Sanjay Thapa @ Dinesh Thapa vs State Of U.P.
2016 Latest Caselaw 5806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 
 
AFR
 
Case :- CRIMINAL APPEAL No. - 6502 of 2003
 

 
Appellant :- Sanjay Thapa @ Dinesh Thapa
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vijayendra Kumar,Ashok Nath Tripathi,Gaurav Kakkar,Mohd. Afzal,Pankaj Kumar Tyagi,Rajeev Sisodia,Vikas Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

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

The aforesaid criminal appeal has been preferred by appellant Sanjay Thapa @ Dinesh Thapa against the judgment and order of conviction dated 04.12.2003 passed by the Additional Sessions Judge, Court No.6, Bijnor in Sessions Trial No.423 of 2000 arising out of Case Crime No.770 of 1999 under sections 302/34, 307/34 and 201 IPC, Police Station Najibabad, District Bijnor, whereby he has been sentenced to life imprisonment under section 302 read with Section 34 IPC coupled with fine Rs. 5,000/-, in case of default, additional imprisonment for one year. Further, five years rigorous imprisonment under section 307 read with Section 34 IPC coupled with fine Rs. 2,000/-, default in payment of fine stipulates six months' additional imprisonment and one year rigorous imprisonment under section 201 I.P.C. All sentences to run concurrently.

We have heard Smt. Archana Tyagi, learned counsel for the appellant and AGA Shri Saghir Ahmad assisted by Sri J.K. Upadhyay, Sri Hasan Abidi brief holders for the State and perused the records.

The prosecution story as unfolded in the first information report appears to be; that the first informant Vijay Singh Negi son of late Chandan Singh Negi resident of Devi Marg, Kotdwar, District Pauri, lodged written report at Police Station Najibabad, Bijnor on 22.10.1999 at 11.20 A.M. against the two accused persons Kulwant Singh @ Kattha and Sanjay Thapa @ Dinesh Thapa to the effect that first informant was going to attend court's proceeding at 10.20 a.m. in the court of Additional Chief Judicial Magistrate, Nagina by his Jeep No. U.P. 21A-6899. He was being accompanied by his friends Abhay Tripathi and Surendra Singh. He stopped his Jeep 3 km ahead of Nazibabad on Kotwali road in village Shravanpur near temple and was checking radiator, two persons Kulwant Singh @ Kattha and his friend Sanjay Thapa riding TVS Suzuki motor cycle, appeared on the scene of occurrence with whom first informant was acquainted on account of landed property dispute and they tried to give sword blow on his head with intention kill him. The first informant tried to ward off attack/blow by raising his hands as a result of which he sustained injuries on thumb of his right hand and on left side head. In order to save himself, he ran away towards Najibabad and his friend Surendra also ran away with him. But his companion Abhay Tripathi was killed by giving sword blow besides causing fire arm injuries by country made pistol. Thereafter, accused persons took away Jeep of first informant placed Abhay Tripathi inside the jeep took him near and threw him in the canal. When the first informant was running away he was threatened with life. Report be lodged and action be taken. This written report is Ext. Ka-1.

The contents of this written report were taken down in Check FIR on 22.10.1999 at 11.20 A.M. at Police Station Najibabad at Case Crime No.770 of 1999 under sections 302, 201, 307, 427, 506 I.P.C. Check FIR is Ext. Ka-4. On the basis of entry made in Check FIR, a case was registered against accused persons under aforesaid sections of I.P.C. in the relevant General Diary, rapat no. 29 on 22.10.1999 at Crime No.770 of 1999, at the same Police Station, copy whereof is Ext. Ka-5.

Thereafter investigation of the case took place and injured first informant Vijay Singh Negi was sent for medical examination at Primary Health Centre Najibabad, Bijnor, where he was medically examined by Dr. Vinod Kumar at 12.50 P.M. same day who found following injuries on his persons:

1. Incised wound 8.0 x 0.5 cm bone deep on left side of skull, 8.5 cm above from left ear. Margins are clear cut. Fresh blood present. Colour is reddish.

2. Incised wound on palmar aspect of right thumb 4.5 cm x 1.0 cm x 0.3 cm deep, 10.5 cm distal from right wrist joint. Margins are clear cut, fresh blood present. Colour is reddish.

