Yogendra @ Khuda vs State
2017 Latest Caselaw 1096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										 Reserved
 

 
										      AFR
 
Case :- JAIL APPEAL No. - 7073 of 2007
 
Appellant :- Yogendra @ Khuda
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Sangam Lal Kesharwani Ac,Sudhir Agrawal
 
Counsel for Respondent :- A.G.A.,Brijesh Sahai
 
With
 
Case :- CRIMINAL APPEAL No. - 2168 of 2007
 
Appellant :- Rakesh And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunikl Chandra Srivastava,D.R.Azad,Nitin Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
And 
 
Case :- CRIMINAL APPEAL No. - 2169 of 2007
 
Appellant :- Khajaan Singh And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunil Chandra Srivastava,Nitin Srivastava,S.N.Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Bharat Bhushan,J.)

1. All the above three appeals stem from the common Judgment and order dated 23.3.2007, therefore, they have been heard together and are being decided by this common judgment.

2. Appellants have assailed the common impugned judgment and order dated 23.3.2007 passed by the Additional Sessions Judge, Court no. 13/ Fast Track Court No. 4 Mathura in Sessions Trial No.1022 of 2004 (State Vs. Yogendra @ Khudda and others) arising out of Case Crime No.134 of 2004 under Sections 147, 148, 302 read with Section 149 of Indian Penal Code (IPC) and Sessions Trial No.1023 of 2004 (State Vs. Yogendra @ Khudda) arising out of Case Crime No. 135 of 2004 under Section 25 Arms Act, Police Station (P.S.) Nauhjheel District Mathura whereby appellant Yogendra @ Khudda has been convicted under Sections 147, 148, 302 read with Section 149 IPC and Section 25 Arms Act. Remaining appellants, namely, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay have been convicted under Sections 147, 148, 302 read with Section 149 IPC only. Appellants Yogendra @ Khudda, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay have been sentenced to life imprisonment under Section 302 read with Section 149 IPC and fine of Rs.2000/- with default stipulation. They have also been sentenced to three years rigorous imprisonment under Sections 147, 148 IPC. Appellant Yogendra @ Khudda has also been sentenced to two years rigorous imprisonment under Section 25 Arms Act and fine of Rs.500/- with default stipulation.

3. Prosecution story in brief is that relationship between appellant Yogendra @ Khudda and family of informant/complainant Prabhu (P.W.1) was antagonistic. Complainant Prabhu bought one Eicher Tractor in partnership with one Lalaram (P.W.2). Lalaram somehow received information that appellant Yogendra @ Khudda was scheming to snatch the tractor. On receiving this information, Lalaram (P.W.2) came to complainant Prabhu (P.W.1) on 9.7.2004 and called appellant Yogendra @ Khudda for questioning. Complainant Prabhu (P.W.1) and his son Mukut (deceased) were also present. Row erupted between appellant Yogendra @ Khudda and deceased Mukut but P.W. 1 Prabhu, P.W.2 Lalaram and one Habura managed to broker peace and brought deceased Mukut back to his residence.

4. After few minutes appellant Yogendra @ Khudda armed with rifle, co-appellants Rakesh armed with gun, Ghantoli armed with country made pistol, Sanjay armed with gun, Khajaan and Malkhan armed with lathies arrived at the residence of complainant Prabhu (PW1). Appellant Yogendra @ Khudda shot Mukut S/o Prabhu (complainant) using his fire arm weapon. Mukut died instantaneously. Remaining accused left the place extending threats to the complainant and his family.

5. The incident allegedly occurred at 10 am. on 9.7.2004 within P.S. Nauhjheel which was 2 kms away from village Adda Firojpur, the place of occurrence. Apparently, Adda and Firojpur are twin villages adjacent to each other. P.W. 2 Lalaram has testified that there is distance of only five hundred meters between these villages, namely, Adda and Firojpur. P.W. 1 Prabhu, father of deceased rushed towards P.S. Nauhjheel after getting a report scribed by one Digambar Singh and lodged the report.(Ext. Ka-1).

