Mahesh Singh & Others vs State Of U.P.
2016 Latest Caselaw 6485 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                   Reserved
 
                                                                                               AFR
 
Case :- CRIMINAL APPEAL No. - 1331 of 2006
 

 
Appellant :- Mahesh Singh & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rakesh Kumar Singh,Anil Kumar Yadav,Ashok Kumar Pandey,Deepak Kumar,Dileep Kumar,I.M.Khan,I.N.Pandey,Jagdish Singh Senger,Pankaj Upadhyaya,Rajeev Gupta,S.V. Singh
 
Counsel for Respondent :- Govt. Advocate
 
Connected with 
 
Case :- GOVERNMENT APPEAL No. - 4457 of 2006
 
Appellant :- State Of U.P.
 
Respondent :- Munna Singh & Others
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Awadhesh Kumar
 

 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.)

Heard Sri S.V. Singh, learned counsel for the appellant, Sri A.N. Mulla learned AGA assisted by Ms. Meena and Ms. Manju Thakur, learned AGAs for the respondent-State in Criminal Appeal No.1331 of 2006 and Sri A.N. Mulla learned AGA assisted by Ms. Meena and Ms. Manju Thakur, learned AGAs for the appellant-State and Sri S.P. Tewari and Sri P.K. Sharma, learned counsel for accused-respondents in Government Appeal No.4457 of 2006 and perused the record.

It is relevant to mention that aforesaid Appeal No.1331 of 2006 was initially preferred by seven appellants. However, appellant no.2 Chotey Singh and appellant no.3 Jay Pal Singh, both sons of Maharaj Singh, died during pendency of the appeal, due to which their appeal was abated. Now the five remaining appellants before us are Mahesh Singh, Shyam Singh, Rodhan Singh, Girraj Singh and Gajvir Singh.

By way of aforesaid appeal No. 1331 of 2006 (Mahesh Singh and others Vs. State of U.P.), challenge has been made to the judgment and order of conviction dated 21.02.2006 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Etah, in Sessions Trial No.932 of 2002 and Sessions Trial No.610 of 2003 arising out of Case Crime No. 295 of 2002, under Sections 148 and 302/149 IPC, Police Station Soroon, District Etah, whereby the aforesaid surviving appellants have been sentenced to two years rigorous imprisonment under Section 148 IPC and life imprisonment coupled with fine Rs.10,000/- under Section 302/149 IPC.

The aforesaid Government Appeal No.4457 of 2006 (State of U.P. Vs. Munna Singh and others) was preferred by the State against order of acquittal dated 21.01.2006 qua accused Munna Singh, Munesh Singh and Edal Singh whereby they were acquitted of charges under Sections 148 IPC and 302 read with Section 149 IPC.

Since both the aforesaid appeals arise out of one and the same judgment dated 21.02.2006 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Etah and the aforesaid Sessions Trials were consolidated by the trial court and were disposed of by the same judgment, therefore, both the appeals are being disposed of by way of a common judgment.

Facts germane giving rise to these appeals appear to be; that first informant Satya Bhan Singh son of Malkhan Singh Thakur, Resident of Awanpur, Police Station Soroon, District Etah, lodged the written report at aforesaid police station on 30.04.2002 at 7.10 P.M. with the allegations that several litigations are pending between Chhotey Singh son of Maharaj Singh and the first informant who was resident of his village. Today, on 30.04.2002 Prem Singh and his wife Nirvesh Kumari had gone to Kasganj by Scooter. When they were returning home on Scooter and arrived near Village Ghatiya then Mahesh Singh, Chhotey Singh and Jay Pal Singh sons of Maharaj Singh, Shyam Singh son of Chhotey Singh, Rodhan Singh, Girraj Singh and Gajvir Singh sons of Udai Singh, Munna Singh and Munesh Singh sons of Jant Singh and Edal Singh son of Balvir Singh, resident of Awanpur, Police Station Soroon, who laid in ambush suddenly appeared, possessing sword and "Gadasa" (axe like weapon) and intercepted the scooter driven by his son and, thereafter, the assailants severely assaulted both of them and chopped off head of his son Prem Singh, due to which informant's son and daughter-in-law died on the spot. The incident was witnessed by the first informant along with his nephew Ranender Singh and Ravender Singh both sons of Ramvir Singh when they were going to village Goyati. A number of villagers also saw the incident. The assailants after committing the crime made their escape towards Budhiganga. Panic was created in and around the area and they began to run helter-skelter. The first informant leaving the villagers and his family members on the spot near the dead bodies has come to lodge this report. The written report is Ex. Ka-1.

