Narvedeshwar vs State
2016 Latest Caselaw 4641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No.40
 
Jail Appeal No.  5202 of  2005
 

 

 

 
Narvedeshwar                                     ................. Appellant
 

 

 
Vs.
 

 

 
State of U.P.                                        ............Respondents
 

 

 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ravindra Nath Kakkar,J.

(Delivered by Hon'ble Bala Krisnha Narayana,J.)

1. Heard Sri Danish Faridi, amicus curie for the appellant and Sri J.K.Upadhyay, learned AGA for the State.

2. Challenge in this appeal by the appellant Narvedeshwar is to his conviction and sentence order dated 29.10.2003 recorded by Additional Sessions Judge, Fast Track Court, Court No.2, Ghazipur in Sessions Trial No. 166 of 2001( State Vs. Narvedeshwar and another) under Sections 302, 307, 326 and 120B IPC arising out of case crime no. 128 of 2001, Sessions Trial No. 167 of 2001 ( State Vs. Narvedeshwar) under Section 3/25 Arms Act arising out of case crime no. 150 of 2001 and Sessions Trial No. 165 of 2001 (State Vs. Narvedeshwar) under Section 4/25 Arms Act arising out of case crime no. 151 of 2001. By the impugned judgment learned trial judge has convicted the appellant and sentenced him to life imprisonment and fine of Rs. 5000/-, in case of default in the payment of fine three years additional rigorous imprisonment under Section 302 IPC, seven years imprisonment and a fine of Rs. 2000/- and in default of payment of fine three years additional rigorous imprisonemnt under Section 307 IPC, seven years rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine additional rigorous imprisonment of two years under Section 326 IPC, two years rigorous imprisonment and a fine of Rs. 1000/- and in case of default of payment of fine six months additional rigorous imprisonment under Section 3/25 of the Arms Act and one year rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine additional rigorous imprisonment of three months under Section 3/25 Arms Act. Learned additional Sessions Judge has further directed that all the sentences shall run concurrently.

3. Prosecution story was unfolded through written complaint Ex. Ka-1 scribed by Ram Dular at informant's dictation and lodged at P.S. Suhwal, District Ghazipur.

4. From the perusal of the aforesaid it emerges that Mohan Ram (deceased) son of the informant Ram Adhar son of Banarasi, resident of Rewatipur Patti Bheekhamdev Rai (Domderwa), P.S. Suhwal, District Ghazipur, Jagjeevan, son of Doodhnath Ram and Shiv Kumar son of Ram Gahan Ram had gone towards the graveyard at about 7.30 p.m. on 11.04.2001 for easing themselves. As soon as they reached there, Narvedeshwar Ram, Chaturi Ram, Babban Ram and Bagedu Ram son of Shiv Nath Ram all residents of the same village also reached the graveyard and Narvedeshwar ordered Jagjeevan to clear out of his way as he intended to finish Mohan Ram. The other culprits exhorted to eliminate Mohan on which Narvedeshwar who was armed with a countrymade pistol (Katta) fired with his firearm with the intention of causing death which hit Jagjeevan Ram and Shiv Kumar causing firearm injuries to them. Thereafter Narvedeshwar took out a knife and stabbed both Mohan and Shiv Kumar with it. Mohan was very seriously injured. On hearing the hue and cry raised by the victims, the informant, Doodhnath son of Deepchand and Sri Niwas son of Shyamlal rushed to the place of occurrence and interceded but the assailants made good their escape. The informant took his injured son to Sadar Hospital, Ghazipur for treatment where the doctor declared him dead. Old enmity was cited as the motive for committing the crime in question and hand of one Dablu Ram son of Bagedu Ram in the commission for the crime was also alleged. On the basis of the aforesaid written complaint case crime no. 6444301-128 of 2001 under Sections 302, 307 and 120B IPC was registered against the appellant, Chaturi Ram, Babban Ram, Bagedu Ram and Dablu Ram.