6. P.W. 5 Head Constable Promoted (HCP) Babu Lal Gautam, the then Head Moharrir of P.S. Nauhjheel recorded the FIR and made relevant entries into general diary (G.D.) of the concerned PS which is also available on record as Ext.Ka-12. A chik report (Ext. Ka-11) was also carved out. P.W. 6 Sub Inspector (S.I.) Arun Kumar, the then Station House Officer (SHO) Nauhjheel was present at the time of registration of the case. He took over the investigation and rushed towards the place of occurrence. He prepared site plan(Ext. Ka-15) and recovered one empty (315 bore) in presence of witnesses (Fard Ext. Ka-16). He also collected samples of blood stained and simple earth from the place of occurrence (Fard Ext. Ka-17). Inquest proceedings were also conducted by HCP R.P. Singh under the supervision of I.O. Arun Kumar (P.W. 6).

7. On 11.7.2004 appellant Yogendra @ Khudda was arrested from the vicinity of village Dhinyari. During this arrest a country made fire arm weapon (Pauna) was also recovered from the hut of one Hoti at 9:30 am at the instance of appellant Yogendra @ Khudda.

8. The dead body of deceased Mukut was sent to the mortuary for postmortem which was conducted on 10.7.2004 at district hospital Mathura by P.W. 4 Dr. K.G. Agrawal who found following ante mortem injuries on the person of deceased:-

"(i) Fire arm wound of entry 1.5 cm x 1 cm x cavity deep over lower law, lower 4 incisors broken, tongue lacerated. Blackening and scorching present.

(ii) Fire arm wound of exit 1.5 cm.x1.5cm.x cavity deep, on dissection communicating to injury no. 1. margins averted. Underlying bone occipital and right parietal fractured."

9. The stated Pauna (country made fire arm weapon) was sent to the forensic science laboratory for examination which revealed that this weapon was not used for discharging empty (315 bore) recovered from the place of occurrence. This report is also available on record. On conclusion of investigation I.O. submitted a charge sheet against appellants Yogendra @ Khudda, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay under Section 147, 148, 149, 302 and Section 34 IPC. An additional charge sheet under Section 25 Arms Act was submitted only against appellant Yogendra @ Khudda.

10. The additional Sessions Judge, Mathura framed charges against all the appellants under Sections 147, 148, 302 read with Section 149 IPC on 11.4.2005. The additional charge was also framed against appellant Yogendra @ Khudda under Section 25 of Arms Act on 12.8.2005. All appellants denied the charges and desired to be tried.

11. Prosecution adduced the evidence of seven witnesses in support of their case. P.W. 1 Prabhu (complainant), P.W.2 Lala Ram (eye witness), P.W.3 Dulari (mother/eye witness), P.W. 4 Dr. K.G. Agrawal (conducted autopsy), P.W.5 HCP Babu Lal Gautam (recorded FIR), P.W. 6 S.I. Arun Kumar (I.O.) P.W. 7 S.I. Narendra Singh (conducted investigation under Arms Act).

12. The statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all allegations and claimed false implication on account of previous enmity. The appellants were afforded opportunity of producing evidence in defence. They also availed of this opportunity and produced D.W. 1 constable Mahaveer Singh who acknowledged that a complaint was indeed filed by appellant Yogendra @ Khudda Prabhu to the national human rights commission against co-accused Khajaan, Malkhan, Rakesh, Sanjay and Radhey Shyam son of complainant. Defence has tried to show that appellant Yogendra @ Khudda had inimical relationship with at least four co-accused, namely Khajaan, Malkhan, Rakesh and Sanjay. The complaint also indicates that he made complaint against all four persons along with one Radhey Shyam, another son of complainant, perhaps trying to show close relationship between complainant with family of Khajaan, co-accused.

