Rajesh Kumar And Another vs State Of U.P.
2017 Latest Caselaw 2742 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 6.7.2017
 
Delivered on 28.7.2017
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 3376 of 2004
 

 
Appellant :- Rajesh Kumar And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jai Shanker Audichya,Dileep Kumar,Dileep Kumar Gupta,Durvijai Singh,J.S. Sengar,Pradeep Chauhan,Rajeev Gupta,Rajeev Sawhney,V.K. Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Shri Durvijai Singh, learned counsel for the appellants and Shri Ajit Ray, learned A.G.A. for State.

2. This appeal challenges the judgment and order dated 6.5.2004 in Sessions Trial No. 27 of 2002 convicting Rajesh Kumar and Om Saran under Section 302 I.P.C and Section 5/7 Criminal Law Amendment Act and in Sessions Trial No. 28 of 2002 challenging conviction of Rajesh Kumar under Section 25/27 of Arms Act. Both these sessions trials were tried together and were decided by a common judgment.

3. The trial of accused Rajesh Kumar and Om Saran in respect of offence punishable under Section 302 I.P.C. was the subject matter of adjudication in Sessions Trial No. 27 of 2002 whereas the trial in respect of accused Rajesh Kumar for the offence punishable under Section 25/27 of the Arms Act was the subject matter of adjudication in Sessions Trial No. 28 of 2002. Both the cases being triable by Court of Sessions, were committed to it vide order dated 16.01.2002 passed by the Chief Judicial Magistrate, Farrukhabad. The accused Accused on being produced before the Sessions Court, pleaded not guilty and, therefore, were arraigned as accused.

4. The brief facts are that a case was registered on 17.9.2001 as Crime No. 355 of 2001 under Section 302 I.P.C. and Section 5/7 of the Criminal Law (Amendment) Act on the complaint of Shyam Singh against two accused persons namely Rajesh Kumar and Om Saran for killing of Ram Sanehi and Radhey Shyam, the father and the brother of the complainant respectively on account of previous enmity by fire arm and axe. Both the accused are said to have been apprehended on the spot by the police with a fire arm 12 bore country made pistal and one empty cartridge in the barrel together with other live cartridges.

5. The prosecution case, in brief, as alleged in the F.I.R. (Ex.-Ka-1), lodged by complainant, Shyam Singh is that the complainant alongwith his father Ram Sanehi and elder brother Radhey Shyam, were present in the Court Campus on the fatal day i.e. 17.09.2001 for attaining the court. Smt. Dropa, and Siya Devi mother and sister of the complainant were also present in the Court premises with other persons. At about 10.30 a.m. when these persons entered into the main gate of the court premises, both the accused persons hiding themselves from before started assaulting the deceased Radhey and Ram Sanehi. Rajesh Kumar fired at Radhey Shyam by country made pistol, as a result of which Radhey Shyam was injured and fell down on the ground and when he fell on the ground accused Om Saran gave axe blows on him. Accused Rajesh Kumar gave another fire blow to Ram Sanehi, who was also injured and fell down on the ground and accused Om Saran gave axe blows on Ram Sanehi too. In total, Rajesh Kumar gave two fire blows. These persons tried to save the deceased whereupon accused persons exhorted to face the same consequences, as such, nothing could be done. In the entire court campus terror was created. Doors and windows were closed and disturbance arose. The police present in the court premises, apprehended Rajesh Kumar with fire arm and Om Saran with takora (small axe). Both the injured were rushed up to Ram Mahohar Lohia Hospital, Farrukhabad where both of them were declared dead. Dead bodies were lying in the hospital. On the basis of F.I.R. case was registered and investigation was carried out. Inquest report was prepared, formalities for postmortem examination was caused and autopsy was conducted. After investigation charge sheet against the accused persons in respect of murder was submitted and the case was committed to the Court of Sessions.

