Baliram & Others vs State Of U.P.
2015 Latest Caselaw 1562 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 3309 of 2007
 
Appellant :- Baliram & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra,Anirudh Kumar Upadhyay,Brijesh Sahai,P.N. Misra,Rajeev Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1.Heard Mr. Brijesh Sahai, learned counsel for the appellants, Sri Arunendra Kumar Singh, learned A.G.A. for the State and perused the lower court record.

2.Under challenge in this appeal is the judgment and order dated 24.3.2007 passed by learned Additional Sessions Judge, Court No. 3, Basti in Sessions Trial No. 290 of 2001, under Section 302 I.P.C., Police Station Lalganj, District Basti arising out of Case Crime No. 318 of 2001 whereby appellant Baliram was convicted for the offence under Section 302 I.PC. and appellants Bansraj and Rajesh were convicted for the offence under Section 302/34 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 2,000/- each, with default stipulation of one month additional imprisonment. Appellant Baliram and Rajesh were also tried for the offence under the Arms Act for the alleged recovery and Sessions Trial No. 291 of 2001 and 292 of 2001 were also tried along with Sessions Trial No. 290 of 2001. However, they were acquitted of the charges under the Arms Act.

3.In brief the case of the prosecution was that an F.I.R. was lodged on 26.5.2001 by Ram Prasad at 22:10 hours at Police Station Lalganj, which was situated at about 13 kilometers from the place of occurrence, alleging therein that some dispute regarding agricultural land was going on with appellant Baliram and Bansraj. Appellant Baliram and Bansraj are the real brothers .The third appellant is an associate of the above two appellants and is resident of different village, namely Chheriha. It was alleged that a dispute of land was also going on with appellant Rajesh. On 26.5.2001 complainant along with his uncle Ganga Ram was coming from Village Chheriha towards their village Mahurai. The complainant was having a torch in his hand. In the evening at about 8:00 p.m., when these persons reached near the field of Jagannath Teli then appellants Baliram, Bansraj and Rajesh, who were hiding there, exhorted these persons to surround them and to kill them. The complainant started running but his uncle Ganga Ram could not run. Appellants Baliram fired a shot on his back due to which, Ganga Ram fell down and thereafter Bansraj and Rajesh each gave a blow of knife to him due to which he immediately succumbed to the injuries. Hearing the noise of fire and alarm raised by the complainant, his father Hari Ram and his relative Ram Kewal, who were going to attend the call of nature, also reached there with their torches and the appellants started running towards the temple. All the appellants were recognized in the torch light. The complainant leaving the dead body of his uncle Ganga Ram went to lodge the F.I.R., which was lodged on the same day at 22:10 hours i.e. only about 2 hours and 10 minutes after the incident. The Investigating Officer came to the place of occurrence and inspected the same. The torch of the complainant was taken into custody and its recovery memo was prepared and thereafter it was handed over to the complainant. The shoes of the deceased were also taken into custody and its memo was prepared. The bloodstained and plain soil were also taken into custody. The inquest was started in the same night and it concluded at 23:55 hours. During the course of investigation, on 28.5.2001, the police party apprehended Baliram and from his possession one countrymade pistol 12 bore and three live cartridges were recovered and in the same arrest, appellant Rajesh was also apprehended and from his possession one Rampuri knife was recovered. For the said offences under Arms Act, they were tried in separate sessions trial, which were decided along with the instant sessions trial. However, they have been acquitted for the said offence. No appeal has been filed by State challenging the said acquittal. The postmortem on the body of Ganga Ram was conducted on the next day i.e. 27.5.2001 at 2:40 p.m. and following injuries were found on his body:-

(i) Firearm wound of entry on back of chest 3 c.m. x 2.5 c.m. x chest cavity deep 18 c.m. below and medial to the inferior angle of upper right scapula. Blackening present around the wound underlying 9th and 10th ribs fractured. Liver and kidney lacerated 300 ml blood clot present in the abdominal cavity. 18 pellets were present 10 in liver, two in right kidney and six in abdominal cavity one plastic tickli was present in the abdominal cavity.

