Chandrika Alias Jokar & Others vs State Of U.P.
2017 Latest Caselaw 3007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 2002 of 1990
 

 
Appellant :- Chandrika Alias Jokar & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.B. Sahai,Mahavir Verma,S.V.Singh,Amicus Curie
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Siddhartha Varma,J.

1. Heard Sri S. V. Singh, Amicus Curiae for the appellants, Sri J. K. Upadhyay, learned AGA assisted by Smt. Manju Thakur, State Law Officer.

2. This criminal appeal has been preferred by appellants Chandrika alias Jokar and Kalloo against the judgment and order dated 25.10.1990 passed by Session Judge, Fatehpur in S.T. No. 210 of 1990 by which both the appellants have been convicted and sentenced to imprisonment for life under Section 302 IPC read with Section 34 IPC and one year rigorous imprisonment under Section 323/34 IPC.

(A) In brief the facts of the case, as emerging out from the F.I.R. and the evidence on record are that when the complainant Suresh Kumar, his father Lalu Prasad since deceased and his younger brother Rajesh Kumar aged about 8 years while going back from their hut outside the village after taking their food to their house inside the village reached near the house of Mahabir near the Neem tree in the lane, they met Chandrika Chamar and Kalloo Kurmi, who were armed with shot guns. As Suresh Kumar flashed his torch at them Kalloo and Chandrika fired at Lalu Prasad and killed him. The complainant and his brother raised cries for help and tried to catch the assailants but both Kalloo and Chandrika after hitting the complainant with the buts of their guns on his back fled towards west in the lane. The doors of nearby houses were closed, therefore nobody came out of the houses to catch the accused. The occurrence had taken place at about 8.30 p.m.. It was further alleged that there was a dispute between the parties with regard to a piece of land and proceedings under Section 107 Cr.P.C. were drawn against both the parties which were compromised on 8th January, 1989. One day before the occurrence Ram Kishore while standing at him door had asked Kalloo and Chandrika to kill Lalu Prasad and had assured them that he would take care of everything. Their conversation was overheard by Nanku, who advised them not to do so and asked Lalloo to vacate the land. Nanku disclosed the aforesaid fact to the complainant and his father on the same day in the afternoon and pursuant to the conspiracy so hatched by Ram Kishore, Kalloo and Chandrika, his father was murdered by them. The written report of the occurrence Ext.Ka-1 was lodged at reporting chowki Bakewar on 01.08.1989 at 6.30 a.m.. The place of occurrence was stated to be at a distance of 8 kms. from the reporting chowki Bakewar, P.S. Jahanabad. In the first information report it was categorically averred that due to fear and darkness the complainant did not lodge the report in the night itself. Check FIR was prepared on the basis of the written report, Ext.Ka-5. A case was registered in the G.D. at Rapat No. 9 at 6.30 a.m. at the chowki. The copy of the G.D. is Ext.Ka-6. The inquest of the dead body of Lalu Prasad was conducted by S.I. Sri Udai Singh, who was posted as Chowki Incharge. I.O., who also prepared the inquest report Ext.Ka-7, diagram of the dead body Ext.Ka-8, challan lash Ext.Ka-9, letter addressed to the R.I. Ext.Ka-10, letter addressed to the C.M.O. for conducting the post mortem Ext.Ka-11. He collected blood stained and simple earth from the spot and prepared the fard Ext.Ka-12. He also asked the complainant Suresh Kumar to produce his torch and after inspecting it prepared the fard Ext.Ka-13 and gave it in his supurdagi. The Investigating Officer also inspected the crime scene and prepared it's site plan Ext.Ka-14.

(B) The post mortem on the dead body of Lalloo was conducted on 02.08.1989 at 3.30 p.m. by Dr. Sharad Mehrotra. The post mortem report is Ext.Ka-2. According to the post mortem report following ante mortem injuries were noted on the cadever of Lallu Prasad by Dr. Sharam Mehrotra:-

(I) Gunshot wound of entry 3 cm x 3 cm x cavity deep left side of scapular region, 18 cm below shoulder joint, direction from back to front. Blackening and tattooing were present around the wound.