6. On the accused pleading not guilty, they were tried and the prosecution led its evidence by examining about 11 witnesses which are as follows:

Deposition of Shyam Singh

Deposition of Shyam Singh

Deposition of Shyam Singh

22.5.2002

22.10.2002

7.11.2002

PW1

PW1

PW1

Deposition of Constable Clerk Ram Krishna

2.12.2002

PW2

Deposition of Mahesh Singh

Deposition of Mahesh Singh

10.12.2002

04.1.2003

PW3

PW3

Deposition of Dr. U.C.Sachan

Deposition of Dr. U.C.Sachan

16.01.2003

24.01.2003

PW4

PW4

Deposition of S.I. Ajab Khub Singh

11.02.2003

PW5

Deposition of S.I. Shyam Kumar Sharma

06.03.2003

PW6

Deposition of SO Bhagwan Sahai

13.03.2003

PW7

Deposition of SO Mukesh Tyagi

13.03.2003

PW8

Deposition of Constable Clerk Munna Lal Pal

13.03.2003

PW9

Deposition of S.I. Gautam Kumar

10.04.2003

PW10

Deposition of S.I. Raja Ram Suman

21.4.2003

PW 11

7. In support of their ocular version following documents were filed:

1.

F.I.R.

17.09.2001

Ex.Ka.1

2.

Recovery of Tamancha 12 bore, one live cartridge and four empty cartridges and Taroka (small axe)

17.9.2001

Ex.Ka.8

3.

Postmortem Report

17.9.2001

Ex.Ka.4

4.

Postmortem Report

17.9.2001

Ex.Ka.5

8. On the witnesses being examined and the prosecution having concluded its evidence. The accused were put question under Section 313 Cr.P.C. but except pleading that they did not know anything and/or they have been falsely implicated, no material was placed nor any witness was examined as defence witness.

9. It is submitted by the learned counsel for the accused- appellants that PW-1 rarely attended the Court, therefore, his saying that on the date of the incident he had attended the court is in doubt. His version itself contradictory and there are discrepancies in the time given by him and PW-3 and, therefore, also sentencing the accused on the testimony of such partisan witnesses is against the criminal jurisprudence.

10. It is further submitted that PW-1 was not present at the time of drawing of the inquest panchnama. As according to the learned counsel for the appellant it is submitted that no panchnama of weapons was drawn in his presence of PW-1 and therefore, his presence is very doubtful even his version about gun shots is also doubtful and does not bring out the correct facts as he was not present at the place of the offence.

11. It is further submitted that the parties have been litigating with each other since 1990 as a family of the present complainant rather the deceased were accused in the other case and they came to the Court for attaining the Court and at that time this incident occurred. It is submitted that if the present PW-1 and PW-3 were present in the Court premises the accused-appellants would have caused injuries to them also which is not the case, therefore, presence of PW-1 and PW-3 is doubtful.

12. It is submitted that injured were brought dead and the dead bodies were kept in the mortuary and, therefore, the F.I.R. is indeed ante time and is unreliable. Chithi Majrubi as well as procedure adopted by the police is illegal unless investigation is followed. The police officials had not recorded statement of any person who was available in the court campus except those who were interested. It is further repeated as is submitted before the Trial Court that injured persons were transmitted in three-wheeler from the place of occurrence; whereas eye-witnesses deposed that the injured persons had been transported by police jeep which is major contradiction and renders the whole story improbable.

13. Learned counsel for the appellant has relied on various judgments in support of arguments advanced by him. In Moti Lal and Others Vs. State of U.P., 2016 (1) All. Cr.J.133; he heavily relied on para 24 of the judgment which reads as follows:

"24. In the light of observations made by the Hon'ble Supreme Court in the case of Meharaj Singh Vs. State of U.P. 1995 Crl.LJ 457 (SC) we find the argument advanced by the learned counsel for the appellants well substantiated. The relevant observation of the Hon'ble Supreme Court in Meharaj Singh's case (supra ) is quoted below:-

"(12) FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after though. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second eternal check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. Is aimed at serving a statutory function to lend credence to the statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to gave it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW8."

14. In Bhupendra Singh Alias Bhupati And Another Vs. State of U.P., 2017 (1) All. Cr. J. 222 he has relied on para 39 of the judgment which reads as follows:

"39. We can ingeminate that the assailants had ample opportunity to fire on Shivendra Singh PW-1 and that was opportune time to easily achieve killing of PW-1. Why they will only threaten to see him next time when there was no such impediment stopping the assailants to give practical shape to their nefarious design ! This is one of the most strong circumstances against the prosecution and PW-1 in particular which questions his presence on the spot. Non-explanation of this factual aspect either by testimony or circumstance hit at the root of the prosecution case. How will it be easily digested that all the four assailants let go scot-free one of the two brothers with whom they had enmity on account of landed property."

