Braham Kishore @ Ladeti & Others vs State Of U.P.
2017 Latest Caselaw 3700 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 44								       Reserved
 

 
Case :- CRIMINAL APPEAL No. - 5393 of 2005
 

 
Appellant :- Braham Kishore @ Ladeti & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Narendra Kumar Singh, Ashok Kumar Misra, Manoj Nigam, Sarvesh, Sukhvir Singh
 
Counsel for Respondent :- Govt. Advocate, Dhurvendra Singh Yadav, J.N. Singh, Pankaj Srivastava, Vikrant Pandey, Vikrant Rana
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Shailendra Kumar Agrawal, J.)

1. This appeal has been preferred by accused/ appellants Braham Kishore alias Ladeti, Lal Jee and Shiv Kishore against the judgment and order dated 25.11.2005 passed by the Additional Sessions Judge, Court No.1, Etah in Sessions Trial No.227 of 1999 (State Vs. Braham Kishore alias Ladeti and others), arising out of crime no.184 of 1998, under Sections 148 and 302/149 IPC, Police Station Patiyali, District Etah, whereby the appellants were convicted and sentenced under Section 302 read with Section 149 IPC for life imprisonment along with fine of Rs.5000/- each and under Section 148 IPC for two years' rigorous imprisonment with default stipulations.

2. The brief facts of the case are that a written report Ex. Ka-1 was lodged by the complainant Sharad Swarup Mishra (PW-1) at the police station Patiyali, District Etah that on 11.10.1998 he and Shashikant Mishra were sitting near Dr. Surendra Nath Mishra at his shop. Km. Ruchi d/o of Dr. Surendra Nath Mishra was also present there; petromax was burning in the shop and there was sufficient light of generator also outside the shop. At about 7.30 p.m., Braham Kishore @ Ladeti, Lal Jee and Shiv Kishore Mishra sons of Sushil Kumar Mishra and Sushil Kumar (died during trial), Har Narayan Mishra (acquitted by trial court) armed with country-made pistols came at the shop. Sushil Kumar hurled abuses at Dr. Surendra Nath Mishra by saying that "lkys rw cM+k iSls okyk vkSj usrk curk gS] rsjh cnkSyr gh esjk yM+dk ekjk x;k"; at that moment Braham Kishore opened fire at Dr. Surendra Nath Mishra with an intention to kill him. Dr. Surendra Nath immediately alighted from the shop and started fleeing away, then Har Narayan Mishra, Lal Jee, Shiv Kishore and Braham Kishore standing on the road, fired upon Dr. Surendra Nath Mishra by their respective country-made pistols, due to which Dr. Surendra Nath Mishra died on the spot. Bharat Narayan, Shiv Narayan, Shyam Narayan, residents of Alaiyapur, P.S. Raaja-Ka-Rampur were also involved in this incident. All the accused persons brandishing pistols ran towards northern side leaving the dead body of Dr. Surendra Nath Mishra on the spot.

3. On the basis of written report Ex. Ka-1 of informant Sharad Swarup Mishra, Chik F.I.R. Ex. Ka-10 in case crime no.184 of 1998, under Sections 147, 148, 149, 302 IPC was registered, which was entered in G.D. No.35 time 20.15 o' clock dated 11.10.1998, which is Ex. Ka-11. The investigation was handed over to PW-4 Sri Gaya Prasad Diwakar, Inspector, C.B. C.I.D., who immediately reached at the spot, sealed the dead body of Dr. Surendra Nath Mishra and prepared its Panchayatnama in presence of Panch witnesses. Site plan paper no.9A Ex. Ka-2, recovery memo of blood stained and plain earth Ex. Ka-3, inquest report Ex. Ka-4, recovery memo of petromax Ex. Ka-5, photo lash Ex. Ka-6, challan lash Ex. Ka-7 and letter to C.M.O. Ex. Ka-8 were prepared. Thereafter, the corpse of Dr. Surendra Nath Mishra was sent for postmortem through CP Narayan Singh and CP Harpal Singh. The investigation culminated into filing of the charge sheet Ex. Ka-9 against the accused Braham Kishore @ Ladeti, Lal Jee, Shiv Kishore and Sushil Kumar. Another charge sheet Ex. Ka-12 was separately submitted against accused Har Narayan as he was absconding.

