Parmatma And Another vs State Of U.P.
2017 Latest Caselaw 422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			A.F.R			           	Reserved 
 
Court No. 44
 

 
Case :- CRIMINAL APPEAL No. - 4822 of 2004
 
Appellant :- Parmatma And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Tripathi B.G. Bhai,Dilip Kumar,H.D. Verma,Preetpal Singh Rathore,R.P. Srivastava,S.N. Tripathi,Satyendra Narayan Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Satya Narain Agnihotri,J.

(Author Hon'ble Saya Narain Agnihotril,J)

1. Being aggrieved with the judgment and order passed by learned Sessions Judge, Siddharth Nagar on 9.9.2004 in Sessions Trial No.171 of 1999 arising out of Crime No.184 of 1996 under section 302 read with Section 34 I.P.C, Police Station Khesaraha, District Siddharthnagar, appellants namely Shri Parmatma Pandey and Shri Rajendra have filed this appeal against the judgment wherein learned Sessions Judge has held both appellants guilty under section 302 read with Section 34, IPC and punished both of them with life imprisonment and fine of Rs.1000/- and in default to serve additional imprisonment of six months.

2. The brief facts of the case are that in the intervening night of 17/18.8.1996 at about 2.00 a.m. at Village Athlohiya P.S Khesaraha District Siddharthnagar, accused/appellants committed murder of Shri Ramkaran inflicting injuries by Farsa (Gandasa) and knife. The complainant Shri Deo Narain Pandey, who is the son of the aunt of the deceased presented application Exhibit Ka-1 in the Police Station Khesaraha, with assertion that the accused Shri Omprakash with Katta, Shri Parmata Pandey with Farsa, Shri Rajendra with knife and Shri Sumer with Danda inflicted injuries upon Shri Ram Karan at the said time and date. Hearing the cries of Shri Ram Karan, the sister-in-law and niece of Shri Ram Karan woke up and ran towards its source. Both were seen in the light of the torch, inflicting injuries upon Shri Ram Karan. Shri Ram Karan died due to injuries sustained in said assault.

3. In pursuance of the application, Exhibit Ka-1, a Case Crime No.184 of 1996 under section 302 IPC was registered at 8.40 a.m. on 18.8.1996. After registering of Crime, S.O Shri Seo Das Yadav took investigation in his hand and recorded the statement of informant Shri Deo Narain Pandey and constable clerk Shri Prem Lal Srivastava. Later on Investigator visited the place of occurrence at Village Athlohiya, where he first of all recorded the statement of Smt. Durgawati under section 161 Cr.P.C. Thereafter, he prepared the inquest report of the dead body of Shri Ram Karan and relevant documents for postmortem and sent dead body to the District Head Quarter Sidharthnagar. Later on, the place of occurrence was inspected and site plan was prepared, incriminating material objects which were found near the dead body and place of occurrence were taken in the possession of police and the documents were prepared.

4. Learned Sessions Judge framed charge against accused Shri Parmatma Pandey, Shri Om Prakash and Shri Rajendra under section 302 read with Section 34 I.P.C. Accused Shri Sumer died before commencing Trial and accused Shri Om Prakash Pandey was acquitted.

5. To substantiate its case prosecution, examined Prosecution Witness (for brevity 'P.W'.) PW-1 Shri Deo Narain Pandey informant, PW-2 Smt. Durgawati, PW-3 Km. Saroj Kumari (both are eye witnesses), PW-4 Shri Jagdev, PW-5 Dr. A.K. Chaurasiya, PW-6 Shri Sada Muni Singh S.I and PW-7 Shri Shiv Das Yadav, S.O./Investigating Officer (hereinafter referred to as I.O).

6. Accused appellants examined in their defence lone witness Shri Ram Subhag Shukla.

7. Before we enter into merits of the case, it will be beneficial to mention the summary of the statements of witnesses examined by the prosecution and accused appellants.