15. Learned counsel for the appellant further relied on Asif Mamu Vs. State of Madhya Pradesh, 2008 (15) SCC 405 more particularly findings in para 25 & 28 of the judgment which read as follows:

"25. Presiding Officer of the trial court after recording of evidence thought it fit to inspect the place of occurrence which is court premises in presence of Special Public Prosecutor and learned counsel appearing on behalf of accused persons of both the cases, i.e., case and counter case and prepared a map of the site, i.e., the gallery outside the court of the 3rd Additional Sessions Judge where occurrence in both the cases is said to have taken place, which place was visible to the persons sitting in the court of 1st Additional Sessions Judge, 3rd Additional Sessions Judge, 4th Additional District Judge, CDC and CCD counters of District Court, Nazarat Office and Office of COC. The staff sitting in any of the aforesaid courts or in any of the said offices who could have been best witnesses in support of the prosecution case have been withheld by the prosecution for the reasons best known to it. That apart, neither any advocate nor any advocate's clerk, who could have been independent witnesses in support of the prosecution case have been examined. In the present case, Rajiulla, who was the informant and examined as PW-1, and, according to the FIR, was an eyewitness to the alleged occurrence, did not support the prosecution case and accordingly was declared hostile. Prosecution witnesses Sheru [PW-3], Asif [PW-4] and Mukhtiyar [PW-9], who were also eyewitnesses to the occurrence, did not support the prosecution case and as such they were also declared hostile. These four eyewitnesses, who were independent persons in support of the prosecution case, have not supported the same."

28. It appears that in view of the fact that according to the post-mortem report [Ext. P-20] the deceased did not receive any injury on account of being thrown from first floor to the ground floor, PWs 2, 5, 7, 8, 15 and 19, who were all police witnesses and examined by the investigating officer - R.K. Bajpayee [PW-25], did not make any statement to the effect that the deceased was thrown by some of the accused persons from the first floor of the court building to its ground floor. They have also not made statement before the police as to how his dead body was found on the ground floor when the deceased was assaulted on the first floor. For the first time, after about a year, PWs 8, 15 and 19 in their statements made before the Sessions Court disclosed that the deceased was dragged by some of the accused persons from first floor which is neither supported by medical evidence nor objective finding of the investigating officer. The doctor [PW-17] has not stated either in the post-mortem report or in his evidence that the deceased received any injury by dragging. Investigating Officer [PW-25] has nowhere stated that he found any trail of blood from the first floor to the place on the ground floor from where the dead body was recovered. This witness stated that he did not find any blood marks on the clothes of any of the accused persons from whose possession knives are said to have been recovered immediately after the occurrence. The prosecution has completely failed to explain as to how the dead body of the red shirt boy who is said to have been assaulted on the first floor of the court building was brought to the ground floor."

16. Per contra, it is submitted by learned A.G.A that the evidence is so truthful that the common intention was to do away with the deceased and, therefore, it cannot be said that there is no motive and that the presence of the complainant and the prosecution witness No.3 has been proved.

17. It is further submitted by the learned A.G.A. that the prosecution has proved the case to its hilt and instrument used in the commission of the offence was also recovered from the place of occurrence in the presence of the accused which shows that they are the only persons who had perpetrated the crime and are authors of the crime and has supported the decision of the trial court and has taken us through the findings recorded by the Trial Court.

18. Apex Court in Dhanaj Singh @ Shera And Ors vs State Of Punjab, 2004 (45) ACC 940 has held that so called mistake committed during the course of investigation have to be considered by courts seriously but merely because that some mistake has been committed by the Investigating Officer, trustworthy evidence of eye witnesses cannot be rejected if such course is adopted court will play in the hands of the Investigating Officer and police personnel. Apex Court in Ram Singh @ Chhaju vs State Of H.P, 2010(1) SCC Crl 1496, wherein the Apex Court has held that defective investigation is not necessarily sufficient for rejection of prosecution case if it is otherwise proved that the guilt is brought home against the accused.

