Jagdish & Others vs State Of U.P.
2018 Latest Caselaw 232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
							
 
       A.F.R.	
 

 
Case :- CRIMINAL APPEAL No. - 663 of 1983
 

 
Appellant :- Jagdish & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- J.S. Tomar,Devendra Saini,S.S.Shah
 
Counsel for Respondent :- Govt. Advocate,Anurag Mishra A.G.A
 

 

 
Hon'ble Krishna Murari,J.

Hon'ble Ravindra Nath Kakkar,J.

(Delivered by Hon'ble Ravindra Nath Kakkar,J.)

This appeal has been preferred against the judgment and order dated 14.3.1983 passed by Sessions Judge, Saharanpur in S.T. No.81 of 1982, convicting and sentencing the appellant to undergo imprisonment for life under Section 302/34 I.P.C.

As the appellant no.1 Jagdish died, the appeal filed by him stands abated vide order dated 23.5.2014.

Prosecution story, in brief, is that informant/complainant P.W.1 Prithvi Ban was on medical leave and was in village Sultanpur when the alleged incident took place. It is said that the deceased Sunil Kumar left the 'Kolhu' which was running in the partnership with Trilok Chand at about 8.15 p.m. on 8.11.1981 for his house and shortly thereafter Prithvi Ban and Lala Nawal Kishore, who were present at 'Kolhu' also left the 'Kolhu' for their houses. Further when Prithvi Ban and Lala Nawal Kishore arrived near the turning of the road, they heard the cries of Sunil Kumar which was coming from the side of the house of Shambhu whereupon they rushed towards the place of occurrence, in the way they met Ram Kishan and Baljit at the crossing near Dev Dayanand Hospital. Baljeet is also stated to have had a torch with him which he flashed and with the aid of the light of the torch they rushed towards the place of occurrence and saw that the three accused, namely, Jagdish, Shrawan and Ved Pal were assaulting Sunil Kumar with "Tabals". On hearing the alarm made by complainant and witnesses, the accused persons escaped from the spot towards inside nearby grove. It is further alleged in the FIR that the sleeper (chappal) of one of the accused was left near the house of Manphool adjacent to the place of occurrence. It is further alleged that there was an altercation between the deceased Sunil Kumar and all these three accused persons who used to ply boats in between villages Sultanpur and Dungarpur on the river Ban Ganga and this altercation was with regard to some previous freight. Since then they were inimical towards deceased Sunil Kumar. Further alleged that Prithvi Ban informed this incident to Sub Inspector Raj Pal who was on Moharram duty in village Sultanpur. Sub Inspector and complainant Prithvi Ban had taken Sunil Kumar to the hospital at Hardwar in a Tampo. The doctor on duty at 9.30 p.m. on the same night saw the deceased and declared him dead. Thereafter complainant/informant Prithvi Ban had written the report while he was in hospital at Hardwar and then went to police station Laksar to lodge it.

The relevant and important fact as emanates from the FIR and evidence of P.W.1 Prithvi Ban is that the deceased Sunil Kumar was the son of P.W.1 Prithvi Ban, who was a Constable. He was transferred in May 1971 from district Nainital to district Saharanpur. He was posted at police outpost Sultanpur, police station Laksar of district Saharanpur in 1977. He resided with his family members in village Sultanpur then he was transferred to the police outpost Titron, police station Gangoh of district Saharanpur, who ultimately continued to reside in village Sultanpur and at the time of the incident he was on medical leave and had come to Sultanpur from Titron. It is further stated that at present his family is residing in Roorkee since June 1982. Further it transpires that Prithvi Ban was married in village Dungerpur which was situated about 5 kms. from the village Sultanpur. P.W.5 Pooran Gir is maternal uncle of the deceased. Further it transpires that the river Ban Ganga flows in between the villages of Sultanpur and Dungarpur. There is no bridge over the river Ban Ganga and it has to be crossed by boat at Ganga Ghat near village Pratap-pur.