(ii) Incised wound 2.5 c.m. x 0.5 c.m. x bone deep left side back of chest just medial to the inferior angle of left scapula.

(iii) Incised wound on the lower and left side of abdomen and back side left 3 c.m. x 0.5 c.m. to muscle deep 5 c.m. below injury no. 2.

In the opinion of the doctor, the cause of death was shock and haemorrhage, which was the result of firearm injury.

4.After completing the investigation, charge sheet was filed.

5.The defence of the accused persons was of total denial and their false implication because of the enmity.

6.In order to prove its case, the prosecution has examined PW-1 Ram Prasad, PW-2 Ram Kewal, the witnesses of fact named in the F.I.R. PW-3 Dr. Ajay Kumar, who has conducted the postmortem on the body of Ganga Ram. PW-4 Constable Sita Ram, who has prepared the chik report and G.D. of this case. PW-5 S.O. Chhedi Prasad Yadav and Investigating Officer of this case. PW-6 Shivaji Upadhyay, who under the direction of the S.O. has completed the inquest proceedings on 26.5.2001. PW-7 S.I. R.B. Saroj, who has investigated this case from 29.5.2001 and has filed charge sheet.

7.No evidence in defence was adduced on behalf of the appellants.

8.After appreciating the evidence on record, trial court has convicted the accused appellants as above, hence the instant criminal appeal.

9.Submission of learned counsel for the appellants is that the trial court has not appreciated the prosecution evidence in correct perspective. PW-1 Ram Prasad and PW-2 Ram Kewal, who are the witnesses of facts, were the chance witnesses. They were related and interested witnesses. The presence of PW-2 Ram Kewal was not the least possible at the alleged time and place. Likewise the evidence of PW-1 was also doubtful. Apart from it, there was no independent witness to connect the appellants with the instant offence. It has also been argued that complainant was accused in the case of murder of the father of appellant Rajesh, therefore, it is unbelievable that instead of taking his own revenge by killing the complainant, he would have joined his hands with other appellants to take their revenge and to murder the uncle of the complainant. Learned counsel for the appellants has assailed the evidence of these two witnesses and has stated that presence of PW-2 Ram Kewal was not the least possible. The F.I.R. was ante-timed and the evidence of PW-1 Ram Prasad cannot be categorized as wholly reliable. The trial court has not scrutinized the prosecution case with extra care and caution and therefore, the conviction recorded by the trial court was unsustainable under law.

10.Learned A.G.A. has submitted that in the instant case a very prompt F.I.R. was lodged and it cannot be said that the F.I.R. was ante-timed because in the instant case, even inquest proceedings were concluded after the incident at 23:55 hours. So in the instant case, the complainant has immediately rushed to the police station and lodged the F.I.R. The police also, in its turn, has taken immediate action and reached to the place of occurrence and started the investigation. It has also been argued by the learned A.G.A. that in the F.I.R. specific roles were assigned to all the three appellants and names of the witnesses were also mentioned and the same witnesses have supported the case of the prosecution during trial. The evidence of two eye witnesses was wholly consistent and inspire full confidence which find full corroboration from the medical evidence. Therefore, the trial court has not committed any illegality or irregularity in convicting the appellants. Therefore, there is no need to interfere in the impugned judgment.