3. Complaint of pain on left side of chest posteriorly in scapula region.

In the opinion of doctor, injuries no. 1 and 2 were caused by some sharp object and simple in nature. Duration is about 1-2 hours. No opinion was given in respect of injury no.3.

After receipt of information, the police arrived on the spot and also recovered dead body of deceased Abhay Tripathi from the southern side of canal and after appointing inquest witnesses, prepared inquest report of Abhay Tripathi. It commenced at 14.45 hours and completed at 15.35 hours. Inquest report is Ext. Ka-6.

In the opinion of inquest witnesses and Investigating Officer, it was found appropriate to send dead body for post mortem examination in order to ascertain real cause of death. Therefore, necessary formalities were completed and relevant papers were prepared and dead body was sent for post mortem examination at mortuary Bijnor where post mortem examination on dead body of Abhay Tripathi was conducted by Dr. Ghanshyam Singh on 23.10.1999 at 1.00 A.M. who noted following ante mortem injuries:

1. Multiple fire arm wounds of entrance (pellets) each of size 0.5 cm x 0.5 cm x muscle to bone deep in an area of 17 cm x 12 cm on left side of face and neck, margins are inverted and blackish approximately wounds are 20.

2. Fire arm wound of entrance of size 5 cm x 5 cm x cavity deep on left side of face just below left ear pinna and lower part of ear pinna is missing, wound is cavity deep and margins are inverted.

3. Incised wound 8 cm x 1.5 cm x bone deep on left side skull 5.0 cm above left ear.

4. Incised wound of size 6 cm x 2 cm x bone deep on lower and lateral aspect of left wrist. Left reddish bone found fractured lower part.

5. Incised wound of size 4 cm x 1 cm x bone deep on dorsam of left hand middle part.

6. Linear abrasion of size 8 cm on medial part of right cubital fossa.

7. Abrasion of size 2 cm on lateral border of right wrist.

8. Contusion 5 cm in diameter on lateral aspect of left arm middle.

9. Incised wound of size 8 cm x 1 cm x bone deep on right side face, placed horizontally at right maxillary prominences.

Cause of death was stated to be shock and hemorrhage as a result of ante mortem injuries. Duration was said to be one day. This post mortem examination report is Ext. Ka-3.

It is further reflected from records that the Investigating Officer also recorded statement of various witnesses and prepared recovery memo of blood stained and simple soil from the place of occurrence which is Ext. Ka- 13. He also prepared recovery memo of blood stained clothes of informant Vijay Singh Negi which is Ext. Ka-15. Report from Vidhi Vigyan Prayogshala dated 24.1.2000 is Ext. Ka. 17. The investigating Officer also prepared site plan of the place from where dead body of Abhay Tripathi was recovered near canal which is Ext. Ka-11. The Investigating Officer also prepared site plan of place of incident which is Ext. Ka-12. The Investigating Officer after completing the investigation, filed charge sheet against accused persons Kulwant Singh @ Kattha and present appellant Sanjay Thapa @ Dinesh Thapa in abscondence, which is Ext. Ka. 14.

Thereafter, the case of the appellant was committed to the court of Session from where the case was made over to the court of Additional Sessions Judge, Court No. 6 Bijnor, for trial and disposal. The learned Trial Judge, after hearing the appellant on the point of charge, found, prima facie, ground existing for framing charges under sections 302/34, 201, 307/34 and 427/34 I.P.C. Charges were readover and explained to the accused who denied the charges and opted for trial.

The prosecution was asked to adduce its testimony for proving guilt. The prosecution produced in all 10 witnesses, brief description of whom is herein below:-

Vijay Singh Negi PW-1 is first informant and injured eye witness. Surendra Singh PW-2 is also witness of fact and he is stated to be eye witness of the incident. Dr. Vinok Kumar PW-3 has medically examined the injured informant Vijay Singh. Dr. Ghanshyam Singh PW-4 has conducted post mortem examination on the dead body of Abhay Tripathi. Constable Sant Ram PW-5 took the dead body to mortuary at Bijnor. Constable Yashpal Singh PW-6 has prepared Check FIR Ext. Ka-4 and relevant G.D. registering the case against accused-appellant Ext. Ka-5. Sunderlal Kanaujiya PW-7, Investigating Officer has detailed various steps which he took during investigation and later on it was taken over by another Investigating Officer Kiran Pal Singh PW-8 who has also detailed about investigation conducted by him on certain aspects of the case. Thereafter investigation was handed over to R.P. Sharma PW-9 who filed charge sheet against accused Kulwant Singh @ Kattha and present appellant Sanjay Thapa @ Dinesh Thapa which is Ext. Ka-14 on record. Shri Prempal Singh PW-10 took into his possession blood stained clothes of Vijay Singh Negi and prepared recovery memo of such clothes in his hand writing and has proved it as Ext. Ka-15.