As per FIR all the three accused persons are the residents of village Pratap-pur in which accused Jagdish and Shrawan are real brothers while the accused Vedpal is their cousin. Village Pratappur situates about 2 kms near village Sultanpur. It also transpires that all the three accused persons are Mallah (boatmen). They ply boats on the river Ban Ganga. A perusal of the testimony of fact witnesses reveals that the incident of murder took place on 8.11.1981 and on that day 'Tazias' were being taken out in Sultanpur and police force was posted there in connection with Moharram duties. As per prosecution version, deceased Sunil Kumar was murdered in the east of a pulia which is lying in the south of the house of Shambhu in village Sultanpur and towards the east side of place of occurrence there is abadi of village Sultanpur and the house of the complainant Prithvi also situate in this abadi. Further it also transpires that the houses of the other witnesses, namely, P.W.3 Ram Kishan and P.W.4 Baljeet also situate in the abadi lying in the east of the pulia whereas Dev Dayanand Hospital situate in the west of the house of Kashi and a road runs east to west in the south of these constructions. This road leads to the abadi of village Sultanpur in the east and it goes to village Phoolgarh in the west. Topography of the nearby place of occurrence indicates that there is a crossing near Dev Dayanand Hospital.

It also grows out of the evidence as well as prosecution story that the deceased Sunil Kumar was running a 'Kolhu' in the partnership with one Trilok Chand and the 'Kolhu' was situated on the land of Lala Nawal Kishore lying at a distance of 100 paces from the said Dev Dayanand Hospital.

Perusal of the record shows that P.W.7 Head Constable Mohkam Singh prepared a chik report Ex.Ka-8 on the basis of written report Ex.Ka-1 at 11.45 p.m. on the same night of the incident and registered the case in the general diary vide Ex.Ka-9 in the presence of Sultan Singh P.W.8, the then Station Officer, Police Station Laksar and the investigation was started by P.W.8. After lodging of the FIR, P.W.8 Sultan Singh went to the place of occurrence in Village Sultanpur on the same night. He examined the torch of witness Baljeet and the same was given in his 'Sapurdgi' vide memo Ex.Ka-3 on record. He also made a local inspection and on the next morning prepared site plan Ex.Ka-10. He further took the blood stained and simple earth which is Exs.10 and 11 vide memo Ex.Ka-11. He has also recovered sleeper (chappal) Ex.Ka-8 belonged to the accused from the spot and prepared memo which is Ex.Ka-12. Further he recovered another pair of sleeper (chappal) from the place of near the house of Manphool. Further it transpires that on the information being communicated about the death of Sunil Kumar at the hospital at Hardwar P.W.6 Ambresh Chandra Tyagi, Sub Inspector was deputed to prepare the panchayatnama etc. of the corpus of the deceased. Accordingly, he went to the hospital at 10.30 a.m. on 9.11.1981 and prepared the panchayatnama of the dead body which is Ex.Ka-4 and also prepared the relevant documents, i.e. sketch map of the body, challan of the body and wrote a letter for post mortem examination which are Ex.Ka-5 to Ka-7 and thereafter the dead body was sent for post mortem examination.

P.W.2 Dr. S.C. Singhal, who had conducted the post mortem examination of the dead body of Sunil Kumar on 9.11.1981, found following ante mortem injuries on the body of the deceased :-

(i) Incised wound vertically placed 4 c.m. x 7 c.m. x bone deep on the top of the head.

(ii) Incised wound 6 c.m. x 1.5 c.m. vertically placed 2 c.m. below injury no.1.

(iii) Incised wound 9 c.m. x 2 c.m. one face extending from right eye to left cheek right eyes cut, nasal bone is cut.

(iv) Incised wound 12 c.m. x 3 c.m. one face cutting both mandibles, upper jaw, upper lip & oesophagus it is vertebra deep.

(v) Incised wound 4 c.m. x 1.5. c.m. one chin cutting & fracturing the mandible.

(vi) Three linear abrasions front of neck in an area of 7 c.m. x 4 c.m. transversely placed.