Contents of this written report were taken down in concerned Check FIR at Crime No.295 of 2002, under Sections 147, 148, 302 IPC, Police Station Soroon, District Etah, on 30.04.2002 at 7.10 P.M., which is Ext. Ka-22. On the basis of entry so taken down in Check FIR, case was registered against the appellants at aforesaid crime number under aforesaid sections of IPC. General diary entry is Ext. Ka-23.

The investigation ensued immediately after registration of the case and it was taken over by Sri M.A. Chaudhary, PW-5 on 30.04.2002 itself. He recorded the statements of first informant and other witnesses. He proceeded towards the spot and arrived there around 8.25 P.M. the same day and made arrangement for preparation of inquest report. Inquest was held by Shambhu Dayal Arya, Sub-inspector, PW-7. Inquest report of Prem Singh is Ex. Ka-10 and inquest report of Nirvesh Kumari is Ex. Ka.-14, respectively. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send both the dead bodies for post-mortem examination so that real cause of death could be ascertained. In the process certain, papers were prepared. Papers pertaining to dead body of Prem Singh are Exts. Ka-11 to Ext. Ka-13 and papers pertaining to dead body of Nirvesh Kumari are Exts. Ka-15 to Ext. Ka-17.

Record reveals that the Investigating Officer also prepared map of the spot Ext. Ka-4. Besides, the Investigating Officer also prepared certain memos. He took into possession seat cover and mat of Scooter DBV-2698, which is Ext. Ka-5. The Investigating Officer also prepared memo of custody of Scooter and handing over the same to Chandra Pal Singh son of Satya Bhan Singh, Resident of Awanpur, Police Station Soroon, District Etah. This memo is Ex. Ka.-6.

When the Investigating Officer arrived on the spot, he also arranged a gas lantern for lighting on the spot, in the light of which he conducted proceedings and gave gas lantern in custody of Chandra Pal Singh son of Satya Bhan Singh, with a direction that he shall produce this gas lantern as and when so directed by the trial court. Memo of gas lantern is Ext. Ka-7. The Investigating Officer also prepared memo of simple and blood stained clay roll from spot where dead bodies of Prem Singh and Nirvesh Kumari were lying. Both memos are Ext. Ka-18 and Ext. Ka-19. The Investigating Officer also prepared memo of the place where the scooter fell down. Memo whereof is Ext. Ka-20.

During the course of investigation, recovery of weapon of assault was also made by the Investigating Officer from accused Chhotey Singh, Munna Singh, Munesh Singh, Shyam Singh and Jay Pal Singh. Gadasa was recovered on the pointing out of Munna Singh, Munesh Singh and Chhotey Singh, swords were recovered on the pointing out of Shyam Singh and Jay Pal Singh. This recovery memo dated 26.05.2002 is Ext. Ka-8.

Record further reflects that post-mortem examination on the dead bodies of both the deceased Prem Singh and Nirvesh Kumari was done by Dr. K.P Garg, in the Mortuary at District Hospital Etah, on 01.05.2002 at 2.30 P.M. and 3.00 P.M., respectively, who noted following ante-mortem injuries:

Ante mortem injuries of Prem Singh

(1) Whole face, skull totally separated from body by clean cut. Body is in two parts.

(2) Incised wound 7 cm x 2 cm x bone on right side just above right ear.

(3) Incised wound 15 cm x 3 cm x bone deep on right side back of neck just below right ear.

(4) Incised wound 6 cm x 2 cm on right side face just below eye.

(5) Incised wound 7 cm x 1 cm on front side face and nose.

(6) Incised wound 5 cm x 1 cm on forehead muscle deep.

(7) Incised wound 7 cm x 5 cm on right forearm palmar side.

(8) Multiple incised wound on right palm 10 cm x 8 cm in size. All bones of right hand cut.

(9) Incised wound 5 cm x 2 cm x muscle deep on top of left shoulder.

Duration was above one day old. Cause of death was shown to be due to shock and haemorrhage as a result of ante-mortem injuries. Post mortem examination report of the deceased Prem Singh is marked as Ext. Ka.-3.

