Ram Prakash & Others vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Reserved
 
										     A.F.R.
 
Case :- CRIMINAL APPEAL No. - 5410 of 2002
 

 
Appellant :- Ram Prakash & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shashank Shekhar Giri,A.K.Singh,Apul Mishra,G.S. Hajela,Gulab Chandra,Niraj Tewari,R.K. Chaubey,S.V.Singh
 
Counsel for Respondent :- A.G.A.
 

 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Satya Narain Agnihotri,J.

(Delivered by Hon. Bharat Bhushan,J.)

1. Appellants Ram Prakash, Prag Singh and Sukhveer Singh have assailed the judgment and order dated 10.12.2002 passed by the then Additional Sessions Judge, Fast Track Court No. 1, Etah against the common judgment in Sessions Trial No. 730 of 2001 (State of U.P. Vs. Ram Prakash and three others) arising out of Crime No.111 of 2001 under Sections 147, 148, 302/149 IPC, Sessions Trial No.728 of 2001 (State Vs. Prag Singh) arising out of Crime No.120 of 2001 under Section 25 Arms Act and Sessions Trial No. 729 of 2001 (State Vs. Sukhveer) under Section 25 Arms Act arising out of Crime No. 121 of 2001, Police Station (P.S.) Rijor, District Etah whereby appellants Ram Prakash, Prag Singh and Sukhveer Singh were convicted under Sections 147, 148 and Section 302 IPC read with Section 149 IPC and sentenced to rigorous imprisonment (R.I.) of one year, R.I. Of two years and life imprisonment with fine of Rs.2000/- respectively each with default stipulation.

2. Co-accused Suresh was acquitted under Sections 147, 148, 302/149 IPC by the same impugned judgment. Appellants Prag Singh and Sukhveer Singh were also acquitted under Section 25 Arms Act.

3. Prosecution story in brief is that one Tikender son of appellant Ram Prakash had committed suicide three years prior to the incident of this case. Ram Prakash believed that his son Tikender had been impelled to commit suicide by the witchcraft and sorcery employed by Bhagwan Singh (P.W. 2), thereby developing animus against him. Complainant, Mahaveer Singh (P.W. 1) a relative of Bhagwan Singh had the knowledge of this animus, therefore, some steps were taken for the security of Bhagwan Singh. Deceased Raghuveer Singh, brother of complainant Mahaveer Singh (P.W. 1) and another deceased Lallu Singh started to sleep at the residence of Bhagwan Singh which further infuriated appellant Ram Prakash.

4. In the intervening night of 26/27.7.2001 deceased Raghuveer Singh and Lallu Singh were sleeping besides Bhagwan Singh (P.W.2). Rajendra Singh and Chandra Pal younger brother of Mahaveer Singh(complainant) were also sleeping nearby. Gas lantern was burning. Suddenly at about 12 pm. in the night commotion erupted from the residence of Bhagwan Singh whereby complainant Mahaveer (P.W. 1), Raj Kumar (P.W. 3) and other neighbours were roused from the sleep and rushed towards Bhagwan Singh's residence. They were flashing battery torches and holding lathies.

5. The witnesses saw that appellants Ram Prakash, Prag Singh, Sukhveer Singh and two other unknown persons were discharging fire arm weapons upon the people lying on the cots, resulting in the death of Raghuveer and Lallu while P.W. 2, Bhagwan Singh and Chandra Pal managed to escape unhurt as the pressure from neighbours and other village folks forced assailants to flee away from the spot leaving dead bodies of Lallu and Raghuveer.