13. It is pertinent to point out that this complaint was lodged about the death of one Banke Lal, brother of appellant Yogendra @ Khudda allegedly occurred after three days of Holi festival in the year 2006. This complaint was investigated and found to be false. Investigation concluded that Bankey Lal died of cancer. It is also pertinent to note that this complaint was made in the year 2006 while the present incident occurred in July 2004. Therefore, the argument of learned A.G.A. cannot be ignored that this application is a manufactured development perhaps induced on legal advise.

14. Learned Amicus Curiae Sri Sangam Lal Kesarwani has argued on behalf of appellant Yogendra @ Khudda while Sri Sudhir Agrawal Advocate holding brief of Sri Nitin Srivastava is representing all remaining appellants. Sri Rajeev Mishra learned A.G.A. is appearing on behalf of State.

15. Sri Sangam Lal Kesarwani, learned Amicus Curiae and Sri Sudhir Agrawal, learned brief holder have argued that appellants have been implicated on account of previous enmity; enmity between parties is apparent; there are significant discrepancies between the testimonies of eye witnesses; name of P.W. 3 Dulari (Mother/eye witness) was neither mentioned in the FIR nor in the statement of P.W. 1 Prabhu. It is alleged that P.W. 2 Lala Ram accompanied complainant Prabhu (PW1) when he went to lodge the FIR but his name is not mentioned in extract of G.D. (Ext. Ka-10) while the names of other associates have been mentioned.

16. Claim is that FIR is ante-timed. The argument has been raised that P.W. 1 Prabhu and P.W. 3 Dulari were not in a position to witness the event. Further submission is that there is no indication from the evidence on record that deceased Mukut was taking his meals at the time of his murder.

17. Learned counsel for appellant has also argued that blackening and charing on the cadaver of deceased Mukut indicate the discharge of fire arm weapon from close range while oral evidence reveals the use of weapon from significant distance. Learned Amicus Curiae and counsel for other appellants have also drawn the attention of this Court towards the report of forensic lab wherein it has been mentioned that empty found on the place of occurrence was not discharged from the country made gun (Pauna) subsequently recovered at the instance of appellant Yogendra @ Khudda. It has been submitted that evidence of P.W.3 Dulari indicates tutoring.

18. Sri Sudhir Agrawal, learned brief holder has also argued that roles of other appellants barring appellant Yogendra @ Khudda have not been delineated. In fact appellant Yogendra @ Khudda has been assigned role of murder of deceased Mukut while others have been shown to be merely present at the time of incident. Other appellants have been roped in order to falsely implicate them due to previous enmity.

19. Learned A.G.A. Sri Rajeev Mishra has disputed all arguments of learned Amicus Curiae and Sri Sudhir Agrawal learned brief holder. He has argued that deceased Mukut died on account of single shot, therefore, there was no occasion to use other weapons. Single shot killed the deceased obviating any need for further and additional use of any weapon. Learned A.G.A. has also pointed out that minor discrepancies in fact are the result of illiteracy and social background of P.W. 1 Prabhu and P.W. 3 Dulari. Admittedly, Prabhu (P.W. 1) and his wife Dulari (P.W. 3) are illiterate persons belonging to scheduled caste category. Their young son Mukut was murdered in their presence. There was no reason for them to spare the real culprit and to falsely implicate the appellants. Learned A.G.A. has admitted the various latches on the part of I.O., however argued that the failure of I.O. by itself would not result in the acquittal of appellants especially in the light of the fact that available evidence is sufficient to establish the guilt of appellants.

20. The prosecution case is essentially based on the testimony of three eye witnesses. All of them have testified about the involvement of appellants in the murder of deceased Mukut. The evidence reveals that there was some tension between the complainant Prabhu (P.W.1) and appellant Yogendra @ Khudda. The evidence further indicates that another group consisting of appellants Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay was also not happy with complainant Prabhu and his family. It is interesting to note that remaining five appellants (barring appellant Yogendra @ Khudda) are closely related to each other. Appellants Khajaan,  his son Rakesh, his brother Malkhan, Malkhan's son Ghantoli @ Yashpal and Khajaan's sister's son Sanjay are all accused in the instant case. Yogendra @ Khudda the main assailant is not related to the family of Khajaan and Malkhan.