5. Constable No. 424 Nagendra Singh PW-13 prepared the Chek FIR Ex. Ka-19 and G.D. Entry Ex. Ka-20 on the same date at 21.35 hours in the presence of the Investigating Officer, Balram Mishra, SHO, Suhwal (PW-10) who commenced the investigation on 12.04.2001 with the interrogation of the complainant Ram Aadhar Ram, Doodhnath (eye witness), Sri Niwas scribe of the FIR and Harikesh Ram and after recording their statements reached the place of occurrence and at the instance of the complainant and other witnesses inspected the same and prepared the site plan of the place of incident (Ex. Ka-6). After recording the statements of the other witnesses present on the spot he proceeded to arrest the accused on 12.04.2001. He also recorded the statements of Jagjeevan, Shiv Kumar, Ram Gahan Ram and Smt. Sugia Devi, wife of the complainant in the police station. On the same day he also recorded the statements of Survan, Ram Dular Ram, Constable Mohrrir Nageshwar Singh PW-13, the scribe of the chik FIR. The post mortem of the dead body of the deceased Mohan Ram was conducted on 12.04.2001 at 5.15 p.m. and the post mortem report is on the record of the case as Ex. Ka-3. The injuries of injured Shiv Kumar and Jagjeevan were examined by the Dr. D.S.Chauhan, PW-14 who prepared their injuries reports which are on record as Ex. Ka-22 and Ex. Ka-24. The X-ray report of injured Shiv Kumar is on record as Ex. Ka-23 and Ka 4a while the X-ray report of the injured Jagjeevan has been brought on record as Ex. Ka-5a.

6. Statements of Bal Kunwar and Ram Ajor witnesses of recovery of blood stained and plain soil from the place of occurrence, on 23.04.2001, S.I. V.V. Singh who had prepared the inquest report, Constable Vijay Shanker Yadav and Dr. P.K. Srivastava Medical Officer were also recorded. After obtaining 24 hours remand of appellant Narvedeshwar from C.J.M., Ghazipur on 28.04.2001, countrymade pistol, knife and fired empty cartridge were recovered on the same date by the Investigating Officer from shrubs of Sarpat in the northern corner of the graveyard on the alleged pointing out of appellant Narvedeshwar in the presence of Constable Nabi Ahmad, Radhey Shyam Kushwaha, Bhajan Ram, Ram Gahan and Dev Nath. Recovery memo and site plan of the place of recovery were prepared on the spot and which are on the record of the case as Ex. Ka-7 and Ex. Ka-8. On the basis of the aforesaid recovery memo case crime no. 150 of 2001, under Sections 25 Arms Act and case crime no. 151 of 2001, under Section 4/25 Arms Act were registered against the appellant at P.S. Suhwal, District Ghazipur. The blood stained and plain soil recovered from the place of incident and which were packed and sealed in separate packet were sent to the Vidhi Vigyan Prayogshala, Lucknow.

7. After completion of investigation charge sheet Ex. Ka-9 was submitted by the Investigating Officer against the appellant Narvedeshwar and co-accused Chaturi Ram under Sections 302, 307, 326 and 120B IPC in case crime no. 128 of 2001. Similarly after completing the investigation charge sheets were submitted against the appellant Narvedeshwar in case crime no. 150 of 2001 and 151 of 2001 also Ex. Ka-16 and Ex. Ka-18 respectively.

8. Since the offences enumerated in case crime no. 128 of 2001 were triable by the Court of Sessions, the same was committed for trial of the accused to the Sessions Court by C.J.M., Ghazipur by his commital order dated 02.08.2001 and registered as S.T. No. 166 of 2001.

9. The two other cases registered against the appellant, namely, case crime no. 150 of 2001, under Sections 3/25 Arms Act and case crime no. 151 of 2001 under Section 4/25 of the Arms Act which also arose from the same incident were also committed for trial of the accused to the Court of Sessions by order dated 02.08.2001 passed by the C.J.M., Ghazipur. Since all the three cases were related to the same crime, the learned Sessions Judge, passed an order on 15.09.2001 in S.T. No. 166 of 2001 for deciding all the aforaesaid three sessions trials together and S.T. No. 166 of 2001 was directed to be treated as leading case. After framing of charge, accused pleaded not guilty and claimed trial.

10. The prosecution in order to prove its case examined as many as 15 witnesses, complainant Ram Aadhar, PW-1, Sugia Devi, wife of complainant PW- 2, Shiv Kumar, (injured) PW- 3, Jagjeevan Ram, (injured), PW- 4, Sri Niwas, PW- 5, Harikesh PW- 6, Dr. V.K.Singh, PW- 7, Nabi Ahmad PW-8, Dr. Anil Kumar PW-9, Balram Mishra PW-10, Nanku Prasad PW-11, Sub-Constable Subash Prasad Sonkar PW-12, Nagendra Prasad, PW-13, Dr. D.S. Chauhan, PW-14 and Virendra Pratap Srivastava PW-15.