(vii) Linear abrasion middle of right upper arm outler side measuring 4 c.m.

(viii) Incised wound 2.5 c.m. x 0.5 c.m. x bone deep on right index finger.

P.W.8 Sultan Singh after completing the investigation has submitted charge sheet Ex.Ka-14 against the accused persons.

Accused person denied the prosecution assertions and claimed that they have been falsely implicated due to partybandi.

Heard Shri Devendra Saini, learned counsel for the appellants and Shri Anurag Mishra, learned A.G.A. for the State.

Learned counsel for the appellants challenged the impugned judgment of conviction and order of sentence by making following submissions :-

(i) Challenge to FIR as it is ante timed.

(ii) immediate motive for causing murder of Sunil Kumar is neither probable nor established.

(iii) Veracity of the fact witnesses has been challenged on the ground that as per prosecution story they are chance witnesses.

(iv) Identity of the accused is not established by cogent and credible evidence.

(v) The presence and involvement of the accused in commission of the crime is doubtful and in this connection further argued that accused have been falsely implicated due to partybandi.

(vi) Non-production of independent witness of the vicinity of the place of occurrence.

(vii) Eye version account given by the prosecution through fact witnesses and the conduct of the accused vis-a-vis witnesses at the place of occurrence is neither probable nor acceptable.

Per contra, learned A.G.A. supported the impugned judgment of conviction and order of sentence and rebutting the above arguments made submission that the impugned judgment under challenge is based on eye version account vis-a-vis medical evidence. The presence of the witnesses could not be doubted. The veracity of the testimony of the fact witnesses is sufficient to establish the guilt of the accused. Prompt FIR has been lodged naming the accused, weapon of assault, time, place of occurrence and the presence of witnesses are indicative of genuineness of the FIR. Prosecution led credible evidence before the trial judge and after an elaborate discussion the trial court has recorded conviction against the accused appellant. The commission of the offence is established beyond reasonable doubt so this appeal deserves to be dismissed and judgment of conviction and order of sentence is sustainable in the eye of law.

We have considered the arguments as raised by both sides and have carefully scrutinized the evidence and the material available on record. Perusal of the record reveals that prosecution has examined in all eight witnesses among them P.W.1 Prithvi Ban, the complainant claims to be an eye witnesses of the incident. P.W.3 Ram Kishan and P.W.4 Baljeet Singh are the other eye witnesses of the incident. P.W.5 Pooran Gir corroborated the prosecution version with regard to the motive of the incident. Beside these fact witnesses P.W.7 Head Constable Mohkkam Singh proved the chik report and registration of the case in general diary. P.W.8 Sultan Singh conducted the investigation of the case and submitted charge sheet. P.W.6 Shri Ambresh Chandra Tyagi proved the panchayatnama and all the relevant documents prepared before sending the dead body for the port mortem examination. All these witnesses relate with the police papers and are of formal nature.

P.W.2 Dr. S.C. Singhal was examined to prove the post mortem examination report of the corpus of the deceased Sunil Kumar. Further to add, prosecution has also tendered the evidence by affidavit Ex.Ka-15 of Constable Rajinder Singh who looked after the corpus of the Sunil Kumar in mortuary, in hospital and had taken it for the post mortem examination on 9.11.1981 and handed over the clothes of the deceased after the post mortem examination to the police.

It transpires from the record that accused proved the marriage invitation card Ex.Kha-1 in connection of the daughter of Prithvi Ban on 16.2.1982 in which the name of Nawal Kishore had also inscribed along with the others on whose behalf the card was issued. A charge sheet Ex.Kha-2 was filed with regard to a criminal case under Section 60 of the Excise Act where P.W.4 Baljeet Singh was also cited as one of the witnesses. Except this no other evidence has been tendered by the accused.