Ante mortem injuries of Nirvesh Kumari

(1) Multiple incised wound on whole face and neck average size 15 cm x 4 cm to 10 cm x 2.5 cm, bones cut.

(2) Incised wound 4 cm x 2 cm on right forearm near wrist joint.

(3) Incised wound 4 cm x 2 cm on right thumb, bone of right thumb fractured.

(4) Incised wound 15 cm x 14 cm on left elbow including forearm and upper arm, bones cut.

(5) Incised wound 25 cm x 6 cm on left side abdomen upper part. Intestine producing out.

(6) Incised wound 5 cm x 2 cm on left forearm, 7 cm below left elbow.

(7) Incised wound 3 cm x 1 cm on left hand dorsal aspect.

(8) Incised wound 10 x 5 cm on palmer aspect of left hand. Bones cut.

(9) Eyes cut.

(10) Incised wound 4 cm x 2 cm x bone deep on back of chest. Lower part.

(11) Incised wound 6 cm x 1 cm on back of skull, bones deep.

Duration was stated to be about one day. Cause of death was stated to be due to shock and haemorrhage and coma, as a result of ante-mortem injuries. Post mortem examination report of the deceased Nirvesh Kumar is marked as Ext. Ka.-2.

Meanwhile, on 22.06.2002, weapon of assault namely Gadasa was recovered on the pointing out of accused Mahesh Singh and Rodhan Singh. This recovery was effected by S.I. Gyan Singh, PW-6. Memo whereof prepared is Ext. Ka.-9.

After completing investigation, charge-sheet was filed by the second Investigating Officer, Chandra Bhan Shukla against the accused persons under aforesaid sections of IPC. Charge-sheet is Ex. Ka-21.

Thereafter, committal proceeding took place and the case was committed to the Sessions Court from where it was made over for trial and disposal to the aforesaid trial court. The learned trial Judge after hearing the prosecution and the appellants was satisfied with prima facie case against accused, therefore, framed charges under Sections 148 IPC and 302/149 IPC against the appellants. Charges were read over in Hindi and explained to the appellants who abjured charges and claimed to be tried.

The prosecution was directed to produce its testimony whereupon it produced in all nine witnesses. A brief reference of the same is being made herein below.

Satya Bhan PW-1 is the first informant and eye witness of the incident. He has proved lodging of the written report at his instance. Ravindra Singh PW-2 is also witness of fact and claims to have seen the occurrence like PW-1. Jitendra PW-3 was child witness of tender age say six years and his capacity to understand questions put to him and to answer the same in an intelligent way was found not upto mark by the trial court, therefore, his testimony was dispensed with. Dr. K.P. Garg, PW-4 has conducted autopsy on the dead bodies of deceased Prem Singh and Nirvesh Kumari and has proved the process before the trial court. M.K. Chaudhary PW-5 is the first Investigating Officer, he has detailed various steps which he took in completing his part of investigation on 30.04.2002 itself and, thereafter, as per his testimony when this witness went on leave, S.I. Gyan Singh, Shiv Ratan Singh and Chandra Bhan Shukla carried out further investigation of the case. S.I. Gyan Singh PW-6 has proved recovery of weapon of assault from accused Mahesh Singh and Rodhan Singh on 22.06.2002, and has proved memo of the same as Ex. Ka.-9. Shambhu Dayal Arya PW-7 has held inquest of both the deceased Prem Singh and Nirvesh Kumari and has proved the process before the trial court. Chandra Bhan Shukla PW-8 the third Investigation Officer further augmented the investigation and filed charge-sheet Ext. Ka-21. Constable Gaya Prasad PW-9 has proved relevant entries made in the concerned Check FIR and General diary and has proved Exhibits Ka-22 and Ex. Ka-23, respectively.

Thereafter, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein accused termed their implication false. However, no evidence, whatsoever, was led by them in defence.

The learned trial court after hearing both the sides on merit was not satisfied with the defence version and found prosecution case/charges proved beyond reasonable doubt against present appellants (in Criminal Appeal No.1331 of 2006), thus convicted them and passed aforesaid sentence on them vide impugned judgment and order dated 21.02.2006 while exonerated Munna Singh, Munesh Singh and Edal Singh of all charges (under Sections 148 and 302/149 IPC).

Consequently, both the appeals namely Criminal Appeal No. 1331 of 2006 against order of conviction and sentence and Government Appeal No.4457 of 2006 against the order of acquittal pertaining to aforesaid three accused persons.

