Brij Raj Singh vs State Of U.P.
2018 Latest Caselaw 1947 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR
 
								Reserved on 23.7.2018
 
								Delivered on 13.8.2018
 

 
Case :- CRIMINAL APPEAL No. - 1537 of 1983
 
Appellant :- Brij Raj Singh and another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.Rathore,A.K. Singh Solanki,Indra Jeet Yadav, J.S.Sengar,Phool Chandra Yadav,R. Rathore,Saleem
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(By Om Prakash VII, J.)

1. Present Criminal Appeal has been preferred by the appellants Brij Raj Singh and Putan Singh against judgment and order dated 08.06.1983 passed by VI Additional Sessions Judge, Fatehpur in Session Trial No. 260 of 1981 whereby appellants were convicted and sentenced for the offence under Section 302 IPC read with Section 34 I.P.C. to undergo rigorous Imprisonment for life.

2. Brief facts of the case, as mentioned in the written report Ext. Ka-1 moved by informant P.W.-1 Gulab Singh at police station concerned on 26.01.1981 are as follows:-

3. In the night of 25/26.1.1981, complainant Gulab Singh resident of village Gangauli, police station Gafarganj and his mother Smt. Deo Rati were sleeping in the southern kothari; his brother's wife (mother of Gaya Pal) and his nephew Bachha Raj were sleeping in the eastern kothari and his nephew Gayapal (deceased) was sleeping in dalan in front of eastern kothari of the house. At about 11.30 p.m., on hue and cry of Gaya Pal - complainant, his brother's wife and nephew Bachch Raj came out of their respective rooms. They saw accused Braj Raj Singh s/o Ramadhar Singh, Ramadhar s/o Shiv Dayal Singh armed with Kulharis and accused Putan Singh armed with Pharsa and one unknown person armed with Gandasa running out from the place where Gayapal was sleeping towards other courtyard of the house. Witnesses raised alarm that aforesaid persons are running away after committing the murder of Gaya Pal, whereupon villagers, namely, Arun Singh, Kallu Singh and Vijai Bahadur Singh flashing their torches came inside house of complainant from main-door, which had already been opened by accused persons. Witnesses tried to apprehend the accused persons but extending threat to the witnesses they climbed over the roof by means of a ladder and ran away towards back side of the house. It was also mentioned in the written report that in the Dalan, where deceased Gaya Pal was sleeping, a lantern was burning and in its light as also in the light of torch flashed by witnesses, the assailants were recognized by complainant and the witnesses. Unknown person accompanying the accused could not be identified. It was further mentioned that thereafter they saw that Gaya Pal was lying dead on his cot in the pool of blood. It was also mentioned that on hue and cry, the police guard had also reached on the spot and they chased assailants but the Police guard could not trace them out. Regarding the motive of the occurrence it was alleged that at about 7 or 8 years prior to the occurrence in question there had been a Marpit and fight between accused persons etc., one side and Gaya Pal (deceased) on the other side wherein one Sukhpal Singh, grand-uncle of accused Braj Raj Singh, was killed and on account of said enmity, present accused persons with the help of Ramadhar Singh (since died) and one unknown person committed the murder of Gaya Pal Singh, nephew of the complainant.

4. On the basis of written report (Ext. ka-1), chik F.I.R. (Ext. ka-3) was lodged at police station concerned on 26.01.1981 at 13:15 hours against the present appellants, Ramadhar Singh and one unknown person for the offence under Section 302 I.P.C. G.D. entry was also made at Ext. Ka-4. After registering the case, police reached at the place of occurrence and took the torches, said to have been used by witnesses, into possession and handing over same to the witnesses prepared fard Ext. Ka-2, mattress and quilt were also taken into possession by police and in this regard fard Ext. Ka-13 was prepared. During investigation police also prepared memo of recovery and supurdaginama of charpai, lantern and stairs (ladder) as Ext. Ka-14. Inquest report Ext. Ka-5 and other police papers Ext. Ka-6 to ka-10 were also prepared at the place of occurrence by the police concerned. Dead body was kept in sealed cover and was handed over to constable to carry for mortuary. Post mortem of dead body was conducted on 27.01.1981 at 2:30 p.m.

5. On general examination deceased was aged about 28 years, probable time of death was about one and half day and was average body built. Rigour mortis present in both upper and lower limbs and eyes were closed.