6. Complainant Mahaveer (P.W.1) got the report of incident scribed by one Raj Kumar and thereafter lodged it at P.S. Rijore at 1:50 am on 27/7/2001 i.e. within two hours of the incident at a police station which was located almost 9 kilometers away from the place of occurrence. The FIR (Ext Ka-1) was lodged at a police station in the presence of P.W.4 HCP Arjun Singh. P.W. 7 Station House Officer (SHO) V.K. Shukla was not present. HCP Arjun Singh contacted SHO V.K. Shukla (P.W. 7) in village Bhartoli from where they reached village Haidalpur, the place of incident. Inquest proceedings were conducted. Inquest reports of deceased Raghuveer (Ext. Ka-2) and deceased Lallu (Ext. Ka-3) are available on record. The cadavers of deceased persons were sent to mortuary for autopsy through P.W. 6 constable Mahavir Singh and constable Preetam Singh where autopsy was conducted by P.W. 5 Dr. B.V. Verma. P.W. 5 Dr. B.V. Verma found following ante-mortem injuries on the person of deceased Raghuveer:-

"(i) Fire arm wound of entry 3 cm x 305 cm x through & through to injury No. (2) over front of Neck in middle and Rt. Side, margin lacerated and inverted. No blackening and tattooing present. Trachea, oesophagus and Blood vessels lacerated.

(ii) Fire arm wound of exit 4 cm x 3.5 cm x communicating to injury No. (1) over back of Neck left side. Margins lacerated and everted. Direction front to back and left.

(iii) Fire arm wound of entry 3 cm x 2.5 cm x through and through to injury No. (4) over front of chest Rt. Side, 5 cm away to Rt. Rt. Nipple at 6 o'clock position. Margins lacerated and everted. No blackening and tattooing present.

(iv) Fire arm wound of exit 3 cm x 3 cm communicating to injury No. (3) over back of chest, upper part of left inter scapular region. Margins lacerated and everted. Direction front to back upward and Rt. to left.

(v) Fire arm wound of entry and (P.T.) over tip of Rt. thumb and, post, part of middle phalynx of Rt. index finger size 4 cm x 2 cm x Tunnel shaped through & through- Margins over thumb are inverted and over index fingers are everted.

(vi) Abrasion 4 cm x 1 cm in (paper torn) paper lower part of Rt. side of chest.Lacerated wound 1 cm x 1.5 cm x bone deep (paper torn) of middle of left...."

7. Dr.B.V. Verma also found presence of rigor mortis over upper and lower extremities. He also found about 20 ml. of unidentified semi digested food along with gases and fecal matters. This postmortem of Raghuveer (Ext. Ka-10) also contains the opinion of P.W. 5 Dr. B.V. Verma that deceased Raghuveer could possibly have died between the night of 26/27.7.2001 at about 12 pm. from the injuries caused by fire arm.

8. This doctor has also conducted postmortem of second deceased Lallu Singh on whose body following ante mortem injuries were found:-

"(i)Fire arm wound of entry 6 cm x 4 cm x bone deep and cranial cavity deep over Rt. parietal region anteriorly. Margin lacerated and inverted.

Direction front to back and downward."

9. The doctor found that rigor mortis was present in both upper and lower extremities. 100 ml of semi digested food was also found. Postmortem report of deceased Lallu Singh also contains opinion of doctor that deceased Lallu Singh possibly died at the same time as that of Raghuveer Singh.

10. P.W. 7 SHO V.K. Shukla conducted investigation; prepared site plan (Ext. Ka-12 and Ext. Ka-17); recorded statements of Mahaveer Singh, Bhagwan Singh, Raj Kumar and Chandra Pal; took blood stained bed and pillow in his possession; battery torches of P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar were also inspected and taken into possession and thereafter given into custody of owners. Gas lantern was also inspected. Investigating Officer (I.O.) also recovered seven empties of 12 bore and one empty of 315 bore from the spot on 27.7.2001. Appellant Ram Prakash was arrested. However appellants Prag Singh and Sukhveer Singh surrendered of their own before the Court on 14.8.2001. Police remand was taken. A twelve bore country made pistol was recovered at the instance of appellant Prag Singh while another country made pistol of 315 bore was recovered at the instance of appellant Sukhveer Singh. Both of these weapons were recovered from the agricultural field of one Virendra Sharma S/o Mathura Prasad located at village Haidalpur. Investigation was concluded and thereafter charge sheet (Ext. Ka-18) filed against appellants Ram Prakash, Prag Singh, Sukhveer, Mahesh and Suresh.