21. If we carefully peruse the evidence of prosecution, it would reveal that the case can be divided into two parts. One, about the role of appellant Yogendra @ Khudda, the main assailant who in fact shot dead deceased Mukut, the son of Prabhu (P.W. 1) and Dulari (P.W. 3). All other accused belonging to family of Khajaan, in fact allegedly were merely present on the spot. If the entire evidence of prosecution is taken at its face value, then they are obvious shown to have been armed with various weapons including guns, country made pistols and lathies but FIR itself says that they did not use any weapon. In fact they did not even touch deceased Mukut and any member of his family. They allegedly came with main assailant Yogendra @ Khudda at the residence of complainant Prabhul (P.W.1) and when appellant Yogendra @ Khudda killed Mukut, they went back extending mere threats. This information is enshrined in FIR (Ext-Ka-1) which was filed within 75 minutes of the incident at P.S. Nauhjheel, Mathura.

22. As far as the charge against the appellant Yogendra @ Khudda is concerned, it is indeed established beyond reasonable doubt. P.W. 1 Prabhu and P.W. 3 Dulari are the parents of deceased Mukut. Their presence at the home is quite natural. Mukut was assassinated at his door-steps. The evidence discloses that P.W. 3 Dulari and her daughter were cooking food and deceased Mukut was about to partake his meal. Suddenly appellant Yogendra @ Khudda armed with fire arm weapon arrived there and shot him dead. The incident occurred at 10 am. in the morning at the residence of deceased Mukut, P.W. 1 Prabhu and P.W. 3 Dulari. Their presence at the residence is quite natural and trustworthy. Medical evidence has also proved the fact that single fire arm shot killed Mukut (deceased). To that extent postmortem report (Ext.Ka-2) is consistent with the oral evidence of prosecution.

23. The background of the incident is also quite natural and trustworthy. It is said that few days prior to the incident P.W. 1 Prabhu, father of deceased bought one Eicher tractor. Assailant/appellant Yogendra @ Khudda was planning to snatch this tractor from them. Somehow P.W. 2 Lala Ram a partner in the said tractor became aware of this stated scheme of accused-appellant Yogendra @ Khudda. P.W. 2 Lala Ram and P.W.1 Prabhu obviously had a close relationship. All three eye witnesses have admitted this fact. P.W. 2 Lala Ram had also invested some money in purchase of this tractor, therefore, his interest in safety of this tractor is obvious for two reasons. First, because of his investment in purchase of tractor and because of his friendship with family of P.W. 1 Prabhu (complainant).

24. Admittedly, P.W. 1 Prabhu belongs to Jatav community while P.W. 2 Lala Ram is a Brahmin. It was one thing for appellant Yogendra @ Khudda to attempt to snatch tractor of Prabhu but quite different to extort it from P.W. 2 Lala Ram. Lala Ram in fact has stated that once he disclosed his investment in the tractor, appellant Yogendra @ Khudda promised not to snatch this tractor.

25. Evidence also reveals that there was some discussion about it between P.W. 1 Prabhu, P.W. 2 Lala Ram, deceased Mukut and appellant Yogendra @ Khudda on the day of occurrence. Deceased Mukut being young and product of new times perhaps retaliated angrily which infuriated appellant Yogendra @ Khudda. Evidence further discloses that P.W. 1 Prabhu and P.W.2 Lala Ram brokered peace between them and brought the deceased Mukut back to his residence. Evidently, appellant Yogendra @ Khudda was not satisfied. He came back within few minutes armed with fire arm weapon and shot Mukut dead at his door steps without any warning. Site Plan (Ext. Ka-20) indicates that deceased Mukut fell down inside door of his house.

