Bhukkhan vs State Of U.P.
2018 Latest Caselaw 2124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  19.07.2018
 
Delivered on 24.08.2018
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 1201 of 1983
 
Appellant :- Bhukkhan (since deceased) and others 
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Devendra Swaroop, S.B.Kocher
 
Counsel for Respondent :- A.G.A., R.B.Sahai
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Mrs. Vijay Lakshmi, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This Criminal Appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 16.05.1983 passed by Sri R.C. Gupta, Additional Sessions Judge, Mirzapur in Sessions Trial No. 35 of 1982 whereby accused-appellant (1) Bhukkhan, (2) Dev Nandan, (3) Bubu Nandan, (4) Lal Bahadur, (5) Lal Ji,(6) Lal Mani, (7) Ram Dhani, (8) Chabiraj and (9) Lal Chand have been convicted under Section 147, 302 read with Section 149, and 323 read with Section 149 I.P.C. and each of them were sentenced to undergo rigorous imprisonment for one year under Section 147 I.P.C; life imprisonment under Section 302 read with Section 149 I.P.C. and six months rigorous imprisonment under Section 323 read with Section 149 I.P.C. All the sentences were directed to run concurrently.

2. At the outset, it may be pointed out that appeal has already abated qua appellants-1, 2, 3 and 6. With regard to appellant- 8 also Chief Judicial Magistrate, Mirzapur has submitted report dated 04.04.2018 that he has died on 15.02.2018. In regard to certification of his death, statements of S.I. Ashok Singh, Sri Musairam, Gram Pradhan of Village, Sri Dhirendra, son of deceased appellant-8 and one Tej Bahadur, a resident of village of deceased appellant-8 have been recorded and placed on record. This appeal, therefore, also stands abated qua appellant-8 and now survives only in respect of appellants-4, 5, 7 and 9.

3. Prosecution case as per First Information Report, Ex. Ka-1 is that there had been long-standing litigation between Informant on one side and Ram Dhani, Harijan, resident of Informant's village Larwak, P.S. Kachwa, District Mirzapur on the other side with respect to certain land. On account of that enmity, on the fateful day, i.e., 02.03.1981, at about 6.00 AM, Informant's brother Ram Pratap (deceased) was going to Deeh with milk, as usual. When he reached the door of Dev Nandan Harijan, accused-appellants Bhukkhan, Dev Nandan, Babu Nandan, Lal Bahadur, Lal Ji, Lal Mani, Ram Dhani, Chabiraj and Lal Chand surrounded him and began to assault him by Lathis and Dandas. On alarm raised by Informant's brother, Sumaru, (Uncle-Bade Pita) of Informant and PW-2, Ram Khelawan, reached there for rescue but accused started assaulting them also. Thereafter PW-3, Balwanta, Informant's brother, Dingur and Dular Gaur, resident of Informant's village and PW 1, Informant, reached there and resisted from beating. On alarm being raised from the side of Informant and seeing several persons reaching the place of occurrence, accused appellants stopped beating and fled away assuming Ram Pratap to be dead. While injured Ram Pratap and uncle Sumaru were being taken to Police Station on two Sangaris (luggage carrier Rickshaw), lying on two separate cots in injured state, before reaching Kachwa Bazar, Ram Pratap died. Thereafter written report, Ex. Ka-1 was lodged at Police Station Kachwa, District Mirzapur at 8.30 AM. Distance of Police Station from the place of occurrence is said to be 3 miles. Chik FIR, Ex. Ka-31, was prepared on the basis of written report and case under Section 147, 323 and 302 I.P.C. was registered against accused appellants. Entry to that effect was also made in G.D., copy whereof is Ex. Ka-32. Sumaru and Ram Khelawan, injured, were taken to Mirzapur on Taxi in District Hospital. Injuries of both were examined. Sumaru was examined on 02.03.1981 at 11.30 AM by PW-14, Dr. Ramji Pandey who found following injuries on his person:

1) lacerated wound 3 cm x .5 cm x scalp deep on middle of head, 11 cm above root of nose;

2) lacerated wound 3 cm x .5 cm x scalp deep on occipital part of head, 13 cm above left ear;

3) lacerated wound 1.5 cm x .5 cm x muscle deep on left forearm backside, 5 cm below left elbow joint;

4) contusion 10 cm x 2 cm on back of left chest, 7 cm below left scapula;

5) abraded contusion 4 cm x 2.5 cm, with traumatic swelling, 10 cm x 8 cm on right scapular region;

6) contusion 8 cm x 2 cm on back the of abdomen.

4. In the opinion of doctor, all the injures had been caused by blunt weapon, like lathi and were fresh at the time of examination. Except injuries-1 and 2, rest injuries were simple. Subsequently, Sumaru died on the same day at about 2.00 PM.

5. The same Doctor, PW-14, also examined injured Ram Khelawan same day at 11.45 AM and found following injuries on hie person:

1) lacerated wound 6 cm x 2 cm x muscle deep, 10 cm above right ankle joint;

2) contusion 7 cm x 4 cm on dorsal lateral aspect of lower part of right arm.

6. According to doctor said injuries could have been caused by some blunt weapon and were fresh at the time of examination.

7. Investigation of incident was entrusted to PW-10, Sub Inspector Ram Sagar Dwivedi, who visited the spot and took statements of witnesses. After taking into possession pieces of blood stained strings of cot, clothes of deceased and pieces of quilt with cotton (Ex.-1 to 5), he prepared recovery memo (Ex. Ka-25). Blood stained Lungi (Ex.-12) was also taken into possession and recovery memo Ex. Ka-26 was prepared. Later on 02.03.1981 at about 01:30 PM, after recovery of four blood stained Lathis from the possession of accused-appellant Dev Nandan, recovery memo Ex. Ka-27 was prepared. Blood stained and normal soil of the place of occurrence (Ex.-13 and Ex.-14 respectively), were kept in separate bottles in sealed cover. Investigation Officer prepared site-plan, Ex. Ka-29. He also visited District Hospital and recorded dying declaration of Sumaru, deceased.

8. Dead body of both the deceased Ram Pratap and Sumaru were sent to District Hospital on 02.03.1981 for postmortem.

9. Autopsy on the dead body of deceased Ram Pratap was conducted by P.W. 4 Dr. C.P. Singh, Physician, District Hospital Mirzapur on 03.03.1981 at 1.00 PM. According to him deceased was aged about 40 years. His body was average built and about one day had passed since his death. Rigor Mortis was present in all limbs. Multiple fractures of right temporal and perital bones were found present. PW-4 found following ante mortem injuries on the body of deceased

1) lacerated wound 3 cm x 1 cm x scalp deep on left side of head 8 cm above left ear;

2) lacerated wound 2 cm x .5 cm x scalp deep on right side head, 6 cm above right ear;

3) lacerated wound 9 cm x 3 cm x bone deep on right side head, 10 cm above right ear;

4) lacerated wound 3 cm x 1 cm scalp deep on middle of crown of head;

5) abrasion 2.5 cm x 1 cm, 1 cm above outer part of right eyebrow;

6) abrasion 3.5 cm x 1 cm, over inner end of left eyebrow;

7) abrasion 3 cm x 1 cm, 3 cm above back and base of left index finger;

8) abrasion 4 cm x 2.5 cm, on front of left knee;

9) lacerated wound 5 cm x 1.5 cm x muscle, front of left leg, 12 cm above ankle;

10) lacerated wound 3 cm x ½ cm x muscle, inner part of the elbow;

11) lacerated wound 1 cm x ¾ cm x bone deep, on front and upper part of right leg, 11 cm below knee. Both bones of right leg found fractured.

12) abrasion 2½ cm X 1 cm on top of right shoulder.