Before considering the arguments as raised above, we would like to mention that the undisputed fact is that the accused Jagdish and Shrawan are real brothers and the accused Ved Pal is cousin of the accused persons. They reside in the village Pratappur which lies in between the villages Dungarpur and Sultanpur. Accused persons were said to ply boat in the river Ban Ganga at Ganga Ghat near village Pratappur. Prior to the incident of murder of Sunil Kumar, as per prosecution version, a fight between the accused persons and the deceased Sunil Kumar took place with regard to the freight and because of this on 8.11.1981 at about 8.15 p.m. near the 'pullia' which was in the south of house of Shambhu in village Sultanpur murder of Sunil Kumar was alleged to have taken place. The previous incident is said to be genesis of the murder of Sunil Kumar and has been specifically mentioned in the FIR. To substantiate this fact, the prosecution has examined P.W.1 Prithvi Ban and P.W.5 Pooran Gir. It transpires from the evidence of P.W.1 that a month prior to this incident deceased Sunil Kumar had purchased an engine pertaining to his kolhu. According to the statement an amount of Rs.1.50 paise remained due on Sunil Kumar. This witness had categorically stated that on 5.11.1981 when he was coming from village Dungarpur to village Sultanpur and had reached to the bank of river Ban Ganga all the three accused made the previous demand on which there was an altercation and fight between the accused persons and the deceased Sunil Kumar. P.W.1 also stated that Sunil Kumar had also received injuries in this incident and had narrated this happening to his father Prithvi. Further it grows out of the evidence of P.W.1 that one Ratan, resident of village Jhinwarheri, came to him on 6.11.1981 at the instance of accused persons for compromise with regard to the previous incident which took place between the accused and the deceased Sunil Kumar. He further stated that for compromising the previous happening all the three accused along with three or four persons visited the place of complainant on 7.11.1981 and the matter of the previous incident got compromised. This fact supported by the evidence of P.W.5 Pooran Gir who happens to be the maternal uncle of Sunil Kumar. The presence of Sunil Kumar on 5.11.1981 is established by the statement of this witness and the fact of previous altercation which took place between the accused persons and deceased on 5.11.1981 has been corroborated by the testimony of this witness. In this way we find that the genesis of the incident of murder of Sunil Kumar is established and proved by these two witnesses P.W.1 complainant, father of the deceased, and P.W.5 Pooran Gir, maternal uncle of the deceased. Although the accused persons had denied that they do not ply the boat and no such previous incident took place between the accused and the deceased on the question of previous dues of freight, but we find enough support to the prosecution version on the suggestion made to him in his cross-examination that it was the accused Jagdish and Shrawan who used to ply boat and the accused Ved Pal did not do so. So we find the fact is intact in the evidence of P.W.1 Prithvi Ban that all the three accused persons ply boat and this fact has further corroborated by the evidence of P.W.5 Pooran Gir. So we find no reason to disbelieve these two witnesses on this point that all the three accused persons used to ply boats on the river Ban Ganga and the previous incident with regard to the payment of freight mentioned between accused and deceased and further the compromise reached before this incident are found to be established and proved by these two witnesses.

Now so far as the challenge to motive as raised by the learned counsel for the appellants is concerned, learned counsel contended that if Sunil Kumar had been assaulted on 5.11.1981 and had received injuries he must have been medically examined and the case against the accused persons of previous incident must have been proceeded by lodging an FIR. Further submitted that if P.W.5 Pooran Gir along with two others were present at the time of previous incident then this fact must have been mentioned in the FIR of this incident, but neither this fact had been mentioned in the FIR nor it was stated by P.W.1 Prithvi Ban in his statement under Section 161 Cr.P.C. collected during investigation which is suggestive of the fact that motive and immediate cause of murder as put forward by the prosecution is unbelievable. We have considered this argument. We are of the view that if such statement under Section 161 Cr.P.C. of P.W.1 does not have mention then it does not go to conclude that such fact was never in existence. This witness during the examination before the trial court had stated that medical examination of Sunil Kumar was not conducted, firstly because due to his posting in police chauki Titron and at that time he was not living in the village Sultanpur and secondly this would have only aggravated the matter, which he did not like and further this matter was reconciled at the instance of the accused sending Ratan to him on 6.11.1981 and finally the marpeet which took previous to the incident of murder was compromised on 7.11.1981. Under this fact situation Sunil Kumar did not get himself medical examined or FIR was lodged with regard to the previous incident. So we find that a plausible explanation has been given by this witness which under the fact and circumstances of the case found to be believable and acceptable. Therefore, we do not incline to accept the contention on this point as raised on behalf of learned counsel for the appellants.