19. Apex Court in Vishnu Deo Poddar and another Vs State of Bihar, 2003 CR.L.J. 1558 has held that fate of prosecution does not depend on what prosecution or investigating officer ought to have done. The fate depends on the material already available on record. If the available material is sufficient to hold accused guilty of offence then the court cannot refuse to convict the accused merely because some part of investigation was poor or done in lackadaisical manner.

20. The testimony of witnesses, medical evidence and other relevant factors considered by the Sessions Court are considered by this Court also in light of the latest decisions of the Apex Court. The evidences are being re-appreciated and reevaluated by us. The evidence of all the witness have been discussed by the trial court in detail. We have sifted the evidences very closely. As far as all the witnesses are concerned who have identified the accused. The evidences are not reproduced here but as a discussion goes on with a view to see that the judgment does not become bulky. The testimonies are not reproduced verbatim but the same have been read over again and again by us.

21. In light of the decision rendered by the Apex Court in R. Shaji v. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In that decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

22. This Court is mindful of the fact that in trial for the offence of murder, where the witness is a close relative of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon it. However, relationship is not a factor to affect the credibility of a witness. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement could not be discarded. In their cross examination, PW-1 and PW-3 categorically denied the suggestion that they could not notice the incident in question.

23. After perusing the record we find that PW-1 Shyam Singh, the complainant stated on oath that he knows accused persons, facing trial, Rajesh and Om Saran who were present in the court. Sarvesh was the father of Rajesh and Om Saran is the real brother of Sarvesh. Rajesh is the nephew of Om Saran. Deceased Radhey Shyam was brother of the complainant and was police constable, posted at Kanpur at the time of occurrence. Deceased Ram Sanehi, was the father of this witness. Murder of Sarvesh was committed about more than 10 years prior to this occurrence and in that case, the complainant, his father Ram Sanehi and brother Radhey Shyam were facing trial as accused and case was pending in the Court of Ist Addl. Sessions Judge. He further stated that prior to this incident, his father Ram Sanehi was assaulted by Om Saran and in that connection a case under Section 308 I.P.C. was also pending the court of the then Ist Addl. District and Sessions Judge and 17.09.2001 was fixed in both the Sessions Trials in that very Court and in that connection, the complainant, his father Ram Sanehi, sister Siya Devi, mother Smt. Dropa were present in the court premises having come from the village whereas Radhey Shyam came from Kanpur and with him jagmohan and Mahesh were also present. He further stated that when he reached in the court premises, he met his brother Radhey Shyam, together with Jagmohan and Mahesh. At 10.30 a.m. they were proceeded towards the Court of Ist Addl. District Judge. They entered in the court premises through the gate where cycle stand is situated, which is first gate. Radhey Shyam and Ram Sanehi were 5-6 cubit ahead of these witnesses. These witness alongwith deceased Radhey Shyam and Ram Sanehi hardly entered inside the gate near the hand-pump situated at the gate, accused persons namely Rajesh armed with tamancha and Om Saran armed with takora (small axe), all of a sudden, appeared there and Rajesh fired shot upon Radhey Shayam, as a result of which, Radhey Shyam injured and fell down on the ground and Om Saran started assaulting and cutting Radhey Shyam by Takora (small axe). Accused Rajesh thereafter fired another shot upon Ram Sanehi by which Ram Sanehi injured and fell down on the ground and Om Saran started assaulting and cutting Ram Sanehi also. These persons and other persons who were present there tried to save the deceased but accused persons threatened them stating "if somebody will proceed ahead, he will face same consequences". The incident has been seen by the complainant and also by his sister, mother, Mahesh and Jagmohan. A lot of people were present inside the court premises, several officials and advocates were also present there and all of a sudden an atmosphere of terror was mounted in the court premises and door and windows were got closed. By listening the sound of fire, the police deputed in the court premises, arrived. Prior to this Rajesh fired two shots to create terror amongst the people but ultimately both the accused persons Rajesh and Om Saran were apprehended red handed with fire arm and 'Takora' (Small Axe) in their hands. The injured Radhey Shyam and Ram Sanehi were carried to to Dr. Ram Manohar Lohia Hospital, Farrukhabad by complainant with the help of police where they were declared dead. The complainant went to police Kotwali, Fatehgarh from Lohia Hospital and scribe report Ex-Ka-1 in his own hand writing and got the case registered at about 12.10 in the noon. This witness has withstood in the cross examination.