10. On internal examination, digested food was found in small intestine. Faecal matter and gases found in large intestine. In the opinion of Doctor, death had occurred due to head injuries/ante mortem injuries sustained by deceased.

11. PW-4, Dr. C.P. Singh, also performed autopsy on the dead body of Sumaru on 03.03.1981 at 2.00 PM. Deceased was average built and was aged about 52 years. Rigor Mortis was present in all limbs. About one day has passed since death. Rigor Mortis was present in all limbs. Following ante-mortem injuries were found on his body.

1) lacerated wound (stitched) 3 cm x .5 cm x scalp deep on middle of head, 11 cm above bridge of nose, two stitches present;

2) lacerated wound 3 cm x .5 cm x scalp deep (with two stitches on upper part of occipital region, middle 12 cm above and behind from both ears;

3) lacerated wound 1.5 cm x .5 cm x muscle deep on left forearm, 8 cm below left elbow on its back;

4) contusion 10 cm x 2 cm on back of left chest, 8½ cm bellow interior angle of left scapula;

5) abrasion 4 cm x 2.5 cm, with contused swelling, 10 cm x 8 cm on middle of right scapula;

6) contusion 8 cm x 2 cm on back of abdomen on left side.

12. In the opinion of Doctor, cause of death could not be ascertained, hence viscera was preserved. Viscera was sent for chemical examination.

13. After conclusion of investigation, Charge-sheet Ex. Ka-30 was submitted in the Court of C.J.M on 20.04.1981. Case was committed to Court of Sessions on 27.01.1982.

14. Charges against accused-appellants were framed by IInd Additional District Judge, Mirzapur under Section 147 for rioting; under Section 302 read with Section 149 IPC for committing murder of Sumaru and Ram Pratap and under Section 323 read with Section 149 IPC for voluntary causing hurt to Ram Khelawan and other injured vide order dated 06.03.1982. Charges framed against appellants read as under:

"I, R.C. Gupta, II Addl. Sessions Judge, Mirzapur, hereby charge you Bhukkhan, Deo Nandan, Babu Nandan, Lal Bahadur, Lal Ji, Lal Mani, Ram Dhani, Chhabiraj and Lalchand accused persons as follows:

Firstly, that you on 2.3.81 at about 6 A.M. in front of the house of Deo nandan accused situate in Village Larvak, P.S. Kachwa, District Mirzapur, had formed an unlawful assembly with common object to commit murder of Somaroo and Ram Pratap and cause injuries to Ram Khelawan and in prosecution of that common object you committed the offence of rioting and thereby you committed an offence punishable u/s 147 I.P.C. and within the cognizance of this court.

Secondly, that you on the said date, time and place and in prosecution of the said common object of the said unlawful assembly committed murder by intentionally causing the death of Somarooo and thereby you committed an offence punishable u/s 302 read with Section 149 I.P.C. and within the cognizance of this court.

Thirdly, that you on the said date, time and place and in prosecution of the said common object of the said unlawful assembly, committed murder by intentionally causing the death of Ram Pratap and thereby you committed an offence punishable u/s 302 read with section 149 I.P.C. and within the cognizance of this court.

Fourthly, that you on the said date, time and place and in furtherance of the said common object of the said unlawful assembly voluntarily caused simple hurts to Ram Khelawan and thereby you committed an offence punishable u/s 323 read with Section 149 I.P.C. and within the cognizance of this court.

And I hereby direct you to be tried by this court on the said charges."

