Rajoo Alias Rajesh And Another vs State Of U.P.
2015 Latest Caselaw 2836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 46                                                                                              RESERVED
 
                                                                                                                       AFR
 

 
Case :- CRIMINAL APPEAL No. - 2520 of 2008
 

 
Appellant :- Rajoo Alias Rajesh And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Lav Srivastava,Ashok Kumar Mishra,Dina Nath Joshi,Manoj Gautam,Parmendra Singh,V.P. Srivastava,V.P.Singh
 
Counsel for Respondent :- Govt.Advocate,Dileep Kumar,S.K.Pal,Sushil Kumar Singh
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

( Per Raghvendra Kumar, J.)

1.Under challenge in the appeal is the judgment and order dated 19.2.2008 passed by the Additional District Sessions Judge/Special Judge, Gangsters Act. Jhansi in G.S.T. No. 12 of 2006, under section 302/34 I.P.C and section 3 of U.P. Gangsters Act arising out of case crime no. 1167 of 2005, P.S. Prem Nagar, District Jhansi whereby the accused appellants Rajoo alias Rajesh and Arvind have been convicted for the offence under section 302 I.P.C and sentenced to him imprisonment for life and fine of Rs. 5000/- each with default stipulation of six months additional simple imprisonment and further convicted for the offence under section 3 of U.P. Gangsters Act and sentenced to R.I. for five years with fine of Rs. 5000/- with default stipulation of simple imprisonment for one year.

2.The accused Rajoo alias Rajesh has also been convicted in S.T. No. 138 of 2005 under section 25 of Arms Act arising out of case crime no. 1223 of 2005,P.S. Prem Nagar, District Jhansi and sentenced to R.I for one year with fine of Rs. 1000/- with default stipulation of additional simple imprisonment for one month.

3.The accused appellant, Arvind has also been convicted in S.T. No. 139 of 2005, under section 25 of Arms Act arising out of case crime no. 1224 of 2005, P.S. Prem Nagar, District Jhansi and sentence to R.I for one year with fine of Rs. 1000/- with default stipulation for additional simple imprisonment for one month.

4.G.S.T. No. 12 of 2006 and S.T. NO. 138 of 2005 and S.T. NO. 139 of 2005, all these cases have been disposed of vide a common judgement and order dated 19.2.2008 which is under assail before this Court.

5.Heard learned counsel for the accused appellants and learned A.G.A for the State of U.P.

6.The F.I.R. of this case has been lodged by Asha Ram son of Banshidhar with the police on 3.9.2005 at 5.15 p.m. with respect to the incident that occurred on 3.9.2005 at 3.15 p.m. As per the F.I.R version on 3.9.2005, so many persons of the village were sitting in Vyayamshala of Krishna Mandir because of non supply of the electricity. After restoration of the electricity supply the people left for their places. At about 3.15 p.m the accused Rajoo alias Rajesh and Arvind both sons of Sundar Lal Yadav who had quarrel with the informant long back, on the score of this enmity, both accused persons near the house of one Shankar Lal Yadav on road discharged fire from their illicit country made pistol upon Jagdish son of Chotelal who after sustaining injury fell down. The accused appellants turned back and rushed towards the temple. One Raghuvar Pahalvan was coming from the side of temple challenged the accused appellants. Both accused appellants with the intention to kill discharged shots from their weapons upon Raghuvar Pahalwan who also fell down and died. After hearing the noise of fire, Ashok son of Banshidhar reached to the spot. Then accused Rajoo alias Rajesh and Arvind also discharged shots from their country made weapon. Ashok tried to run towards his house, but the accused persons chased Ashok and then discharged shots. After sustaining the fire arm injury Ashok fell down. The incident was seen by one Veer Singh son of Chote Lal and Chhannu and other village inmates. Thereafter waving their weapons and extending threats the accused persons fled away from the spot. With the act of the accused persons, the entire life of the village was disturbed. The dead body of Rabhubar Pahalwan was lying on the spot. The injured Ashok and Jagdish were taken to the medical hospital by the village people. The F.I.R. was inscribed by one Roshan Lal and thereafter lodged with the police.