(ii) Lacerated wound ½ cm x 3 cm x ½ cm below the ear on neck left side.

(iii) Lacerated wound ½ cm x 3-1/2 cm x ¼ cm on the lateral aspect of neck at the root of head.

On internal examination the doctor found membranes congested, fracture of iv, v, vi ribs on left side. The pleura was lacerated. Both the lungs were also lacerated. The stomach contained two ounces of digested food. Both the intestines contained gases and faecal matter. The gall bladder was full while the bladder was empty. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of above ante mortem injuries.

(C) Sri Suresh Kumar who had received injuries at the time of occurrence was medically examined by Dr. J.P.Bajpai on 01.08.1989 at 12.20 p.m.. His injury report shows following injuries on his person:-

(i) Contusion 6.00 cm x 3.00 cm on the left side in the infra scapular area over back.

(ii) Contusion 5.0 cm x 3.00 cm at inter scapular region towards right side on the back.

According to the doctor the injuries were simple, caused by blunt and hard object and were about half day old.

(D) It is said that while the accused were running away Sri Shyam Lal had witnessed them and he was also given a blow by the accused. He was medically examined by the same Dr. J. P. Bajpai on 01.08.1989 at 12.10 pm.. The doctor found one lacerated wound of 3 cm x 1 cm x muscle deep on lateral region of left eye. The injury was reported to be simple and caused by hard and blunt object. The injury report of Suresh Kumar is Ext. Ka-3 and that of Shyam Lal is Ext.Ka-4.

(E) Although S.I. Sri Udai Singh had almost completed the investigation but since he was transferred the investigation of the case was handed over to S.I.-Sri Madan Mohan Chaubey who after completing the investigation submitted the charge sheet Ext.Ka-15 before C.J.M., Fatehpur against all the accused.

(F) The committal proceedings took place in the court of Sri Sheo Ram Dohare, III Additional Chief Judicial Magistrate, Fatehpur, who committed all the accused to the court of Sessions to face the trial, where it was registered as S.T. No. 210 of 1990. Learned Sessions Judge, on the basis of the material on record and after hearing the prosecution and the accused on the point of charge framed charge against the accused appellants under Section 302/34 IPC for the murder of Kalloo Prasad and another charge under Section 323/34 IPC for causing injuries to Suresh Kumar and Shyam Lal while co-accused Ram Kishore was also charged for the offence punishable under Section 120B IPC for having conspired with other co-accused to commit the murder of Kalloo Prasad. The accused-appellants abjured the charge and claimed trial.

(G) The prosecution in order to prove its charge framed against the accused-appellants examined as many as six witnesses of whom PW-1 Suresh Kumar and PW-2 Rajesh Kumar were examined as witness of fact while PW-3 Shitla Prasad, PW-4 Dr. Sharad Mehrotra, PW-5 Dr.J.P.Bajpai and PW-6 Udai Singh, Investigating Officer were produced as formal witnesses. Appellant Chandrika alias Jokar in his statement recorded under Section 313 Cr.P.C. denied any friendship with accused Kalloo. He further stated in reply to question no.9 that when he heard about the death of Lalu Prasad after taking his food, he had gone to see him at 8 P.M. or 8:30 P.M. He also filed his written statement paper no.25A1 in which he has written that one year before the occurrence Lalu Prasad had teased the wife of Suresh Kumar on which Suresh Kumar had beaten his father which caused a lacerated wound on his head. He had given his house to Suresh Kumar only for six months. When he asked him to vacate the house one month before of the occurrence, he became angry and implicated him in this case falsely. He further stated that he is in service of Debi Prasad Agnihotri, who has got enmity with Ranjeet Singh and in collusion with Ranjeet Singh Pradhan, he has been implicated by PW-1 in this case. Accused Kalloo has stated that Suresh Kumar is in the service of Pradhan and at his instance, he has been implicated in this case. Accused Ram Kishore has stated that he was been implicated due to election rivalry.