4. On 12.10.1998 at about 11.30 a.m. Dr. S.K. Sharma (PW-5) conducted autopsy on the corpse of Dr. Surendra Nath Mishra and prepared postmortem report Ex. Ka-13. He found weak rigor mortis in upper extremities and fully developed in lower extremities, greenish discolouration present in iliac dorsal and spreading over to rest of the abdomen. Blood present on nostrils. He also found following ante-mortem injuries on the corpse of deceased Dr. Surendra Nath Mishra:-

(i) Fire arm wound of entry 1 cm x 1 cm x inside the cavity on front of left side chest upper part 10 cm above nipple at 11-1/2 o' clock position. Margins inverted and lacerated. Directions backwards, downwards and from left to right. Tattooing present all around the wound.

(ii) Multiple fire arm wounds of entry 1/4 cm x 1/4 cm under the skin and inside the cavity in an area of 27 cm x 10 cm on middle of back 14 cm above iliac crest. Margins inverted and lacerated. No blackening or tattooing.

(iii) A fire arm wounds of entry 1/4 cm x 1/4 cm x skin deep on left side lower part of back. Margins inverted and lacerated. No blackening or tattooing.

Note- On dissection one yellow coloured comical metallic bullet was recovered under the skin on right side back just lateral to scapula. Twenty seven small pellets were recovered from the left tissues under the skin and from small intestines and upper nipple.

The doctor opined that death was caused due to haemorrhage and shock as a result of ante-mortem injuries.

5. Criminal case no.1480/98 was committed against accused Braham Kishore @ Ladeti, Laljee, Shiv Kishore and Sushil Kumar (since deceased) to the court of sessions for trial under Sections 147, 148, 149, 302 IPC by the Magistrate vide order dated 26.04.1999 and criminal case no.331/99 was committed to the court of Sessions for trial against accused Har Narayan under Sections 147, 148, 149, 302 IPC by the Magistrate vide order dated 04.02.2000. Since accused Sushil Kumar died during trial, therefore, the case against him was abated vide order dated 02.03.2005. As both the sessions trials were related to one and the same incident, hence those were consolidated vide order dated 02.07.2001.

6. Learned trial court framed charges against the accused-appellants for the offence under Sections 148 and 302 read with Section 149 IPC. All the accused-appellants pleaded not guilty and claimed to be tried.

7. To substantiate the charge, the prosecution has examined following witnesses:-

i. Sharad Swarup Mishra, the complainant of the case as PW-1;

ii. Km. Ruchi Mishra, eye witness of the incident and daughter of the deceased as PW-2;

iii. Shashi Kant Mishra, eye witness of the incident as PW-3;

iv. Inspector Gaya Prasad Mishra, the Investigating Officer as PW-4; and

v. Dr. S.K. Sharma, who conducted postmortem on the corpse of deceased as PW-5.

8. All accused-appellants in their statement u/s 313 Cr.P.C. have denied all material facts of the prosecution and stated that they have been falsely implicated in the case due to enmity. However, no oral or documentary evidence has been adduced by the accused persons in defence.

9. After scrutinizing and appreciating the evidence, available on record, the learned court below recorded finding of conviction of Braham Kishore @ Ladeti, Laljee and Shiv Kishore and acquitted accused Har Narayan under Sections 148 and 302 read with Section 149 of I.P.C.

10. Heard Sri Sukhvir Singh, Advocate for all the three appellants, Shri Sarvjeet Kumar, Advocate brief holder of Shri Vikrant Pandey, Advocate for complainant and Shri Rajiv Sharma, learned AGA for the State.