26. This incident was witnessed by P.W. 1 Prabhu, P.W. 2 Lala Ram and P.W.3 Dulari. They all have testified regarding this incident in very natural and trustworthy manner. We have no reason to disbelieve their testimony in this regard. We do not accept the argument of learned Amicus Curiae that absence of independent witnesses would make the entire prosecution case untrustworthy.

27. An interested witness is a term which can be used for every witnesses. It is quite true that witnesses for prosecution would ordinarily be interested in the conviction of accused but that does not necessarily make them liar. The fact that witnesses were related to the deceased cannot be a ground to discard their evidence. The fact of the matter is that ordinarily it would be very difficult for family member to spare the real culprit. However, it is always possible to exaggerate the story or to make some embroidery to the prosecution case. It is also not unknown to increase the number of accused in the given case but to say that merely because of relationship with the deceased, each and every witness would falsely implicate the accused person and spare the real culprit is not acceptable.

28. We have carefully perused the evidence of all three eye witnesses and we are convinced that their testimony is completely trustworthy as far as involvement of appellant Yogendra @ Khudda in the said crime is concerned. Learned Amicus Curiae has argued that presence of P.W.2 Lala Ram on the spot is doubtful. He in fact does not belong to the village of Prabhu. This argument cannot be accepted for the simple reason that prosecution evidence has established that village Adda and Firojpur are the adjacent villages. In fact the distance is said to be merely five hundred meter. P.W. 1 Prabhu and P.W. 3 Dulari have admitted close relationship with P.W. 2 Lala Ram. P.W. 2 Lala Ram himself has admitted that he is frequent visitor to the residence of Prabhu. In fact the appellant Yogendra @ Khudda too has insinuated in his statement under Section 313 Cr.P.C. that Lala Ram had a close affinity or relationship with Parwati, sister of Mukut (deceased). It is evident that accused has flung this allegation loosely but it does indicate Lala Ram's close friendship with the family of Prabhu despite significant difference between their social background. The fact that P.W.2 Lala Ram had invested some money in the Eicher tractor also establishes this fact. This entire investment by P.W. 2 Lala Ram was done orally and no document or agreement of any kind was prepared. This indicates relationship of trust.

29. P.W. 2 Lala Ram has also given plausible reason for his presence at the residence of P.W. 1 Prabhu at the time of incident. He says that he had received information that appellant Yogendra @ Khudda was planning to snatch the tractor from Prabhu. He came to meet Yogendra @ Khudda who was living across the residence of Prabhu. He first informed Prabhu and his son Mukut about stated plan of appellant Yogendra @ Khudda and then called Yogendra @ Khudda. P.W. 2 Lala Ram has stated that appellant Yogendra @ Khudda promised him not to snatch the tractor but he did brag that he would have snatched the tractor but for the partnership of Lala Ram. Deceased Mukut being young man perhaps did not like the boast of appellant Yogendra @ Khudda and verbally retaliated. This in turn infuriated appellant Yogendra @ Khudda. P.W. 2 Lala Ram has testified that this altercation did not result in physical scuffle but some hot words were exchanged between deceased Mukut and appellant Yogendra @ Khudda.

30. Record reveals that P.W. 1 Prabhu, P.W. 2 Lala Ram and one Habura intervened and brokered peace. Deceased Mukut and P.W. 1 Prabhu came back inside their residence while P.W. 2 Lala Ram kept loitering on the same road. After few minutes appellant Yogendra @ Khudda rushed in with fire arm weapon, went to the residence of Prabhu and shot his son Mukut. We are convinced that prosecution evidence in this regard is totally and completely trustworthy as far as the role of appellant Yogendra @ Khudda is concerned.