11. Both the accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged that they were falsely implicated in the present case because of their enmity with the witnesses. The accused did not examine any witness in defense.

12. It is submitted by the learned counsel for the appellant that the prosecution having miserably failed to prove its case against the appellant beyond reasonable doubt and the trial judge having acquitted co-accused Chaturi Ram although the evidence against both the accused is same, the appellant's conviction cannot be sustained.

13. Advancing his submissions further learned counsel for the appellant argued that according to the prosecution case itself as spelt out in the FIR and in the depositions witnesses of facts examined during the trial it emerges that the occurrence had allegedly taken place between 7.00 p.m.-7.30 p.m. on 11.04.2001 in a graveyard existing in the north of village Rewatipur of which the deceased was a resident, when he along with his cousin brothers Shiv Kumar and Jagjeevan had gone there to ease himself and before the deceased and his companions could ease themselves, the appellant Narvedeshwar alongwith other co-accused arrived at the place of occurrence and appellant Narvedeshwar who was armed with a countrymade pistol ordered Jagjeevan and Shiv Kumar to clear out of his way as he intended to commit the murder of Mohan Ram and on the exhortation of other co-accused he fired with his firearm with the intention of causing death but his shot hit both Jagjeevan and Shiv Kumar causing firearm injuries in their right palms but before he took out a knife and stabbed Mohan Ram repeatedly inflicting multiple stab wounds on him, as a result of which he fell on the ground both PW-3 and PW-4 had run away from the place of occurrence to their village and on hearing the shrieks of the victims, the informant Ram Adhar, Doodhnath, father of the injured, Shiv Kumar and Sri Niwas reached the place of occurrence who claim to have seen the appellant stabbing the deceased with knife tried to intervene whereupon the appellant and the other assailants left the place of occurrence. Although under the circumstnces of the case and considering the time taken by them in reaching the place of incident from their village it was not possible for them to have witnessed the stabbing of the deceased by the appellant. Since neither PW-3 nor PW-4 have deposed that they had seen the appellant stabbing the deceased, it can safely be inferred that no one had seen the occurrence and all the eye witnesses are lying. The prosecution has further failed to furnish any explanation for the inordinate and explained delay of more than 15 hours in commencing the investigation, and holding inquest specially in view of the claim of the prosecution that the FIR of the occurrence was registered on 11.04.2001 at P.S. Suhwal at 21.35 hours in the presence of the Investigating Officer, Balram Mishra, PW-10 who has stated on page 1 of his statement recorded before the trial court that FIR was registered in his presence on 11.04.2001 and after obtaining the copy of chek FIR, he commenced investigation on 12.04.2001, which is a strong indication of the fact that the FIR is ante time and It appears that some unknown persons had committed the murder of Mohan Ram in the night of 11/12.04.2001 and after his dead body was recovered in the morning either by the informant or by the police, the informant sprung into action and taking it as an opportunity to settle his score with the appellant and his other family members for the appellant having eloped with Shiv Kumari daughter of his brother in law (Saddhu) and solemnized marriage with her agianst the wishes of the informant and the girl's parents, falsely implicated the appellant and his brothers in the present case in consultation with the police. He also invited our attention to several irregularities committed by the Investigating Officer during investigation and omissions in the inquest report.

14. He further submitted that out of the six witnesses of fact examined on behalf of the prosecution, PW-1 Ram Adhar informant, PW-2 Smt. Sugia Devi, wife of Ram Adhar, PW-3 Shiv Kumar and PW-4 Jagjeevan are all interested and partisan witnesses being closely related to each other and the deceased and their testimonies are wholly unreliable and the evidence of PW-3 and 4 further appears to be tutored and their injuries fabricated for the reason that both of them could not have received injuries on the palms of their right hands by a single shot allegedly fired by the appellant and also on account of delay of about 20 hours in examination of their injuries. The date of their medical examination mentioned in their injury report has been altered from 14 to 12 without being initialled by any doctor. The presence of PW-5 Sri Niwas and PW-6 Harikesh the two other eye witnesses on the crime seen at the time of occurrence is also highly doubtful. He also submitted that it was not possible for the so called eye witnesses to have seen and identified the assailants as it has come in the evidence of PW-3 Shiv Kumar on record that at the time of incident it was so dark that it was not possible for him as well as the deceased and Jagjeevan who were sitting at a distance of two or three hands to see each other, in the absence of their being any proof of any source of light on the spot.