11. Simultaneous recovery of country made pistols at the instance of appellant Prag Singh and Sukhveer Singh were investigated by HCP Arjun Singh (P.W. 4) who obtained sanction (Ext. Ka-21 and Ext. Ka-22) from the then District Magistrate Etah and filed charge sheets (Ext. Ka-23 and Ka-24) under Section 25 Arms Act.

12. The Trial Judge framed charges against appellants Ram Prakash, Sukhveer Singh, Prag Singh and co-appellant Suresh under Sections 147, 148, 302/149 IPC on 13.12.2001. On the same day appellants Prag Singh and Sukhveer Singh were also charged under Section 25 Arms Act. All the accused persons denied charges and desired to be tried.

13. In support of its charge, prosecution adduced the evidence of P.W. 1 Mahaveer Singh (complainant/eye witness), P.W. 2 Bhagwan Singh (eye witness), P.W. 3 Raj Kumar (eye witness), P.W. 4 Arjun Singh, P.W. 5 Dr. B.V. Verma (conducted autopsy) P.W. 6 constable Mahaveer Singh(transported cadavers) and P.W. 7 V.K. Shukla (conducted investigation).

14. The statements of accused persons under Section 313 Cr.P.C. were recorded. All of them denied prosecution allegations and claimed false implication on account of previous enmity. Appellants Ram Prakash and Prag Singh pleaded alibi saying that they were present in District Agra at the time of incident. Defence also produced two witnesses, namely, DW 1 Ram Singh Yadav, the then record keeper in P.S. Etah, and D.W. 2 Ram Prakash Yadav, U.P. Mandal Adhikari, Bharat Sanchar Nigam Ltd., Etah. The Trial Judge was partly convinced of prosecution evidence and held appellants Ram Prakash, Prag Singh and Sukhveer guilty of offences under Sections 147, 148, 302/149 IPC and sentenced them as aforesaid.

15. Co-accused Suresh was acquitted of charges under same sections. In addition to that, appellants Prag Singh and Sukhveer were also acquitted of charges under Section 25 Arms Act vide impugned common judgment dated 10.12.2002. This judgment is under challenge before this Court.

16. Heard Sri Sukh Veer Singh and Sri G.S. Hazela Advocates for appellants and Sri Syed Ali Murtaza learned A.G.A. for State.

17. Learned counsel for appellants have argued that FIR was ante- timed; the presence of eye witnesses are highly doubtful; motive has not been established. There is inconsistency between the oral evidence and the medical evidence. All injuries disclosed in postmortem report are not explained; source of light is doubtful. There is no evidence that recovered guns were used in assassination of deceased persons. Counsel for the appellants have further argued that the story of indiscriminate firing has not been established by prosecution as deceased Lallu Singh sustained only one fire arm injury. No blunt object was used yet injuries said to have been caused by blunt object were found on the person of deceased Raghuveer.

18. Per contra, learned A.G.A. Syed Ali Murtaza has disputed the argument of learned counsel for appellants saying that this double murder was committed in presence of several witnesses. The incident occurred at the residence of Bhagwan Singh (P.W. 2) who has testified about the involvement of appellants. He has further submitted that appellants have been convicted with the aid of Section 149 IPC as well, therefore, mere the participation in the crime is sufficient and the role of each accused was not required to be delineated seperately. His argument is that acquittal of appellants Prag Singh and Sukhveer Singh under Section 25 Arms Act would not affect the conviction of appellants under Section 302 IPC. He has further argued that plea of alibi of appellants Ram Prakash and Prag Singh has not been proved. Submission is that plea of alibi is essentially plea of evidence which needs to be proved by person claiming such defence.

19. We have carefully perused all material on record and gone through the evidence produced by the prosecution. This brutal double murder was committed in the month of July at the residence of P.W. 2 Bhagwan Singh. Prosecution has claimed that Tikender S/o appellant Ram Prakash committed suicide three years prior to the incident. Appellant Ram Prakash believed that his son had been impelled to commit suicide by the witchcraft and sorcery employed by one Bhagwan Singh(P.W.2). This developed hostility against Bhagwan Singh. The prosecution says that Bhagwan Singh and his family members received the information of his anger, therefore, took preventive measure. Deceased Raghuveer, brother of P.W. 1 Mahaveer Singh (complainant) and another deceased Lallu Singh started to sleep at the residence of Bhagwan Singh which further enraged appellant Ram Prakash.