24. From the evidence of the doctor who has deposed on oath and the postmortem report at exhibit (ka-4 and Ka-5) and the deposition of the PW-4 (Doctor) shows the following injuries enumerated hereinbelow on the body of both the deceased:

"Antemartem injuries of Radhey Shyam:

1. Incised wound of 10 cm x 2 cm x cranial cavity deep on left forehead, 2 cm above, perietal, temporal bone cut, fractured, brain matter was coming out.

2. Incised wound 11 x 4 cm x cranial cavity deep on left back of head, involving, mostoid bone cut, fractured, brain matter was coming out.

3. Incised wound 9 cm x 2 cm x cranial cavity deep, 2 cm below injury no.2.

4. Incised wound 4 x 2 cm x bone deep on left side chin.

5. Abraded contusion 5 cm x 3 cm on left side forehead.

6. Abraded contusion 4.5 cm x 3 cm over left side cheek.

7. Incised wound 16 cm x 4 cm x bone deep on posterior aspect of left arm.

8. Incised wound 6 x 4 cm x bone deep on front of right forearm, low 1/3rd, underlying bone cut.

9. Fire arm wound of entry 3 cm x 2.5 cm x chest cavity deep on 8 cm below, lower border of right scapula, Margins inverted, lacerated ecchymosed, blackening and tattooing present around the wound. On dissection, 7th and 8th rib fractured, right pleura, lung, oesophongus liver lacerated, cavity full of blood. Five medium sized pellets recovered from chest cavity. Direction back to front.

Antemortem injuries of Ram Sanehi:

1. Fir arm wound of entry 1.5 xchest cavity deep on right lateral side of chest 10 cm below right axilla, Margins inverted, lacerated ecchymosed with communicating wound of exit 2 cm x 1.5 cm on left lateral side of chest, 12 cm below of left axilla. On dissection 7th rib fractured of right side. Both side lungs, pericardium, heart lacerated, cavity full of blood, direction right to left.

2. Incised wound 12cm x 2 cm x cranial cavity deep on left parietal region underlying bone cut. Brain matter coming out.

3. Incised wound 12cm x 2 cm x cranial cavity deep on left side head involving left ear. Left parietal, temporal and back of skull fractured, Margins lacerated.

4. Incised wound 5 x 1 cm x cranial cavity deep, 2 cm below of injury no.3.

5. Incised wound 6 x 1.5 cm x bone deep on front of right forearm, middle part, parietal bone fractured.

6. Incised wound 5 x 1.5 cm x bone deep on palmate part of left hand, cut on base of right thumb.

7. Incised wound 5 x 2 cm x bone deep on palmat part of left hand with fractured left little finger.

25. The Postmortem report states in detail the injuries sustained by the deceased and the cause of death 26. Apart from the ocular evidence of above prosecution witness and documentary evidence in the form of discovery panchnama, the medical evidence on record in the form of testimony of Dr. U.C. Sachan (PW-4), also supports the prosecution case. PW4 is the Doctor who has performed autopsy of the dead body of deceased. From his testimony, it is established that the injuries sustained by the deceased were possible with the muddamal weapon - 12 bore fire arm and takora (small axe).

26. Having considered the record produced before us, we find that the statement of PW-11, SI Raja Ram and the PW-1 that they were present in the hospital when the dead bodies were kept in the mortuary has been proved. This fact is even proved by documents Ex-ka-14, Ka-15, Ka-16, Ka-17, Ex-Ka-18, Ex-ka-19, Ex-ka-20 and Ex-ka-21. Considering the panchnama and the testimony of PW-1 and PW-3, we have no hesitation in concluding that PW-1 and PW-3 were an eyewitness to the incident in question and that their testimony passes the test of scrutiny. Under these circumstances, the testimony of PW-1 and PW-3 could neither be ignored nor a blind eye could be kept merely because the witness happened to be a close relative of the deceased. Thus, the testimony of PW-1 and PW-3 proves the presence of accused-appellants at the scene of offence beyond doubt.