11. PW-1 Sharad Swarup Mishra is said to be one of the main witnesses of the incident because he was sitting near Dr. Surendra Nath Mishra (deceased) at his shop at the time of occurrence and this witness is also scribe of the FIR. PW-1 Sharad Swarup Mishra has stated that written report, Ex. Ka-1 was given by him in Police Station Patiyali on 11.10.1998. It was written verbatim as it was dictated to him in Police Station and it was read over to him and he signed it and the FIR got lodged. Daroga Ji was well aware about the incident as the family members of Dr. Surendra had already told him about the incident. Dr. Surendra Nath Mishra was murdered on 11.10.1998 in evening at 7.30 p.m. in front of his shop. He further stated that at the time of incident, he was sitting in his shop, which was adjacent to the shop of deceased. There was no generator at the shop of this witness. This witness has also stated that he did not know Shiv Kumar and he did not see the incident of murder of Dr. Surendra Nath Mishra as he was present at his shop of medical store at the time of incident.

12. This witness is proprietor of a medical store. He is a literate person. He has admitted his signature on his written report Ex. Ka-1. This witness has not stated even a single word in his examination-in-chief that this written report was written on the dictation of Daroga Ji. This witness was declared hostile on the request of prosecution. During cross-examination by A.D.G.C., this witness has stated that policeman took him to the Police Station from his shop and he was alone, but had given this written report Ex. Ka-1 in Police Station. Now in cross-examination from accused side, this witness has stated that this written report Ex. Ka-1 was written on the dictation of Daroga Ji and it was read over to him and when Daroga Ji dictated this written report, he knew that this written report is related to the murder of Dr. Surendra Nath Mishra. Admittedly, he was aware of the fact that he was informant of this case yet he did not question Daroga Ji that why was he made scribe of this case. On the queries put by the court, the witness has admitted that his statement was recorded by the Investigating Officer u/s 161 Cr.P.C. wherein this witness has narrated the whole story as per FIR case. He has also admitted that he never moved any application to any higher authority or Superintendent of Police that a false written report had been scribed from him regarding this murder and he never complained to anyone. The entire statement of PW-1 shows that this written report Ex. Ka-1 was written by this witness himself with his free consent and he himself submitted the report in Police Station. It is noteworthy that this written report was written by PW-1 himself in his own handwriting, hence no question of reading over the contents of the written report arises. One question also arises that who would have told the police about this incident and who were those family members, who informed the police. PW-2 and PW-3 were allegedly present in village Alaiyapur. All it proves that it is the complainant, who himself went to the Police Station to lodge the FIR with correct facts. Now due to some reason best known to him, he has not supported the prosecution case regarding involvement of accused persons in this murder of Dr. Surendra Nath Mishra.

13. If we go further through the whole statement of PW-1, it transpires that murder of Dr. Surendra Nath Mishra took place inside and in front of his shop on the same time and date as per prosecution case and it cannot be said that the FIR was lodged due to intervention of the police officials. We are of the view that the contents of FIR are true and can be acted upon and this FIR was lodged on the same day at 8.15 pm by PW-1 admitting that after fifteen minutes of the incident he reached the Police Station. He had very cordial relations with the deceased Dr. Surendra Nath Mishra. In the circumstances, we do not find any force in the argument of the appellants that PW-1 as hostile witness, cannot be believed on any count. It has been held by the Hon'ble Supreme Court that evidence of hostile witness cannot necessarily be brushed aside completely. The evidence of PW-1 has also supported the prosecution case on many counts such as place of occurrence, time, place etc.

