, all these three appeals are dismissed.

53. Accused-appellant are informed to be in jail. They shall serve out their sentence as awarded by the learned Court below.

54. Let the lower Court's record be transmitted back to the Court concerned forthwith along with a copy of this judgment and order for necessary compliance.

Order Date :-14th August, 2015

M. Himwan

(Raghvendra Kumar, J.) (S. V. S. Rathore, J.)