31. Learned Amicus Curiae and learned counsel for other appellants have submitted that FIR was ante-timed and it was not in existence till the execution of inquest report. We have carefully perused the documentation done in the wake of murder of deceased Mukut. Inquest report contains crime number and details of cases. FIR was lodged within 75 minutes of incident. Police Station was merely at the distance of two kilometers. The contents of inquest report on second page also include crime number. This incorporation of crime number within the content of second page belies the allegation of counsel for Amicus Curiae that FIR was not in existence till the time of preparation of inquest report.

32. It is pertinent to point out that P.W. 1 Prabhu and scribe of FIR, namely, Digamber are also named as Panch witnesses in inquest report. Inquest proceedings were conducted on the same day. The testimony of P.W. 5 HCP Babu Lal Gautam and P.W. 6 S.I. Arun Kumar also demolishes the argument of counsel for appellants in this regard.

33. Learned Amicus Curiae has argued that FIR was lodged within 75 minutes by P.W. 1 Prabhu who has stated that he went to the police station with Lala Ram (P.W.2) and others. It is argued that the extract of G.D. (Ext. Ka-9) does not indicate the presence of Lala Ram at the time of lodging of FIR. This document shows the presence of several persons including Om Prakash, Suresh, Mukesh Kumar, Balbir etc. with complainant Prabhu at the time of lodging of report. But the name of Lala Ram is not mentioned in this G.D. Submission is that this discrepancy between testimony of P.W. 1, Prabhu and P.W. 2 Lala Ram is fatal to the prosecution story and indicate ante-timing of FIR. We do not agree with the contention of counsel for appellants for the simple reason that the extract of G.D. merely shows the presence of those people who were present inside the police station and at the table of Head Moharrir who was recording the FIR. In this case FIR was recorded by P.W. 4 Babu Lal Gautam. It was not incumbent upon P.W. 5 HCP Babu Lal Gautam to record the names of all the persons who were present at the time of recording the FIR. If P.W. 2 Lala Ram accompanied P.W. 1 Prabhu on his motorcycle and did not enter into the Police Station then obviously the name of Lala Ram would be missing from G.D. It was duty of counsel for defence to get specific information in this regard from P.W. 2 Lala Ram which was not done. We cannot now give credence to this argument.

34. Learned counsel for appellants has also drawn the attention of this Court towards the statement of P.W. 2 Lala Ram wherein he has stated that he first went to the police station all alone to inform the police. Police then came on the spot and chased the accused persons. This may very well be true. It does not necessarily make Lala Ram (P.W.2) an untrustworthy witness. It is possible that Lala Ram first called the police personnel to the village and then went to the police station again with Prabhu when Prabhu lodged the FIR. The defence counsel did not seek any information in this regard from P.W. 1 Prabhu. Prabhu was not given any opportunity to explain this so called discrepancy. Therefore, this minor discrepancy per se would not demolish the prosecution case.

35. Learned Amicus Curiae has also argued that P.W. 3 Dulari has admitted the tutoring by her husband. We have carefully perused her statement and we do not believe that this argument is justified. This witness has clearly stated that she did have conversation with her husband but she has also testified about the things which she saw. It is pertinent to point out that admittedly P.W. 3 Dulari is an illiterate woman. When she was questioned about the partnership between P.W. 2 Lala Ram and her husband Prabhu, she disclosed certain information and then said that this information was given to her by Prabhu, her husband. Obviously this rustic woman was not aware of financial arrangement between her husband and Lala Ram. To that extent her information is dependent upon the information communicated to her by her husband. But then she has also stated very clearly that she saw the incident and that part of testimony about the assassination of deceased Mukut (her son) is based on her own knowledge.

36. Learned Amicus Curiae has claimed that there are discrepancies between prosecution evidence that no food particles were found from the mouth of deceased Mukut and that description regarding the exact positions of complainant Prabhu and deceased Mukut are also contradictory. The nature of weapon has been described differently. This argument of learned Amicus Curiae is also not sustainable for the simple reason that two main eye witnesses, namely, P.W. 1 Prabhu and P.W. 3 Dulari are admittedly illiterate persons. Even P.W. 2 Lala Ram is quacksalver who practices some kind of medicine in the village. He obviously is not a qualified doctor. All of them witnessed the incident from different places. This sudden incident must have created chaos in the area. Therefore these minor discrepancies in fact merely indicate that witnesses have not been tutored.