7.After registration of the F.I.R, the investigation proceeded in accordance with law The inquest proceedings of all the three deceased namely, Jagdish, Raghuvar Pahalwan and Ashok were drawn. The sample of the blood stained and ordinary soil was obtained from the place where the injured Jagdish, Ashok Kumar and Raghuvar Pahalwan were fell down. Three empty cartridges were taken by the police in their custody. One bullet was recovered near the corpus of the deceased Raghuvar Pahalwan which was also taken by the police in custody and the recovery memo was prepared. On 29.9.2005, the recovery of one country made pistol of 315 bore was made from the possession of each of the accused and the recovery memo was prepared which was proved during the course of trial. The formal documentation was done after completion of the inquest report, for the purpose of autopsy on the corpus of the deceased persons and the dead bodies were sent for the post mortem examination. The weapons recovered and the cartridges were sent for ballistic examination. The report of ballistic expert of Forensic Science Laboratory, Agra is available on record.

8. The post mortem of the deceased Ashok was done on 3.9.2005 and the Doctor has noted the following ante mortem injuries:

1.Gunshot wound of entry over Rt. Chest 3x2cm and 4.0cm medial to Rt. Nipple Margins inverted and blackening & tattooing present. Bullet travel posterior towards Rt. With the exit wound 3.5 x 2cm over the middle Rt. Axilla. Only soft tissue lacerated through the way .

2.Gunshot wound entry 2x1x 1cm of entry over the Rt. forearm lateral about 5 cm below the Rt. cubical line through & through with the blackening and tatooing and the margins inverted. Exit wound 3x2 cm medially over the Rt. forearm7 cm below the Rt. cubical line with the Margins everted and laceration of the soft tissue only.

3. Gunshot wound entry 2x1 cm over the Rt. Inguinal region over the Rt. Anterior supra iiac spine and margins inverted, blackening and tattooing were present. Way travelled posterior and literally 4x3 cm exit wound over the Rt. Buttock just near the RT. Posterior supra iliac. Spine with margins everted and Laceration of the soft tissue only in the way.

4. Lacerated wound 4x3 cm over base of the Lt. Index finger of the Lt. hand bone deep dorsal side.

The cause of death has been assigned by the doctor due to shock and haemorrhage as a result of ante mortem gun shot injuries.

9. The Doctor has performed the medical examination of the body of the deceased Raghuvar Pahalwan on 3.9.2005 at 10.15 p.m. and noted the following ante mortem injuries:

1.Gunshot injury wound of entry over the shoulder and upper area of arm joint 2x1 cm above scattered puncuture wound 7 cm around the entry wound with margins inverted blackening and tattooing present. Wound travelled by the bullet anteriorly to Lt. Chest .2 cms above lateral to the left nipple with margins everted.

2.Gunshot wound of entry 2x3 cm over Lt. Wrist joint lateral at the base of thumb with margins inverted, blackening & tattooing present with wound of exit 4x3 cm medially over Lt. Wrist at the base of little finger of the Lt. hand with margins averted. Fracture in the Lt. head of humerous bone and fracture of wrist joint bone.

3.Lacerated wound 2x1 cm over back muscle deep just below the tip of Rt. Scapula.

The cause of death has been assigned by the doctor due to shock and haemorrhage as a result of ante mortem gun shot injuries.

10.The doctor has conducted the post mortem of the corpus of the deceased Jagdish on 3.9.2005 at 7.45 p.m. and noted the following injuries.:

1.Gunshot wound of entry 2x1 cm through & through with exit wound 4x1 cm over the Supra Scapular region 11.0cm below the Lt. Shoulder. Wound of entry & blackening & tattooing and margins everted with the multiple and punctured wounds scattered in the 27.0cm area around the entry wound All the bones, tissue and soft tissue lacerated 150 ml. dark clotted& free blood present in the Lt. chest cavity.