11.The first point to be considered in the instant case is the F.I.R. Apparently, the F.I.R. has been lodged only after two hours and 10 minutes of the occurrence at Police Station Lalganj, which is situated at a distance of about 13 kilometers. So there is no delay in lodging the F.I.R. Submission of learned counsel for the appellants was that F.I.R. of this case is ante timed. In support of his submission, he has submitted that virtually the complainant was not present at the scene of occurrence. He was subsequently called and F.I.R. was registered showing that it has been lodged promptly. On this point, learned counsel for the appellants has drawn the attention of this Court towards the statement of PW-4 Constable Sita Ram, wherein PW-4 Constable Sita Ram, who has prepared the chik report and G.D. of this case, has admitted that in the Tehrir, the date 26.6.2001 has been corrected as 26.5.2001 and accordingly the G.D. No. 34 and 35 have been corrected as 35 and 36. This witness has stated that it is only because of a clerical error and has denied the suggestion that the F.I.R. is ante-timed. There is no dispute to the fact situation that the incident has taken place on 26.5.2001. So if by mistake, a wrong month has been mentioned then it would not be a ground to hold that F.I.R. was not executed at the time as alleged by the prosecution. This mistake appears to be because of the reason that complainant Ram Prasad in his F.I.R. Ex. Ka-1 on the bottom of this F.I.R. has also corrected the date from 26.6.2001 to 26.5.2001 by correcting the number 6. So virtually it was only a clerical mistake and it cannot be taken to be a ground to hold that F.I.R. not was in existence at the relevant time. Case Crime No. 318 of 2001 is mentioned on the back of the Tehrir Ex. Ka-1 and there is an endorsement of the Head Moharir that on the basis of this F.I.R. Case Crime No. 318 of 2001 under Section 302 I.P.C. was registered and on this endorsement 26.5.2001, date has been correctly mentioned. Apart from it, in the facts of this case, the inquest proceedings were conducted immediately after registration of the case and the inquest proceedings were concluded at 23:55 hours on the same day. Perusal of the inquest report shows that on the said inquest report, case crime number, section and police station of the case, name of the deceased and his address has been correctly mentioned. Apart from it, all the documents, which were prepared at the time of the inquest proceedings were also annexed with the inquest report. PW-6 Constable Shivaji Upadhyay has stated that he was entrusted with the dead body of the deceased on 26.5.2001 and along with the dead body, copy of Panchayatnama, copy of the chik report and other papers were handed over to him. He has also proved his signatures on the Panchayatnama where he has made an endorsement that the pellets were recovered from the dead body in his presence. He has stated that he brought the dead body to the postmortem house and has denied the suggestion that by the time, he brought the dead body to the postmortem house, the F.I.R. was not in existence. All these record shows that the F.I.R. was very much in existence before the inquest proceedings started. Even the copy of the F.I.R. was sent along with the inquest report, therefore, submission of learned counsel for the appellants that F.I.R. is ante-timed has absolutely no legs to stand.

12.The main thrust of learned counsel for the appellants was regarding the presence of PW-1 Ram Prasad and PW-2 Ram Kewal. It is submitted that both these witnesses were chance witnesses and they had absolutely no occasion to be present on the spot. Apart from it, there is no evidence to connect the appellants with the present offence. So it is virtually a case of no evidence. In the alternative, it is submitted that even if the presence of PW-1 Ram Prasad is found to be probable on the place of occurrence even then his evidence does not fall within the purview of wholly reliable because the presence of PW-2 Ram Kewal at the scene of occurrence was absolutely not possible and he was a chance witness.

13.Before considering this point, we would like to discuss the law on the point of chance witness. Hon'ble the Apex Court in the case of State of Andhra Pradesh Vs. K. Srinivasulu Reddy and another reported in 2005 Supreme Court Cases (Cri) 817 has observed in paragraph no. 13 as under:-

"13. Coming to the plea of the accused that Pws 4 and 9 were "chance witnesses" who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is a suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

(Emphasis added)

14.In the case of Harjinder Singh alias Bhola Vs. State of Punjab reported in MANU/SC/0553/2004, Hon'ble the Apex Court has observed in the last part of paragraph no. 6 as under:-

"6. ...... Of course, for the mere reason that they are chance witnesses, their evidence cannot be discarded if we find assurance from the prosecution evidence pointing to the guilt of the accused. We, therefore, feel that their evidence should have been more carefully analysed and evaluated, which the High Court failed to do."