37. We believe unless the contradictions and the discrepancy affect the core of prosecution case, they alone are not sufficient to reject the prosecution case. Prosecution evidence itself indicates that deceased was about to take food. His mother and sister were preparing food, therefore, absence of any food particles in his mouth is hardly surprising. We do not believe that absence of name of P.W. 3 Dulari in FIR is fatal to the prosecution case. The presence of P.W. 3 Dulari in her house in the morning is completely natural and it was not necessary for complainant Prabhu to show her presence in the FIR. The FIR is not a substantive piece of evidence. Its use during criminal trial is limited and it cannot be treated as encyclopedia.

38. Similarly, the fact that weapon was described as a rifle by illiterate witnesses is certainly not fatal to the prosecution case. Contents of FIR and the evidence of eye witnesses simply show that appellant Yogendra @ Khudda discharged single fire arm shot from which Mukut (deceased) died. Eye witness account and medical report show that this single shot was sufficient to kill deceased Mukut. The single fire arm wound of entry was found on the mandible (lower jaw) and on the head. The parietal bone was broken. Membranes of brain itself was lacerated. Scull was fractured.

39. We are convinced that medical report is completely and totally consistent with the ocular evidence. The fact that charing and blackening were found, indicates close range firing. P.W. 4 Dr. K.G. Agarwal has also supported this fact. Learned Amicus Curiae has argued that ocular evidence indicates that assailants were at some distance. These distance are shown in site plan (Ext. Ka-15) and stated by eye witnesses are merely guesstimate. I.O. was certainly not present at the time of incident. P.W.3 Dulari and P.W.2 Lala Ram were present at the time of incident but certainly did not measure the distance between the deceased and the assailants. They too have said that assailants were near the deceased Mukut but distance indicated by them is merely a guesstimate and should not be taken as a precise measurement of distance between the assailants and the deceased at the time of murder. We must point out that comparison between medical evidence and ocular evidence should not be done in mathematical manner. It is not a duty of prosecution to give precise estimate of each event. If prosecution is able to show the date, time, place and manner of assault and is able to establish the identity of assailants then conviction order can be passed and court cannot waste its time in discussing minor contradictions.

40. Learned counsel for appellants has argued that a country made gun (Pauna) was recovered subsequently from the possession of appellant but forensic laboratory has given report that this gun was not used in discharging the empty which was found on place of occurrence by I.O. We do not give any importance to this argument for several reasons.

41. First of all, there is no evidence except the stated confession of accused in the custody of police, which is not admissible, that the same gun was used in the murder of deceased Mukut. No other specific evidence has been placed on record to demonstrate this fact. Similarly, an empty was indeed found on the place of occurrence but no specific evidence has been led by prosecution to establish that this was the same empty which was discharged by accused appellant Yogendra @ Khudda at the time of attack. We believe that appellant was also convicted by trial court for possession of fire arm weapon. But there is no evidence on record to demonstrate that same weapon was used in the stated crime. In any case, we believe the evidence regarding recovery of fire arm weapon itself is very shaky. No public witness was produced to support this recovery. The recovery was made from the hut of one Hoti S/o Vasudeo Mallah who was not produced during evidence. Two witnesses, namely, Kehri and Ramhet were present during this recovery but they have not been produced during trial. Surprisingly, this recovered article was not produced before I.O. P.W. 7 Narendra Singh during trial who conducted investigation of offfence under Section 25 Arms Act. We believe this recovery under Arms Act has not been proved by prosecution beyond all reasonable doubt.