Thereafter the evidence for prosecution was closed and the statement of accused appellant Sanjay Thapa @ Dinesh Thapa was recorded under Section 313 Cr.P.C., wherein he stated that another co-accused Kulwant Singh @ Kattha was his friend and Kulwant Singh @ Kattha was having dispute regarding some property with the first informant Vijay Singh Negi due to which, he has been falsely implicated in this case. He was not present on the spot. No evidence whatsoever has been led by the defence.

The trial court, after hearing both the sides on merit, recorded findings of conviction against the appellant under aforesaid sections of I.P.C. imposed aforesaid sentence on him vide impugned judgment and order dated 04.12.2003.

Consequently this appeal.

It has been vehemently claimed by learned counsel for the appellant that presence of the appellant on the spot is doubtful. Neither the incident was caused by the appellant nor had he any motive to commit such crime. The appellant has admitted his friendship with Kulwant Singh @ Kattha. Since Kulwant Singh @ Kattha was having enmity with Vijay Singh Negi relating to some landed property, therefore, the name of appellant has been dragged in falsely by the first informant in this case. The presence of first informant is doubtful. His description in respect of the incident is self contradictory and also in contrast with testimony of so called other prosecution witnesses of fact. No injury whatsoever was caused on the person of first informant Vijay Singh Negi. The appellant had no apparent motive to commit the crime, at no point of time, he participated in the crime.

It is next contended that assuming it to be; some enmity was persisting between first informant and Kulwant Singh @ Kattha regarding some landed property then commission of crime against Abhay Tripathi is beyond any reason. Why Abhai Tripathi was killed by the appellant has not been explained by the prosecution. The appellant had no motive nor intention to commit offence and participate in such crime then his conviction by invoking help of section 34 I.P.C. is erroneous and misapplication of law. Injuries found on the person of Vijay Singh Negi were not caused by the appellant but it was caused by another person, which was his isolated act and nature of injuries as appearing after medical examination of injured Vijay Singh Negi (injury report-Ext. Ka-2) reveals that these injuries were simple in nature, therefore, conviction under sections 307/34 and 302/34 I.P.C. is not legally justified. The place of incident is most uncertain.

Learned counsel for the appellant has further added that the first informant's claim is that accused persons took away Abhay Tripathi (deceased ) in Jeep (of informant) to the canal and threw away his dead body into the canal but dead body was recovered from southern side of canal, thus, there is no explanation as to how and when dead body was taken out of canal and placed on southern side of canal. Facts indicate that Abhay Tripathi was killed somewhere else by some unknown persons and his dead body was placed at southern side of canal and a cooked up story has been brought forward by the first informant on account of enmity with Kulwant Singh @ Kattha indirectly hitting at the appellant, for the reason that he happens to be friend of Kulwant Singh @ Kattha. The incident is not supported by independent witness. No active role whatsoever has been assigned to the appellant for causing any specific injury either upon the first informant or upon Abhay Tripathi (deceased). It is a case of blind murder.

While refuting aforesaid arguments, it has been submitted by the learned A.G.A. that it is well established that the appellant is named in the first information report. The occurrence took place in broad day light around 10.20 a.m. on 22.10.1999. The first information report was promptly lodged within one hour of the incident at 11.20 a.m. at Police Station Najibbad. Medical examination of the injured-first informant was conducted at 12.50 p.m. on 22.10.1999 i.e. to say soon after the incident, post mortem examination on the dead body of Abhay Tripathi was conducted by Dr. Ghanshyam Singh PW-4, on 23.10.1999 at 1.00 A.M.

Learned AGA has further added that the presence and participation of the appellant in the incident is proved by testimony of prosecution witnesses. How the dead body was carried over from the place of incident upto canal has also been substantiated by eye witnesses. After arrival of the police, inquest report was prepared. The inquest commenced at 14.45 hours and ended at 15.35 hours. In view of participation of the appellant in the crime, his conviction with the help of section 34 I.P.C. is wholly justified. The place of incident is certain and site plan has been proved by the Investigating Officer and place of recovery of dead body has also been proved by the concerned Investigating Officer.