While assailing prosecution case, Sri S.V. Singh, learned counsel for the appellants persuaded us that it is a case of blind murder, no one in fact saw the incident. PW-1 and PW-2 both were not present on the spot. There was no occasion for them to be present at the place of occurrence. Neither PW-1 nor his nephew PW-2 are the witnesses in inquest report. No explanation furnished by them. Deceased's scooter was not given in his custody. As per testimony, prosecution witnesses say that the scooter was handed over by Daroga Ji in same evening, whereas, Daroga Ji has stated that custody of scooter was given only on 01.05.2002.

The nature of injuries caused on deceased shows that such injuries cannot be caused by use of these weapons say "Gadasa" and sword. All injuries have been caused on one side, which fact makes it probable that assault was caused when the deceased was in straight position and was not moving-but this is not case of the prosecution.

The blood stained clothes have not been collected by the Investigating Officer. Fact of dragging of deceased is not confirmed by post mortem report-therefore, theory of dragging the two deceased on the spot is not proved even in the least.

One little child was later on introduced with a view to create false testimony. Child has not been named in the first information report but his 161 Cr.P.C. statement recorded. This shows highhandedness of the police in collusion with the first informant.

No jewellery, whatsoever, was found on Nirvesh Kumari though it has emerged from testimony of prosecution witnesses that she wore jewellery. Purse of the deceased Prem Singh was not recovered, though he was returning after marketing.

The first information report is ante time. It was lodged after deliberation and consultation. Prosecution witnesses are highly interested witnesses. Their testimony is full of embellishment and material contradictions. PW-1 Satya Bhan went to the village in the morning yet again he was proceeding for village Gomati in the evening. No reasonable explanation was given.

Per contra, learned AGA has replied that the case in hand is consistent and genuine one. Evidence on record proves prosecution version overwhelmingly. It cannot be said to be either shallow or shaky. The incident has been witnessed by the first informant Satya Bhan PW-1 and Ravindra Singh PW-2.

Learned AGA further added that besides distance from the place of the occurrence to Police Station Soroon, District Etah is 11 kilometers. The incident took place on 30.04.2002 around 04:45 p.m., whereas, the first information report was lodged the very same day at 07:10 p.m. at Police Station Soroon, District Kannauj which, under circumstances, is justified and it cannot be said that there is inordinate delay in lodging of the first information report. There is no point in sparing real culprit and implicating an innocent person in this case. The appellants were sighted by many prosecution witnesses at the time of the occurrence which is supported by direct testimony of the prosecution witnesses. The testimony of the prosecution witnesses of fact does inspire confidence and there is no element of doubt in their testimony. Accordingly, the instant appeal (1331 of 2006) has no force.

After considering the aforesaid rival submissions extended by both the sides, the moot point for determination of this appeal relates to fact whether the prosecution has been able to prove its case against appellants, beyond reasonable doubt and further whether finding of acquittal recorded in relation to the aforesaid three accused-respondents in the aforesaid government appeal is erroneous and perverse?

We may begin with scrutiny of crux contents alleged in the FIR. First informant Satya Bhan Singh son of Malkhan Singh, lodged his report on 30.04.2002 at Police Station Soroon at 7.10 P.M. with the allegations that ten assailants namely Mahesh Singh, Chhotey Singh, Jay Pal Singh, Shyam Singh, Rodhan Singh, Girraj Singh, Gajvir Singh, Munna Singh, Munesh Singh and Edal Singh, committed murder of first informant's son Prem Singh and his daughter-in-law Nirvesh Kumari, by assaulting them with "Gadasa" and sword. The distance of place of occurrence from police station Soroon was stated to be 11 Kms. In this way, the first information report was lodged at 7.10 P.M. on 30.04.2002.

We also gather from record that the Investigating Officer along with other police personnel arrived on spot at about 8.25 P.M. and, thereafter, he made necessary arrangement for light and held inquest of both the deceased to collect clay roll on the spot and prepared site plan of the spot. He also completed several other formalities. During course of investigation, weapon of assaults were allegedly recovered on the pointing out of the several appellants. After completing the investigation, charge-sheet against aforesaid ten accused-persons was filed by Chandra Bhan Shukla PW-8, which is marked as Ext. Ka-21.