(H) Learned Sessions Judge, Fatehpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record convicted the accused-appellants under Section 302/34 and 323/34 IPC and awarded the aforesaid sentences to them while Ram Kishore was acquitted of all the charges.

(I) Hence this appeal.

3. Learned counsel for the appellants submitted that the incident had taken place at 8.30 p.m. and there being no proof of availability of any source of light at the place of incident, it was not possible for the two so called eye witnesses of the occurrence to have identified the assailants and in view of the admitted previous enmity between the deceased and his family members and the accused-appellants, after some unknown persons had shot Kalloo Prasad father of PW-1 Suresh Kumar and Shyam Lal dead and caused injuries to PW-1 Suresh Kumar, as a measure of vendetta PW-1 Suresh Kumar falsely implicated the accused-appellants in this case. He further submitted that the evidence of PW-1 and PW-2 for the purpose of convicting the accused-appellants, is wholly unreliable and untrustworthy in view of there being inherent contradictions, inconsistencies and discrepancies in their testimony on all material points relating to the occurrence. The medical evidence does not collates the ocular version. The delay in lodging the FIR is in itself suggestive of the fact that the FIR of the incident was prepared after due deliberations and consultations falsely implicating the accused-appellants. The prosecution having miserably failed to prove the charges framed against the accused-appellants by adducing any cogent evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside.

4. Per contra Smt. Manju Thakur, learned State Law Officer appearing for the State made her submissions in support of the impugned judgment and order. She submitted that the complicity of the accused appellant stands fully proved from the evidence of PW-1 and PW-2, the two eye witnesses of the occurrence examined by the prosecution during the trial. The delay in lodging the FIR has been satisfactorily explained and even otherwise it is settled law that the prosecution case is not liable to be thrown out merely on the ground of there being delay in lodging of the FIR if the prosecution succeeds in bringing home the charge framed against an accused by leading umimpeachable and reliable evidence. The recorded conviction of the appellant is based upon cogent evidence and sentences awarded to them are supported by relevant considerations. This appeal lacks merit and is liable to be dismissed.

5. We have heard learned counsel for the parties and very carefully scrutinized the entire lower court record.

6. The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not. For that purposes we will have to critically analyze and scrutinize the evidence on record.

7. In proof of its case the prosecution examined PW-1 Sri Suresh Kumar, the complainant of the case. He is said to be an eye witness. He has narrated the entire prosecution story as contained in the FIR. He has stated that although the case under Section 107 Cr.P.C. was compromised but the accused continued to remain inimical towards the complaint and his family members. He further stated how Ram Kishore had asked Kalloo and Chandrika to kill Lallu Prasad; their conversation was overheard by Nanku who had requested them not to do anything wrong, Nanku had told the complainant and his father about the conversation between the accused but they had not taken a serious view of the matter. He stated that soon after being shot his father died. He had kept sitting on the spot along with 10 to 50 persons in the night guarding the dead body of his father and due to fear he had not gone to the police station to lodge the FIR in the night. He proved the written report of the occurrence Ext.Ka-1. He stated that he was interrogated by the Investigating Officer at the police station itself. He also deposed that the Investigating Officer had inspected his torch and prepared the fard. In the cross examination, he admitted that Ranjeet Singh was the Pradhan of the village and before him Devi Prasad was Pradhan. There was no contest for the post of village Pradhan between Ranjeet Singh and Devi Prasad. He admitted that accused Chandrika was a stooge of Devi Prasad. He also admitted that he was residing in the house of Chandrika for the last 10 years. Chandrika accused had given his house to him. He admitted that Rajesh Kumar was his real brother. He denied that his father had teased his wife before this occurrence, for which he had beaten his father. He further denied that his father was a man of loose character. He was cross examined on the point of his father having many other enemies in the village. He denied that there was any rumor that Buddhi Lal had murdered his father due to enmity. He denied the suggestion given to him that he was giving false evidence against the accused at the behest of Ranjeet Singh Pradhan. He stated that he usually carried a torch with him and when he had flashed his torch at Kalloo and Chandrika they had fired at his father. He stated that his father had not taken food before the occurrence and he had disclosed the aforesaid fact to the I.O. also.