We have considered above submissions.

The question involved in this appeal relates to fact whether the prosecution has been able to prove charges beyond reasonable doubt and whether the conviction recorded with the help of section 34 I.P.C. against appellant is erroneous and illegal and he has been falsely roped in, in this case?

After careful scrutiny of testimony of the prosecution witnesses on record and, particularly testimony of eyewitnesses PW-1 Vijay Singh Negi and PW-2 Surendra Singh respectively, it emerges out that both the eyewitnesses were going to attend proceedings of some case before court of Additional Chief Judicial Magistrate at Nagina, by Jeep No. U.P 21A-6899. They were also accompanied by the deceased Abhay Tripathi. As soon as, jeep reached 3 Kms. ahead of Najibabad at Village Shravanpur, near temple, then engine thereof got heated and it was stopped for checking its radiator.

The first informant was checking radiator, it was around 10.20 A.M. on 22.10.1999 in the meanwhile a TVS motorcycle being driven by Kulwant Singh @ Kattha with pillion rider Sanjay Thapa @ Dinesh Thapa, stopped near first informant. Kulwant Singh @ Kattha was possessing sword and Sanjay Thapa @ Dinesh Thapa was possessing 12 bore countrymade pistol. Kulwant Singh @ Kattha gave sward blows with intention to kill first informant Vijay Singh Negi and in order to word off blow, the first informant raised his right hand, due to which, he sustained injury on his hand and head. In the meanwhile, both the first informant and Surendra Singh extricated themselves from the assailants and ran towards Najibabad, but both the accused Kulwant Singh @ Kattha and Sanjay Thapa @ Dinesh Thapa caught Abhay Tripathi and began to assault him. Sanjay Thapa @ Dinesh Thapa fired on him, whereas, Kulwant Singh @ Kattha gave sword blows on him. The first informant and his friend Surendra Singh raised alarm from the short distance, whereupon, the accused person put Abhay Tripathi inside Jeep which was driven by Kulwant Singh @ Kattha and motorcycle was driven by Sanjaya Thapa @ Dinesh Thapa. Abhay Tripathi expired. The accused persons took the dead body in the jeep and threw it away into canal. This piece of specific testimony as appearing in the testimony of both the witnesses of fact PW-1 and PW-2 corroborates material contents of first information report.

The motive attributed for committing the offence has been stated to be dispute on account of landed property and pending litigation regarding the same. In this context, Vijay Singh Negi PW-1 has stated in his examination in chief that he had purchased 12 acres of land in the name of his mother Bhagirathi at village Aurangjebpursali nearly 10-11 years ago within periphery of police station Nageena Dehat. The consolidation proceedings qua the land took place and possession of the land was handed over to the first informant. Accused Kulwant Singh @ Kattha and his family members tried forcibly to take possession of this land and litigation regarding the same was pending in the court of Munsif Nageena, on criminal and civil side.

Thus so far as the motive part of the incident is concerned, obviously, the first information report entails point of enmity between first informant and Kulwant Singh @ Kattha. In testimony of PW-1 Vijay Singh Negi, details of landed property and litigation pending between the accused Kulwant Singh @ Kattha and first informant has been testified to the satisfaction of the trial court. In this regard, we may record that finding on the point of motive is based on material on record.

Contention has been raised by the appellant's counsel at this stage that assuming it to be that enmity between first informant and Kulwant Singh @ Kattha, was persisting in respect of some landed property but there was no occasion to cause death of Abhay Tripathi. The death of Abhay Tripathi would have been caused somewhere else by some unknown person than the present appellant Sanjay Thapa @ Dinesh Thapa.

Further contention raised relates to specific point that appellant Sanjay Thapa @ Dinesh Thapa has no sufficient motive either to participate in the crime or to cause death of Abhay Tripathi because he was not having any specific motive to commit crime. Appellant Sanjay Thapa @ Dinesh Thapa had no enmity with the deceased Abhay Tripathi. Both the eye witnesses have given vivid and lively description of the incident and both of them have been cross examined and their cross examination corroborated the version of the prosecution as described in the first information report. The point of enmity on account of landed property between accused Kulwant Singh @ Kattha and the first informant Vijay Singh Negi has been satisfactory established. It is correct that Surendra Singh and Abhay Tripathi, both colleagues of the first informant who accompanied him at the relevant point of time, were unconcerned with such litigation. It is gathered from their testimony that they being friend, accompanied the first informant for the time being. Both the eye witnesses have identified Sanjay Thapa @ Dinesh Thapa and they have stated that they knew him as he used to come along with Kulwant Singh @ Kattha during the proceedings in the court at Nageena.