15. He next submitted that as far as the recovery of crime weapons and the used empty cartridge from a bush near the place of occurrence on the alleged pointing out of the appellant is concerned the same has been fabricated by the police and further the prosecution has totally failed to connect the aforesaid weapons with the commission of the crime in question by leading any link evidence. He lastly submitted that in view of the above, the appellant's conviction and the sentences awarded to him cannot be sustained and the impugned judgment and order is liable to be set aside.

16. Per contra Sri J.K.Upadhyay, learned AGA very streneously submitted that the charges framed against the appellant stand fully proved from the evidence on record and the appellant's conviction is not liable to be set aside only on account of there being some delay in commencing the investigation. The prosecution has examined as many as six eye witnesses including injured witnesses PW-3 and PW-4 who have fully supported the prosecution case as narrated in the FIR which stands further corroborated from the post mortem report of the deceased and the injury reports of the injured witnesses PW-3 and PW-4. He further submitted that the appellant had a very strong motive to commit the murder of Mohan Ram as is evident from the evidence on record and the facts and circumstances of the case. The impugned judgement and order which are based upon cogent evidence and supported by relevant consideration are not liable to be set aside.

17. We have considered the arguments raised by both the sides and have analysed and examined the entire trial court record including the oral and documentary evidence.

18. The only question which arises for consideraion is whether the prosecution has been able to prove its case against the appellant beyond reasonable doubt. Before we undertake and analyze the rival submissions, glimpses of the testimonies of the fact witnesses indicate that all the six of them, informant Ram Adhar PW-1, Sugia Devi, wife of the informant, PW-2, Shiv Kumar and Jagjeevan PW-3 and PW-4 both the injured witnesses, Sri Niwas PW-5 and Harikesh PW-6 have corroborated the prosecution case as spelt out in the FIR Ex. Ka-1 in extenso with inconsistencies, contradictions and improvements in their evidence which have been pointed out by and to which, learned counsel for the appellant has invited our attention. Besides PW-5 Sri Niwas has stated in his examination-in-chief that he had identified the accused in the light of the torch which he always carries with him. We now proceed to examine and evaluate the testimonies of the fact witnesses examined on behalf of the prosecution during the trial in the light of the inconsistencie, contradictions and improvements in their evidence highlighted by the learned counsel for the appellant for ascertaining whether the inconsistencies, contradictions and improvements in the evidence of the fact witnesses are so material that they go to the core of the prosecution case and render it unbelievable, unworthy and unreliable.

19. PW-1 informant in his statement made before the trial court has apart from reiterating the facts spelt out by him in the FIR has stated that the name of his wife is Sugia Devi and name of his brother is Ram Gahan. Shiv Kumar is the son of Ram Gahan. The name of his wife's sister is Chandrawati. Shiv Kumari is the daughter of Chandrawati. The name of his brother in law is Sarwan. He had been living separately from his brothers since before the incident. On the date of the incident his son Mohan along with Jagjeevan son of Doodhnath and Shiv Kumar son of Ram Gahan had gone to ease himself in the graveyard at about 6.00 - 7.00 p.m. on 11.04.2001. After some time he heard sound of gun shot coming from the side of the graveyard as well as the shrieks of his nephew on which he, Sri Niwas and Doodhnath rushed to the place of occurrence and saw Narvedeshwar and other co-accused beating his son. Narvdeshwar was armed with a countrymade pistol and a knife and he was stabbing his son Mohan Ram with his knife with the intention of causing his death. He also saw that his nephew Shiv Kumar had lost one of his fingers of his right hand. On seeing the first informant and the other witnesses the culprits ran away from the place of incident. Upon noticing the serious condition of his son he took him to Govt. Hospital, Ghazipur on the same night where the doctor declared him dead. The written complaint of the incident Ex. Ka-1 was scribed by a resident of village Tthathani on his dictation and lodged at P.S. Suhwal on the same night. He identified and proved his signatures on the written report which was marked as Ex Ka-1. He further stated that in his evidence that after the incident he had gone to the hospital from the police station and the Investigating Officer had arrived at the place of incident on the next date. He also stated that he did not remember the name of the person who has scribed the FIR.

20. PW-2 Sugia Devi who is the wife of first informant and a blind lady has stated those facts in her evidence which she had heard from the others and her evidence is not of much significance.

21. PW-3 Shiv Kumar, injured witness has supported the prosecution case in his examination in chief. Similarly PW-4 has also supported the prosecution case in his examination in chief.