6. On internal examination, following ante mortem injuries were found on the dead body of the deceased at the time of post mortem:

"(i) Incised wound 1½″ x ½″ x scalp deep over lateral 1/3 of left eyebrow.

(ii) Incised woud 4″x1½″ x oral cavity deep on left of cheek 1″ below the lower area of left ear and ½″ below left eye transversely placed underlined mandible and maxilla fractured.

(iii) Incised wound 3½″ x ½″bone deep on left side of andocipital area ¼″ below the lower border of left ear underlined.

(iv) Incised wound 3½″ x ½″ x bone deep on left side of neck ¼″ below the injury No.3 on left side

(v) Incised wound 1″ x ½″ x oral cavity deep on left side of face, continued to lateral angle of mouth (mandible fractured).

(vi) Incised wound right side of neck 3″ x ½″ oral cavity deep on lower border of right zaw ½″ below the lower lip.

(vii) Incised wound 2″ x ½″ x oral cavity deep over the upper lip."

7. As per post mortem report, cause of death of deceased was shock and haemorrhage as a result of injuries described in the post mortem report.

8. Police interrogated the witnesses and prepared site plan Ext. Ka-12. After completion of investigation, Investigating Officer submitted charge sheet Ext. Ka-15 against present appellants and Ramadhar Singh (since died). Concerned magistrate took the cognizance and matter exclusively triable by Sessions Judge case was committed to Court of Sessions.

9. Accused appeared and charge for the offence under Section 302 read with Section 34 I.P.C. was framed against the present appellants. Co-accused Ramadhar Singh had died before framing charge. Appellants denied the charges framed against them and claimed their trial.

10. In order to prove its case, prosecution examined four witnesses out of them P.W. 1- Gulab Singh (informant), P.W. 2 - Vijai Bahadur Singh, P.W. 3- Head Constable Shiv Nandan Prasad and P.W. 4 - the then S.O. Jai Karan Singh Bhadauria. Since genuineness of the post mortem report was admitted by defence dispensing with formal proof, prosecution did not examine doctor concerned, who prepared the post mortem report.

11. On closure of prosecution evidence, statements of accused appellants under Section 313 Cr.P.C. were recorded in which they denied entire prosecution story and have stated that First Information Report was lodged on the basis of false facts due to previous enmity. Neither the torches and mattress were taken into possession nor there are any independent evidence in this regard. Charge sheet was also submitted by the police concerned on insufficient grounds. Both accused appellants did not express their reply about the lantern, bloodstained and simple earth taken into possession by the police. Accused appellant Putan Singh has categorically stated that since there was enmity between the appellants and the then S.O. Jai Karan Singh, appellant has been falsely implicated in this case. Accused appellant Brij Raj Singh has stated that he was implicated in this matter only to grab the landed property belonging to the appellant. It was also pleaded that witnesses of this case have murdered the father and mother of appellants and they have illegally occupied agricultural land belonging to appellants, therefore, they have been falsely implicated in this case.

12. No oral evidence was adduced by the appellants in their defence. Accused-appellants have filed 10 documents through list dated 21.2.1983 to support the plea of false implication.

13. Having heard learned counsel for parties and going through the entire record, trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants as above, hence this appeal.

14. We have heard Shri Sharad Kumar Srivastava, Advocate assisted by Shri Phoolchand Yadav, learned counsel for the appellants and Shri Rishi Chadda, learned AGA for State and perused the entire record carefully.

15. It was submitted by learned counsel appearing for appellants that prosecution was not able to bring home the charge framed against appellants beyond reasonable doubt and trial Court has committed error in appreciating the prosecution evidence which resulted miscarriage of justice. Nothing is mentioned in the F.I.R. about the presence of the police at the time of occurrence. F.I.R. was delayed and afterthought. In fact there was previous enmity between the parties, persons belonging to accused side were done to death earlier by the deceased and his companion. On account of pendency of several criminal cases between the parties, appellants were falsely implicated in this case. It was further argued that informant side had forcibly took possession over the land belonging to appellants side with intention to grab the same and due to this reason also informant falsely implicated the present appellants in this matter. Thus, referring to these facts, it was also submitted that motive assigned against appellants to commit the present offence itself indicates that appellants were falsely implicated in this case. It was further submitted that deceased was sleeping inside the house. It is not clear from the prosecution evidence as to how ppellants reached inside the house and who opened the outer door of the building. It was dark night, none recognized the assailants. Referring to statement of prosecution witnesses, it was also argued that torches produced before the Court during examination were not the same as were taken into custody at initial stage. There are major contradictions in the statement of prosecution witnesses on point of weapons assigned to appellants. Witnesses cited in the F.I.R. are not actually independent witnesses but they are the family members of the deceased and are interested and partisan witnesses. Other material witnesses were not examined by the prosecution. Thus, it will be presumed that had they been examined, they would not have supported the prosecution case. Referring to site plan, it was also argued that it appears improbable and unbelievable that witnesses would have seen accused-appellants in a dark night, as source of light is also not established in the matter. It is also not clear how accused appellants ran away from the place of occurrence. The findings recorded by the trial court in the impugned judgment and order are illegal and perverse. Investigating Officer has not investigated the matter properly which caused injustice to accused appellants. Lastly, it was submitted that impugned order suffers from infirmity, illegality and perversity warranting interference by this Court.