Regarding participation of the present appellant in the incident, it has emerged in cross examination of PW-1 on page 18 of the paper book that two shots were fired on the spot. No shot was fired on the first informant. Kulwant Singh @ Kattha assaulted him with sword. The appellant Sanjay Thapa @ Dinesh Thapa did not assault the first informant. It has been deposed that motor cycle was driven by Kulwant Singh @ Kattha and he had kept his sword into sheathe which was tightened with waist of Kulwant Singh @ Kattha. First informant was not under impression that Kulwant Singh @ Kattha will cause any assault on him, therefore, he did not run away from the scene. It has been stated on page 19 of the paper book that after sword blow was given to him, he did not fell. Surendra Singh also ran away with him towards Najibabad for about 15-20 steps and raised alarm. Then the assailants did not chase them instead they surrounded Abhay Tripathi and gave him several blows. They witnessed the incident from a distance of 15 steps. The entire incident lasted for about 2-3 minutes. They remained at the place of occurrence for about one minute or two and thereafter they went towards Najibabad by three wheeler. They have also stated that they reached at the police station within one hour. Before reaching police station, Vijay Singh Negi got his report written by Rajesh Rawat, scribe of the report, who met Vijay Singh Negi just before the police station. The report was written within 5 to 10 minutes. Only the first informant and Surendra Singh went to the police station, the scribe of the report did not accompany them and they remained inside the police station for about one hour.

Record reveals that after the first information was lodged, the injured first informant was taken to Primary Health Centre, Najibabad for medical examination wherein he was medically examined by Dr. Vinod Kumar PW-3 on 22.10.1999 at 12.50 P.M. Perusal of this injury report shows that Injury no.1 is incised wound 8.0 x 0.5 cm bone deep on left side of skull, 8.5 cm above from left ear. Margins are clear cut. Fresh blood present. Colour is reddish. Injury no.2 is incised wound on palmar aspect of right thumb 4.5 cm x 1.0 cm x 0.3 cm deep, 10.5 cm distal from right wrist joint. Margins are clear cut, fresh blood present. Colour is reddish. Injury no.3 is complaint of pain on left side of chest posteriorly in scapula region.

In the opinion of doctor, injuries no. 1 and 2 were caused by some sharp edged object and simple in nature. Duration is about 1-2 hours. No opinion was given in respect of injury no.3.

In this view of the matter, we have before us testimony of doctor witness (PW-3) wherein he has stated that injury nos. 1 and 2 may be caused by some sharp edged weapon like sword. This injury report is Ext. Ka-2 on record. Dr. Vinod Kumar PW-3 has specifically stated on page 34 of the paper book in his examination in chief that these injuries could have caused at 10.20 on 22.10.1999 through instrumentality of sword. He has stated in his cross examination that the injured was taken to hospital by constable. He has also stated that in case there is any fall headlong on some incised weapon then these injuries can be caused. No specific challenge has been made to the point that these injuries could not have been caused around 10.20 A.M. on 22.10.1999. Timing and duration of these injuries have synchronized with the time of incident. Fresh blood was found present. Therefore, presence of at least PW-1 on the spot cannot be doubted. Two injuries one on his head and the other on his right hand thumb virtually corroborate his ocular testimony that he was given sword blow and in order to ward off the blow, he raised his right hand.

It is indisputable that specific testimony of doctor regarding date and time of injury being caused to Vijay Singh Negi PW-1 has not been put to challenge by the defence. In so far as above contention raised on point of absence of motive on the part of the appellant Sanjay Thapa @ Dinesh Thapa to commit any crime against Abhay Tripathi is concerned, the same loses relevance in view of eyewitness account of incident given by PW-1 and PW-2. Surendra Singh PW-2 has not shown to be inimical towards appellant and he is not interested in availing conviction of the present appellant. At this stage, motive is relegated to the background of the case and eye witness account of the incident is consistently proved, and so the incident in its entirety also stands proved, therefore, factum of absence of any motive for committing murder of Abhay Tripathi gives no advantage to the appellant.