2.Gunshot wound of entry 4cmsx2cms over the lower abdomen 7.0 cm below the umbilicus at midline surrounded by 15x15 cms area by multiple puncture wound and the margins everted, blackening & tattooing at caller consisting the Laceration of small & large bowels and posterior muscles of back and one bullet recovered from the back under skin at the T10 level and 8.0 cm Lt. From the midline about 300ml dark free and clotted blood present in the cavity

3.Gunshot wound of entry 3cm x 1.cm at T9 level just Lt. To the vertebra body at back and travelled towards anteriorly 4.0 cm below and slightly Lt. at the epigastria region where one bullet recovered under skin margin of entry wound C. Margins inverted, blackening and tattooing present C. 26 cms area surrounded by multiple puncture wound.

The cause of death has been assigned by the doctor due to shock and haemorrhage as a result of ante mortem gun shot injuries.

11.During the course of investigation, the Investigating Officer recorded the statements of the witnesses connected with the crime no. 1167 of 2005 and different Investigating Officer proceeded with the investigation of the case registered under section 25 of the Arms Act. The investigation concluded in the filing of police report in the shape of charge sheet by the respective Investigating Officers.

12.The Gangster Sessions Trial and sessions trial have been disposed of by common judgement by the trial court. Hence, the appeal is accordingly being decided on merits by the common judgement.

13.After complying with the procedure contemplated under Cr.P.C, learned trial court framed the charge against the accused person for the offence under section 302/34 I.P.C. and section 3 (1) of the U.P. Gangsters Act and section 25 of the Arms Act. The accused persons denied the charge and claimed the trial on merits.

14.The accused persons have taken the defence of denial of the prosecution case. They have taken plea of false implication on the ground of enmity.

15.To substantiate the charge, the prosecution has examined P.W.1, Asharam, who has proved the execution of written report Ex. Ka 1, P.W.2, Veer Singh, who is alleged to be eye witnesses of the incident. P.W.3, Ajab Singh, Constable, he has carried the dead body to the mortuary, Medical College, Jhansi for the purpose of post mortem in the sealed condition alongwith connected documents. He is the formal witness. P.W.4 Balveer Singh, constable who accompanied S.I. Milke Dixit to the medical college Jhansi where the doctor has handed over the post mortem report and the bullets recovered from the body of Jagdish. He is the formal witness, P.W.5, Ram Lakhan, Head constable has proved the execution of chik F.I.R. of the offence registered under section 307/302 I.P.C. read with 7 Criminal Law Amendment Act. and the relevant entry of the G.D. He has also proved the execution of chik F.I.R. registered against the accused persons for the recovery of illicit country made weapons and the relevant entry of G.D. He is formal witness. P.W.6, Dr. Anil Kumar, who has conducted the autopsy on the corpus of Jagdish, Ashok and conducted the post mortem examination of the deceased Raghuvar Pahalwan as well. P.W.7, Milkey Dixit has prepared the inquest report of the deceased vicitms and prepared the document for purpose of post mortem examination of the corpus P.W.8, Arvind Kumar Singh,S.I. has conducted the investigation and issued instructions to S.I. Balveer Singh for preparation of inquest report and also issued direction regarding taking the samples of blood stained and ordinary soil and empty cartridges etc. He has proved the document executed by S.I. Balveer Singh and prepared the site plan and P.W.9, Shivakant Upadhyaya, the Investigating Officers of cases registered under section 25 Arms Act and conducted the investigation and proved the documents prepared during course of investigation.

16.It has been submitted on behalf of the defence that;

(I) There is material contradiction in the testimony of the eye witnesses. P.W.1 and 2, Asha Ram and Veer Singh and they are related to the deceased Jagdish and Ashok respectively. They are real brothers. They are highly interested persons. Since they are related and interested witnesses, there testimony can not be relied upon.

(ii) There is no other evidence available on record. One of the independent eye witness has not been examined.

(iii) there was no motive of the accused appellants for commission of alleged offence. The accused persons are innocent persons. They have been falsely implicated in the case.