14. PW-2 Km. Ruchi Mishra and PW-3 Shashi Kant Mishra, eye witnesses of the incident, have also fully supported the incident. PW-2 has stated that her father was murdered on 11.10.1998 at about 7.30 p.m.; at the time of murder, her father was present in his clinic situated in Patiyali; at the time of murder she was sitting near her father in the shop; beside her, PW-3 Shashikant Mishra and PW-1 Sharad Swarup Mishra were also sitting; at that time her father was sitting opposite her; the chair was lying towards eastern side; she had gone to call her father Dr. Surendra and uncle i.e. PW-3 Shashi Kant Mishra for taking meal; her uncle, who was sick, had come from his village Alaiyapur for taking medicines; accused Lal Jee, Shiv Kishor Mishra, Braham Kishore Mishra are of her village and she knew them; accused Sushil Kumar was also known to her; all the four accused having country-made pistols had come at the shop of her father; accused Sushil Kumar said to her father that "lkys rw cM+k iSls okyk vkSj usrk curk gS] rsjh cnkSyr gh esjk yM+dk ekjk x;k"; then accused Braham Kishore shot her father with an intention to kill him, which hit him; her father started fleeing away; then from behind accused Lal Jee, Shiv Kishor Mishra, Sushil Kumar Mishra shot her father, which hit in the back of her father; after that accused fled away towards northern side; petromax was lighting at her shop and there was also light of generator running at the neighbour's shop; her father died on spot due to fire shots; her mother also reached at the place of incident and her uncle Shashikant was already present there.

15. PW-3 Shashi Kant in his examination-in-chief has also corroborated the version of PW-2.

16. Both the witnesses PW-2 and PW-3 have stated that Braham Kishore fired on Dr. Surendra Nath Mishra and when Dr. Surendra Nath Mishra started running away from the shop towards outside, all the accused fired upon him and he fell down and died on the spot. There is no contradiction or variation in the statements of both witnesses on any count. Both the witnesses have stated that they did not see Har Narayan on the spot.

17. As per statements of both the witnesses i.e. PW-2 and PW-3, Dr. Surendra Nath Mishra was initially shot when he was sitting in his clinic. It has been corroborated by the evidence of Investigating Officer also, who recovered a bullet and piece of broken glass from inside the clinic. Recovery memo is Ex. Ka-3. The Investigating Officer also found the marks of bullet on the wall. Both the witnesses have been cross-examined at length. There is no contradiction on the point that the said occurrence firstly took place in the shop of the deceased, hence presence of both the witnesses has been established and secondly the manner in which this occurrence took place has been narrated by both the witnesses, only the person who was present in the shop could narrate that story. After sustaining fire shot inside the shop, Dr. Surendra Nath Mishra ran away outside from the shop and on the roadside at place 'X' shown in site plan, he fell down sustaining the fire arm injuries caused from behind. Both the witnesses have clearly stated that Dr. Surendra Nath Mishra was also shot from behind. These injuries have been corroborated with the evidence of Dr. S.K. Mishra, PW-5. Injury nos.2 & 3 also support this fact that fire arm injuries were caused in his back. The doctor found the sign of blackening and tattooing. This fact also establishes the presence of both the witnesses PW-2 & PW-3 inside the shop at the time of incident.

18. It has been argued on behalf of the appellants that only one bullet was found inside the shop, where Dr. Surendra Nath Mishra was sitting. PW-3 has stated that four empty cartridges were found on the ground while only one shot was fired on Dr. Surendra Nath Mishra. We agree with the argument of the learned counsel for the appellants that this witness has exaggerated the story, but only due to this exaggeration, the whole prosecution story cannot be doubted in any way.

19. PW-4 inspected the spot and prepared site plan Ex. Ka-2 and he found that the deceased after sustaining the shot injuries fell down on the place marked as 'X' in the site plan, which is also proved by the evidence of PW-2 and PW-3. Investigating Officer also found empty cartridge from the place mentioned in the site plan near the dead body. The Investigating Officer also collected the blood stained and simple earth from the spot and prepared recovery memo Ex. Ka-3. These facts also establish that the place of occurrence is the same and there is no doubt regarding the same and no suggestion has been given to the Investigating Officer or to any other witness that this incident took place somewhere else.

20. PW-4 Investigating Officer Sri Gaya Prasad has proved the chik FIR Ex. Ka-10 and GD Ex. Ka-11, which was prepared by Cons. Shishupal Singh. This incident took place on 11.10.1998 at 7.30 pm and the FIR was lodged on the same day at 8.15 pm and the police station is 1 km away from the place of incident, hence it cannot be said that there was any delay in lodging the FIR.