Now we are concerned with ocular testimony of this case, which has come to fore from testimony of the two prosecution witnesses of fact namely first informant Satya Bhan PW-1 and Ravindra Singh PW-2. Testimony of Satya Bhan reflects that at that point of time, it was around 4.45 P.M. on 30.04.2002, when he along with his nephew Ranender and Ravender was going to Village Goyati. It has been stated by him in his examination-in-chief that his son Prem Singh and his daughter-in-law Nirvesh Kumari had gone to Kasganj and they were returning home on 30.04.2002. When they reached near Village Ghatiya, they saw Chhotey Singh, Jay Pal Singh, Mahesh Singh, Rodhan Singh and Girraj Singh appearing on the seen from western side while other group of five accused namely Shyam Singh, Gajvir Singh, Edal Singh, Munna Singh and Munesh Singh appeared from a pile of grass by the side of road. They were possessing "Gadasa" and sword. This witness has specified respective weapons of appellants that Jay Pal Singh and Shyam Singh were possessing sword and rest of the accused persons were possessing Gadasa (axe like weapon).

It has come in testimony of PW-1 that Jay Pal Singh opened first assault on Prem Singh who was on scooter and thereafter scooter was disbalanced and it fell. Then both Prem Singh and Nirvesh Kumari tried to run away for their safety, but Prem Singh was overpowered by Jay Pal, Chhotey Singh, Mahesh Singh, Rodhan Singh, Girraj Singh and Shyam Singh and they caught hold of him and assaulted with their weapons and caused his death in the field and his head was chopped off from his body. Nirvesh Kumari was also caught in a ditch and she was severely assaulted and killed by them on the spot. It has also come in his testimony that Prem Singh and Nirvesh Kumari were being accompanied with their four years old child, who as per his testimony, was thrown away from scooter by Nirvesh Kumari, when assault commenced on them. This witness along with his two nephew witnessed the occurrence from short distance. The incident was also witnessed by villagers who were working in their fields. After committing murder of aforesaid two persons, the assailants made their escape good by fleeing towards Budhiganga.

This witness (PW-1) has been cross-examined extensively wherein he has stated regarding his presence on the spot. After the incident, the first informant got report scribed by one Jay Pal Singh and, thereafter, he impressed his thumb impression on the report and lodged the same at the police station. He has proved the written report as Ext. Ka-1. On point of being eye witness of the incident, he has been extensively cross-examined wherein he has testified that at that point of time, he along with his two nephews was going to buy buffalo from Vijay Pal in village Goyati. He has specified that he went to village Goyati in the morning, but because of paucity of money, transaction did not fructify and it was thought proper again to come to Village Goyati. Therefore, he returned from village Goyati and after making necessary arrangement, he started towards village Goyati. Since buffalo gave birth to she-calf, therefore, services of the two nephews became pressing need for taking proper care of animals.

On careful consideration, we do not find any inconsistency, either apparent or inherent in such explanations which may render his presence on the spot, either doubtful, unnatural or outcome of any deliberation, because no worthy material has been brought out in entire gamut of cross-examination of this witness (PW-1), which may cast any shadow of doubt on his specific testimony regarding his presence on the spot and he being witness to the incident. Therefore, we have every reason to believe presence of Satya Bhan PW-1 on the spot as natural one. Though certain inconsistencies appear in his testimony but these inconsistencies pertain to post occurrence development are of trivial natural which hardly leave room for any doubt on PW-1 not being eye witness to the fact of occurrence. Therefore, we find his testimony regarding manner and style of the incident to be inspiring confidence. His credit worthiness cannot be impeached in any manner. It cannot be said that this witness is not worthy of credit or that he is deliberately telling a lie and no such material has emerged in his cross-examination, as well.

Consequently, argument advanced on behalf of the appellants to the effect that presence of PW-1 on the spot is unnatural carries no force. Further arguments to the ambit that no blood stained cloths were recovered from the first informant though he hugged the deceased and there are certain inconsistencies in his testimony as such testimony is tainted. This bald castigation cannot be believed on its face value merely for sake of argument in the absence of any supporting material. Argument has also been extended on behalf of the appellants to the ambit that in fact some loot incident was caused by some unknown persons wherein money and ornaments of the deceased were looted. Because Nirvesh Kumari being lady was, at the time of occurrence, putting on certain jewellery and a wrist watch and Prem Singh was also returning after marketing, therefore, he must have been possessing some money, but no purse or money was found on the spot by the Investigating Officer and no sort of jewellery, whatsoever, was found on the body of Nirvesh Kumari. One strap on the wrist of Nirvesh Kumari was noticed by the doctor PW-4 at the time of her autopsy on 01.05.2002.