8. PW-1 Shri Dev Narain Pandey informant is not an eye witness. He had lodged the F.I.R at Police Station Kesaraha on 18.8.1996 which was scribed by Shri Chaturbhujee Nath Pandey. In examination-in-chief he has supported the narration of the F.I.R. But in cross-examination he stated that this application Exhibit Ka.1 was written in the presence of police at Village Athlohiya and under the control of Shri Shiv Das Yadav, I.O., he had put his signature upon it. It is further stated that when he reached Police Station Kesaraha at about 08:30 a.m. he was informed by Police Official that the Investigating Officer has already been left for place of occurrence at Village Athlohiya.

9. PW2 Smt. Durgawati an eye witness, is sister-in-law of deceased Shri Ramkaran. She supported the contents of F.I.R. and stated on oath that there was an enmity between accused Shri Parmatama Pandey and the deceased and his brother Raja Ram, due to slippage of the water on the roof of accused. On the fatal day an altercation took place between deceased Ram Karan and mother of accused Parmatama Pandey.

10. PW-3 Km. Saroj is also an eye witness of the incident. She has also supported the narration of the F.I.R.

11. Both witnesses PW2 and PW3 further stated on oath that the accused persons are the co-sharers in the house which was partitioned amongst Shri Omprakash Pandey, Shri Parmatma Pandey and Shri Raja Ram with Shri Ramkaran. Shri Raja Ram and Shri Ramkaran got their share in between accused Shri Omprakash and Shri Parmatma Pandey. Shri Parmatma Pandey demolished his house about one year prior and erected packka house (cemented house). The rainy water of the house of Shri Parmatma Pandey was falling on mud wall of house of the witnesses. In the morning of 17.8.1996, an altercation took place among the deceased Shri Ramkaran Pandey and the female member of the accused Shri Parmatma Pandey's family. In the evening after taking dinner, he slept in the marrha situated near the house. Witnesses PW-2 Smt.Durgawati & PW-3 Kumari Saroj were sleeping outside of the house.

12. It is further stated that at about 2:00 a.m. in the night, they heard shrieks of Shri Ramkaran, whereupon both PW-2 and PW-3 saw in the light of torch that accused Shri Parmatma Pandey armed with Gandasa (Farsa), Shri Omprakash Pandey armed with Katta, Shri Rajendra Pandey armed with knife and Shri Sumer armed with Danda were inflicting injuries upon Shri Ramkaran. In the meantime, accused persons scuffling with deceased dragged him in the public street and again inflicted injuries upon Shri Ramkaran where he died.

13. Witnesses have further stated that on the fatal night there were rainy storm from 10:30 p.m. till morning. It is also stated that the I.O had seen that very torch, in the light of which, they had identified the accused persons and had returned to the witness.

14. In the cross examination,PW-I1 Smt.Durgawati narrated that the deceased was sleeping about 20-25 paces away, from the place of the witness. It is also stated that there were quilt, bed sheet, rag, pillow, mosquito net and bed cover on the cot on which Shri Ramkaran was sleeping, which were stained with blood. Witness also admitted that her house was surrounded by co-villagers. It is also admitted by this witness that the dead body of Shri Ramkaran was lying in the street in the rain and was drenched. According to this witness her statement was not recorded by the police under section 161 Cr.P.C., if any statement is shown by the I.O, then it is of his own volition.

15. Witness proved torch material Exhibit-1 and memo of recovery of torch, Exhibit Ka-2.

16. PW-3 Km.Saroj aged about 17 years is the daughter of PW-2, Durgawati and niece of deceased Shri Ramkaran stated on oath that on the fatal night, she was sleeping outside the house with her mother, sister and brother. Upon the shrieks of Shri Ram Karan her mother and she herself went near Shri Ramkaran, where in the torch light, she saw that accused Shri Parmatma Pandey with Gandasa (Farsa) Shri Omprakash with Katta, Rajendra with knife and Sumer with Danda were inflicting injuries upon Shri Ramkaran. No one of vicinity came on the spot. She had seen one plastic chappal, one knife, one katta, one cartridge and one Gandasa (Farsa) at the place of occurrence after the fleeing of the accused persons. S.I (Darogaji) had come at about 11.00 A.M and he had inquired from her as well as her mother about the incident.