15. Accused-appellants denied the charges and claimed to be tried.

16. In support of its case, prosecution examined, in all, seventeen witnesses, out of whom, P.W. 1 informant Boder, P.W. 2 injured Ram Khelawan, P.W. 3 Balwanta are witnesses of fact who have supported prosecution story and claimed to have witnessed the incident. Rest are formal witnesses. P.W. 4 Dr. C.P. Singh, the then Medical Officer, District Mirzapur had conducted autopsy on the dead body of Ram Pratap and Sumaru and he has proved postmortem reports Ex. Ka-12 in respect of deceased Ram Pratap and Ex. Ka-13 in respect of deceased Sumaru. P.W. 5 Constable Hari Kunwar Singh had deposited sealed bundles of recovered items in the office of Chief Medical Officer, Mirzapur meant for chemical examination at Agra. P.W. 6 Constable Shyam Charan along with other constable had taken dead body of Sumaru to District Hospital for postmortem. P.W. 7 Constable Zokhu Lal has proved register kept in malkhana to the effect that he had received sealed bundle from Constable Sheetla Prasad Sharma and made entry in the relevant Register. P.W. 8 Constable Bechan Ram along with Constable Shankar Ram had taken the dead body of deceased Ram Pratap in sealed condition along with specimen seal and relevant papers to District Hospital for postmortem on 02.03.1981. P.W. 9 S.I. Lal Chand had visited Sadar Hospital on 02.03.1981 at 03:30 PM and prepared inquest Ex. Ka-3 in respect of deceased Sumaru. He also prepared other relevant documents Ex. Ka-14, Ka-17 to Ka-20, Ka-21, Ka-51 and Ka-16 and sent dead body to District Hospital for postmortem through Constables Balwant Singh and Shyam Charan Singh. P.W. 10 S.I. Ram Sagar Dwivedi was the first Investigating Officer who had undertaken investigation immediately after lodging of FIR. He had proved the documents, recovery memos and material exhibits, blood stained clothes and other articles. P.W. 11 Head Constable Brij Raj Singh is the witness of lodging of FIR Ex. Ka 1 and preparation of chik report Ex. Ka- 31. P.W. 12 S.I. Mohd. Zakaria was posted as IInd Officer at P.S. Katchwa who had brought sealed packets of blood stained and plain earth, lathis and danda along with specimen seal to Police Station and deposited the same at 04:30 PM on 02.03.1981. P.W. 13 Head Constable Mohd. Sharif had handed over six sealed bundles and two specimen seal to Constable Sheetla Prasad Sharma for depositing in Sadar Malkhana, Mirzapur. P.W. 14 Dr. Ram Veer Pandey had examined injured Sumaru (when he was alive) and Ram Khelawan, injured. Their injury reports have already been mentioned above. P.W. 15 Constable Chotey Lal was entrusted duty to submit special report of the case and he had delivered report to all concerned officers at District Head Quarters. P.W. 16 Sewa Lal was Clerk in the office of In-Charge, District Hospital, Mirzapur and in his supervision, material exhibits received from Police Station were sealed and after putting all the items in a box, it was sealed with medico legal seal and was sent for chemical examination to Agra. Viscera of different parts of deceased Sumaru was also sealed under his supervision and sent to Agra for chemical examination. P.W. 17 Constable Sheetla Prasad is the witness of carrying material exhibits to Sadar Malkhana, Mirzapur.

17. Defence also examined one Narayan Sharma, who was posted as Clerk in Criminal Copying Section, Police Office, Mirzapur in July 1981, who proved preparation of Copy of Ex.Kha-1, site plan, but said that three arrows signs on the copy of map were not present on 18.07.1981, when copy was prepared by him.

18. Thereafter statement of accused-appellants under Section 313 Cr.P.C. was recorded. All of them claimed prosecution story to be false and stated to have falsely been implicated on account of enmity.

19. After hearing counsel for parties and appreciation of evidence on record, learned IInd Additional Sessions Judge has convicted and sentenced all the appellants as mentioned above by impugned judgment and order dated 16.05.1983.