20. In the intervening night of 26/27.7.2001 deceased Lallu Singh and Raghuveer were sleeping besides Bhagwan Singh (P.W.2). Chandra Pal, younger brother of complainant Mahaveer Singh, too was sleeping nearby. Gas lantern was also burning. Suddenly appellant Ram Prakash, his brother Prag Singh, Sukhveer Singh and two unknown persons arrived on the spot and opened fire upon sleeping persons. Bhagwan Singh, Rajendra Singh and Chandra Pal managed to escape while Raghuveer Singh and Lallu Singh were shot dead by assailants. Commotion attracted the presence of P.W. 1 Mahaveer, P.W. 3 Raj Kumar and other neighbours whereupon the assailants fled from the spot.

21. Presence of P.W. 2 Bhagwan Singh at his own residence is quite natural. P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar also arrived on the spot immediately. In fact P.W. 3 Raj Kumar claimed to be awake at the time of incident. He has testified that he recognized the assailants/appellants Ram Prakash, Prag Singh and Sukhveer Singh in the light of torch as well as in the light of burning gas lantern. P.W. 1 Mahaveer Singh has testified that assailants/appellants, namely, Prag Singh, Sukhveer Singh and Ram Prakash committed murder of deceased Lallu Singh and Raghuveer Singh at the residence of Bhagwan Singh by fire arm weapon. Two unknown persons also participated in this attack. P.W. 1 Mahaveer Singh is related to Bhagwan Singh. His own brother Raghuveer died in the said episode. Site plan (Ext. Ka-12) indicates that houses of all witnesses, namely, P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar were located near the residence of Bhagwan Singh. As stated earlier presence of Bhagwan Singh (P.W.2) on the spot is quite natural because incident took place at his residence. All the three witnesses have narrated the prosecution story in a very natural and trustworthy manner. Their presence on the spot is also natural. Incident did occur at the residence of Bhagwan Singh. The residence of other witnesses are located nearby. Fire arms were used which naturally generate the noise thereby attracting the presence of witnesses.

22. We have carefully perused the testimony of all three eye witnesses and we believe that the testimony of these eye witnesses are highly trustworthy. Learned counsel for appellants have submitted that presence of these witnesses on the spot is doubtful. They have also argued that only partisan witnesses have been produced in the evidence. They have claimed that absence of independent witnesses renders the prosecution story doubtful. We are afraid that aforesaid argument of learned counsel for appellants is legally not tenable.

23. First of all, presence of Bhagwan Singh is quite natural. The incident occurred at his residence. Presence of deceased Raghuveer Singh and Lallu Singh has also been explained by prosecution. Deceased Raghuveer Singh was in fact related to Bhagwan Singh. P.W. 1 Mahaveer Singh has testified that due to anger of Ram Prakash deceased Lallu Singh and Raghuveer Singh started sleeping at the residence of Bhagwan Singh (P.W.2) as precautionary measure. We believe that deceased Raghuveer Singh and Lallu Singh started sleeping at the residence of Bhagwan Singh (P.W.2) to provide assurance and to deter appellants from any misadventure. That the presence of Lallu Singh and Raghuveer Singh did not deter appellants, is altogether a different matter.

24. In addition to that, the testimony of P.W. 1 Mahaveer Singh indicates that large area was vacant outside the house of P.W. 2 Bhagwan Singh which was called chauk. This vacant chauk had had one boundary wall only on the southern side. Chauk was open from three other sides. Testimony of P.W. 1 Mahaveer Singh indicates that this chauk was used by several villagers for sleeping. Sometimes even he used to sleep there. He has specifically asserted that sometimes and especially during summers other people also used to sleep at this place. Meaning thereby that presence of other persons at this chauk is not surprising. The evidence further indicates that houses of P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar are also nearby. This witness has depicted the prosecution story in great details.