8. PW-2 Pankaj Kumar was aged about 8 or 9 years on the date of recording of his evidence. He was quizzed by the court and from the reply given by him to the queries put to him he was found by the Court fit to depose. He in his evidence corroborated the testimony of PW-1 on all material points relating to the incident. In his cross examination he stated that they had eaten khichari on the night of occurrence but his father had not taken khichari. He stated that in the morning they had eaten roti and namak while PW-1 Suresh Kumar stated that in the morning they had eaten "Kheer". He denied the suggestion given to him by the defense counsel that at the time of occurrence Kalloo had met him at the parchoon shop of Ram Pal. He also denied the suggestions given to him by the defense counsel that he had not seen the occurrence.

9. Dr. Sharad Mehrotra, the doctor who had done the autopsy of the dead body of the deceased was examined as PW-3. He proved the ante mortem injuries and cause of death of the deceased which in his opinion was due to shock and haemorrhage as a result of ante mortem injuries. He stated that all the injuries could have been caused either by one shot or by two shots, but not by more than two shots. He further stated that the deceased might have taken food before four hours of the occurrence. He also stated that it was possible that injury nos. 2 and 3 could be caused by a blunt object or by the friction of pellets. He further stated that looking at the dimensions the injuries it was possible that the aforesaid injuries were caused by danda. He also stated that it was also possible that the deceased had died at about midnight.

10. P.W.4 Dr. J.P.Bajpai proved the injuries of Suresh Kumar as well as of Shyamlal. He denied the suggestion that Suresh Kumar and Shyamlal had not received any injuries and their injury reports were fabricated and the injuries had been mentioned in their injury reports by him on the instructions of the Investigating Officer.

11. P.W.5 Sri Shitla Prasad who is the scribe of the G.D. and the check report in his cross examination denied that the FIR was ante-timed.

12. P.W.6 Sri Udai Singh the first Investigating Officer of the case in his evidence tendered before the trial court disclosed the various steps taken by him during the investigation and proved the documents on record which were prepared by him during investigation.

13. The factum of homicidal death of Sri Lalu Prasad is admitted. Deceased's identity has also not been disputed.

14. The next question is about the motive for the occurrence. The motive mentioned in the F.I.R. is that the complainant owned a house which was built by him on Banjar land outside the Abadi. Kalloo and Chandrika wanted him to vacate the same and hand over its possession to them. On account of the aforesaid dispute proceedings u/s 107 Cr.P.C. were drawn against them. However, those proceedings were compromised. But the accused continued to harbour animosity towards PW-1 and his family members. PW-1- Suresh Kumar has specially stated the aforesaid fact in para 2 of his statement. He was subjected to a lengthy cross-examination and in para 7 of his cross-examination, he admitted that adjacent to his land, there was a Ghoora of Kalloo in respect of which proceedings u/s 107 Cr.P.C. were drawn. Chandrika was not party to those proceedings. The evidence on record also evinces that there was a dispute between the parties with regard to some land. Although it was not stated by PW-1 in his statement u/s 161 Cr.P.C. that the accused wanted to take possession of his land but it was specifically mentioned in the F.I.R. that Ram Kishore had asked Nanku to tell Lalu Prasad to vacate the land. He stated that although there was no dispute after the compromise in the proceedings under Section 107 Cr.P.C. but still the accused continued to bear enmity towards him and his family members. P.W.1 Suresh Kumar further stated that even after the compromise, the parties were not on talking terms. Thus it is proved from the evidence of PW-1 that there was enmity between the parties and even after proceedings under Section 107 IPC were compromised the parties were not on talking terms and that accused Kalloo had also put his Ghoora near the Kothari of the deceased and he wanted to grab the land of his Kothari. Accused Chandrika was his close friend as has come in his evidence. Therefore the prosecution has succeeded in proving that there was strong motive for the accused to commit the murder of Lalloo Prasad.