(iv) The injuries alleged to have been caused to the deceased in the form of lacerated wound does not correspondence to the weapon of assault i.e. country made weapon.

(v) No bullets are alleged to have been recovered from the person of any of the deceased

17.Learned A.G.A. refuting the submissions of the learned counsel for the appellants has submitted that it is a broad day light murder which has been witnessed by the P.W.1 and P.W.2. Their testimony is without material contradiction. There is no legal impediment for placing reliance upon their testimony by the court. The prosecution has successfully proved the guilt against the accused appellant. The learned trial court has rightly recorded the findings of conviction against the accused appellants.

18.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 recorded by the Court below bearing in mind the basic concept of criminal jurisprudence that accused is innocent unless otherwise is established from the material available on record. 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).

19.According to prosecution, it is case of broad day light murder of three persons which took place in quick succession from one place to other in an inhabited place. In this background all the submissions of the either sides would be appreciated in the light of evidence available on record.

20.It has been contended on behalf of the accused appellants that the F.I.R. has neither been bonafidely lodged, nor contains the details nor is prompt. For appreciation of the submission of learned counsel for the appellants, it appears essential to quote or cite the law propounded from time to time .

21.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, has 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, inlcuding 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."

22. In Thulia 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."

23. 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."

24.Hon'ble the Apex Court in the case of Nanhe v. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt FIR eliminates the chances of cooking up of a false story.

25.The F.I.R of the incident has been lodged with the police after lapse of two hours. The distance from the place of occurrence to the police station as mentioned in the F.I.R. is five kms. It was natural on the part of the P.W. 1 and P.W.2 to ensure the treatment of Jagdish and Ashok on priority for which they sought assistance of the village people and sent both injured to the hospital on two seater vehicle. Thereafter written report was got inscribed by one Roshan Lal and lodged with the police station. The F.I.R. in the facts and circumstances is prompt and has been lodged without any delay. The F.I.R is not the encyclopaedia of the entire prosecution case. It need not to contain each and every minute details. The very purpose of lodging the F.I.R. is to put the police machinery into motion. No prescribed format is available on which the informant is required to lodge the F.I.R. If the time, place and manner and weapon if any and by whom the offence is alleged to have been committed is disclosed in the F.I.R. that would be sufficient to facilitate the investigating agency to investigate in the matter fairly, honestly effectively and promptly. The F.I.R. in the instant case has been promptly lodged with the police. It is presumed in the law that prompt F.I.R. contains correct factual narration of the incident. In the present case, the F.I.R. discloses the time, date, place manner of occurrence and by whom the offence has been committed. As such the details disclosed in the F.I.R. were sufficient for the investigating agency to proceed with the investigation so as to work out the crime. Any omission which does not go to the root of the F.I.R, would have no adverse bearing as such on the authenticity of the F.I.R. We are not convinced about the submission made by the learned counsel for the appellants that F.I.R. is not bonafide and delayed one. Minor omission even if presumed would have no significance in the facts and circumstances of the case.

26.So far as the aspect of motive is concerned, it finds mention in the F.I.R that earlier there was quarrel which was resolved amicably. The prosecution has omitted to put question to P.W.1 on this aspect but the defence has brought out the factum of enmity in the cross examination. Even if for argument sake the enmity is presumed and consequently the motive would be established. It is a case of direct evidence. P.W. 1 and P.W.2 who are eye witnesses, have specifically mentioned the role of each accused appellants and have also disclosed the manner in which the offence has been committed as alleged by the prosecution particularly the fire arms have been assigned to the accused appellants from which the assault was made. In the cases of direct evidence the motive does not have vital role. Thus, becomes insignificant.