21. PW-2 has been suggested that at the time of incident, she was present in the village Alaiyapur and PW-3 was also present there. There is nothing in the evidence of these witnesses that they were present in village Alaiyapur at the time of incident. PW-2 has categorically stated that at the time of incident she was sitting near the chair of her father and PW-3 Shashikant Mishra and PW-1 Sharad Swarup Mishra were sitting beside her. PW-3 has also reiterated the same thing. There is nothing contradictory in their cross-examination. This fact has also been corroborated by site plan Ex. Ka-2. Presence of both PW-2 and PW-3 on the spot cannot be doubted unless contrary is proved by trustworthy evidence.

22. It has been argued on behalf of the appellants that PW-2 was only chance witness because she went to the shop of her father to call her father and uncle Shashikant Mishra for dinner while in her cross-examination she has admitted that the shop of her father used to open at 6.00 a.m. and remained open upto 9 - 10 pm and her father used to go to his clinic after taking breakfast and used to come home for taking meal after closing the shop. Then why did PW-2 go to call her father and uncle for dinner on that day? This shows the manipulation on the part of prosecution just to give colour to the case. Her false presence has been shown. We do not find any force in this argument. As PW-2 has stated in her examination-in-chief that on that day, her uncle Shashikant Mishra had come there from village Alaiyapur for taking medicine because he was under treatment of her father. She went to her father's clinic to call her father and uncle for dinner and it is not unnatural conduct. This witness was of twelve years of age at that time. Clinic was not very far away from home. She has been cross-examined at length on this score. Her presence is not doubtful in any way. She cannot be termed as chance witness.

23. It has also been argued that PW-3 is also a chance witness because he is said to be present on the shop on that day by chance just to take medicine from his brother deceased Dr. Surendra Nath Mishra. We do not agree with the argument of the learned counsel for the appellants. As regard with PW-3, his presence on the shop of deceased cannot be doubted in any way because he was suffering from eosinophilia and was under treatment of the deceased since last two months before this incident. Both the witnesses PW-2 and PW-3 have specifically deposed about their presence on the spot at the time of incident and there is nothing in their cross-examination to render their presence doubtful in any way.

24. Now question arises, who is chance witness and what is value of his deposition. It is not the rule of law that chance witnesses cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. It is correct that evidence of chance witness should be scrutinized very cautiously and requires careful consideration, but under Section 118 of the Evidence Act, the evidence of independent witness cannot be brushed aside or viewed with suspicion on the ground that they were mere chance witness (State of A.P. Vs. K.S. Reddy, AIR 2004 SC 3305). The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. (Thangaiya Vs. State of Tamilnadu, 2005 Criminal Law Journal 684 SC). If murder is committed in a street, only passersby will be witnesses. Clear and cogent evidence of the witnesses cannot be discarded by treating them as chance witnesses. Where the witness had no business to be present, such witness would be chance witness and his evidence cannot be believed as held in Ramesh Vs. State of U.P., (2009) 15 SCC 513. In the market every passersby is a chance witness. In the case of a chance witness, if that witness gives sufficient reasons for his presence, his evidence can be accepted (Pintoo Vs. State of Rajasthan, 2009 Criminal Law Journal, 748). Where the witnesses in question actually saw accused assaulting a man, who ultimately died of injuries, their testimony cannot be rejected merely because they were chance witnesses. Thus while viewing the testimony of chance witnesses, what is required of court is to have cautious and close scrutiny.

25. Having gone through the entire evidence of PW-2 and PW-3, we are of the firm view that both the witnesses are not chance witnesses.