So far as non-mentioning of the entire facts of the previous incident and sending of Ratan at the instance of accused and got the matter compromised on 7.11.1981 with the accused persons is concerned, we would like to observe that although there is a mention of previous altercation in the FIR and it has been elaborately stated during the examination of the P.W.1. So it cannot be said that it is either an improvement or addition of a new fact at the same time. It is trite to mention that the FIR did not require to contain all minor details and a minute description. FIR is not an encyclopedia in which prosecution is required to give each and every details with a wider spectrum. It is informed as we find in the FIR that there is specific allegation that there was a fight between Sunil Kumar and three accused with regard to freight which took place before the incident of the murder of the deceased Sunil Kumar. Under these facts and circumstances, we conclude that on the basis of arguments on the point as raised by learned counsel for the appellants, the statement and evidence of P.W.1 Prithvi Ban and P.W.5 Pooran Gir could not be thrown out absolutely.

On the point of motive, learned counsel has drawn our attention that if the previous happening of marpeet between the deceased Sunil Kumar and the accused person had already been compromised then there was no motive left for the accused to have committed murder of Sunil Kumar, as genesis as alleged by the prosecution, had already been disappeared. In this contest, we would like to mention that P.W.1 Prithvi Ban undisputedly was a police constable and deceased Sunil Kumar was his son. There was a dispute between the deceased and the accused persons with regard to the freight. It is also established that the demanded freight has not been paid by Sunil Kumar and further altercation took place between deceased Sunil Kumar and the accused person on 5.11.1981 in which marpeet took place. No doubt, it could be possible that in order to save from legal action from the police department, apparently the accused persons got this matter settled but human mind is said to be unpredictable. Since the accused persons have received injuries in the previous incident by the deceased Sunil Kumar so element of anguish and to take revenge and retaliate could yet to be in the mind of the accused persons.

Further we would like to refer the legal proposition on the point of motive. It is settled view that if the criminal case rests on the direct evidence of the occurrence i.e. based on the eye version account and the evidence of the eye witnesses is found to be clear, cogent and reliable then the absence of motive has no relevance. It is only relevant in the criminal cases based on the circumstantial evidence. As we have already discussed the evidence of P.W.1 and P.W.5 are found to be very clear, cogent, clinching and convincing on the point of motive, so we find that the case is based on direct evidence and the eye witnesses had been examined in this case who categorically established the prosecution version. So we found no substance in the argument with regard to the motive as raised by the learned counsel for the appellants.