15. The next question is whether the prosecution has succeeded in proving that the incident had taken place at the time mentioned in the FIR. Learned counsel for the appellants submitted that the occurrence took place sometimes at about midnight and not at 8.30 P.M. as claimed by the prosecution. None had seen the occurrence. In this regard he invited our attention to last line of the cross-examination of PW-3 in which he has stated that it was possible that the deceased had died at midnight. However cross examination of PW-1 goes to show that the defense had not challenged the time of occurrence by giving any suggestions to PW-1 Suresh Kumar. He was only asked that at what time the deceased had taken his meal. There are some contradictions between the statements of Sri Suresh Kumar and Rajesh Kumar regarding the food eaten by the deceased in the afternoon but both have specifically stated that their father had not taken food on the night of occurrence. It is true that in the F.I.R. it was not specifically written that only Rajesh Kumar and Suresh Kumar had taken food and their father had not taken food and it can be inferred from the F.I.R. recitals that all of them had taken food but since the doctor had found digested food in the stomach of the deceased, there was possibility of the deceased having taken food at 8 P.M. and his murder having been committed at midnight. But reply given by accused Chandrika in his statement under Section 313 Cr.P.C. to question no.9 that he had gone to see deceased Lalu Prasad after taking his food in the night at about 8 or 8:30 P.M. renders the entire argument and the cross-examination on the point when Lalloo Prasad had taken food and presence of semi-digested food in his stomach which indicated that he was murdered at midnight insignificant. The admission of Chandrika is one of the most clinching circumstance which corroborates the prosecution case that the deceased had died before 8 or 8.30 p.m. and he had gone to see the deceased at 8 or 8.30 p.m.. It was perfectly natural for everyone to run to the place of occurrence to see what had happened and this fact also reveals that the occurrence took place at 8.30 p.m. and further suggests that the deceased had taken food some where else at 3 or 4 p.m. and on account of the aforesaid reason he did not take food at 8 p.m. along with other members of the family as stated by the witnesses. PW-2 Rajesh Kumar has also stated in para 3 of his statement that at the time of the preparation of khichari his father was not present in the kothari. He came in between but he did not take food. His father had come about one hour before the occurrence. This reveals that the deceased had gone some where else and he was not present in his hut with his two sons and had taken food elsewhere.

16. The next question which arises for our consideration is that whether FIR version is liable to be disbelieved on the ground of there being delay of about nine hours in lodging the FIR. According to the FIR the occurrence had taken place at 8 or 8.30 p.m. in which two persons had killed the deceased by firing at him from their guns and caused injuries to the complainant who was accompanying the deceased and while running away from the crime spot, they had also caused injuries to one Shyam Lal. Therefore, under the aforesaid circumstances nobody would have dared to proceed to the police station in the night to lodge the FIR. Suresh Kumar has specifically stated in his evidence that he and other villagers had sat throughout the night at the place of incident guarding the dead body and they had not gone to police station to lodge the FIR. In the early hours just after sunrise he went to the police station to lodge the FIR. His statement appears to be quite natural and consistent with the prosecution story. The only suggestion given to him by the defence counsel is that the accused were falsely implicated in the present case due to enmity between Ranjeet Singh and Debi Prasad. Ranjeet Singh was the then Pradhan of the village while Debi Prasad was the Ex-Pradhan. While the complainant was stated to be in the service of Ranjeet Singh, Chandrika was a stooge of Debi Prasad. The nephew of Sri Ranjeet Singh Pradhan, namely, Sri Bharat Singh. Advocate was appearing from the prosecution side and hence it was possible that Chandrika was implicated falsely. However, Kalloo accused was not said to be in the service of Debi Prasad. He had his own reasons for being inimical towards the deceased and on account of that he may have killed the victim.Enmity is a double edged sword, if it can be a ground for false implication it can also furnish strong motive for comitting a murder. But the circumstances of the case and the evidence on record show that Kalloo is the actual assailant. There is no question of his false implication. As regards implication of Chandrika it transpires from the evidence on record that he had given his house to Suresh Kumar. He is of the same caste as Suresh. Merely on saying of Ranjeet Singh Pradhan he would not have falsely implicated Chandrika as accused who belonged to his own caste and with whom he had no issue. Even if we assume for the sake of argument that PW-1 Suresh Kumar had any reason to implicate some person as accused presuming that he had failed to identify the real perpetrators of the crime, in that case the best person whom he would have falsely implicated at the behest of Ranjeet Singh Pradhan was Debi Prasad himself and not his stooge Chandrika unless he had seen Chandrika committing the murder of his father. The autopsy report of the deceased indicates that he had received two firearms injuries which were caused by two separate shots fired from two fire arms. PW-3 has categorically stated that two persons had fired at the deceased from their firearms, who were identified by two prosecution witness as Chandrika and Kalloo, we do not find any justifiable reason for the first informant PW-1 Suresh Kumar to screen the real offenders and falsely implicate innocent persons merely at the behest of village Pradhan Ranjeet Singh as aruged by the learned counsel for the appellant.