16. Per contra, learned AGA appearing for State submitted that incident took place in the night hour in the house of informant and deceased was sleeping in his courtyard baranda. P.W. 1 was also sleeping in his room in the same house. House of P.W. 2 is situated by the side of the house of deceased. Thus presence of these witnesses at the place of occurrence after hearing hue and cry cannot be doubted and they are most natural and probable witnesses. Appellants were recognized by witnesses in the light of lantern and in torches light. Witnesses have also seen the accused running away from the place of occurrence through the ladder. Witnesses as well as PAC personnel have chased appellants but they could not be apprehended. There was bitter enmity between the parties and due to that reason present appellants have committed murder of deceased as appellants' family members were done to death earlier by informant side. Date, time and place of occurrence has been fully established by prosecution evidence beyond reasonable doubt. Medical evidence fully supports prosecution case. Contradictions elucidated in the matter are not fatal to main points. Laches on part of Investigating Officer do not affect the veracity of statement of fact witnesses. Prosecution case can also not be disbelieved on the ground that torches produced before trial Court were not the same as described in recovery memo. Assailants were well known. Since enmity between the parties is admitted, there is remote chance of false implication of the appellants. Motive assigned against appellants to commit the present offence is strong. Deceased died due to injuries sustained by him in the incident. Witnesses examined before Court have clearly and consistently described the weapons used by appellants in commission of crime. There is no major contradiction in the statement of prosecution witnesses on material points. Impugned judgment and order is result of correct appreciation of facts and evidence and does not warrant interference by this Court.

17. We have considered the rival submissions advanced by learned counsel for parties carefully and have gone through entire record.

18. Before dealing with submissions raised by learned counsel appearing for the parties, it will be useful to narrate factual aspect of the matter.

19. In this case, incident is said to have taken place in the intervening night of 25/26.01.1981 at about 11:30 in the house of deceased. F.I.R. was lodged on 26.01.1981 at 3:15 a.m.. Distance between place of occurrence and police station is five mile. Accused named in F.I.R. are Brijraj Singh, Ramadhar Singh (since died), Putan Singh and one unknown person. Though charge sheet was submitted against all three accused for the offence under Section 302 I.P.C. yet accused Ramadhar Singh died during trial. Hence charge was framed only against Brijraj Singh and Putan Singh for the offence under Section 302 read with Section 34 I.P.C.

20. It also emerges that police reached at the place of occurrence on 26.01.1981 itself and took into possession the torches used by witnesses in the incident. Mattress and quilt of the deceased, bloodstained and simple soil, burning lantern and ladder etc. were also taken into custody preparing fards. Inquest report was prepared on 26.01.1981. Details of crime number registered at police station concerned finds place in the inquest report and other police papers prepared along with it . Autopsy on the dead body of deceased was conducted on 27.01.1981. In the opinion of doctor, cause of death of the deceased was shock and haemorrhage as a result of ante mortem injuries. Defence has admitted genuineness of post mortem report dispensing with formal proof of this document and for that reason prosecution did not examine doctor concerned. P.W. 1 is the informant, who was sleeping at the time of incident in same house, where deceased was done to death. House of P.W. 2 as stated by witnesses and indicated in the site plan is situated towards southern corner of house of informant. House of other witnesses, cited in the First Information Report, is also situated in southern and western side of house of informant.