25. Both P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar have testified that they were awake at the time of incident. P.W. 1 Mahaveer Singh has stated that he was present at the platform (Chabutara) and P.W. 3 Raj Kumar has also testified that he too was present on this chabutara at the time of incident. Presence of these two witnesses on the spot in the wake of commotion is not surprising. It is pertinent to point out that most of the village folks sleep outside, in open spaces especially during summers, making it possible to hear any noise or commotion particularly if they are not sleeping. P.W. 1 Mahaveer Singh and P.W. 3 Raj Kumar both have specifically stated that they were not sleeping at the time of incident.

26. Learned counsel for appellant has argued that motive for murder is weak. Admittedly, Tikender son of Ram Prakash committed suicide. No specific role had been attributed to Bhagwan Singh and others, therefore, to commit such a gruesome murder merely on such a weak motive, is not acceptable. We are afraid, this argument is nothing but mere speculation. Nobody knows the state of mind of any person. The question of motive is one of perception. The son of appellant Ram Prakash committed suicide. Appellant Ram Prakash may or may not have attributed this suicide to any activity of P.W. 2 Bhagwan Singh but fact remains that Bhagwan Singh perceived that appellant Ram Prakash considered him as one responsible for death of his son. In fact Bhagwan Singh's family shared this perception and that is why they took some preventive steps by inviting Raghuveer Singh and Lallu Singh to sleep near Bhagwan Singh. This perhaps gave the feeling of security to Bhagwan Singh and his family.

27. Bhagwan Singh and his family believes that this gruesome attack was committed by appellants on account of their belief that son of Ram Prakash committed suicide due to activities of Bhagwan Singh. The veracity of this belief is not important. Belief itself is important.

28. In any case, the prosecution story rests on direct evidence. Three trustworthy and natural eye witnesses have established the involvement of appellants Ram Prakash, Prag Singh and Sukhveer Singh in the stated crime. There is absolutely no reason to disbelieve the eye witness account of these three witnesses. There is nothing on record to create doubt about their presence on the spot. Appellants have claimed false implication on account of previous enmity but details of this previous enmity has not been given by appellants. There is nothing on record to demonstrate that these three eye witnesses have falsely implicated appellants and spared the real culprits of the crime.

29. Learned counsel for the appellants have claimed that FIR was ante-timed, therefore it creates doubt about the genesis of the prosecution story. This argument is based on the fact that inquest report of deceased Raghuveer Singh (Ext. Ka-2) and Lallu Singh (Ext. Ka-3) do not reflect the presence of eye witnesses. Learned counsel for appellants have submitted that five persons were nominated as witnesses of inquest and not one of them was produced during trial as eye witnesses or that eye witnesses did not act as panch during inquest proceedings. A claim was made that inquest proceedings were also delayed. An attention of this Court has been drawn towards the statement of P.W. 1 Mahaveer Singh wherein he has claimed that Sub Inspector questioned him about the details of the murder and details of family members of the deceased persons. Learned counsel says that if FIR had been lodged at police station detailing the entire event in it, then there was no need for police personnel to question complainant Mahaveer Singh (P.W. 1) about details of the incident.

30. We believe this argument is strange and deserves no answer but we are answering it for the sake of transparency. Prosecution story and evidence are very simple. Appellants and two unknown persons assassinated deceased Raghuveer Singh and Lallu Singh at the chauk of Bhagwan Singh. Bhagwan Singh and others managed to escape. P.W. 1 Mahaveer Singh dictated FIR to P.W.3 Raj Kumar and thereafter FIR was lodged at P.S. Rijore at 1:50 am between the night of 26/27.7.2001 i.e. less than two hours at police station which was 9 kms. away from village Haidalpur.