The next point which is to be considered is the presence of the witnesses on the spot as well as the veracity of their testimony. Perusal of the record reveals that prosecution has led direct evidence of P.W.1 Prithvi Ban, P.W.3 Ram Kishan and P.W.4 Baljeet Singh. Before making their statements the basis of conviction of the accused is to be directly and closely scrutinized as the veracity of the testimony has been challenged by the learned counsel for the appellants accused. We found that P.W.1 has stated that his son Sunil Kumar at the time of the incident used to run a kolhu in the partnership of Trilok Chand on the land of Lala Nawal Kishore and kolhu was situated about 100 paces from the Dev Dayanand Hospital. He had also stated that at the time of incident he was on medical leave and was in Sultanpur village. Further stated that Sunil Kumar on the date of incident had gone to Manglaur to sell his Gur and after selling the Gur at Manglaur he returned back to his 'kolhu' on 8.11.1981 at 8.10 p.m. and after giving the account of sale on the date of incident at about 8.10 p.m. he left for the house which situates at a distance of 300 paces of the said 'kolhu'. This witness has further stated that shortly thereafter he along with Lala Nawal Kishore who was present at 'kolhu' also left for their houses. It has come in the evidence that house of Lala Nawal Kishore situates about 100 yards away from his house. Further this witness had stated that when they reached about 100 paces away from crossing near Dev Dayanand Hospital they heard noises and cries and at that point of time P.W.3 Ram Kishan and P.W.4 Baljeet were also found present near Dev Dayanand Hospital. On hearing the scream and cries all these four persons rushed towards the house of Shambhu from which side the cries were coming. Further stated that Baljeet Singh had a torch and rushing towards the place of incident. Baljeet Singh was also flashing the light. It was also a moonlight. Under this fact situation they saw the accused Jagdish, Shrawan and Ved Pal who were assaulting Sunil Kumar with 'Tabals' and on alarm being made by these witnesses, all three accused persons went inside a grove which was lying the south of the pullia and on reaching to deceased Sunil Kumar they found bleeding injuries on the face and head of Sunil Kumar. Thereafter P.W.1 went to the Sub Inspector who was on duty of Muharram in the village. He informed this incident to him on which Sub Inspector Raj Pal came to the spot. He along with Sub Inspector arranged a tampo in which Sunil Kumar was taken to Hardwar Hospital and at about 9.30 p.m. doctor declared him dead. Thereafter P.W.1 Prithvi Ban wrote a written report of the incident in the hospital and went to the police station Laksar on the basis of which FIR was lodged. This statement has further supported by the witness P.W.3 Ram Kishan who during the examination before the Court stated that he had gone to see the 'Tazias' on the date of incident and while returning back he met P.W.4 Baljeet Singh in the west of Dev Dayanand Hospital. He further stated that at that point of time P.W.1 Prithvi Ban and Lal Nawal Kishore were also seen coming from the side of 'kolhu' and at about 8.30 p.m. heard cries coming from the side of house of Shambhu on which he along with Baljeet, Prithvi Ban and Nawal Kishore rushed towards the place of occurrence. He further stated that it was a moon night and Baljeet was also possessed with a torch and when they were running towards the place of occurrence the torch was flashed and under the light of the torch and the night being moon night they saw three accused persons who were assaulting one person. On an alarm being made by these witnesses the accused first went towards the west and then entered the nearby groves situate in the south direction. The person who was assaulted was found to be Sunil Kumar. On reaching near Sunil Kumar injuries were seen on the body of Sunil Kumar. He further stated that Prithvi Ban went inside the village and called Sub Inspector thereafter with the help of a tampo Sunil Kumar was carried to Haridwar Hospital but on the next day he came to know that Sunil Kumar had died due to the injuries sustained by him during this incident.

Another witness P.W.4 Baljeet Singh also corroborated the testimony of P.W.1 and P.W.3 stating that he had gone to witness Moharram and when he was coming back P.W.3 Ram Kishan met him near Dev Dayanand Hospital. Further he supported the entire fact as narrated by P.W.3 in his statement. The fact that Sunil Kumar was being assaulted by the accused persons with Tabals and all the three accused persons were running from the spot after raising the alarm. He specifically mentioned that after running for about 10 to 15 paces of the west, the accused persons went into the grove which situate towards the south. He further supported the fact as stated by P.W.1 and P.W.3 that Prithvi Ban then went to abadi and came with a Sub Inspector and Sunil Kumar was taken in a tampo to the hospital at Haridwar and the next morning he came to know about the death of Sunil Kumar.

P.W.4 Baljeet Singh has specifically stated that he had a torch which he was flashing at the time of incident and the torch after being examined by the Investigating Officer had been given in his sapurdgi. In this way we find that the eye version account given in the statement of P.W.1, P.W.3 and P.W.4 found to be consistent with regard to the date, time, place of occurrence, manner and mode of assault, identification of the accused person in the moon light as well as in the light of torch, the weapon used at the time of commission of offence, arrival of Sub Inspector, who was engaged in Moharram duty and bringing the victim to hospital at Hardwar by tampo and the victim died due to the injures inflicted on him at the time of incident at the place of occurrence.