17. In the cross examination witness stated that when she heard the cries of Shri Ramkaran, herself and her mother went near Ram Karan, where accused persons threatened her and her mother. Witness and her mother ran away due to fear and reached in the houses of Nakched Pandey and Hari Ram Dhobi, respectively. It is further stated that Shri Nakched Pandey was not present in his house. After 10-15 minutes, witness herself and her mother came at the place of occurrence, where they found that Shri Ramkaran was lying dead in the street. She stated that she had seen the accused persons inflicting injuries. There were blood on the cot, cushion, bed sheet and pillow.

18. PW-4 Shri Jagdev Singh, a witness of inquest report and memo of recoveries, has not supported the prosecution version but admitted his signatures on the inquest report and memo of recoveries. According to him, his signatures were taken by the Investigation Officer upon blank papers. This witness was declared hostile. In cross examination, he again denied that his statement was recorded under section 161 Cr.P.C. He also stated that on that fatal night, he had not heard any hue and cry.

19. PW-5 Dr.A.K.Chaurasiya stated on oath that he had performed post-mortem upon the dead body of Shri Ramkaran on 19.8.1996 and found 11 ante mortem injuries.

1. Incised wound 10x3 cm x bone deep on right side face.

2. Incised wound 7x3 cm muscle deep on right side of neck 1.0 cm. below ear lobules.

3. Incised wound 13x3 cm muscle deep 2 cm. below injury 2.

4. Incised wound 7x2 cm muscle deep right side back of neck.

5. Incised wound 18 cm x 3 cm bone deep on back of neck underlying bone of neck cut.

6. Incised wound 17x4 cm x bone deep left side of neck.

7. Incised wound 7 x 4 cm. ear pinna cut partially.

8. Incised wound 5x1.9cm. Muscle deep 18.0cm. below left nipple.

9. Incised wound 5x1 cm. Muscle deep below of left scapula.

10. Linear abrasion 8.0; 7.0 cm. below injury no. 9.

11. Incised wound 4.0 x 1.0 cm. muscle deep 5.0cm. above left wrist joint.

20. PW-5 Dr. A.K. Chaurasiya further stated on oath that rigor mortis was partly present on the body. Cadaver was in the initial stage of decomposition. The bone of the neck beneath injury no.5 was partly cut and the stomach was empty. Deceased died due to shock and haemorrhage which was caused due to ante mortem injuries. Deceased was about 35 years of age. Post Mortem Report, Ex- K-9 was prepared at the time of postmortem in his hand writing.

21. In the cross examination, doctor admitted that the copy of F.I.R was not sent to him, but said that 12 papers were sent to him. There were no injuries in the mouth, lips and tongue. It is also admitted that rigor mortis starts after six hours of the death and remains up to 24 to 30 hours and later on it vanishes. There was faecal material in the large intestine and no abnormal material was found in the small intestine.

22. PW-6 Shri Sada Muni Singh stated on oath that on 18.8.1996, the F.I.R was recorded and this fact was entered in the G.D.No.17 at time 8:40 A.M by Shri Prem Lal Srivastava, Head Constable who was posted with him and he is familiar with the hand writing and signature of Shri Prem Lal. These both documents are in the handwriting of Shri Prem Lal Srivastava which bears his signature. These documents are Exhibit Ka-10 & Ka-11 respectively.

23. Witness further stated that he had prepared inquest report and other relevant documents for postmortem of dead body of Shri Ramkaran, except police parcha no.33, on the direction of S.O/I.O Shri Shiv Das Yadav. All these papers are in his handwriting and bears his signature with the signature of S.O. These are inquest report Exhibit Ka-3, photo of dead body Exhibit Ka-12, Challan dead body Exhibit Ka-13, letter to R.I Exhibit Ka-14, letter to C.M.O. Exhibit Ka-16.