22. PW-5 Sri Niwas has more or less reiterated the same facts in his examination in chief which were stated by PW-3.

23. Similarly PW-6 Harikesh also reiterated the facts stated in the FIR. He further stated that the deceased was taken from the place of incident to the bus stop of Rewatipur on a cot from where he was taken in a Jeep to the Sadar hospital, Ghazipur, accompanied by Sri Niwas, Doodhnath and Ram Adhar. They had reached the hospital at about 9 p.m., Ram Adhar had gone to the hospital while others had returned back to their village. Ram Adhar alone had gone to the police station.

24. PW-7, Dr. V.K. Srivastava, Medical Officer, Sadar Hospital, Ghazipur, who had conducted the post mortem on the dead body of the deceased Mohan was examined as PW-7. The post mortem report of the deceased indicates following injuries:-

ckg~; ijh{k.k& e`rd nqcyk iryk dn dkWBh dk Fkk] 'kjhj ls vdMu lekIr gks pqdh Fkh] vkW[k o eaqg vk/kk [kqyk gqvk FkkA

e`R;q iwoZ pksVas&¼1½ iapMZ bUlkbTM ?kko ftldh yEckbZ 4 lseh x 2 lseh x Nkrh dh xgjkbZ vUnj rd tks nkfgus Nkrh ij LVuZe gM~Mh ds 3 lseh ckgj dh vksj o nkfgus Dysfody gM~Mh ls 7 lseh uhpsA

¼2½ bulkbZTM ?kko 4 lseh x 2 lseh x gM~Mh ds xgjkbZ rd nkfgus da/ks ds vxz Hkkx ijA

¼3½ bulkbZTM ?kko Ms<+ lseh x ,d lseh x ekal dh xgjkbZ rd nkfgus Nkrh ij nkfgus fuiqy ls 10 lseh ckgj dh vksjA

¼4½ bUlkbZTM ?kko Ms<+ lseh x ,d lseh x ekal is'kh dh xgjkbZ rd ihB ds nkfgus Hkkx ij 6 lseh pksV ua0 3 ds ckgj dh vksjA

¼5½ bUlkbZTM ?kko nks lseh x ,d lseh x ekal is'kh dh xgjkbZ rd isV ij ukHkh ls 6 lseh Åij o ckgj dh rjQ A

¼6½ bUlkbZTM ?kko 2 lseh x 1 lseh x gM~Mh dh xgjkbZ rd ihB ds nkfgus Hkkx ds LdSiyj jhtu ijA

¼7½ bUlkbZTM ?kko 2 lseh x 1 lseh x gM~Mh dh xgjkbZ rd ihB ds nkfgus Hkkx ijA LdSIkyj jhtu ij pksV ua 6 ls 2 lseh uhpsA

¼8½ bUlkbZTM ?kko 2 lseh x 1 lseh x gM~Mh dh xgjkbZ rd ihB ds nkfgus Hkkx ijA LdSIkyj jhtu ij pksV ua 6 ls 2 lseh vUnj dh rjQA

vkUrfjd ijh{k.k& flj] xnZu o czsu esa dksbZ pksV ugha ik;h x;hA nkfguk Iywjk QVk gqvk o ckW;k lkekU;A nkfguk QsQM+k QVk FkkA nkfgus Nkrh ds dSfofV esa yxHkx 7-50 ,e0 ,y0 [kwu ekStwn FkkA ckW;k QsQM+k lkekU; FkkA g`n; nkfguk Hkjk gqvk] cka;k [kkyh FkkA nkar [email protected] Fkk] vkek'k; Hkjk gqvk Fkk ftlesa v/kipk Hkkstu ekStwn FkkA NksVh vkar esa xSl o rjy inkFkZ ekStwn FkkA cM+h vkar eas ey inkFkZ o xSl ekStwn FkkA ;d`r lkekU; ] otu 800 xzke] fiRrk'k; [kkyh FkkA eq=k'k; [kkyh FkkA nksuksa xqnsZ dk otu 160 xzke FkkA

25. The cause of death opined by the doctor was haemorrhagic shock as a result of antemortem injuries. The time of the death was estimated to be about one day before the date of post mortem.Thus the time and cause of death stands fully corroborated from the medical evidence.