15.In the case of G.S. Walia Vs. State of Punjab and Ors. reported in MANU/SC/0298/1998, Hon'ble the Apex Court in paragraph no. 10 has held as under:-

"10. ....................... Though he was a chance witness in the sense that he being of a different village had no apparent reason to be near the place of incident, his evidence did not deserve to be discarded on that ground. The High Court failed to appreciate that his presence received independent corroboration from the statement of the deceased himself. The evidence discloses that Kesar Singh had not met Balwant Singh between 29.5.86 to 31.5.86 and yet we find in the statement of Balwant Singh reference to Kesar Singh as one of the persons who had taken him to the hospital."

16.Chance witness is a witness who should not normally be where and when he professes to have been. If an offence is committed on a public highway only the passers-by are expected to be there and their evidence cannot be brushed aside as being that of chance witnesses. Even if one witness may not be ordinarily present at the time and place when the incident took place, his evidence cannot be straightway rejected on the ground of his being an interested and a chance witness. The contention that witness may not be ordinarily present at the relevant time and place does not necessarily mean he was not or cannot be present at a particular time and place. At the most, such evidence requires to be closely scrutinised in order to find out whether he was in fact present at the relevant time and witnessed the incident or not. When a murder is committed in a dwelling-house, the inmates of the house are the natural witnesses and if the murder is committed in a street passers by are natural witnesses. Their evidence cannot be brushed aside on the ground that they are mere chance witnesses. The expression "chance witness" is of dubious coinage of no precise import, and often misunderstood than understood. The most that the expression may convey, is that the witness is not a probable witness or a likely witness. For the matter, human beings do not always move in an appointed orbit. Because of their presence at a place, where they have no compelling reasons to be present, their evidence does not warrant rejection. Offence when occurs in field the persons having lands in the field are not chance witnesses. Persons waiting at a bus stand are not chance witnesses. Murder committed in street-street hawkers and vendors are not chance witness.

17.In view of the aforesaid legal position, it is settled proposition of law that the evidence of a chance witness cannot be discarded solely on the ground that he happens to be a chance witness. But the courts are required first to scrutinize the reason for their presence at the place of occurrence and if the same is found to be trustworthy then the courts would scrutinize their evidence like the evidence of any other witnesses. But where the presence of such a witness, at the place of occurrence becomes doubtful then such a witness cannot be categorized as wholly reliable. Now in the instant case, we will scrutinize the evidence of both the eyewitnesses.

18.PW-1 Ram Prasad is the nephew of deceased Ganga Ram. In the instant case, a very prompt F.I.R. has been lodged and a prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of false implication. There is no dispute to the fact situation that PW-1 Ram Prasad has lodged the F.I.R. very promptly. This fact, by itself, gives rise to the inference that he was present at the place of occurrence and immediately after seeing the incident, he rushed to lodge the F.I.R., which was registered with utmost promptness. We would like to discuss law on this point.

19.Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

20.The evidence of PW-1 Ram Prasad has been challenged on the ground that he has stated that he had gone to make some payment to some shopkeeper and in his cross examination, he could not disclose the name of such shopkeeper to whom, the payment was made. It has further been submitted that as per the evidence of PW-1 Ram Prasad, he left for the village Chheriha in the after noon. As per his evidence, the distance from village Chheriha to village Mahurai is only four and a half kilometers and admittedly they had gone to that village on foot. It is further submitted that keeping in view the distance between the two villages and the purpose with which this witness claims to have gone to village Chheriha would not have involved a time of more than 3-4 hours. So he was expected to come back before the sun set. In that position, there was no occasion for him to carry torch with him.

21.Learned A.G.A. on this point has vehemently argued that in the rural areas, there is a general practice amongst the villagers to keep their torch with them while leaving their native village. It is a precautionary measure. We also agree with the view that simply because the complainant was having his torch with him while he had gone to village Chheriha, this fact by itself cannot be a ground to discard his testimony or to disbelieve the fact that he was having torch at the time of the incident. This witness was coming along with deceased Ganga Ram. When he reached near the place of occurrence then all the three appellants came out and appellant Baliram shot fire at the deceased, which hit on his back and because of the said injury, Ganga Ram fell down. Thereafter both the accused persons gave blows of knife to him. The evidence of these witnesses regarding the manner in which the incident has taken place, stands fully corroborated by the medical evidence.