42. Learned counsel for remaining appellants has pointed out that the Investigating Officer has not investigated the case in proper manner. We believe that indifferent attitude of Investigating Officer is certainly visible but that alone cannot be a ground for discarding the entire prosecution case. Trustworthy eye witness account is available on record. Medical report is consistent with ocular testimony and therefore, we believe that prosecution has proved its case against appellant Yogendra @ Khudda beyond all reasonable doubt.

43. This appeal has been filed by five more persons, namely, Rakesh, Ghantoli, Khajaan, Malkhan and Sanjay as well. Prosecution has alleged that at the time of murder of deceased Mukut these five appellants were also involved. This allegation against other five appellants should be considered into context. All five persons are closely related. They have no relationship with appellant Yogendra @ Khudda. They did not use any weapon in the murder of deceased Mukut, though they were allegedly armed with various weapons. There is no evidence on record to show that any specific overt act was done by these five appellants.

44. Admittedly, P.W. 1 Prabhu had antagonistic relationship with appellant Khajaan and his family. He earlier lodged a report against appellants Khajaan and Malkhan at the police station in which police personnel brokered peace. The prosecution evidence do indicate the existence of prior antagonistic relationship. The Panchayat was also organized in village. It appears that appellants Khajaan and Malkhan believe that some bank loan was taken in their name by complainant Prabhu (P.W.1). Perhaps this loan pertained to the purchase of same Eicher tractor. P.W. 2 Lala Ram has also admitted that trolley of P.W. 1 Prabhu was taken away by these five persons and sold for small amount of money. This antagonistic relationship between parties and absence of any overt act on their part during stated crime makes us hesitate to convict them for this crime.

45. It is true that all these appellants have been convicted for the same offence and evidence against all of them is to certain extent similar but other appellants barring appellant Yogendra @ Khudda have been convicted with the aid of Section 149 I.P.C.

46. Principle of 'Falsus in uno, Falsus in omnibus' is not applicable as a rule of evidence in criminal trial. It is duty of the Court to separate chaff from the grain. We also believe that merely because this Court is not accepting the prosecution evidence against these five appellants, there is no desirability to throw out the entire prosecution case. We believe that even if major portion of evidence is not trustworthy or insufficient conviction order can still be passed against an appellant if remaining evidence is sufficient to prove his or her guilt. We have noticed the tendency of litigants in rural India to implicate or embroil more people in the case then was necessary. In such a scenario, it is necessary for Court to evaluate evidence more carefully. It is always open to the Court to differentiate between the accused who are to be acquitted from those who need to be convicted if there are large number of accused. The conviction of such person cannot be rejected merely because some other persons have been acquitted on the basis of same evidence. The propensity of Indian witnesses to give embroidery to a story is well known. We are therefore, not comfortable with the conviction of remaining five appellants, namely, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay.

47. Upon appraisal of entire evidence, we conclude that it would be safe to acquit these five persons, namely, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay but we are convinced of the evidence against appellant Yogendra @ Khudda.

48. Hence, the Criminal Appeal No. 2168 of 2007(Rakesh and others Vs. State of U.P.) and Crl. Appeal No. 2169 of 2007(Khajaan Singh and another Vs. State of U.P.) are allowed. The appellants, namely, Rakesh, Khajaan, Malkhan, Ghantoli @ Yashpal and Sanjay are acquitted of all the charges. Appellants, if in jail be set at liberty forthwith unless their detention is required in connection with any other case.

49. However, the Jail Appeal No.7073 filed by appellant Yogendra @ Khudda is partly allowed. He is acquitted under Section 25 Arms Act. However, his conviction and sentences under Sections 147, 148, 302/149 IPC is affirmed. Appellant Yogendra @ Khudda is said to be in jail. He will serve out remaining part of his sentence.

49. Let a copy of this order be certified to concerned court through Sessions Judge, Mathura within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter.

50. Sri Sangam Lal Kesarwani, learned Amicus Curiae has assisted us very diligently. Office is directed to pay honorarium to Sri Sangam Lal Kesarwani in accordance with rules of the Court.

Order Date :- 24.05.2017

Meenu