Learned counsel for the appellants has challenged the veracity of the eye witnesses on the basis that the distance of the place of incident and house of Prithvi Ban was shorter to the alternative route. Under this situation there was no occasion for Prithvi Ban and Nawal Kishore to go through the place of occurrence.

We have perused the statement of P.W.1. on this point and we find that there is no substance in this argument. The trial judge has elaborately discussed this point and reached to the correct conclusion. On this point we fully agree with the reasoning given by the trial court. Further the testimony of P.W.1 has been challenged on the ground that P.W.1 Prithvi Ban during statement under Section 161 Cr.P.C. had not stated that the account of sale of Gur at Manglaur had been given to him before incident. Further contended that the slip of the account was not shown to the Investigating Officer. This argument has no merit at all because if the statement recorded by the Investigating Officer does not have a mention of the sale of Gur at Manglaur by the deceased Sunil Kumar and execution slips of the accounts by Sunil Kumar to Prithvi Ban, therefore, the slips of accounts have not been shown to the investigating officer. In our opinion, it does not effect the core of the prosecution version. It is of no relevance at all and that could not be a ground to disbelieve the statement of P.W.1 that on the date of incident his son Sunil Kumar had come to kolhu after selling the Gur at Manglaur and made execution of the sale and thereafter he proceeded towards his house. This would not be disbelieve on this account only.

Perusal and statement of P.W.1 also transpires that on the date of incident 'kolhu' was closed because of Moharram and they had no work at 'kolhu' after the account had been given by Sunil Kumar. Under this situation if Prithvi Ban and Lala Nawal Kishore decided to go to their houses shortly after Sunil Kumar had left the 'kolhu', we do not find the statement to be in any way improbable, unnatural on the sole basis why all the three persons had not left the 'kolhu' at the same time.

So far as challenge to the testimony of P.W.3 Ram Kishan and P.W.4 Baljeet Singh as a chance witness is concerned, we do not find any merit in this argument because both these witnesses had stated during their examination that they had gone to witness the Tazias and when they were returning back they met each other near the Dev Dayanand Hospital and it has also come in evidence that their houses lye in the abadi in the east of the house of Shambhu at some distance so it is a natural that when they met to each other near Dev Dayanand Hospital and shortly thereafter they heard the cries of Sunil Kumar they rushed towards the place of occurrence. Since presence of the witness at the time of incident has been sufficiently explained which we found to be believable, so the argument in this regard that these witnesses are chance witnesses having no credibility are found to be not acceptable.

So far as challenge to source of light and identification of the accused on the spot is concerned, perusal of the evidence shows that the accused persons were identified under the light of torch as well as in the moonlight and they being also known persons could be easily identified by body structure, so the argument challenging the identity of the accused persons by the witnesses are found to be not acceptable.

The next point of the argument of the learned counsel for the appellants is that all the three eye witnesses made statement that after hearing the shrieks and cries of Sunil Kumar they rushed towards the place of occurrence in the east direction by raising alarm on which the three accused persons escaped from the spot for about 10-15 paces in the west before entering the grove lying in the south of the place of occurrence. On the basis of this statement learned counsel has vehemently argued that if the witnesses were coming towards the east direction then possibility of running towards the west direction by the accused persons, i.e. face to face is highly improbable. We have seriously considered this argument, but we find from the material available on record and the statement made by the witnesses to this effect that accused persons had no alternative and option except to run in the west before they could enter the grove land because it is undisputed that abadi of the village lies towards the east of the place of occurrence and their constructions in the north of the place of occurrence. Under this fact situation it could not have been possible for the accused to run away either in the east or in the north from the place of occurrence. So we find that it was a compulsive situation for the accused to first run towards the west and thereafter they could only run in the south grove land through the road. The statement of P.W.1 Prithvi Ban, P.W.3 Ram Kishan and P.W.4 Baljeet Singh are found to be consistent on the point of direction of the accused persons while they were escaping after the commission of crime towards the west and to the south in the grove land. So, we find no substance in the argument as raised by the learned counsel for the appellants.