26. PW-7 deposed that the deceased had died due to ante mortem injuries as a result of injury no.1. His injuries could have been sustained on 11.04.2001 at about 2.30 p.m. and could have been caused by knife. He proved the post mortem report as Ex. Ka 3. No suggestion was put by the defense to him that the ante mortem injureis found on the cadevar could not have been caused by one person or a single weapon considering the large number of ante mortem injures found on the dead body of the deceased and their varying dimensions.

27. PW-8 Nabi Ahmad proved the recovery memos of recovery of countrymade pistol and blood stained knife, blood stained and plain soil Ex. Ka-26 and Ex. Ka-27. He also proved material Ex. Ka-4 and Ex. Ka-5, weapons allegedly used in committing the murder.

28. PW-9 Anil Kumar, radiologist proved the X-ray reports of the injured witnesses PW-3 and PW-4, Ex. Ka-4a and Ex Ka-5.

29. PW-10 Balram Mishra, SHO, Suhwal, the Investigating Officer of the case proved the site plann of the place of occurrence as Ex. Ka-7.

30. PW-11, Constable 641 Nanku Prasad proved the FIRs of case crime no. 150 and 151 of 2001 under Sections 3/25 and 4/25 Arms Act, Ex.Ka-13 and Ex.Ka-14.

31. PW-12 Subhash Prasad Sonkar, Officer in charge police out post Rewatipur, P.S. Suhwal, District Ghazipur proved the charge sheets filed by the Investigating Officer of this case in case crime nos. 150 and 151 of 2001, Ex.Ka-16 and Ex.Ka-18 and the letter dated 22.06.2001 issued by the District Magistrate, Ghazipur, Ex. Ka-7 granting sanction for prosecution of the appellant for the offences under the Arms Act.

32. PW-13 Nagendra Singh proved the chek FIR Ex. Ka- 19 and the G.D. Entry made by him at sl. no. 49 at 21.35 hours on 11.04.2001.

33. PW-14 Dr.D.S.Chauhan proved the injury report dated 12.04.2001 of PW-3 Shiv Kumar and reference letter by which he had advised X-ray of the injuries of PW-3 Shiv Kumar, Ex. Ka-24, the injury report of PW-4 Jagjeevan dated 12.04.2001 and reference letter advising X-ray of the injuries of PW-4 Jagjeewan Ex. Ka-25. In his opinion, the injuries received by PW-3 and PW-4 could have been caused by a firearm including katta and the duration of injuries was estimated to be around 36 hours, he also stated that the injuries may have been caused on 11.04.2001 at about 7.30 p.m.

34. Strangely the defense counsel did not put any suggestion to PW-14 with regard to the uninitialled alterations made in the injury reports of PW-3 and PW-4 Ex. Ka-22 and Ex. Ka-24 with regard to the date on which PW- 3 and PW-4 were examined and the date on which the injury reports were prepared, from 14 to 12 and the injury reports Ex. Ka-22 and Ex. Ka-4 cannot be discarded on the ground urged by the appellant's counsel in view of the oral evidence of injured witness PW-3 and PW-4.

35. PW-15 S.I. Virendra Prasad Singh proved the inquest report Ex.Ka-2, photograph of the cadaver, Ex.Ka-26, police form 13 Ex.Ka-27, specimen of seal Ex.Ka-28, letter addressed to R.I., Ex.Ka-29 and letter addressed to C.M.O. Ex. Ka-30.

36. After having very carefully scanned the testimony of the eye witnesses examined by the prosecution during the trial, we have found that as far as the evidence of PW-3 Shiv Kumjar and PW-4 Jagjeevan is concerned, the same is material only for proving the presence of the appellant armed with katta and knife at the place of incident and his firing with his firearm which caused injuries to PW-3 and PW-4. Neither PW-3 Shiv Kumar nor PW-4 Jagjeevan have stated in their evidence that they had seen the appellant stabbing the deceased as after being injured from the gun shot fired by the appellant they had run away from the crime scene as stated by PW-3 and PW-4 in their cross examination.

37. Now we are left with the evidence of PW-1 Ram Adhar, complainant, PW-5 Sri Niwas and PW-6 Harikesh who claim to have reached the place of incident from their village on hearing the sound of gun shot and the shrieks of the victims and seen the appellant stabbing the deceased. In order to ascertain whether PW-1, PW-5 and PW-6 are speaking the truth. We have to examine whether considering the distance between the village and the graveyard from the place of incident, it was possible for them to have arrived at the crime scene under time to enable them to witness the incident and identify the accused considering also the fact that the incident had taken place in pitch dark and there is no cogent evidence proving that there was any source of light on the crime scene under which the accused could have been identified by the witnesses.