31. The evidence of HCP Arjun Singh (P.W. 4) clearly shows that no other senior police officer was present at the police station at that point of time. The case was registered in his presence. Obviously this must have taken some time. HCP Arjun Singh was not investigator but it was natural and perhaps even necessary to do the preliminary questioning of complainant Mahaveer Singh in order to gather the facts. Double murder is not an everyday affair. P.W. 4 Arjun Singh was constable who had been promoted to next level and that is why he was called Head Constable Promoted (HCP). A double murder case was registered at police station under his watch. His mental condition can be guessed quite easily. We are quite sure that mere questioning of witnesses repeatedly is not the indication of ante-timing of FIR.

32. This witness has testified that he inquired about the SHO V.K. Shukla (P.W. 7), went to fetch him from village Bhartoli and then took him to village Haidalpur. Official Jeep was not available. He contacted SHO V.K. Shukla (P.W. 7) at village Bhartoli which was 7 Kms. away from P.S. Rijore. He has testified that he reached village Bhartoli in about 20 minutes. He naturally spent some time with SHO V.K. Shukla and then they left for place of occurrence. They reached sometime around 3 am. to the place of occurrence. Inquest proceedings were conducted by HCP Arjun Singh at the instance of P.W. 7 V.K. Shukla. In such a scenario to initiate inquest proceedings in the morning at about 6 am. is hardly surprising. It is known to most of the people connected with criminal justice system that ordinarily inquest proceedings especially in rural areas are conducted in day time.

33. Inquest reports (Ext. Ka-2 and Ka-3) contain crime number and detail of crime. It is pertinent to point out that the crime number is mentioned not only on the top of the inquest report but also within the contents of inquest report making it virtually impossible to manipulate it subsequently. It is argued by counsel for the appellants that at few place some overwriting had been done on inquest report. We have carefully perused this report. A very natural explanation has been provided by P.W. 4 HCP Arjun Singh about this stated interpolations. He has said that his ballpen did not transcribe few details clearly. Therefore he used that ball pen twice. We have also seen those entries. Those entries are natural entries and do not adversely affect the prosecution case. At one place in the inquest report of Lallu Singh (Ext. Ka-3) time of initiation of inquest proceedings has perhaps been deepened by ball pen so are Sections 147, 148 IPC, other than this, there is no infirmity in entries of the inquest proceedings and both these entries do not reflect any manipulation. There was no need of it for the simple reason that all the major details and major requirements were fulfilled in accordance with law.

34. Learned counsel for appellant has further argued that the recovery of empties has not been shown in the inquest proceedings. It has been answered very naturally by HCP Arjun Singh (P.W.4) by saying that empties were not recovered by him but subsequently discovered by I.O. V.K. Shukla (P.W. 7).

35. As far as absence of signatures of eye witnesses on inquest report is concerned, it is of no consequence. The murder took place at 12 am. in the night. FIR was lodged at 1:50 am and after that the family members were naturally busy in mourning. There was no necessity of disturbing the family members. Therefore to obtain the signatures of other village folks is quite natural conduct on the part of police personnel. The absence of signatures of complainant or eye witnesses on the inquest proceedings does not necessarily demonstrate the absence of eyewitnesses at the time of incident. The record reveals that the information of this incident was flashed to several police stations. The evidence of D.W. 1 Ram Singh Yadav, the then record keeper in district Etah indicates that departure of Police from P.S. Rijore is indicated as 1:50 am in the night while personnel of Police Station, Malawan left for place of occurrence at 6:20 am.

36. We have carefully perused all records. We believe that there is no major discrepancy in the oral testimony as well as documentation of Police executed during investigation. General Diary (in short G.D.) entry (Ext. Ka-20) also indicates that case had been registered at Police Station Rijore at the given time. G.D. entries reflect the presence of P.W. 1 Mahaveer Singh at the Police Station. The entries includes the names of assailants, namely, Ram Prakash, Prag Singh and Sukhveer Singh.

37. Learned counsel for appellants have argued that Bhagwan Singh was the main target of the assailants and yet they did not kill Bhagwan Singh. Learned counsel for the appellant has submitted that this creates doubt about the veracity and genesis of the prosecution case. We do not agree with this argument at all. The evidence of prosecution cannot be evaluated with the mathematical precision nor assailants are expected to behave in a rational and precise manner. Several persons were sleeping at the Chauk of Bhagwan Singh. A gas lantern was also burning inside the chawk. The recovered article indicates that bed sheets etc. were stained by blood. People do sleep in a different position. Some people also cover themselves by bed sheets. All this could have confused the assailants a little bit.