24. In the cross examination, witness stated that the F.I.R was recorded at 8.40 a.m. on 18.8.1996 and G.D was prepared at the same time. He admitted that G.D is carbon copy on which report no.17 time 8.40 AM was written by a pen separately. He failed to disclose the time when he had started from the Police Station for the place of incident. Witness further stated on oath that the statement of complainant Shri Dev Narain was recorded at the place of incident. Thereafter, the inquest report was prepared. In the inquest report, the distance of the Police Station from place of incident was recorded as 14 kilometer while in F.I.R, it is recorded 15 kilometer. Witness denied suggestion that till the preparation of inquest report, F.I.R was not in existence.

25. PW-7 Shri Shiv Das Yadav is a witness of formal nature who investigated this crime and stated on oath that this crime was registered in his presence on 18.8.1996, at Police Station Khesaraha. After registration of the crime, he copied chik, general diary, and recorded the statement of complainant, writer of chik F.I.R at the Police Station. Later on he started for the place of incident with S.I Shri Sada Muni Singh, P.W 6. On reaching the place of incident, first of all he recorded the statement of Smt.Durgawati under section 161 Cr.PC and got inquest report and other related documents prepared through Shri Sada Muni Singh, S.I. One paper, Police Proforma No.33 was prepared by him in his handwriting and signature. Police Proforma No.33 is Exhibit Ka-17.

26. Witness further stated on oath that on 18.8.1996, he inspected the place of incident with the help of Smt.Durgawati and prepared site plan which is Exhibit Ka-18. PW-7 further stated on oath that he had taken in the possession blood stained and simple soil, pharsa, knife, katta, cartridges from the place of incident and recovery memos were prepared under his direction by Shri Sada Muni Singh, S.I. It is also stated that he had taken torch in his possession; Prepared memo and thereafter returned it to the eye witness PW-2 Smt. Durgawati.

27. PW-7 further stated on oath that the incriminating materials which were recovered from the place of incident are knife material Exhibit-2, Farsa (Gandasa) with stick material Exhibit-3, plastic chappal is the material Exhibit-4, blood stained and simple soil is the material Exhibits-5 & 6, live cartridges the material Exhibit-7, country-made pistol Exhibit- 8, underwear Exhibit-9, Banian material Exhibit-10 and Janeiu material Exhibit-11 respectively. All these material Exhibits-2 to 11 were sent to Vidhi Vigyan Prayog Shala. The report of which is available on record.

28. Witness further stated that on 18.8.1996, he had recorded the statement of witnesses of inquest report, recovery and eye witness Km.Saroj Kumari.

29. Witness in his cross examination admitted that in the F.I.R Exhibit Ka-10, the distance of Police Station from the place of incidence is shown 15 kilometer while in the inquest report Exhibit Ka-3, the distance was recorded 14 kilometer. He admitted that he had not shown blood on cot, and all incriminating material found near the dead body in the site plan. It is also admitted that PW-2 Smt.Durgawati stated in her statement under section 161 Cr.P.C that it was rainy night. The earth was drenched but there was no mud anywhere. He denied that he started for the place of incident prior to recording of the F.I.R. He also denied that application (Tahrir) Exhibit Ka-1 was written under his direction. This witness proved charge sheet, Exhibit Ka-20 with another charge sheet which was submitted prior to the completion of the investigation.

30. Accused persons in their statement under section 313 Cr.P.C denied the allegations and stated that deceased was bachelor. He was selling his property and entered into an agreement with some one. Due to this, there were strained relations between deceased and PW-2 Smt.Durgawati and with his brother Shri Raja Ram and often they entered into hot exchanges. Deceased was in the association with woman at easy virtue lady that is why PW-2 Smt.Durgawati and his brother Raja Ram eliminated him.