20. Trial Court in convicting and sentencing appellants has recorded its findings as under.

21. Lal Mani and Lal Ji are sons of Bhukkhan, Ram Dhani; Dev Nandan, Babu Nandan, Lal Bahadur, Lal Chand and Chabiraj are Pattidar of Bhukkhan; Lal Bahadur is son of Babu Nandan; Civil Litigation about some land was going on since long between Boder, Informant, and Ram Dhani; one Civil Suit between Bechan and Bhukkhan was going on for about last one year of which Ram Pratap was doing pairavi on behalf of Bechan; above litigation has caused enmity between the parties and it was the motive of crime; Ram Dhani has filed a complaint against Informant, Bodar, wherein Dev Nandan and Shobhan Singh had given evidence against Informant; relationship was not in good terms between the family members of Accused and Informant; in fact it was ill disposed towards Ram Pratap and Sumaru and their family members; place of incident, time and date was proved by eye-witness and corroborated by medical evidence; recovery of blood sustained soil by Investigating Officer also proved that incident had taken place in front of house of accused Dev Nandan; FIR was lodged at 8.30 AM while incident took place at around 6.00 AM; Distance of Police Station from place of occurrence is three miles; FIR was lodged and arrangement was made to take injured to Police Station; they were taken on Charpai upto pucca road; therefrom they were taken on two Sangaris from Kachwa Police Station; nature of the incident and considering other aspects, there was no delay in lodging FIR.

22. Referring to some overwriting on the Inquest Report, Ex. Ka-2 Trial Court has said that the same has been explained satisfactorily and in any case same has no material affect on the otherwise well proved reliable prosecution evidence with regard to incident in question. Dying declaration of Sumaru was reliable. There was no good ground to disbelieve the entries made in G.D. and evidence of PW-11 that Chik Report was prepared at 8.30 AM on 02.03.1981, entry was made in G.D. and special reports were sent at 12.15 Noon to concerned authorities through Constable Chhote Lal which was corroborated by Chhote Lal himself deposing his statement as PW-15. Delay in sending report to Circle Officer was also properly explained inasmuch Dak of Circle Office was already sent at 6.30 A.M. on 02.03.1981, therefore, it was sent along with next days' Dak to concerned Office. Presence of Boder and Bhagwanta on site of occurrence was sought to be doubted by defence but it could not be proved. Injuries and cause of death alleged by eye-witnesses was duly corroborated by medical evidence. Mere relationship of eye-witnesses is not sufficient to discard their evidence which is otherwise creditworthy and reliable. Prosecution case is quite believable, creditworthy and suggestions made by defence are unreliable and do not effect the prosecution version. Defence suggested that Sumaru was poisoned but Chemical Examiner's report Ex. Ka-5 has not verified it.

23. Feeling aggrieved by aforesaid judgment, accused appellants have preferred this appeal. As pointed out earlier, this appeal survives only with respect to appellants 4, 5, 7 and 9, namely, Lal Bahadur, Lal Ji, Ram Dhani and Lal Chand respectively.

24. Sri Kocher, learned counsel for appellants, broadly contended that FIR is ante timed and ante dated, site plan shows that accused-appellants ran in north east direction though ocular version of witnesses of facts is that assailants ran towards west side; place of occurrence is doubtful since it is stated by eye-witnesses that two buckets of milk, which Ram Pratap was taking to nearby Village, fell on the ground but I.O. did not find any trace of milk at the place of incident; presence of Informant and eye-witnesses on the place of incident is doubtful and is not reliably proved; statements of PW-2 and PW-3 show that same is tutored one; on 02.03.1981 time of sunrise was 6.15 AM while incident is said to have taken place at 6.00 AM, meaning thereby there was no light, hence eye-witnesses could not have seen assailants clearly; when Panchayat-nama was prepared even at that time FIR was not lodged and there is manipulation in the documents; special report and copy of FIR was sent to concerned authorities much belatedly which shows that FIR was ante dated; injured were sent to Hospital even before preparation of Panchayat-nama and there is self contradiction in the evidence of eye-witnesses; dying declaration actually was not recorded and it has been manipulated; prosecution has failed to prove its case beyond reasonable doubt and accused-appellants have been wrongly punished; Ram Pratap was beaten much before 6.00 AM by somebody else and accused-appellants have been falsely implicated due to alleged enmity.