17. The presence of Suresh Kumar at time and place of occurrence cannot be doubted even for a moment as he had received injuries in the occurrence.

18. Although a suggestion was given by the defense counsel to PW-1 that Lallu Prasad had large numbers of enemies and anyone of whom could have killed him but the said suggesion was denied by Suresh Kumar PW-1 and the deposition made by him in his examination-in-chief that Chandrika and Kalloo had shot his father dead remains intact throughout his cross examination.

19. It has also been argued by learned counsel for the appellants that the presence of PW-1 and PW-2 at the place of occurrence at the time when their father Lallu Prasad was shot is highly unnatural. The prosecution story that they were going to their house inside the village after dining in their hut situate in the village does not inspire any confidence at all. There is no force in the aforesaid argument of the appellant's counsel. It is established from the evidence of PW-1 and PW-2 that PW-1 Suresh Kumar has two houses one inside the village and another outside the village which was in the shape of Kothari (hut) which was built by him on the land of gram samaj and adjacent to his hut there was ghoora of accused Kalloo. Both the witnesses have uniformly deposed that after eating their food in their hut they used to sleep in their house inside the village.

20. We do not find anything unnatural about their cooking food in their hut outside the village and then going to their house inside the village to sleep and their testimony on the aforesaid point has remained unshakable. The occurrence had taken place in the month of July which is rainy season. It was quite natural for PW-1 Suresh Kumar to have carried a torch with him while returning from his hut outside the village to his house inside the village at night. He had shown his torch, in the light whereof he had seen the occurrence and identified the accused to the Investigating Officer who had prepared its recovery memo Ext.Ka-13, which was proved by the PW-6 Udai Singh. However, the defense counsel by giving suggestion to PW-2 Rajesh Kumar in para of his statement that he had met Lalloo Singh at the parchoon shop, the defense has virtually admitted the presence of PW-2 Rajesh at the parchoon shop of Ram Chandra which is near the place of occurrence. The aforesaid suggestion itself shows that the place of occurrence as mentioned in the FIR and in the statement of two witnesses of fact stands admitted to the defense.

21. It has also been argued by learned counsel for the appellant that PW-1 Suresh Kumar was neither present at the place of occurrence nor he had received any injury and his injury report was fabricated by Investigating Officer with the intention of establishing his presence at the place of occurrence. We do not find any force in the aforesaid submission of learned counsel for the appellants as well. The injuries of PW-1 Suresh Kumar were examined by PW-5 Dr. J. P. Bajpai who had also prepared his injury report and proved the same as Ext.Ka-3. No suggestion was given by the defense counsel to PW-4 that injury report of Suresh Kumar PW-1 prepared by him was a fabricated document.