31. Accused persons examined lone witness Shri Ram Subhag Shukla who stated on oath that Shri Ramkaran entered into an oral agreement with him about 15 to 20 days prior of his murder to sell one bigha agricultural land and received earnest money Rs.2000.00. Prior to this, Shri Ramkaran sold his agricultural land to one Ram Ujagir, resident of Parsa Chaubey. Shri Raja Ram approached witness not to purchase the land from deceased Shri Ramkaran. The sale deed was to be executed on a particular date which had fallen 7 days prior from his murder.

32. In cross examination, witness expressed his ignorance that the rainy water had fallen upon the mud wall of Shri Raja Ram and Shri Ramkaran deceased, due to which there was conflict between Shri Ramkaran and family of accused persons. He also indicated his ignorance that any altercation took place between Shri Ramkaran and the ladies of accused persons' family. He was not able to tell the date of murder of Shri Ramkaran. He also failed to tell the revenue number of the agricultural land which was to be purchased by him.

33. Learned counsel for the appellants submitted that the FIR is ante-timed. In support he referred the statement of PW-1 Shri Dev Narayan Pandey. We have examined the statement of PW-1 Shri Dev Narayan Pandey, who has supported the case of prosecution in his examination in chief but in the cross examination, witness PW-1 Shri Dev Narayan Pandey, complainant admitted that when he reached Police Station Khesaraha, he was informed by the police officials that S.O Shri Shiv Das Yadav had already left for place of incident at Village Athlohiya. Thereafter, he returned to Athlohiya, where he found Shri Shiv Das Yadav, S.O. It is also admitted that the application was scribed in the presence of Shri Shiv Das Yadav in Village Athlohiya and he had put his signature upon it under the direction of Shri Shiv Das Yadav. In view of the learned counsel, the statement in cross examination of this witness shows that the F.I.R was not recorded before reaching of S.O in Village Athlohiya for the investigation and this application Exhibit Ka-1 was scribed in the presence of S.O Shiv Das Yadav, which also shows that the F.I.R was recorded at Village Athlohiya with deliberation of police officials.

34. It is further submitted by learned counsel for the appellants that there is discrepancy in F.I.R Exhibit Ka-10 and inquest report Exhibit Ka-3. In inquest report, the distance of the place of incident from Police Station is shown 14 km, whereas in F.I.R, it is recorded 15 k.m. Thus, it is clear from this discrepancy that at the time of preparing inquest report, Exhibit Ka-3, F.I.R was not in existence. If there was F.I.R in existence before the preparation of inquest report, then the discrepancy regarding distance would not have occurred. Thus the possibility of false implication of the innocent persons cannot be ruled out.

35. Learned A.G.A countered this submission of the appellants and submitted that the F.I.R is not ante timed and Learned Sessions Judge rightly passed judgment. In Bable alias Gurdeep Singh versus State of Chhattisgarh Tr. P.S O.P Kursipur AIR 2012 SC 2621, it was held that-

"10. Once registration of the FIR is proved by the Police and the same is accepted on record by the Court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. The FIR, Ext. P1, has duly been proved by the statement of PW10, Sub-Inspector Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW1 and it was duly signed by him. The FIR was registered and duly formed part of the records of the police station which were maintained in normal course of its business and investigation. Thus, in any case, it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the Investigating Agency. Merely because PW1 had turned hostile, it cannot be said that the FIR would lose all its relevancy and cannot be looked into for any purpose. In the present case, PW11 and PW14 are the two persons who had reached the place of incident immediately after the occurrence. They were instantaneously told by the deceased as to who the assailants were. They have substantially supported what had been recorded in the FIR which further stands corroborated by the medical evidence and the statements of other witnesses. In these circumstances, we cannot discredit the statements of PW11 and PW14 merely because PW1 has turned hostile. Besides this, in furtherance to the statements of the accused persons, recovery of the weapons used in the crime was effected."

36. The Hon'ble Apex Court in the case of AIR 2011 SC 280 Brahm Swaroop & Anr. versus State of U.P enunciated Law in paragraph 7 that-

"7. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C') is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest."