38. The evidence of P.W. 2 Bhagwan Singh indicates that he got awakened after hearing the sound of footsteps of assailants. It is pertinent to point out that Bhagwan Singh was sleeping inside his hut. He saw the presence of assailants after he came out and then he raised alarm and escaped. It is natural human reaction. The fact that he managed to save himself, cannot now be treated as evidence of his lying.

39. We believe that several persons were sleeping there. Assailants attacked them. Some managed to save themselves while others became the target of vicious fire arm attack and lost life. Evidence of such vicious attack cannot be evaluated with any fixed formula. Different people react differently. We are convinced with the fact that Bhagwan Singh managed to escape or save himself, is not detrimental to the prosecution story. In fact his testimony explains the presence of empties on spot. He has referred to about discharge of 5-6 fire shots. P.W. 7 I.O. V.K. Shukla has testified about recovery of empties which reinforces the prosecution story about the place of occurrence and manner of attack.

40. Learned counsel for the appellants have also claimed that medical evidence is not consistent with the ocular evidence. They have claimed that prosecution has come forward with the story of indiscriminate firing while deceased Lallu Singh merely sustained one fire arm injury. They have also claimed that absence of blackening and tattooing belies the story of firing from the close range. Argument is that injuries no. 6-7 of Raghuveer Singh have not been explained by the prosecution.

41. We have carefully considered all arguments of learned counsel for appellants. We believe that these arguments are not sustainable and there is no inconsistency between the ocular testimony and medical report. In any case, medical report should never be compared with oral testimony in mechanical fashion. The Apex Court in Vithal Pundalik Zendge Vs. State of Maharashtra (2009) (2) ACR 1497 (SC) has held that minor discrepancies is not enough to reject the testimony of witnesses.

42. In G.S. Walia Vs. State of Punjab and others (1998) 5 SCC 150, the Apex Court has held that the comparison of medical evidence with ocular testimony should not be done in mechanical manner. In the aforesaid case, some injuries, caused by sharp edged weapon were found by doctor but in ocular testimony there was no mention of sharp edged weapon yet the Apex Court refused to reject the testimony of oral witnesses.

43. This view was again reiterated by Apex Court in State of U.P. Vs. Premi and others 2003 Cri.L.J. 1554. In this case medical opinion stated that margins of injuries were soft and probably caused by sharp edged weapon while the prosecution story said that injuries were caused by butt of revolver. This stated discrepancy was argued before the Apex Court but Apex Court rejected this minor discrepancy and affirmed the sentence against the accused persons.

44. Coming back to the facts of the present case, it is pertinent to point out that attack resulted into the death of two persons. P.W. 2 Bhagwan Singh claims that 5-6 round of shots were fired. P.W. 2 Bhagwan Singh was not in a position to count the number of shots fired on the spot. It is his guess work only. P.W. 7 I.O. V.K. Shukla found seven empties of 12 bore and one empties of 315 bore. Three fire arm wound of entry were found on the person of deceased Raghuveer Singh while postmortem report of deceased Lallu Singh discloses only one fire arm wound of entry. This indicates discharge of several fire arm shots in rapid succession but we cannot expect prosecution witnesses to provide the account of each firearm shot or to count each and every injury. Injuries no. 6 and 7 of deceased Raghuveer Singh are abrasion and lacerated wounds. These injuries can occur in various ways in such type of attack. They might have fell down. Lacerated wound can be result of fire arm weapons as well. We do not believe injuries no. 6-7 on the person of deceased Raghuveer Singh indicates any inconsistency with ocular evidence.