38. On page 31 of the paper book, PW-1 Ram Adhar in his cross examination has stated that 10 or 12 houses separate the graveyard from his house. When he had heard the sound of gun shot, he was kneading the dough in the kitchen and he thought that some other people may be fighting, however, when he heard the shrieks of Shiv Kumar PW-3 and Jagjeevan PW-4, he washed his hands and ran towards the graveyard and saw that Shiv Kumar had lost his one fingure. He further stated that he alongwith Sri Niwas PW-5 and Doodhnath were the first to reach the place of occurrence and all the accused had escaped taking benefit of darkness. He had first gone towards the north of the graveyard then to the western portion of the graveyard and in the meantime the accused had escaped. He has not disclosed in his evidence the time taken by him in reaching the place of occurrence but it does transpire from his evidence that even he had reached the place of incident after the accused had run away.

39. PW-3 in his cross examination has stated that it was pitch dark at the place of occurrence and although the deceased and Jagjeevan were sitting at a distance of about 2-3 hands but they were unable to see each other. He denied the presence of Bavvan, Babedu and Daglu at the place of incident. In his cross examination PW-3 further stated that after he had been hit by the pellet fired from the countrymade pistol of Narvedeshwar, he ran to his village along with Jagjeevan and when they reached their village, people including the first informant Doodhnath and Sri Niwas, inquired from them about what had happened and upon being told about the incident by them they rushed towards the graveyard but neither he nor Jagjeevan had accompannied them back to the graveyard. Similarly PW-4 in his cross examination on page 3 of his evidence has stated that Narvedeshwar who was armed with pistol and a knife had come from behind and had picked up Mohan by his collar whereupon, he and Shiv Kumar had got frightened had retreated about three hands behind Mohan and after Narvedeshwar had fired at him and Shiv Kumar, both he and Shiv Kumar had run away from the place of incident and hid themselves behind a Vamar tree planted in the eastern portion of the graveyard. He also admitted in his cross examination that they had not returned back to the place of occurrence when the other villagers had gone there after knowing about the incident. Thus neither PW-3 Shiv Kumar nor PW-4 Jagjeevan had seen the appellant stabbing the deceased.

40. The evidence of PW-5 Sri Niwas (page 3 of his cross examination) further shows that he has stated that the distance between the graveyard and his house is about 15-16 latthas and when he heard sound of gun shot, he was standing infornt of the door of his house and then he said that he was resting in his courtyard. In his cross examination he further stated that PW-1 Ram Adhar on meeting him while they were going towards the graveyard had told him that his son has been murdered by Narvedeshwar which fully corroborates the evidence of PW-3 Shiv Kumar who had categorically stated in his cross examination that after being shot by the appellant he had rushed back to his village and on reaching there he had met several villagers including PW-1 and had told them about the incident. He further stated that it took them about 10 minutes to reach the place of occurrence. PW-5 in his cross examination also stated that he had seen and identified the culprits in the light of torch but the same was neither produced by him before the Investigating Officer nor before the Court. Thus the evidence of PW-5 not only renders his own testimony but also that of the PW-1 that had seen the appellant stabbing the deceased untrustworthy. If the evidence of PW-5 is to be believed then we have to accept PW-1 Ram Adhar was already aware of the fact that his son had been murdered when he had met PW-5 and it had taken him and other witnesses about ten minutes to reach the place of occurrence giving sufficient time to the assailant to commit the offence and escape from the place of incident.

41. PW-6 in his examination in chief as well as in his cross examination consistently stated that on hearing the sound of gun shot, he had reached the place of occurrence and seen the appellant stabbing the deceased. He has also stated in his evidence that he was the first person to reach the place of incident and thereafter PW-1 Ram Adhar, Sri Niwas PW-5 and Doodhnath had arrived and it had taken him about five minutes to reach the place of occurrence and on reaching the crime scene he saw Narvdeshwar stabbing the deceased Mohan Ram. The prosecution has cross examined PW-6 at great length but he has stuck to the version of the incident as described by him in his examination in chief. Thus even if we exclude from consideration the evidence of PW-1 Ram Adhar and PW-5 Sri Niwas, we have on record the evidence of PW-6 Harikesh who is an absolutely independent and non partisan witness and who has fully corroborated the part of the prosecution case as spelt out in the FIR that the appellant had repeatedly stabbed the deceased with knife. Apart from the evidence of PW-6 there is unimpeachable eye witness account of injured witnesses PW-3 and PW-4 proving to the hilt the presence of appellant armed with katta and knife at the place of occurrence and his having caused firearm injuries to both PW-3 and PW-4. Both of them have fully corroborated the prosecution case as spelt out in the FIR during their cross examination. Although much emphasis has been laid by the learned counsel for the appellant that there was absolutely no source of light at the crime scene which would have facilalted the so called eye witnesses including the injured witnesses to witness the incident and identify the accused and it is apparent that they are not speaking the truth and no reliance can be place on their evidence for holding the appellant guilty of the murder of Mohan Ram.