37. In the light of above law, it is true that the maker of the F.I.R Shri Deo Narain Pandey in his cross examination admitted that the F.I.R was written in the presence of I.O at Village Athlohiya by Shri Chaturbhujee Nath Pandey and on the direction of I.O he put his signature on it. The registration of F.I.R is proved by PW-6 Shri Sada Muni Singh S.I by secondary evidence. Thus once the registration of the F.I.R is proved then the evidentiary value of the F.I.R cannot be ignored, merely, because PW-1 made some inconsistent statement.

38. In view of Hon'ble Supreme Court, there is no need to mention the names of the accused persons, weapon which were used in the commission of crime and all the other information. The object of the inquest report is only to ascertain whether a person died under suspicious circumstances or an unnatural death, if so what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of such proceedings.

39. In the case in hand, it is true that the investigator mentioned distance of the police station from the place of occurrence is 14 km. in inquest report while in the F.I.R it was mentioned 15 km.

40. In our opinion, this is a natural & negligible mistake, which could be done by any person because to err is the human weakness. Moreover, in the case where the direct and ocular testimony is available then the trivial nature of mistake losses its significance. The difference in the distance in the prosecution documents mentioned above is the mistake of the investigator and it would not harm to the prosecution. Moreover, the discrepancy regarding distance could not demolish the case of the prosecution, if otherwise, proved beyond doubt.

41. Learned counsel for the appellants submitted that the motive alleged for crime of murder of Shri Ram karan is very weak. Due to ordinary altercation between deceased and Smt. Malti, mother of accused Shri Parmatma Pandey, no one can imagine commission of murder.

42. As far as the question of motive is concerned, Hon'ble the Apex Court in case (2016) 10 SCC 663 Saddik alias Lalo Gulam Hussein Shaikh and others versus State of Gujarat enunciated law that the motive of commission of crime loses its significance when there is direct evidence against the accused persons. In this very case, PW-2 & 3 Smt. Durgawati and Km. Saroj Kumari are the eye witnesses who had seen the commission of the crime which was committed by the appellants and they have given ocular evidence. The prosecution case cannot be set aside under the circumstances when there is trustworthy direct evidence against the appellants.

43. It is also submitted by the learned counsel for the appellants that as per the statement of PW-2 Smt. Durgawati and PW-3 Km. Saroj Kumari that there was rainy storm in the fatal night. Thus, it was not possible to identify the culprits in the light of torch. This submission has also been countered by the learned A.G.A.

44. Hon'ble Apex Court in Kalika Tiwari & others etc. versus State of Bihar JT 1997(4) S.C 405 expressed opinion that the visibility capacity of urban people who are acclamatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light.

45. In view of above noted reference, we are of the opinion that both witnesses PW-2 Smt. Durgawati and PW-3 Km. Saroj Kumari were habitual of living with the earthen light and lamps and capable to identify the accused person in the rainy night with the help of torch light which was possessed by PW-2 Smt. Durgawati and which was taken into possession by police and was returned to her. This torch was produced in the evidence before the trial court and was proved by PW-2 Smt. Durgawati.

46. PW-2 Smt. Durgawati and PW-3 Km. Saroj Kumari admitted that their house is surrounded by the houses of other villagers, inspite of this, no one came to rescue the victim after the hue and cry of these witnesses including victim. Undoubtedly no one came to save the deceased in the night except these two poor ladies. In our opinion, they are the relatives of the deceased, that's why they dared to go near the culprit otherwise ordinarily no one would gather the courage to intervene in the conflict of others. Now a days the social fabric of the society is so torn that no body like to interfere in the matter of others. In these circumstances, if none came to rescue the deceased except these two poor ladies, that would not render the evidence unreliable. Moreover, if the hunter was capable to recognize and identify the victim, then the witness and victim can also identify the culprit in the starry night or in the torch light as stated by PW-1 and PW-2.