45. Learned counsels for appellants have claimed that there are discrepancies in prosecution evidence. P.W. 7 I.O. V.K. Shukla claims that he reached the place of occurrence early morning at 04:00 am. while P.W. 6 constable Mahaveer Singh claims that S.O. asked him to reach the place of occurrence at 7:30 am. in the morning. Learned counsel for appellants says that this discrepancy creates doubt about the presence of police personnel on the indicated time. We are afraid this interpretation of aforesaid evidence is not justified. P.W.6 constable Mahaveer Singh has performed minor duties in the entire episode. He merely transported the cadavers from place of occurrence to the mortuary. He was perhaps asked in the morning at 7:30 am. to reach place of occurrence and he has specifically said that he left P.S. at 7:30 am. and reached the place of occurrence at 8:30 am. and thereafter carried the dead body to morgue in the association of constable Preetam Singh. Argument that we ought to treat this statement of P.W. 6 constable Mahaveer Singh as indication of the fact that SHO V.K. Shukla (PW7) left police station after 7:30 am. is quite misconceived and wrong.

46. It is apparent that Investigating Officer again came back in the morning to the police station. It is apparent that police personnel were using motor cycle and official Jeep. The police station was merely 9 kms. away from village Haidalpur. P.W. 6 constable Mahaveer Singh has specifically said that SO came at 7:30 am. in the morning on motorcycle. He has not specified the police personnel. May be he was referring some other S.O. inasmuch as prosecution evidence indicates that large number of police officials of various police stations had gathered on the place of occurrence on account of this brutal double murder. Therefore, it was incumbent upon counsel for accused to seek explanation from P.W. 6 constable Mahaveer Singh. In any case, this is a minor variation and we do think it is quite possible that SHO might have came back to the police station at 7:30 am. for few minutes and again gone back to the village of occurrence. It was responsibility of counsel for appellants to seek specific information from witnesses.

47. Learned counsel for the appellants has argued that there is no evidence to connect the recovered guns with the crime in question. This argument need not detain us for the simple reason that trial court has acquitted both appellants Prag Singh and Sukhveer Singh under Section 25 Arms Act. The State of U.P. has filed no appeal against this acquittal. In any case, the recovery of gun does not necessarily mean that same gun was used in the murder of deceased persons. Recovery was indeed made after almost more than 20 days of the incident. Acquittal of appellants Prag Singh and Sukhveer Singh under Section 25 Arms Act would not adversely affect their conviction under Section 302 IPC as their participation in the murder of two deceased persons has been proved by prosecution beyond all reasonable doubt.

48. As far as question of plea of alibi of appellants Prag Singh and Ram Prakash is concerned, it needs no discussion for the simple reason that this plea of alibi has not been proved by defence. Plea of alibi is a plea of evidence. It has to be independently established and proved.

49. We have perused all material available on record. We believe that prosecution has been successful to bring home the guilt of appellants with natural and trustworthy evidence. FIR was lodged promptly. Enmity between rival parties is writ large. In fact both parties have admitted the existence of enmity. There is nothing on record to demonstrate the false implication of appellants. On the other hand, prosecution has established its charges by credible and trustworthy evidence. Criminal appeal deserves to be dismissed.

50. Accordingly, criminal appeal is dismissed. The common judgment and order dated 10.12.2002 passed by the Additional Sessions Judge, Fast Track Court No. 1, Etah against the common judgment in Sessions Trial No. 730 of 2001 (State of U.P. Vs. Ram Prakash and three others) arising out of Crime No.111 of 2001 under Sections 147, 148, 302/149 IPC, Sessions Trial No.728 of 2001 (State Vs. Prag Singh) arising out of Crime No.120 of 2001 under Section 25 Arms Act and Sessions Trial No. 729 of 2001 (State Vs. Sukhveer) under Section 25 Arms Act arising out of Crime No. 121 of 2001, Police Station (P.S.) Rijor, District Etah is hereby affirmed. If the appellants, namely, Ram Prakash, Prag Singh and Sukhveer Singh are on bail, they are directed to surrender before the court concerned forthwith.

51. Let a copy of this judgment be certified to the concerned court through Sessions Judge, Etah for compliance within a fortnight. The concerned court will thereafter report the compliance of this judgment to this Court within a month.

Order Date :- 11.5.2017

Meenu