27. The other material evidence on record that supports the prosecution story is the panchnama regarding discovery of weapon prepared u/s. 27 of the Indian Evidence Act, from the testimony of PW1, PW3 and Sub-Inspectors, it is evident that the said panchnama was prepared according to the provisions of Section 27 of the Indian Evidence Act. PW1, PW3 and Sub-Inspectors supported the prosecution case insofar as the discovery panchnama is concerned. Thus, the testimony of PW1, PW3 and Sub-Inspectors and discovery panchnama proves the use of muddamal weapon -12 bore fire arm and takora (small axe) in the crime in question.

28. Section 27 of the Evidence Act, 1872 also would be a foundation stone and recovery and seizure of crime weapons from the place of offence would be a pointer against the accused. We are fortified in our view by the latest decision of the apex court involving similar facts in Mukesh Vs. State of NCT of Delhi, 2017 AIR SC 2163.

29. The evidence of other prosecution witness namely PW-1 and PW-3 gets corroboration from the police officers who were present in court premises namely place of incident and apprehended. Rajesh was apprehended with fire arm whereas Om Saran with takora (small axe) and they were taken into custody. Just because the sister and the mother of the complainant have not been examined can, it cannot be said that it would be failure of prosecution as averred by the learned counsel for the appellant.

30. Police constable Ram Krishna deposed to have scribed the Chick F.I.R. Ex-Ka-2 on the basis of F.I.R. Ex-Ka-1, while posted in Kotwali, Fatehgarh on the fatal day as constable Clerk and deposed to have registered a case at crime no.355/2001, in connection with offence under Section 302 I.P.C. and Section 5/7 of the Criminal Law and Amendment Act and also proved endorsement in the General Diary, the carbon copy of which is Ex-ka-3 and the endorsement is said to have been recorded in the General Diary at about 12.10 in the noon. He also proved entry in the General Diary No. 25 the same day, which is in respect of returning of S.I. and force with two bundles and proved the same as Ex-Ka-4.

31. In cross-examination he admitted that Shyam Singh came to lodge F.I.R. he also admitted that the information of injuries to Radhey Shyam and Ram Sanehi was received in the police station some time at about 10.35 a.m. by some unknown person by telephone.

32. The evidence of PW-5 and his cross-examination also proves that the chithi majrubi was also properly done. The weapons were also unfortunately though not recovered by him.

33. PW-6 can be said to be an independent witness. He had come in a different matter. When he heard the commotion, he rushed at the place of offence. Recovered tamacha and cartridges have been proved. PW-6 proved the recovery memo Ex-Ka-8 and even identified the same in the court and he recognised the tamancha, cartridges and takora (small axe) which were recovered from the possession of the accused and he withstood the cross-examination.

34. It is also established that both the fire arm injuries on Radhey Shayam and Ram Sanehi have been inflicted by Rajesh by Tamancha material Ex-Ka-13 which was found and recovered on the spot from the possession of Rajesh Kumar. It is also established beyond any reasonable doubt that accused facing trial, Om Saran caused injuries Nos. 1 to 8 incised wounds of different dimensions, to Radhey Shyam and further caused similar incised wounds Nos. 2, 3, 4, 5, 6, 7 to Ram Sanehi which are incised wounds of various dimensions and all these incised wounds were caused by accused Om Saran by takora (small axe) material Ex-16, which was recovered from his possession immediately after the occurrence. It is also established that fire arms injuries of Radhey Shyam and Ram Sanehi and incised wound of Radhey Shyam and Ram Sanehi, which have been respectively caused by Rajesh and Om Saran with material Ex-13 and Ex-16, which have been found on the bodies of Radhey Shyam and Ram Sanehi as antemortem injuries, indicated in their postmortem report, are the causes of shock and haemorrhage, resulting into death of Radhey Shyam and Ram Sanehi, for which directly, physically and virtually accused, person, facing trial, Rajesh and Om Saran are established responsible, beyond any amount of reasonable doubt, in totality.