21. From a perusal of statement of witnesses examined in the matter, it is also evident that informant, deceased and witnesses belong to same family. It is also evident from record that several incident of robbery, dacoity, marpit and murder took place between the parties and criminal cases were pending between them prior to present incident. Dead body of deceased, as per inquest report, was found in baranda of the house of deceased.

22. Now we outline the findings recorded by trial Court in the impugned judgment and order, which are as follows:

I. F.I.R. is not delayed document. It was lodged promptly.

II. Inquest report and other police papers were prepared on 26.01.1981 without delay and are genuine documents.

III. Burning lantern and torches produced by prosecution during trial before Court were not the same as described in the recovery memos.

IV. Statement of P.W. 1 and P.W. 2 are consistent and clear on the point that lantern was burning at place of occurrence at the time of incident.

V. Since assailants were well known to informants and witnesses, they would have been easily recognized by them at the place of occurrence and there is no chance of error.

VI. Motive assigned against appellants to commit present offence has also been proved beyond reasonable doubt and is strong motive. Findings of trial Court is also that appellants themselves have admitted enmity between the parties.

VII. Fault or laches on part of Investigating Officer do not have any impact on material evidence of prosecution witnesses. If prosecution did not disclose the facts as to how outer door of the house in question was opened, statement of eye witnesses account cannot be disbelieved.

VIII. Veracity of statement of P.W. 1 and P.W. 2 can also not be doubted only on this ground that they did not disclose in their statement as to how appellants entered in the house.

IX. If PAC personnel reached on the spot could not arrest / apprehend the assailants although they have chased them then also it is not sufficient to disbelieve the statement of eye account witnesses.

X. Although P.W. 1 and P.W. 2 are family members of deceased yet they are best and most natural witnesses. They cannot be termed to be interested or partisaned.

XI. Non-examination of other witnesses cited in F.I.R. is also not fatal to prosecution case, as prosecution was able to prove its case against the appellants beyond reasonable doubt.

XII. Plea taken by accused-appellants in the statement under Section 313 Cr.P.C. regarding their innocency are also not supported by any evidence.

23. Now, first of all we take-up plea raised on behalf of appellants regarding delay in lodging F.I.R..

24. As mentioned here-in-above, incident is of intervening night of 25/26.01.1981 at 11:30 p.m.. Distance between place of occurrence and police station is five miles. First Information Report was lodged on 26.1.1981 at 3:15 a.m. in the night itself. Thus, in this matter, it cannot be said that First Information Report is a delayed or anti timed document. At this juncture, it would be pertinent to mention that perusal of inquest report and other police papers prepared by police concerned on 26.1.1981 go to show that police reached at place of occurrence after registering the F.I.R.. Inquest was completed at about 8 a.m.. Dead body was sent in a sealed cloth for post mortem and it reached on the same day at 5.05 p.m. at District hospital. Entries made by police in inquest report and other documents are not doubtful, as the same were prepared by police concerned after registering the case. It is also noteworthy that incident is of night hour, relation between the parties was bitter, hence, it is not expected that within a few minutes of the incident bereaved family members would proceed to lodge First Information Report. In natural / normal course, some time is taken in lodging the F.I.R.. Trial Court has observed that First Information Report was not anti timed document but it was lodged promptly and all material particulars of the incident find place in it including name of assailants and weapons assigned to them. Thus, on close scrutiny of entire evidence on this aspect we are of the view that finding recorded by the trial Court on this point is based on correct appreciation of evidence and need no interference by this Court.

25. As far as motive is concerned, both the parties have admitted that there was long standing enmity between them. The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. The existence of animosity between the accused, informant and witnesses may, in some cases, give rise to the possibility of witnesses exaggerating the role of some of accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. In this matter, some persons belonging to accused-appellants side were allegedly done to death by informant side and some persons belonging to informant side were also allegedly done to death by appellants side. Criminal cases (murder and dacoity) between the parties were also pending. In the First Information Report it is clearly mentioned that way back seven to eight years one Sukhlal belonging to the family of Brij Raj appellant was killed by deceased and his companion. Enmity between the parties have also born-out from statement of P.W. 1 Gulab Singh and P.W. 2 Vijay Bahadur both in examination in chief and cross examination as well as in the statement of accused appellants recorded under Section 313 Cr.P.C.. There is rival plea of both the parties. Accused appellants have taken plea that due to enmity between the parties appellants have been falsely implicated in this case. In fact they have not committed the present offence nor they were recognised by witnesses. If the facts mentioned in the First Information Report as well as stated by the P.W. 1 and P.W. 2 and also the plea taken by accused in their statement recorded under Section 313 Cr.P.C. and the documentary evidence adduced by appellants in their defence are minutely analyzed, it emerges that prosecution has clearly mentioned in the F.I.R. the reason due to which present incident was committed by accused appellants. Motive assigned in the matter to commit the present offence by appellants is more believable than the plea of false implication, especially when there are evidence that accused appellants were seen at the place of occurrence armed with axe, etc.. Thus, finding recorded by the trial Court on this point is also based on correct appreciation of evidence and need no interference by this Court.