22.Apart from it, the appellants and witnesses are very well known to each other. There is yet another very strong reason to hold that there was sufficient light. When the light was sufficient for the appellants to recognize their target and to cause him injuries at the desired part of the body then the same light would be sufficient for the witnesses to see the incident and recognize the assailants. Persons living in the village are used to perform their work in very dim light of lantern or lamp. Their eyes are not used to florescent lights like the persons living in urban areas.

23.The deceased had received one gunshot injury on his back and two knife blows have also been received on the back part of his body. The evidence of this witness has also been challenged on the ground that in the F.I.R., it was not mentioned by PW-1 Ram Prasad that appellant Bansraj and Rajesh gave blows of knife on the back and it has also not been mentioned that the deceased Ganga Ram fell on the ground from the side of his face. But the purpose of F.I.R. is very limited and every document is to be appreciated keeping in view the purpose with which it is executed.

24.Reference may be made to the pronouncement of Hon'ble Apex Court in the case of Jitendra Kumar Vs. State of Haryana reported in (2012) 6 SCC 204 wherein Hon'ble Apex court has observed as under:

"The Court has also to consider the fact that the main purpose of the F.I.R. is to satisfy the police officer as to 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 F.I.R. The F.I.R. itself is not the proof of a crime, but a piece of evidence which could be used for corroborating the case of the prosecution."

25.Thus the purpose of the F.I.R. is very limited that is to inform the police regarding commission of an offence and to set criminal law into motion, so that investigation of the offence may proceed in accordance with law. Law is settled on the point that the F.I.R. is not an encyclopedia of the criminal case. Each and every minute details is not required to be mentioned in the F.I.R. The court cannot ignore the ground realities. A person, who has seen the murder of his real uncle, cannot be expected to remain in a tension free, mental condition. So his reaction cannot be compared with that of a common man in normal circumstances. So simply because every minute details were not mentioned in the F.I.R. does not render his evidence unreliable.

26.The presence of PW-2 Ram Kewal has been challenged on several counts. Admittedly this witness is related to the complainant. The sister of PW-1 Ram Prasad is married with the son of PW-2 Ram Kewal. Admittedly he resides in a village, which is situated at a distance of about eight kilometers from the village of the complainant. The reason for his presence was that he had come to visit the parental home of his daughter in law and to meet with his grand children, who were at that relevant time in the village of the complainant. PW-2 Ram Kewal in his cross-examination has admitted that he reached the village on that very day. There was no function or any special occasion. He simply came to meet his grand children and his daughter in law. This statement shows that he is telling truth. Because he has not tried to furnish any false reason for his presence. To come to meet the grand children is not a uncommon phenomenon. In the evening, he along with father of the complainant was going to attend the call of nature. When he heard the shrieks of the deceased and also alarm raised by the complainant, he reached the place of occurrence and witnessed them. Submission of learned counsel for the appellants was that this witness, without any occasion came to the village of the complainant and also at the time of the incident he went to attend the call of nature and that too in the same direction where the offence was to be committed. All these circumstances, lead to the conclusion that he was only a chance witness and was not present at the scene of occurrence and he is giving evidence only because he is related to the deceased. But we are not in agreement with the submission of learned counsel for the appellants because in the rural areas, people often visit each other place. Particularly in the facts of this case, this witness has furnished a valid reason to visit Shivpur Mahurai to meet his grand children and this by itself cannot be a ground to disbelieve his evidence. It is pertinent to mention here that the F.I.R. of this case was lodged without any delay. Had this witness not been present at the place of occurrence and was not seen by the complainant at the place of occurrence then there was no occasion to mention him as a witness in the F.I.R. without first seeking his consent whether he would give evidence against the accused persons or not. So mentioning the name of PW-2 Ram Kewal as a witness in a prompt F.I.R. also supports the conclusion that he was present at the place of occurrence. The manner of incident, which has been disclosed by PW-2 Ram Kewal in his evidence shows that his evidence is absolutely reliable and finds full corroboration with the medical evidence.