47. It is submitted by the learned counsel for the appellants that as per the statement of PW-2 & PW-3, there was rainy storm in the fatal night. That's why it is not possible to retain blood stains near the dead body which was lying in the open sky. Thus the theory of recovery of blood stained soil near the body is wholly unreliable.

48. We do not agree with the submission of learned Advocate for appellants because the appellants has not cross examined PW-2 Smt. Durgawati and PW-7 Shri Shiv Das Yadav on this point and PW-3 Km.Saroj Kumari deposed that the rain was not so harsh. Thus from the statement of PW-3, it is apparent that though there was rain but it was of mild nature. PW-7 I.O has deposed that there was no mud in the street. Thus in mild rain, presence of blood stains cannot be ruled out. PW-2 and PW-3 have deposed that there were blood stains on the quilt, bed sheet and other apparels which were lying on cot, but these were not taken in police custody by I.O. It is the fault of I.O. for which the prosecution cannot be suffer as this has not prejudiced the prosecution case.

49. It is submitted by the learned counsel for appellants that the deceased was in association with a women to whom he wanted to marry and raise his family. This submission has no relevance because appellant accused fails to prove this fact by a cogent and reliable evidence.

50. It is also submitted by learned counsel for the appellants that the deceased intended to sell his agricultural field to one Shri Ram Shubhag Shukla D.W.1.

51. This submission has also no force, because DW-1 has failed to inform revenue number of the field which Shri Ram Karan Pandey intended to sell to this witness. It is admitted by this witness that there was no written agreement between deceased and him.

52. It is further submitted by learned counsel for the appellants that it is very strange that accused persons left all weapons at the place of occurrence though they were equipped with revolver inspite of this, they did not use it, thus the theory of the prosecution is improper and is not reliable.

53. The submissions was rebutted by learned Additional Government Advocate and has submitted that no one can imagine or know the mental condition of accused person.

54. It is further submitted by learned counsel for the appellants that the PW-2 & PW-3 Smt. Durgawati and Km. Saroj Kumari have deposed that the accused persons inflicted injuries in the mouth and abdomen of deceased Shri Ram Karan but no injury was found at the time of postmortem in the mouth of the deceased. Thus, it is clear that these both witnesses have not seen occurrence.

55. The submissions was countered by learned Additional Government Advocate. We again express our disagreement with counsel for appellants because both witnesses PW-2 & PW-3 are the rustic women and they are not expert. Witnesses were not expected to count the actual number of blows or seat of injury in faint light of torch in the night. Moreover, Doctor is a competent and expert who had noticed at the time of postmortem upon the dead body of the deceased and found that there was no injury in the mouth of deceased. Thus, if there is slight exaggerations in the evidence of PW-2 Smt.Durgawati, PW-3 Saroj Kumari, then it cannot demolish the case of the prosecution. This discrepancy is of normal nature.

56. From the above discussions, we are of the opinion that the prosecution has proved its case beyond all reasonable doubt that on 17/18/8/1996 at Village Athlohiya at about 2.00 AM accused appellants committed murder of Shri Ram Karan in the furtherance of common intention of all in which accused Shri Parmatma Pandey used Gandasa (Farsa) and Shri Rajendra Pandey knife.

57. We find no infirmity in the judgment of learned Sessions Judge, Siddharthnagar and it needs no interference. The judgment and order of learned Sessions Judge passed in Sessions Trial No.171 of 1999 arising out of Crime No.184 of 1996, Police Station Khesaraha District Siddharthnagar on date 9.9.2004 is hereby affirmed. Appeal is devoid of merits, hence liable to be dismissed. Accordingly, appeal is dismissed. If the accused are on bail, then they shall surrender in the Court within 15 days from the date of judgment.

58. Let this judgment be notified to Sessions Judge Siddharthnagar within 15 days for compliance. Sessions Judge shall submit report of compliance within 30 days thereafter.

(S.N.Agnihotri, J.)             (Bharat Bhushan, J.)
 
Order Date:11.5.2017
 
IB