We have also been persuaded to believe that the conviction of the appellant by aid of section 302/34 and 307/34 IPC is not sustainable in the eye of law. At this stage, we may observe that the commission of crime as per testimony of PW-1 culminated into death of Abhay Tripathi and injuries have been caused to Vijay Singh Negi PW-1, therefore, commission of crime and its outcome apparently establishes joint participation of both the accused on the spot and both appear to have been showing common intention to commit crime. It may even be taken to have developed on the spot.

It is obvious that Sanjay Thapa @ Dinesh Thapa was possessing country made pistol and he used that weapon for commission of the crime and other co-accused Kulwant Singh @ Kattha, who was possessing sword, gave sword blow to the injured Vijay Singh Negi and deceased Abhay Tripathi. Therefore, the commission of crime as a whole and entire acts reflect sharing of common intention between the accused persons. They had every intent to open assault on the complainant side which may cause extreme damage to them. The entire act, as per testimony of the prosecution witnesses on record, is established reasonably to have been done in furtherance of common intention of both the accused persons.

At this stage, it would be relevant to have reference to Section 34 of the Indian Penal Code which is extracted herein below:

"34. Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

Thus, it is obvious that act of the appellant was in furtherance of common intention of both the accused and as per mandate as contained in section 34 I.P.C., the persons participating in the commission of crime shall be liable for outcome of consequence of crime as if act was done by him alone.

At this juncture, we may scrutinize the post mortem examination report. Post mortem examination on the cadaver of deceased Abhay Tripathi was conducted by Dr. Ghanshyam Singh on 23.10.1999 at 1.00 a.m. As many as 9 ante mortem injuries have been noted on external examination. The post mortem examination report has been proved by Dr. Ghanshyam Singh PW-4 as Ext. Ka-3. Duration between death and timing of post mortem examination was stated to be about one day. Cause of death was stated to be shock and hemorrhage as a result of ante mortem injuries.

On being cross examined, PW-4 Ghanshyam Singh has testified that injury nos. 1 and 2 could have been caused from a distance of 1 to 2 ft and the same can be caused by the two fires. Except as above, no further cross examination has been done by the defence from doctor witness PW-4, whereas, it has been specifically stated in the examination in chief on page 37 of the paper book in the last line of paragraph that death could have been caused possibly at 10.20 a.m. on 22.10.1999. Therefore, factum of death of the deceased Abhay Tripathi at the relevant point of time described in the FIR and in the testimony of prosecution witnesses of fact stands corroborated in this case.

The argument on the point that these injuries could not have been caused in such way by headlong fall on sharp edged weapon also does not hold ground, evidence for no such factual aspect exists nor does any circumstance support it. Perusal of post mortem examination report Ext. Ka-3 reveals two gun shot injuries, whereas, injury no.3 to injury no. 9 are incised wounds of varying sizes. The testimony of doctor witness PW-4 has not been put to challenge even in the least by the defence, therefore, causing of injuries on the deceased Abhay Tripathi by both the accused persons stands proved even by medical testimony on record.

We have also been persuaded to believe that the first information report is ante timed and all the proceedings undertaken by the Investigating Officer were mechanically completed at the police station itself. However, we hardly find any force in the aforesaid contention, for several reasons. In so far as point of FIR being ante time is concerned, we have before us testimony of Yashpal Singh PW-6 who has proved presentation of written report by the first informant Vijay Singh Negi and contents of this written report were taken down by this witness PW-6 in the concerned check FIR no. 330 of 1999 which check FIR has been proved as Ext. Ka-4. On the basis of such entries, the case was registered at serial no.29 of the concerned G.D. dated 22.10.1999 at 11.20 A.M. at Police Station Najibabad which G.D. Entry has been proved as Ext. Ka-5. There is nothing adverse emerging from cross examination of PW-6 which may render his testimony doubtful or unreliable. Therefore, contention regarding first information report being ante timed remains a suggestion only. Moreover filing of the written report has also been proved by the cogent testimony of PW- 1 Vijay Singh Negi.