42. We, however, are unable to accept the aforesaid contention of the learned counsel for the appellant. It is true that the evidence of PW-1 and PW-5 does not inspire much confidence in view of the contradictions noted in their statements herein above but the eye witness account of PW-3, PW-4, PW-6 has remained intact and reliable throughout. Even if for the sake of argument we exclude the statement of PW-6 from consideration, although we do not find any convincing reason to discard the same, the evidence of PW-3 and PW-4 cannot be discarded for any reason whatsoever. It has come in the evidence of PW-3 Shiv Kumar and PW-4 Jagjeevan that they were sitting very close to the deceased and hence it was quite possible for them to have recognized the appellant when he had come from behind and lifted the deceased by his collar and warned PW-3 and PW-4 to clear up as he intended to finish the deceased as there is sufficient twi light glow of the sky between 7.00 p.m.- 7.30 p.m. in the month of April which witnesses a prolonged dusk even in a dark night. Moreover Sri Niwas PW-5 on page 1 and 2 of his examination in chief has deposed that there was some light at the place of incident apart from the light of torch in which he and the other witnesses had seen the accused stabbing the appellant. Further the appellant was admittedly previously known to PW-3 and PW-4 and it was but natural for them to be acquainted with his voice and there is no reason to disbelieve their testimony or assume that they are lying. Both PW-3 and PW-4 were at the time of incident 9 and 14 years old respectively and the defense has failed to come up with any reason for PW-3 and PW-4 to falsely implicate the appellant. It is true that there are minor inconsistencies in their statements viz a viz the sequence in which they and the deceased had sat down for easing themselves and the direction from where the appellant and the other co-accused reached the place of incident but despite being subjected to a gruelling cross examination by the defense, they have stuck to the version of the occurrence as stated by them in their examination in chief and the prosecution failed to elicit anything from them which may even remotely discredit their testimony. The minor discrepancies in their evidence as pointed out by the learned counsel for the appelant, in our opinion do not go the core of the prosecution case making it unreliable or untrustworhty. The testimony of PW-3 and PW-4 further stands fully corroborated from the medical evidence, their injury and X-ray reports.

43. As far as the challenge to the appellant's conviction by the learned counsel for the appellant on the ground that the delay of more than 12 hours in commencing the investigation is a strong indication of the fact that the FIR is ante time is concerned, we find that the same has no legs to stand, as it has come on page 10 of the evidence of PW-10 Balram Mishra that he had gone to the place of occurrence and collected plain and blood stained soil from the place of occurrence and after packing and sealing the same in two separate boxes, he had got the recovery memo Ex. Ka-26 prepared on the spot. Ex. Ka-26 contains a clear recital that the same was prepared on 11.04.2001 after recovery of plain and blood stained soil from the place of occurrence and it contains the signature of PW-10. Thus we do not find that the FIR is ante time as pleaded by learned counsel for the appellant.

44. The failure of the police officer who had conducted the inquest report to record the name of the deceased in the inquest report and mentioning of wrong name of the person who had brought the dead body in the inquest report by him and proseuction's failure to lead any link evidence for proving that the ante mortem injuires which caused the deceased's death were inflicted on him from the knife recovered on the alleged pointing out of the appellant, in our opinion and under the facts and circumstances of the present case, where the prosecution case stands fully proved by the evidence of eye witnesses, are mere irregularities which do not effect the core of the prosecution case.

45. In view of the foregoing discussion, we do not find any force in the submissions made by the learned counsel for the appellant. The prosecution, in our opinion has succeeded in proving its case against the appellnat beyond all reasonable doubts and the impugned judgement and order warrants, no interference by this Court. Thus this appeal which is devoid of any merit is hereby dismissed.

46. There shall however be no order as to costs.

Order Date : 29/07/2016

Abhishek Sri/-