27. So fas as the aspect of independent eye witness has not been examined is concerned, this factual situation can not be overlooked that three murders are alleged to have taken place by firing made by accused persons in broad day light in an inhabited area. It has been categorically mentioned in the F.I.R. that atmosphere of terror was created in the village due to this incident. The village people were so fear stricken that they confined themselves to their houses. The life and living of the village people was disturbed. In such situation it can not be expected that any of the eye witnesses of the village would have dared to depose before the court because of three murders which had taken place that too because of a petty enmity. This fact situation can not be denied that the peace and tranquillity and social milieu of the village remained affected. So far as non examination of Chhanoo is concerned, it has been conceded by the appellants that he was summoned through intervention of the court on the behalf of the appellants but since he did not turn up, learned trial court was pleased to close the defence evidence and proceeded with the trial in accordance with law. However, it was incumbent upon the appellants to have pressed before the trial court for issuance of coercive process for securing the presence of Chhannoo. In view of aforesaid discussion, the non examination of one of eye witness would have no adverse bearing on prosecution version. Apart from it he has also avoided to come and depose in favour of the appellants.

28.It has been contended on behalf of the appellants that the witness Chhannoo was not present on the spot. The P.W. 1 was recalled on the application of the accused persons (the appellants before us) for the purpose of further cross examination. The questions were put to the P.W.1 who categorically denied that the witness Chhannoo was not present at the spot on the date of incident. Further during the course of cross examination, P.W.1 has denied that on 3.9.2005 Chhannoo was on duty from 8.00 a.m. to 5.00 p.m in the Black Smith Shop at Railway Workshop, Jhansi. P.W.1 has also denied the suggestions that Chhannoo has falsely been nominated as eye witness and has not been produced in the court.

29.It is settled proposition that it is prerogative of the prosecution to examine the witness as much number as it chooses. The prosecution can not be compelled to exhaust the entire list of prosecution witnesses. It is also established in law that while deciding any matter subjudice before it, it is quality of evidence and not quantity of evidence. As such, any argument regarding non-examination of witness Channoo would have been of no avail.

30.Next contention is with respect to P.W. 1 and 2 that being close relatives of the deceased respectively Ashok and Jagdish their evidence can not be acted upon. It has now been established through various pronouncements of the Hon'ble Apex Court that merely on the basis of witnesses being closely related to the victim his testimony can not be discarded on the sole count of relationship. But in such situation the court is under obligation to scrutinise the testimony of such related witnesses critically with utmost care and caution. If the testimony of related witness is found to be natural, bonafide credible and, inspiring confidence, there is no legal impediment in placing the reliance upon such testimony and record conviction on the strength of such evidence. It is also noteworthy that if the close relative is a witness in a case, he shall always have a normal psychology to ensure that the culprits should not go scott free. Nowadays people in general have tendency not to involve themselves in the controversy of the others. It is the family members, relatives or close friends who come to the rescue at the arduous situation.

31.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.

32.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 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."

33.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.

34. 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 caution 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 in the presence of the complainant P.W.1 and P.W.2 . They are most natural witnesses and eye witnesses as well.

35.Keeping in mind above legal position, the testimony of P.W. 1 and 2 is being appreciated as follows:

36.P.W.1 has established identity of the accused appellants in the court. P.W.1 has assigned the country made pistol to both the appellants. He has specifically averred on oath that Jagdish son of Chhote Lal ( deceased) was coming from temple to his house. The accused Raju alias Rajesh and Arvind discharged shots from their country made pistol. P.W. 1 was coming from nearby locality and he has seen the incident . In addition to him the incident was witnessed by Chhannoo and Veer Singh. They challenged the accused persons then they raised weapons towards them and asked them to go. Jagdish was found lying in pool of blood. Raghuvar Pahalwan another deceased challenged the accused persons from the temple. In the meantime, the witnesses hid themselves near the shop situated adjacent to the house of Shankarlal and saw that accused appellant Raju alias Rajesh fired upon Raghuvar Pahalwan (deceased) who fell down there in pool of blood. The witnesses alleged themselves to be at the distance of 10-12 paces. He further stated that after hearing the noise of fire, Ashok rushed to the deceased Raghuvar by challenging the accused persons. The accused persons also fired shot upon Ashok who tried to run towards his house. The accused person chased him and fired shot at him. Ashok fell down there in pool of blood. Thereafter the accused appellants fled away waving their weapon. Raghuvar pahalwan died on the spot. Ashok and Jagdish deceased were sent to the medical college for treatment alongwith village people. The witness has proved the execution of written report. During the course of cross examination, the witness has reiterated about the presence of Veer Singh and Chhannoo on the place of occurrence and further reiterated the firing of shots by the accused persons to Jagdish near the house of Shankar Lal in the cross examination. He has even disclosed the distance 25 paces from the house of one Shankar Lal from where they viewed the incident of firing upon Jagdish. The witness has categorically denied the suggestions of not seeing the incident of firing upon Jagdish. He has even stated in his cross examination that the accused fired upon the deceased from a distance of 3 to 4 paces. He further clarified that each accused fired one shot upon Jagdish. He further reiterated the factum of seeing firing upon Raghuvar Pahalwal from the corner house of Sher Singh where a shop situates. The deceased Raghuvar Pahalwan was assaulted by the accused persons by fire arm from a distance of 2-3 paces and the appellants have discharged one fire each. P.W.1 has further stated that Ashok rushed to the deceased Raghuvar Pahalwan within one and half minutes span. The accused Arvind discharged fire shot upon Ashok where bullet hit Ashok. When Ashok tried to run away, both accused persons discharged shots upon him. Both accused persons fired upon Ashok from back . After sustaining bullet injury, he fell down. He further stated that the empty cartridges were recovered from all the three places of assault.

37.P.W.2, Veer Singh has supported the prosecution version and has stated that the accused Arvind and Raju alias Rajesh,both discharged shots upon Jagdish when he reached near the house of Shankar Lal. Both accused appellants were armed with country made weapon. On challenge, the accused persons raised their weapon towards them and asked them to go. The deceased Jagdish was lying in the pool of blood on the road. While Raghuvar Pahalwal was at the distance of 10 to 12 paces from Vyayamshala (place of exercise) when he challenged them, both accused persons fired shots from their weapons upon Raghuvar Pahalwan. After hearing noise of fire, Ashok came and challenged the accused persons. Accused Arvind firstly discharged shot as Ashok rushed towards his house. The accused Arvind and Rajoo alias Rajesh chased him and discharged shot from their weapon from back. He fell down near his house in pool of blood. Thereafter the accused persons extending threat fled away. The deceased Jagdish and Ashok, in injured conditions, were sent to medical hospital in two seater where they were declared dead.

38.In his cross examination, the witness has reaffirmed the version of the examination in chief and reiterated the role of firing by the appellants on Jagdish, Raghuvar Pahalwan and Ashok in the manner as alleged in examination in chief. He further explained that since the fire was shot upon Raghuvar Pahalwan so he did not get opportunity to see Jagdish and to rescue him. He has denied the suggestion that he has not seen the incident. He has categorically stated that his statement was recorded on 5.9.2005 by the Investigating Officer.

39.P.W.1 has also mentioned about prompt recording the statement by the Investigating Officer under section 161 Cr.P.C. P.W.1 and 2 have been put to lengthy cross examination. P.W.1 and P.W.2 have respectively reaffirmed their version of examination in chief by way of their cross examination. Nothing could be elicited in the cross examination of P.W.1 and P.W.2 which creates doubt about their presence on the spot. Nothing could be extracted by the cross examination from the P.W.1 and P.W.2 whereby it could be said that there is discrepancy in their examination in chief and the cross examination about the manner, time, place, date of occurrence by whom the alleged offence has been committed and the weapon used. There is consistency in the examination in chief and cross-examination of P.W.1 and P.W.2. Nothing has come in their evidence to show that they were not present or have not seen the incident as argued on behalf of the appellants.