35. Accused person facing trial Om Saran and Rajesh in consequence have been held guilty for intentional, deliberate and willful killing of Radhey Shyam and Ram Sanehi as a retaliation and fullfilment of their motives, on account of murder of Sarvesh, Father of Rajesh and brother of Om Saran, namely, Shyam Singh, deceased together with victim persons Ram Sanehi and Radhey Shyam were facing trial and that session trial was fixed in court on the date of occurrence, the accused person Rajesh and Om Saran are hereby established liable to be held guilty for the offence punishable under Section 302 I.P.C. beyond any amount of reasonable doubt.

36. The decisions relied on by the learned counsel for the appellant in Moti Lal (supra), Bhupendra Singh Alias Bhupati (Supra) and Asif Mamu (Supra) would not applied to the facts of this case. The reason being, in the facts of this case, the F.I.R. has been proved by cogent evidence both ocular as well as documentary and minor contradiction in them will not materially affect the case of the prosecution. The F.I.R. was not ante dated nor was ante time which is proved by evidence and nothing has been brought in cross examination of witnesses to bring home this submission. The submission that the complainant and the other family members were not assaulted or fired at will not bring the case in the four corners to give them benefit of doubt and decision in Asif Mamu (Supra) also will not help as the evidence led proves the guilt of both the accused who have had the common intention of doing away with the deceased. The decision will not help the accused. The material which is on record will not permit this Court to upturn the finding of facts by the trial Court.

37. It is an admitted position of fact that the accused were arrested from the place of incident namely court campus on the very same date and injured Radhey Shyam and Ram Sanehi were sent to the hospital immediately but they were reported dead.

38. In the final analysis the presence of the accused is established. The requirement of law and the scrutiny made therein is saying that the accused have not been falsely implicated. Some omissions in the F.I.R. would not weigh against the prosecution. The impact of omission as is discernible from the law propounded by this Court and the apex court would so that the circumstances and veracity of evidence proved involvement of the accused and none other. There is no indication of fabrication and merely because there are some minor contradictions and inconsistencies in testimony of the injured eye-witnesses would not make testimony untrustworthy and unreliable. In this case the Investigating Officer has in his occular version categorically stated that persons present in the Court campus did not agree to testify against the accused not were they ready to even get their statement recorded.

39. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshalled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant.

40. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case it is an admitted position of fact that on the basis the circumstances and subsequent facts, independent source of information, except the police official, other persons present refused to testify and none was available.

41. In view of the aforementioned discussion, we are of the view that this appeal has to fail and is accordingly dismissed. The impugned judgment and order dated 6.5.2004 passed by the trial court is affirmed. Save and except for the sentence as clarified hereinafter.

42. The incident is of the year 2001, we are in the year 2017. The accused are in jail for the period of more than 17 years. The commission of offence was in retaliation of the ongoing dispute where the deceased was an accused and was facing trial for murdering relative of the accused. Both the accused are closely related to each other belonging to the same family. Going through the testimony and the record, it cannot be said that the commission of offence was so gruesome and life sentence would mean till the last blood. On inquiry, it appears that their case has not been considered for remission under section 432 or 433A of Cr.P.C. Their case should be considered for remission which if still has not been done, the same shall be carried out within a period of six months from today. This exercise be carried out in view of the principles enunciated in Maru Ram Vs. Union of India, AIR 1980 SC 2147, considered again in Vikas Yadav Vs. State of U.P. 2016 (9) 541 and the constitutional power vested in Article 72 and Article 161 of the Constitution of India read with Section 432 and 433-A of Cr.P.C. will also permit this Court to hold that it will be available to the State to exercise its jurisdiction vested under Section 432 Cr.P.C. and we do not, for a moment, hold that this is a case where life would mean till his last breath and, therefore, also the case of both the accused be considered for remission as expeditiously as possible not later than six months from today. It goes without saying that the State shall exercise the powers if the same has not yet been exercised.

43. Let a copy of this judgment alongwith the trial court record be sent to the Court and Jail Authorities concerned and District Magistrate for compliance.

Order Date :- 28.07.2017

DKS