26. As far as medical evidence is concerned, deceased was done to death in mid night of 27.01.1981 at about 11:30 hours. Post mortem on dead body of deceased was conducted on 27.01.1981. Probable time of death of deceased is shown in post mortem report as one and half day. Cause of death has been shown due to shock and hemorrhage as a result of anti mortem injuries. Seven ante mortem incised wounds were found on the body of deceased. Both intestines (small and large) were found empty. If probable time of death of deceased shown in post mortem report is compared with time of incident mentioned in First Information Report, opinion expressed by doctor supports prosecution case. Only disturbing fact mentioned in post mortem report is that both small and large intestine were empty. As per prosecution case incident took place in the night at 11:30 p.m. Since no evidence has been adduced on part of accused-appellants to challenge time of death of deceased, merely on this ground that both intestines were empty it shall not be presumed that time of death of deceased is not established. It might be possible that deceased would not had taken food in the evening and in that situation intestines will remain empty.

27. Prosecution case is also that accused-appellants were armed with axe and pharsa. If the type of weapon assigned to accused involved in this matter is comapred with injuries found on the dead body of deceased, it cannot be held that injuries found on the body of deceased could not be caused with the weapons assigned to them. Therefore, on close scrutiny of entire evidence, it is clear that medical evidence in the present matter fully supports prosecution case and finding recorded by the trial Court in this regard is also based on correct appreciation of facts and evidence.

28. As far as source of light is concerned, prosecution case is that one burning lantern was hanging as daily routine at the place where deceased was sleeping. Witnesses were present inside the room and reached at place of occurrence hearing hue and cry of deceased and saw the assailants in lantern light. Perusal of record also goes to show that lantern produced before Court during trial was not tallied with lantern taken into possession by the Investigating Officer during investigation. P.W. 1 and P.W. 2 both have clearly and consistently stated that burning lantern was hanging at place of occurrence. It may be mentioned here that prosecution case may not be trustworthy in regard to lantern produced before Court but in regard to existence of burning lantern at the place of incident is consistent and clear and reliance can be placed on this fact. Witnesses reached at the place of occurrence have also used torches and in torch light they saw accused persons. This fact is also consistent and clear in prosecution evidence although torches produced before court were also not the same as in the recovery memo. Trial Court observation that "maxim falsus in uno falsus in omnibus" is not applicable in criminal jurisprudence in India is correct. Therefore, if statement of a witness is not true on any fact it shall not be deemed that statements made by the witness on other facts are also false. Thus, finding recorded by the Trial Court that there was sufficient source of light at place of occurrence at relevant time is based on correct appreciation of evidence. Accused-appellants were recognised by witnesses in the light mentioned hereinabove. Since, accused-appellants were well known to the witnesses, therefore, they would have easily been recognized by witnesses.

29. As far as participation of accused-appellants in the present matter is concerned, in First Information Report present appellants and Ramadhar Singh (since died) alongwith unknown companion were said to be involved in the present offence. It is also mentioned in First Information Report that Brij Raj Singh was armed with Kulhari and Putan Singh was armed with pharsa. When witnesses reached on the spot they ran away through ladder one by one. Witnesses also tried to chase them but they could not be apprehended. So far as identification of accused appellants is concerned, although it was dark night yet there was sufficient source of light at place of occurrence in form of burning lantern as well as torches light, appellants were well known to witnesses, accused have also extended threat when witnesses were trying to apprehend them, therefore, they would have easily been recognised by witnesses P.W. 1 in his statement before Court has assigned weapon Gandasa to appellant-Brijraj and pharsa to the appellant-Putan but P.W. 2 has clearly stated that appellant Brijraj was armed with Kulhari.