26. It has been argued that there is much delay in recording the statements of PW-2 and PW-3. PW-4 has stated that he recorded the statement of PW-3 on 13.10.1998 and of PW-2 on 14.10.1998. This incident took place on 11.10.1998, hence it cannot be said that any delay has been caused in recording the statements of aforesaid witnesses. This Court can understand the mental condition and agony of that minor girl, in whose presence her father was murdered. No question has been asked from the Investigating Officer in this regard. However, it does not affect the prosecution case in any way.

27. It has also been argued that though Har Narayan Mishra has also been named as accused in the FIR, but PW-2 and PW-3, both have not supported the prosecution version and have stated that Har Narayan Mishra was not present on the spot at the time of occurrence. It shows that the prosecution has not come with clean hands and whole story has been cooked up. It has also been argued that Investigating Officer has admitted that both the witnesses PW-2 and PW-3 have not taken the name of accused Sushil Kumar in the commission of the crime. Now both the witnesses are telling the name of Sushil Kumar as one of the assailants, hence it would be a case of 'improvement'.

28. We do not agree with the argument of the learned counsel for the appellants as Sushil Kumar has been named in the FIR and specific role has been assigned to him, who said to Dr. Surendra Nath Mishra that "lkys rw cgqr cM+k iSls okyk usrk curk gS] rsjs cnkSyr gh esjk yM+dk ekjk x;k Fkk". Thus, the real motive of this incident has been assigned on the part of Sushil Kumar and all the witnesses have supported it. Though Sushil Kumar has died during trial, but it cannot be said that other accused have been falsely implicated. As far as the case of Har Narayan is concerned, he has been named in the FIR by PW-1, complainant and not by PW-2 or PW-3 and PW-1 himself has not supported the prosecution case regarding involvement of any of the accused. Hence, it cannot be held that PW-2 or PW-3 are deposing falsely. No State Appeal has been filed against judgment and order of acquittal of Har Narayan, therefore, no useful purpose would be served by discussing the acquittal of co-accused Har Narayan. It is pertinent to point out that acquittal of Har Narayan would not create any legal obstacle or impediment as far as conviction of appellants is concerned. There is no law, which says that merely because one person has been acquitted, others should also be acquitted. Evidence against the appellants on record is credible and trustworthy.

29. It has also been argued that Shashikant Mishra, PW-3 is brother in relation of the deceased then why he did not go to the police station to lodge the FIR or why was he not made Panch of inquest proceedings or why did he not go with the body for postmortem. These facts also establish that he was not present on the shop at the time of incident. We do not agree with the arguments of the learned counsel for the appellants because as per record this witness came on the shop of Dr. Surendra Nath Mishra only for taking medicine. It can be presumed that the person, who was so sick, could not go to the police station for lodging the FIR. This was a sufficient explanation in itself and the close neighbourer of Dr. Surendra Nath Mishra, PW-1 Sharad Swarup Mishra had gone immediately to the police station for lodging the FIR. It is also not necessary that everyone present at place of incident should be Panch of inquest proceeding. It is the satisfaction of the Investigating Officer that who should be the Panch.

30. There are some minor contradictions in the statement of the witnesses that does not affect the prosecution case. No serious and significant discrepancies have been pointed out by the learned counsel for the appellants. Minor contradictions pointed out by the learned counsel for the appellants also do not adversely affect the prosecution case that which witness was sitting on the chair or on the Bench or who was facing which direction merely indicate that witnesses were not tutored. This fact also fortify the prosecution version.

31. It has been argued that it was not possible for witnesses to recognize the accused persons as there was no source of light. We do not agree with the argument of the learned counsel for the appellants. The deceased was sitting in his shop at the time of incident, which was situated in the main market. It has also come on record that other shops were also open at that time. Normally the shops in the market remained open upto 8 - 8.15 PM. In the site plan it has been shown that a petromax was lit in the shop of deceased at the time of incident, which has been shown by letter 'L'. Recovery memo Ex. Ka-5 prepared by the Investigating Officer is on record. There was a generator in nearby shop shown in the site plan by letter 'G', which is very near to the shop of the deceased. There was a tube light marked by the letter 'LB' in the site plan. It shows that there was sufficient light to recognize the accused. It is a matter of common sense that this was the time of 7.30 pm and shops were open, naturally, there would have been sufficient light. This fact has been corroborated by the deposition of PW-2 and PW-3 also. It was not difficult for the witnesses to recognize and identify the accused persons. The accused persons were in close vicinity of the witnesses, therefore, there was no obstruction and problem in recognizing the assailants.