27.Learned counsel for the appellants has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Bhimapa Chandappa Hosamani and others Vs. State of Karnataka reported in (2007) 1 Supreme Court Cases (Cri) 456 wherein Hon'ble the Apex Court in paragraph no. 24 has observed as under:-

"24. ....................... This Court has repeatedly observed that on the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds if safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."

28.But as discussed earlier, in the instant case, the presence of PW-2 Ram Kewal also stands proved on the place of occurrence. Even for the sake of argument, it is presumed that presence of PW-2 is doubtful even then we are of the considered view that the evidence of PW-1 was wholly reliable. Evidence of PW-1 has been challenged on the ground that he was not having the torch in his hand. Though the police has prepared the memo of torch but the evidence of PW-1 shows that no such memo was prepared. In his cross examination, on this point, this witness has stated that his torch was taken by the Investigating Officer on 26.5.2001 i.e. the date of incident at 11:00 p.m. and in the morning, his torch was returned to him. The memo of torch has been prepared, which is Ex. Ka-9, which was prepared on 27.5.2001. However, this witness in his further cross-examination has admitted that at that point of time, Ram Ji and Ram Shankar were also present.  The perusal of the memo of torch shows that Jai Shree and Ram Shankar are the witnesses of this memo. This torch has also been produced by PW-1 Ram Prasad before the court and this fact finds place in the examination in chief of PW-1 Ram Prasad.

29.Learned counsel for the appellants has submitted that F.I.R. was not written at the place where the complainant claims to have written it but was written at the police station because on the back of the F.I.R. there is seal of police station which shows that the paper on which the F.I.R. was scribed, was provided by the police at the police station. This argument of the learned counsel for the appellants is absolutely misconceived. Virtually after registration of the case, an endorsement was made by the Head Moharir on the back of the F.I.R. Ex. Ka-1 to the effect that on the basis of this report Case Crime No. 318/01 under Section 302 I.P.C. was registered. This endorsement was signed by the Head Moharir and thereafter the seal was also affixed. So this submission has absolutely no force.

30.Thus taking an overall view of the matter, in this case a very prompt F.I.R. was lodged by PW-1 Ram Prasad. In the said F.I.R. PW-2 Ram Kewal was also named as a witness and at the cost of repetition, we would like to observe that unless and until, the complainant Ram Prasad would not have contacted PW-2 Ram Kewal whether he is ready to give evidence against the accused persons and without ascertaining on this aspect from PW-2 Ram Kewal, he would not have named Ram Kewal as a witness in the F.I.R. Since F.I.R. has been lodged very promptly hence there was no occasion for the complainant to have contacted PW-2 on this point. It shows that Ram Kewal was present on the place of occurrence therefore, he was named as witness in the F.I.R. Apart from it, Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

31.As we have already discussed that PW-2 Ram Kewal has also explained the reason for his presence at the place of occurrence. So his evidence cannot be brushed aside holding that he was a chance and related witness. He has given vivid description of the incident. He has given description of the role played by each accused in the commission of the crime, which finds full corroboration from the evidence of PW-1 Ram Prasad and also by the medical evidence.

32.Learned counsel for the appellants has also submitted that PW-1 Ram Prasad was an accused in the murder of father of appellant Rajesh. So there was absolutely no occasion for Rajesh to join hands with the other accused persons. Instead he would have taken his own revenge by killing PW-1 Ram Prasad, who was standing at a distance of few paces where Ganga Ram was killed. We are not impressed with the submission of learned counsel for the appellants. The evidence of a witness cannot be discarded only on the ground that he has not sustained any injury and he was not attacked by the accused persons. Here we would like to quote the observation of Hon'ble the Apex Court in the case of Dharamveer and others Vs. State of U.P. reported in AIR 2010 SC 1378 which reads as under:-

"Why the appellant did not cause any injury to these witnesses cannot be explained by prosecution. It will require entering into their mind. Human behaviour is something strange. Merely the fact that these witnesses did not suffer any injury will not make their evidence untrustworthy."