30. P.W. 1 is family member of deceased and was present at the time of incident in the house in question. P.W. 2 is neighbourer. Defence plea is that P.W. 2 was not present on date and time of incident in village concerned but no evidence has been adduced by accused-appellants to substantiate this plea. Incident is of night hour inside the house and in that situation family members and neighbourer would be the most natural witnesses. They would reach at the place of occurrence sooner than other persons. In the present matter on hearing hue and cry of deceased, P.W.1 and other family members reached on the spot immediately and saw the accused-appellants armed with weapons assigned to them. P.W. 2 and other witnesses have also reached at the place of occurrence immediately. As far as veracity of statement of P.W. 1 and P.W. 2 is concerned, though they are family members and close relatives of deceased yet in the facts and circumstances of the case, they cannot be placed in the category of interested and partisan witnesses. They can also not be categorized as partisaned witnesses only on the ground that relation between both parties were strained and offences like murder, dacoity and attempt to murder were taken place between them. Deceased Gaya Pal Singh was done to death by appellants and their companion on the date, time and place mentioned in F.I.R. is fully proved. Prosecution evidence is also clear and consistent on point of weapons assigned to accused, and is also supported from medical evidence, quilt taken into possession by police from place of occurrence was found torn at several places, which clearly indicate that injuries were caused upon body of deceased when he was sleeping covering his body by quilt. Trial Court was of the view that P.W. 1 and P.W. 2 both are natural witnesses, their statements are supported from medical evidence and only on this ground that they are family members and close relatives of deceased, they cannot be placed in the category of untrustworthy or unreliable witnesses. On close scrutiny of entire evidence in consonance with submissions raised by learned counsel for the parties and also comparing same with the findings of trial Court, it can safely be held that both witnesses i.e. P.W. 1 and P.W. 2 are reliable and trustworthy witnesses. They have seen accused-appellants running away from the place of occurrence after committing incident. Discrepancies occurred in prosecution evidence on point of source of light, non examining of other material witnesses who had also reached at place of occurrence, does not render prosecution evidence unbelievable. Laches or fault on part of Investigating Officer do not have any impact on material evidence. It may also be mentioned that prosecution in the F.I.R. itself has mentioned that outdoor of the house was opened by accused. At this juncture, to clarify this fact reference may be given to F.I.R. as well as statement of P.W. 1. Trial Court analyzing evidence on this issue was of the view that explanation given by prosecution on this point is most natural. We do not find any error in the finding of trial Court on this point. As far as non disclosure of fact that how accused person entered into house is concerned, this fact itself is not sufficient to discard statement of P.W. 1 and P.W. 2. Findings recorded by trial Court on this point need no interference and same are based on correct appreciation of evidence.

31. PAC personnel had reached on the spot immediately and chased assailants but could not apprehend them. If assailants could not be arrested by PAC personnel, involvement of accused appellants in the present matter, presence of P.W. 1 and P.W. 2 at place of occurrence and existence of source of light, in which accused-appellants were recognized, cannot be doubted.

32. So far as non-examination of other witnesses cited in the FIR is concerned, it is suffice to say that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Hence, non examination of all eye witnesses account cited in the First Information Report, statements of P.W. 1 and P.W. 2, which are supported by medical evidence, cannot be disbelieved. Findings recorded by trial Court on the points of discrepancies, contradictions, omissions, improvements, laches and exaggeration are in accordance with law and need no interference.

33. In the circumstances, on close scrutiny of entire evidence and discussion made herein above, we are of the view that prosecution was able to prove its case against the accused-appellants beyond reasonable doubt. Accused-appellants along with their companions have committed present offence entering in the house of deceased. Medical evidence fully supports the prosecution case. The trial court has rightly convicted and sentenced accused-appellants for the offence under Section 302 I.P.C. read with Section 34 I.P.C..

34. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, this Court is of the opinion that impugned judgment and order dated 8.6.1983 passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove the guilt of the accused appellants beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld and appeal having no force is liable to be dismissed.

35. Accordingly present Criminal Appeal is dismissed. Conviction and sentence imposed upon accused appellants vide impugned judgment and order is affirmed. Accused-appellants, if not in custody in this matter, are directed to surrender before Court below immediately to serve out remaining sentence imposed by trial court vide impugned judgment and order.

36. Copy of this judgment alongwith lower court record be sent forthwith to the Sessions Judge, Fatehpur for compliance and a compliance report be sent to this Court.

Order date : 13.08.2018

A.N. Mishra