32. As regards motive as per FIR version all the accused went to the shop of deceased Dr. Surendra Nath Mishra and accused Sushil Kumar (since deceased) said to deceased Dr. Surendra Nath Mishra that "lkys rw cM+k iSls okyk vkSj usrk curk gS] rsjh cnkSyr gh esjk yM+dk ekjk x;k". It was itself a motive for the accused to commit the murder and it has not been challenged in the cross-examination of any witness nor any suggestion has been given in this regard. It is noteworthy that all accused in the statements recorded under Section 313 Cr.P.C. have stated in answer to the question no.11 that why this case was initiated against them, the reply was given due to 'enmity'. No defence or oral evidence has been given on behalf of the appellants that what was the motive for the complainant side to falsely implicate them. Motive for doing a criminal act is a complicated question. One cannot normally read the mind of others. As to which emotion would impel a person to commit a particular crime is again very complex question. Many crimes including murder have been committed without any known and prominent motive. Some times crimes are committed with a particular motive. But it is not always possible to conclude that no criminal act would be committed unless strong motive is proved. We believe that motive is not always an essential ingredients of the offence. Proof of motive may be helpful when there is no direct evidence but where there is direct evidence for proving the involvement of accused in the offence, absence of proof of motive is immaterial. Therefore, we believe that motive is not a decisive test for analyzing the criminal act of any person. Motive can only support the case but absence of it cannot necessarily undo the direct testimony.

33. In this case sufficient evidence is available to demonstrate the involvement of appellants including the deceased/ accused Sushil Kumar in the murder of Dr. Surendra Nath Mishra. The witnesses of fact believe that this murder was committed on account of illusory imagination that the deceased Dr. Surendra Nath Mishra was the main culprit behind the murder of Kaushal Kishore Mishra, Advocate, who was the brother of accused-appellant Lal Jee. We believe that motive is not weak. Sufficient proof of perceived motive has been given by the prosecution. In any case, trustworthy, vivid and lucid evidence is available for establishing the involvement of appellants in the stated crime, therefore in our opinion, question of motive becomes less important.

34. This incident is said to have taken place on 11.10.1998 at 7.30 pm, the FIR was lodged on the same day at 8.15 pm, police immediately reached to the spot and started the inquest proceedings by 21.00 o' clock and after completing the inquest proceedings etc., the dead body was sent for postmortem, which was conducted on 12.10.1998 at 11.30 am. It shows that FIR is not ante-timed and the place of incident is corroborated by the evidence of all the witnesses.

35. Accused Shiv Kishor in his statement recorded u/s 313 Cr.P.C. has stated that on the date of incident, he was present in his house situated at Bholepur, District Fatehgarh. By saying this, he wanted to raise the plea of alibi that he was not present at the place of occurrence. But no specific question has been put to any of the witnesses in this regard, no evidence has been given by the accused in this regard. Even during argument this point has not been raised. Therefore, there is no need to discuss this point.

36. Considering all facts and circumstances of the case, it is evident that prosecution has established its case beyond reasonable doubt and has been able to bring home the guilt of accused-appellants by trustworthy and unimpeachable evidence. We do not find any ground to interfere in the conclusions drawn by the learned trial court.

37. In view of the aforementioned discussion, we are of the view that the appeal lacks merit and deserves to be dismissed. It is accordingly dismissed and impugned judgment and order dated 25.11.2005 of the trial court is affirmed.

38. Accused-appellants are said to be confined in jail. They will serve out their remaining sentence.

Office will certify this order to the court concerned within 15 days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.

Order Date :- 28-8-2017

Anoop