40.There is no material contradiction in the testimony of P.W. 1 and P.W.2 about the factum of assault by the appellants. At the cost of repetition, we would like to say that P.W. 1 and P.W.2 have categorically stated that firstly Jagdish was assaulted and thereafter Raghuvar Pahalwan was assaulted and lastly Ashok was assaulted. There is uniformity in their version, manner, the weapon used and the the place of occurrence as alleged by the P.W. 1 and P.W. 2. More so, the place from where the incident was witnessed by the P.W. 1 and P.W.2 also remain the same in their testimony. There has been no variance of place of witnessing the incident of assault of Jagdish, Raghvar Pahalwan and Ashok and more particularly in the testimony of P.W. 1 and P.W.2 and have supported the story set up in the F.I.R. and the serratum in which Jagdish, Raghuvar and Ashok were assaulted by the accused appellants.

41.On the basis of discussions made above, we are of the opinion that there is consistency and coherence in the examination in chief and cross examination of P.W.1. As such the statements on oath of the P.W.1 and 2 in their examination in chief and cross examination are consistent and coherent with each other. There is quite semblance, inter se in the testimony of P.W. 1 and P.W.2. There is no lack of coherence in their testimony. In our opinion, the P.W. 1 and P.W.2 are the eye witnesses of the incident and their testimony, in our considered view is natural, bonafide, credible and inspire confidence as a whole and both these witnesses are wholly reliable.

42.Certain portion of the statement of P.W. 1 was to put to the witness in his cross examination that after restoration of the electricity supply the people went to their houses. The witness has given reply that three murders took place in their presence. Therefore, I can not tell whether I had stated this fact to the Investigating Officer or nor. In reply to the question that his name as eye witness did not find mention in the F.I.R. He has stated that he is not able to disclose any reason. He has stated in the court that while going from Mandir to his house Jagidish was assaulted.

43.This fact, if the Investigating Officer has written otherwise that while coming to the house from Mandir, how it has been written by the Investigating Officer in his statement, he expressed his inability to reply. This fact situation can not be denied that three murders were committed in the presence of P.W.1 and 2. How it can be assumed that they (P.W.1 and P.W.2) remained unaffected and their psychology was not at all disturbed. The psychology, peace and tranquillity of mind would have not been disturbed. Such variance from the statement would not have devastating effect. Even if this contradiction be taken to be true for the argument sake, the fact situation of assault by the accused persons to the victims of assault would not be changed and would not have any adverse impact on their testimony.

44.It has been contended on behalf of the appellants that the response of P.W.1 and P.W.2 have been very cool even after viewing such a heinous incident and seeing the victims in precarious condition. It has come in the evidence that when the witnesses challenged the accused appellants,they raised their fire arms towards them and asked them to go and thereafter three murders were committed one after the other. This explanation has come in the testimony of P.W.2 and more so, the P.W.1 managed to send Jagdish and Ashok to medical hospital with the help of village person through two seater vehicle and as such lodged the FI.R., of the incident. Nothing unnatural has been done by the P.W. 1 and P.W 2 in the facts and circumstances of the case.

45.Even presuming for argument sake that there are certain variance in the statements of P.W. 1 and P.W.2 as compared to the examination in chief from the statement recorded u/s 161 Cr.P..C. Learned counsel for the appellants has failed to convince us that the contradictions, if any, have any impact on the veracity of the witness and the prosecution case. The slight variance or minor contradiction in the testimony of the witnesses as compared to their examination in chief and inter se statements of the witnesses of fact, if there is complete uniformity, consistence, coherence, it would be said that witnesses are tutored, if there are minor omission, variance or contradictions, it goes to establish that witnesses have deposed in most natural manner and as such they are natural witnesses.

46.It has been contended on behalf of the appellants that the stand taken by the eye witnesses during the course of investigation vary from their oral testimony in the Court.

47.It is settled proposition of law that if any variation of contradiction is brought to the notice of the court, the court is required to assess the nature of contradiction in the light of fact and circumstances and evidence present before it whether it comes in the category of minor contradiction or major contradiction, whether the contradiction goes to the root of the prosecution case. If there are no contradictions, there is complete uniformity, consistency and coherence in the examination in chief and the cross examination of the witness or inter-se the testimony of the witnesses, the natural inference would be drawn that the witnesses are tutored. If there are contradictions which indicate that the witnesses are natural one and they have deposed in natural way, this fact situation can not be ignored that when any incident is seen by more than one person and if they are asked reproduced the incident both witnesses would reproduce the incident in different way and the variations are bound to appear. The duty of the court is to see the gravity of the variation, if variation do not affect the credibility of the testimony and do not demolish the prosecution case, it shall be treated it to be minor contradiction.