33.Apart from it, there was allegation against PW-1 Ram Prasad that he was an accused in the murder of father of appellant Rajesh. So by killing his real uncle in the presence of PW-1 Ram Prasad, Rajesh has taken the revenge. Simply because no effort was made to kill or no attempt was made by appellant Rajesh to kill the complainant would not mean that he was not present at the place of occurrence. If such an argument is admitted then the accused persons must have killed the other witnesses also.

34.Learned counsel for the appellants has also drawn the attention of this Court towards certain minor contradictions, which have emerged in the evidence and on the basis of the same, has submitted that due to such contradictions the evidence of these witnesses become unreliable. We are of the considered view that there cannot be a prosecution case with a cast iron perfection. There must be lacuna or contradiction in every prosecution evidence but the same has to be appreciated in the light of the evidence taken as a whole keeping in mind the ground realities. Every contradictory statement cannot be a ground to throw away the prosecution case but the law is settled that only such contradiction, which goes to the root of the case are material. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh and others reported in (2011) 4 SCC 324 and has held as under:

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

35.After going through the entire evidence as a whole, we are of the considered view that in the instant case, F.I.R. has been lodged with utmost promptness and the police has taken immediate action. The inquest proceedings started on the same day and the same were concluded at 23:55 hours. A prompt F.I.R. eliminates all the chances of coming up of a coloured version and keeping in view the promptness in lodging the F.I.R., we are of the considered view, as discussed earlier, that unless and until PW-2 Ram Kewal was present on the spot and would have seen the incident, his name could not have been inserted as a witness in the F.I.R. Mentioning of his name in a very prompt F.I.R. gives rise to the only inference that this witness was present on the scene of occurrence at the relevant time and has witnessed the occurrence. The incident of this case has taken place on a public way and the persons, who are using the said public way, were the most natural witness. Therefore, PW-2 Ram Kewal, who was going to use that way for whatever purpose shall be treated as a natural witness. The evidence of both the witnesses of fact is wholly consistent and reliable and that also stands fully corroborated by the medical evidence. Therefore, the defence in this case could not bring any fact to the notice of the court to hold that these witnesses were not wholly reliable. The trial court has correctly appreciated the prosecution evidence and has rightly convicted the appellants.

36.Some copies of earlier first information report have also been filed on behalf of the accused persons to show their enmity with the complainant side. It is a case of direct evidence. The enmity is always a double edged weapon, which on one hand may be a reason to falsely implicate the accused persons on the contrary it may be a motive for the appellants to commit the offence. Law is settled on the point that in cases of direct evidence, the motive pales into significance. So none of these documents filed in defence gives any help to the appellants to hold that they were innocent, keeping in view the clinching and inspiring evidence of the eyewitnesses.

37.In the instant case, appellants Bansraj and Rajesh have been convicted with the aid of Section 34 I.P.C. Specific role of firing has been assigned to appellant Baliram, therefore, he has rightly been convicted for the offence of murder simplicitor and the other accused persons, namely, Bansraj and Rajesh, have caused injuries with knife on the back of the deceased after he fell down due to the firearm injury. It clearly established their common intention to cause death of the deceased Ganga Ram. Therefore, they have also been rightly convicted with the aid of Section 34 I.P.C. In furtherance of their common intention they have also caused injuries with knife.

38.In view of the discussion made above, this appeal deserves to be dismissed and is hereby dismissed. Appellant Baliram is reported to be in jail. He shall serve out his sentence. Appellants Bansraj and Rajesh are on bail. Their bail is cancelled. They shall be taken into custody forthwith to serve out their sentence.

39.Office is directed to communicate this order to the court concerned to ensure compliance forthwith and lower court record be also sent back.

Order Date :-31st July, 2015(Raghvendra Kumar, J.) (S.V.S. Rathore, J.)

Virendra