The various steps taken by the Investigating Officer Sunder Lal Kanaujiya P.W. 7 has been proved. He has proved preparation of inquest report as Ext. Ka-6 which commenced at 2.45 P.M. and completed at 3.35 P.M. Similarly, the Investigating Officer also collected simple and blood stained soil from the place of occurrence on 22.10.1999 itself and prepared memo of the same as Ext. Ka-13. Therefore, the place of occurrence has also been proved and things have taken itself in due sequence and it cannot be said that sequence of incident was tried to be adjusted in any manner by the concerned police personnel. Moreover, the Investigating Officer has also proved site plan of place of occurrence as Ext. Ka-12.

The contention has been raised by the appellant's counsel that the dead body of Abhay Tripathi was kept on the southern side of canal, whereas, as per testimony of PW-1 and PW-2, the accused persons threw away the dead body into canal. In this context, we may take recourse to testimony of another Investigating Officer Sunderlal Kanaujiya PW-7, he categorically stated in his cross examination on page 44 of the paper book that the canal was full of water and the dead body was taken out by the villagers prior to his arrival on the spot, where the dead body of Abhay Tripathi was placed by the side of canal. We notice that this piece of testimony has not been put to any challenge by the defence which specific testimony remains intact and unimpeachable under prevailing circumstances.

The Investigating Officer Sunderlal Kanaujiya PW-7 has also prepared site plan of the place of recovery of dead body by the side of canal which place has been marked by word 'B' has been shown to be placed moored in water and place 'A' marked in the map shows the place where the dead body was placed after it was taken out of canal. It is obvious that PW-1 and PW-2 did not pursue the assailants/accused persons when they drew away jeep No. U.P. 21-A-6899 wherein they had placed the dead body of Abhay Tripathi, but it is very much obvious that the first information report contains details of fact that after commission of crime, accused persons placed Abhay Tripathi in side the jeep and thereafter threw away his body into canal and this specific description of first information report has been proved by both the witnesses in their ocular testimony as PW-1 and PW-2. This particular piece of testimony of the prosecution witnesses that the dead body was taken by the jeep upto the canal has not been put to any serious challenge by the defence.

We also could not come across any such piece of testimony or any adverse circumstance which may throw any doubt on otherwise innocuous, clinching and consistent testimony of two witnesses of fact PW-1 and PW-2 respectively. It is correct that certain minor discrepancies in the statement of the prosecution witnesses have emerged but point for consideration is whether these discrepancies occurred substantially and hit at the root of the prosecution story or that they are trivial in nature which have capacity to take away from the point of commission of the offence. The minor discrepancies appearing in the testimony of prosecution witnesses do not extend any advantage to the appellant. It is cardinal principle of criminal law that the testimony of prosecution witnesses, if found to be clinching and upto the mark and proves consistently the case of the prosecution substantially and remains unimpeachable, which by careful scrutiny is found to be carrying high probity value then such testimony would inspire confidence for establishing guilt of the accused.

By perusal of the statement of the accused Sanjay Thapa @ Dinesh Thapa recorded under section 313 Cr.P.C., we do not come across any conspicuous reason explained as a factor for false implication of the appellant except one that he being friend Kulwant Singh @ Kattha, therefore, he was involved in this case. But the point based on reason guides us to observe here that the first informant side has no extraneous reason to rope in, the appellant deliberately in this case and sparing the real culprit. He has merely stated that he was not present on the spot at the time of occurrence but the point is that he could not describe about his presence elsewhere. Also we could not gather from facts and circumstances the claim of appellant that he was not present at the time of occurrence on the spot. Therefore, the plea of alibi taken by the appellant is of no advantage to him.

In view of above discussion, the prosecution has been able to establish reasonably guilt of the accused under charges brought against him and the prosecution has proved its case beyond reasonable doubt.

Learned trial court while appraising the evidence on record and marshaling facts considered every aspect of the case and has recorded just finding of conviction against the appellant and has imposed proper sentence under section 302/34 and 307/34 against him which warrants no interference by us in instant appeal. We uphold the judgment and order of conviction dated 04.12.2003 passed by the Additional Sessions Judge, Court No.6, Bijnor in Sessions Trial No.423 of 2000 arising out of Case Crime No.770 of 1999 under section 302/34, 307/34 and 201 IPC, Police Station Najibabad, District Bijnor.

 	In the result, the instant appeal being devoid of merit is dismissed.        	In this case, appellant Sanjay Thapa @ Dinesh Thapa is in jail. He shall serve out his remaining sentence imposed upon him by the trial court.  
 
	Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.    
 
Order Date :- 14.9.2016 
 
Iss/