48.It has been submitted on behalf of the appellants that there is contradiction with respect to the direction of the victim and the directions from which the assault of fire arm was made.

49.If for argument sake, it is conceded that there are variation with respect to the directions and the angle of entry of bullet or the point of attack on the person of deceased this fact can not be overlooked that three murders have taken place successively within the short span of time at different places. P.W.1 and P.W.2 are the witnesses of the incident and brothers. P.W. 1 and P.W.2 both are affected persons of the incident. As such, their psychological and traumatic feeling can not be ignored. In such type of incident, we can not expect that any witness would have noticed each minute details of the incident including the directions of the accused appellants and angle from which the shots were fired etc. Such omissions are natural and would not affect the authenticity of their testimony and authenticity of the prosecution version particularly in a case of this nature where accused persons have committed three murders in quick succession that too after moving from one place to the other.

50.The testimony of P.W.1 and P.W.2 finds full corroboration from the medical evidence. It has categorically been stated by the witnesses that the deceased persons were assaulted by the fire arms and the cause of death has also been assigned as shock and haemorrhage due to ante mortem fire arm injuries.

51.The recovered country made pistol and recovered cartridges were sent for examination to Forensic Science Laboratory, Agra. The Additional Director, Forensic Science Laboratory, Agra has recorded the following conclusion:

¼1½ fookfnr dkjrwl fp- EC-1, mi;ZqDr] 315 cksj ns'kh fiLrkSy fp- [email protected] ds }kjk pyk;k x;k gSaA

¼2½ fookfnr dkjrwl fp- EC-2, o EC-3, mi;ZqDr] 315 cksj ns'kh fiLrkSy fp- [email protected] ds }kjk pyk;s x;s gSaA

52.This report fortifies the prosecution version of use of fire arms for commission of committing murder of Jagdish, Raghuvar Pahalwan and Ashok by the accused appellants. The manner and the weapon used in the commission of crime as stated by P.W. 1 and P.W.2 finds strength and support from the above report.

53.Learned trial court has recorded the finding of conviction for the offence under section 25 Arms Act and under section 3 (1) of U.P. Gangsters Act.

54.Learned trial court has rightly discussed the reasons for arriving at the finding of guilt against the accused appellants. It would not be appropriate to reiterate the findings recorded by the trial court for the offence under section 3 (1) of the U.P.Gangsters Act. The trial court has rightly recorded the finding of conviction for the said offence.

55.The trial court has also recorded the finding of conviction against the appellant for the offence under section 25 Arms Act. P.W.8 S.I. Arvind Kumar Singh has proved the recovery of country made pistol and cartridges from the possession of the accused appellants and has stated that the copy of recovery memo was provided to the accused persons.

56. Learned trial court has rightly relied upon the testimony of the police witness. It is settled law that the testimony of police witness can not be discarded only on the ground that he is a member of police force. The discussions of finding of conviction recorded by the learned trial court would amount to repetition of reasons. The discussions on the finding the trial court for the offence under section 25 Arms Act would be simply repetition of things. No other points have been argued by either sides nor pressed.

57.In view of the discussions made above, we are of the considered view that the finding of conviction recorded by the learned trial court are well substantiated from the material available on record. The trial court has not committed any error in appreciation of the evidence. The findings are based on correct appreciation of evidence. No interference in the impugned judgement is warranted.

58.The appeal is bereft of merit and is accordingly dismissed.

59.Let a copy of this judgment and order alongwith the record of lower court be transmitted to the learned trial court forthwith for compliance. The accused appellants are reported to be in jail. They shall serve out the sentence awarded by the trial court.

 
Order dated: 1st Oct. 2015
 
R 
 
                        ( Raghvendra Kumar)          ( S.V.S. Rathore)