So far as the argument of the learned counsel for the appellants with regard to the medical evidence specifically with regard to the weapon used is Tabal. Perusal of the medical evidence reveals that the doctor has stated that Tabals are heavy cutting weapons and the doctor has found as much as five incised wounds which corresponds with the eye version account that injuries were inflicted by the Tabbals.

Learned counsel vehemently argued that injury nos.6 and 7 are the linear abrasions which could not have been caused by sharp edged weapon like Tabal. It would be relevant to mention that P.W.2 who conducted the post mortem examination and found the ante mortem injuries in which five are incised wounds and two injuries are of linear abrasions and had explained it that injuries no.6 and 7 could be caused by any sharp edged weapon though not as a result of strike, but by friction so it is understandable that while assaulting the deceased by sharp edged weapon like Tabals the linear abrasions could also be caused by friction of the weapon with the body of the victim. So we do not find any contradiction in the medical evidence vis-a-vis eye witness account.

So far as the last contention raised by learned counsel that Sub Inspector who accompanied the complainant to bring the victim to the hospital at Haridwar has not been produced and no independent witness has been produced in this case. The testimony of P.W.4 Baljeet Singh is not credible as he has admitted that he is a police witness in other criminal cases. We find no merit in this argument because the Sub Inspector, who accompanied with the victim to the hospital at Hardwar, was neither cited as an eye witness nor his evidence is of much importance. So we find that his non-production is not fatal at all to the core of prosecution case.

Further so far as production of independent witnesses are concerned, we find that P.W.3 Ram Kishan and P.W.4 Baljeet Singh are cited as independent witnesses and they have been examined in this case by the prosecution. There is nothing on record which could indicate that P.W.1 Prithvi Ban was anyway related or friendly with P.W.3 Ram Kishan and P.W.4 Baljeet Singh. So we find the testimony of these witnesses as of an independent witness which corroborates the prosecution version.

So far as the evidence of P.W.4 Baljeet Singh was challenged on the ground that he being a police witness in other criminal cases, although P.W.4 Baljeet Singh has explained how he was cited in other cases but beside the evidence of P.W.4 the fact witnesses P.W.1 Prithvi Ban supported by P.W.3 Ram Kishan; further supported by P.W.5 Pooran Gir which is available on record. Their testimony neither suffers from any inconsistencies nor by discrepancies, thus in this situation the testimony of P.W.4 Baljeet Singh cannot be discarded on the sole basis as contended by the learned counsel for the accused. Further circumstance also supports the prosecution version and the incident is said to be of the night and its report (FIR) has been lodged promptly on the same day at about 11.45 p.m. The accused as well as witnesses are named in the FIR. Date, time and place of occurrence are mentioned in the FIR. No malafide or grudge or malice against any of the accused with regard to P.W.3 and P.W.4 fact eye witnesses had been shown to us. So we find under this fact situation the complainant, who is a father of the deceased, would not be expected to leave the real assailants and falsely implicate the innocent persons in this case.

In view of the aforesaid discussions and reasons, we conclude that the judgment and conviction of the order of sentence passed by the learned trial court does not suffer from any illegality, infirmity or perversity hence does not require any interference.

Accordingly, the order impugned dated 14.3.1983 passed in S.T. No.81 of 1982, convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 I.P.C. is confirmed and the appeal having no force is hereby dismissed.

The accused-appellants no.2 and 3 are on bail, their bail is cancelled.

Let a certified copy of the judgment be transmitted to the court concerned for compliance and for issuing non-bailable warrants against the accused appellants no.2 and 3 for taking them into custody and sent to jail to serve the sentence as awarded in the impugned judgment.

Order Date :- 26.04.2018

Anand/-