In the opinion of doctor, it looked from wrist strap as if someone has tried to snatch away wrist watch. The argument though appears to be sound on its face value, but when scrutinized on the practical line in the wake of testimony on record, it becomes untenable and not acceptable, for the reason that obviously, the incident was conjointly committed by several persons who were armed with Gadasa and sword and panic was created when a number of armed assailants chased both the deceased to overpower them and they severely assaulted both the deceased with their weapons.

The very manner of causing assault itself speaks volume of its overwhelming effect that flows from such assault. It cannot be said that the assault was being caused in a uniform manner that would not cause damage either to jewellery or money put on and possessed by the victims. It is but natural that when the victims are being killed brutally by a number of persons in open field then jewellery and money put on or possessed by the victims in all likelihood, will disappear from their bodies and it cannot be claimed that physical possession of articles and jewellery or money shall remain intact with the victims after the victims are dragged and severely assaulted by use of weapons.

It has also been argued before us that the dead body of Prem Singh was dragged upto 10-15 steps, but no mark of friction or abrasion has been found by the doctor, who conducted post-mortem examination of the dead body of Prem Singh. Here also, the argument raised does not hold good, for the reason that it is the angle and intensity of the friction that alone would be determinative of any mark and it can not be invariably assumed that every friction will leave an indelible mark on the person or body of the victim. Therefore, basic challenge to the various factual aspects of the incident raised on behalf of the appellants as discussed herein above don't carry force and these aspects do not create any shadow of doubt on the occurrence so described by Satya Bhan Singh PW-1.

Here we may deal with testimony of PW-2 that his testimony after our careful perusal and scrutiny does not appear to be wholly reliable, for certain inherent inconsistencies that appear to have crept in, in his testimony and particularly fact that his statement was taken by the Investigating Officer on 11.05.2002, after a lapse of 11 days of the incident, whereas, no reason has been assigned by the prosecution as to how this delay of 11 days was caused in recording statement of PW-2 by the Investigating Officer. Therefore, we cannot wholly rely on testimony of PW-2, but in so far as the manner and style of occurrence as described by PW-1 is concerned, this witness on the whole deposed and corroborated the particular manner and style of occurrence in line with that of PW-1. Therefore, in so far as manner and style of occurrence is concerned, we entertain no doubt that it was caused by the appellants. There may be certain anomalies in preparation of site plan and placement of dead body/bodies as per description of the prosecution witnesses of fact, but that element alone cannot wash out entire prosecution story and testimony of prosecution witnesses of fact which otherwise inspires confident and appear to be consistent with the prosecution version.

Now on point of corroboration of medical testimony with ocular testimony of witnesses of fact, we notice that ante mortem injuries caused to the deceased Nirvesh Kumari and Prem Singh Ext. Ka-2 and Ka-3, respectively, 11 ante mortem injuries on the dead body of Nirvesh Kumari. Almost all these injuries on various parts/limbs of body are in form of incised wounds. Suffice to say that these injuries in nature of incised wounds can be caused by use of 'Gadasa' and sword. Similarly, autopsy report of the deceased Prem Singh Ext. Ka-3 also reflects the same position while it describes 9 incised wounds and injury no.1 in form of whole face separated (chopped off) from body. Rest 8 injuries from injury nos.2 to 9 stand for incised wounds of various dimensions on various parts of body. In the opinion of doctor, these wounds which could have been caused by weapon of assault assigned to the accused-persons by the prosecution by use of sharp edged weapon on 30.04.2002 at 4:45 p.m. This specific testimony appearing in examination-in-chief of Dr. K.P. Garg PW-4 is specific and, therefore, corroborates ocular testimony of PW-1. This specific testimony of doctor Garg has not been specifically challenged by the defence.

We may sum up that injuries caused on the bodies of both the deceased tallies with the ocular version of prosecution witnesses of fact regarding manner of causing the incident. Therefore, medical as well as ocular testimony corroborates and supplements each other in material particulars and the same not only supports the prosecution story against the appellants but also establishes charge of the prosecution against the appellants beyond all reasonable doubt.