22. It has been argued by the learned counsel for the appellant on behalf of the appellants Chandrika that about one year before the occurrence Chandrika had allowed Suresh Kumar PW-1 to occupy his room and when he asked PW-1 to vacate the same he became inimical towards him and in order to prevent him from putting pressure upon him to vacate his room, when his father was shot dead by some unknown persons, PW-1 Suresh Kumar utilised the aforesaid opportunity by falsely implicating him in the murder of his father. However, PW-1 Suresh Kumar has specifically deposed that Chandrika had given his house to him about ten years before on the condition that he would not transfer the same. Thus it is proved that PW-1 Suresh Kumar had not taken forcible possession of the house of Chandrika but on the contrary he had given his house to PW-1 Suresh Kumar voluntarily. Although a suggestion was given by defense counsel to PW-1 Suresh Kumar that one month before the occurrence Chandrika had asked PW-1 Suresh Kumar to vacate his house but he had refused but there is nothing on record showing that after Suresh Kumar had refused to vacate his house, he had either initiated any legal proceedings against him or he had made any complaint to the Pradhan of the village. Thus there does not appear to be any truth in the aforesaid submission.

23. A feeble attempt was made by learned counsel for the appellant to impress upon us that medical evidence on record does not corroborate the eye witness account. In this regard our attention was invited by the learned counsel for the appellant to the ante mortem injury nos. 2 and 3 noted by the PW-4 Dr. Sharad Mehrotra on the dead body of deceased Lalloo Prasad which according to the post mortem report of the deceased Ext.Ka-2 and the evidence of PW-4 Dr. Sharad Mehrotra could have been caused by a blunt object and on the basis of the aforesaid piece of evidence, he submitted that it not being the prosecution case that the assailants apart from being armed with firearms was also carrying with them any lathis by which they could have caused ante mortem injury nos. 2 and 3 and none of the prosecution witnesses having been able to explain how ante mortem injuries nos. 2 and 3 were caused as according to their evidence, the deceased was shot by the accused appellant by their firearms, it was apparent that no one had actually witnessed the incident. After a very carefully going through the evidence of PW-3, we find there is no tangible confilct between the ocular version and medical evidence on record PW-3 has clearly deposed that injuries nos. 2 and 3 could have been caused either by blunt object or by friction of pellets. Thus in view of the forgoing discussion we have no hesitation in holding that the prosecution has fully succeeded in proving by cogent and reliable evidence that Lalloo Prasad was shot dead by the accused appellants at about 8 and 8.30 p.m. while returning to his house inside the village from his hut outside the village along with his sons PW-1 Suresh Kumar and PW-2 Rajesh Kumar. The medical evidence on record fully corroborates ocular version. It is true that both the eye witnesses of the occurrence produced by the prosecution are the sons of the deceased and hence it can be argued that they were partisan and highly interested witnesses but in view of the settled law that the evidence of a witness is not liable to be discarded merely on the ground of his being a relative of the deceased if upon a careful and cautious appraisal of his evidence, it is found that he has given a cogent and believable version of the occurrence, their evidence is not liable to be discarded merely on the ground of their being the sons of the deceased. In the present case both the witnesses PW-1 Suresh Kumar and PW-2 Rajesh Kumar have fully supported the prosecution case as spelt out in the FIR on all material points relating to the occurrence, namely, the time, place and manner of assault and the identity of perpetrators of the crime as spelt out in the FIR. They have been subjected to long drawn cross examination by the defense counsel but their evidence on all material aspects of the matter as remained intact, clinching and reliable. The defense counsel has failed to elicit anything out of them which may render their testimony in our opinion unreliable or doubtful. Thus their evidence is not liable to be thrown out merely on the ground of there being close relatives of the deceased.

24. In view of the foregoing discussion, we do not find that learned trial judge has committed any illegality or infirmity in convicting the appellants under Sections 302/34 and 323/34 IPC and sentencing them to imprisonment for life under Sections 302/34 IPC and Section 323/34 IPC.

25. This appeal lacks merit and is accordingly dismissed.

Order Date :- 4.8.2017

Abhishek Sri.