It has also been urged on behalf of the appellant that injuries caused to the deceased Prem Singh are mostly on right side of his body which aspect indicates that assault was given only on one side of the body while the deceased Prem Singh was in standing position and he cannot be jointly assaulted by several persons at one point of time but the argument on the face is gloomy because there appears nothing, either in testimony of the prosecution witnesses of fact or under circumstances, which may signify that assault could have been caused in such particular manner as suggested on behalf of the appellants. But we have before us specific testimony concerning manner and style of causing assault from PW-1 that deceased Prem Singh was dragged into the field and he was overpowered, gripped and his head chopped off from rest of the body. If manner of assault is specific, in such a ghastly manner, cant it be said that injuries found on the body of the deceased Prem Singh could not have been caused in such manner. It means that such sort of injuries are most probable and natural outcome of the occurrence caused by the appellants.

It would be out of use here to discuss about laches committed by the Investigating Agency or by different Investigating Officer who took over investigation of this case at different stages because it is settled principle of criminal jurisprudence that laches committed by the Investigating Officer shall not throw away case of the prosecution.

In so far as Government Appeal No.4457 of 2006 is concerned, Sri A.N. Mulla, learned AGA has vehemently urged that it is quite surprising that on the same testimony where seven persons out of ten have been convicted but three persons have been exonerated of the same charges. Thus finding of acquittal in regard to the three accused-respondents namely Munna, Munesh Singh and Edal Singh becomes perverse and erroneous. The part of judgment which pronounced exoneration from charges framed against the aforesaid three accused-respondents is liable to be set aside and they be convicted of charges, accordingly.

It has been aptly replied by the learned counsel for the accused-respondents in the aforesaid Government Appeal (4457 of 2006) that the reason and rationale behind acquittal is based on material on record and circumstances that the accused-respondents were falsely roped in in this case on account of enmity. They had no motive to commit such crime. This Court as appellant Court has to weigh the rationale behind acquittal and to ensure whether the view adopted by the trial court is not based on material on record. Their acquittal on the whole is supported by material as well as circumstances of this case.

In this way, we have also scrutinized testimony appearing against aforesaid three accused-respondents and circumstances of this case. We see that the accused-respondents may be remotely linked or connected or say least connected with the rest of seven accused-appellants and testimony has come forth from PW-1 that because of some extraneous consideration and on account of element of enmity, there is likelihood of their false implication in this case.

It is reflected from record that because of enmity and grudge with the first informant side entertained against the aforesaid three accused-respondents, they have been deliberately roped in and named in the first information report in order to give vent to pent up feelings against aforesaid accused-respondents.

On cumulative analysis of entirety of case against aforesaid accused-respondents qua testimony and circumstances on record, we notice that the trial court has based its finding of acquittal on material on record and the order of acquittal is speaking one and that encompasses in its ambit various pros and cons of the prosecution case and thereafter justifiably entertained doubt on the involvement of the aforesaid three accused-respondents in the incident and that finding is discovered to be grounded on material on record and in the matter of acquittal, cardinal principle always works that in case finding of acquittal is found to be based on solid rock of clinching testimony of the prosecution witnesses and circumstances on record, the same need not be interfered with by the appellate Court. Even in cases where two views are possible, then the view which favours the accused is to be given preference. Therefore, the Government Appeal against aforesaid three accused-respondents is without any force and the same is liable to be dismissed.

In the wake of discussion made herein above, we sum up that the present Criminal Appeal No.1331 of 2006 is found to be without any merit and without any force, accordingly the same is dismissed.

Further, in the light of our deliberation on point of challenge to the finding of acquittal of the aforesaid three accused-respondents in Government Appeal No.4457 of 2006, we find the same to be without any substance, accordingly the leave to appeal is refused. Consequently this Government Appeal is dismissed. We uphold acquittal of all the three accused-respondents. We hereby affirm judgment and order of trial court dated 21.02.2006 passed in the aforesaid Sessions Trial No.932 of 2002 (State Vs. Mahesh Singh and others) and Sessions Trial No.610 of 2003 (State Vs. Girraj Singh and another) arising out of Case Crime No. 295 of 2002, under Sections 148 and 302/149 IPC, Police Station Soroon, District Etah.

In this case, the surviving appellants Mahesh Singh, Shyam Singh, Rodhan Singh, Girraj Singh and Gajvir Singh are in jail. They shall serve out the remaining sentence imposed on them by the trial court.

Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.

Dt. 07.10.2016

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