25. Per contra, Sri Syed Ali Murtaza, learned A.G.A., contended that statement of Sumaru recorded by Police has been duly proved by PW-10 and it is admissible under Section 32 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") and can be treated as a 'dying declaration'; statement were recorded at Police Station by Police and statement of witnesses recorded under Section 161 are duly corroborated by statement given by eye-witnesses in the Court and, therefore, it cannot be said that witnesses are tutored; mere relationship of witnesses cannot discredit testimony of witnesses since relative will always be interested to have rightful person to be punished for the crime; unless something is shown that the statement of witness is wholly unreliable, on the mere ground of relationship, such testimony cannot be rejected; Inquest-report, site plan etc. are not substantive piece of evidence, but only to assist the investigation when corroborated by ocular testimony and other evidence; on account of any discrepancy in site plan or inquest report etc., otherwise credible evidence proving quilt of accused persons cannot be rejected. He said that in the present case, date, place and time of incident was duly proved; injured witnesses' statement was recorded by Police, who ultimately died and presence of eye-witnesses was also duly corroborated, hence entire prosecution case has been proved beyond reasonable doubt.

26. We have heard rival submissions advanced by Sri S.B.Kocher, Advocate, on behalf of appellants and Sri Syed Ali Murtaza, learned A.G.A. for prosecution and have perused the record in depth.

27. Informant, Boder Ram, is an eye-witness of incident in the present case. Deceased Ram Pratap is son of Elder Father (Tau) of Sumaru. Sumaru has also died in incident. Ram Khelawan, another eye-witness, PW-2, is also Elder Father (Tau) of Boder Ram, PW-1. Bechan was father of Sumaru (one of the deceased) and Ram Khelawan (PW-2). Civil litigation was going on between Bechan and Bhukkhan (accused-appellant-1). On behalf of Bechan, Ram Pratap (deceased) used to do Pairavi of the case. As per informant, on 02.03.1981 at about 6.00 AM Ram Pratap was going to Village Deeh carrying Milk in usual manner since he used to supply milk every day to Village Deeh, he (Informant) heard some noise near door of Dev Nandan (appellant-2) whereupon he (Informant), Sumaru (deceased), Balwanta (PW-3), Ram Khelawan (PW-2) and Digur reached there and saw that accused-appellants were beating Ram Pratap with Lathi and Danda. Sumaru and Ram Khelawan went ahead to protect Ram Pratap whereupon accused-appellants started beating these two persons also. All the three fell down sustaining injuries on account of aforesaid beating by accused-appellants. Hearing noise of Informant and others, Villagers collected whereupon accused-appellants ran away from the site of occurrence presuming that Ram Pratap may have died. They ran away towards west. All the three injured persons were taken on cots and Informant and others proceeded for Police Station. By the time they reached Kachwa Hospital, Ram Pratap died. Informant prepared draft report outside Police Station in a Gumti and submitted in Police Station which was registered at Kachwa Thana at 8.30 AM. Informant was accompanied by PW-3, Jagar Dev and Radhey Shyam. Police Official (Sub-Inspector) recorded statements of Sumaru (later died), Ram Khelawan (PW-2), Jagar Dev and Balwanta. With one Constable, Sumaru and Balwanta were sent to Kachwa Hospital for medical treatment but Doctors were not present, therefore, both injured persons were taken to Mirzapur Hospital by Taxi. Informant also accompanied them. Both injured were examined at Mirzapur District Hospital but later in the day, about 2.00 PM, Sumaru also died in Hospital. Panchayat-nama was prepared by Police and Ex. Ka2 is Panchayat-nama of Ram Pratap and and Ex. Ka3 is panchayat-nama of Sumaru. Same were prepared in presence of Informant and he has signed both the panchayat-namas. Four Lathis (Ex.-10) and one Danda (Ex.-11) were recovered by Investigating Officer from house of Dev Nandan in presence of Smt. Champa Devi, wife of Basantu and Smt. Mahdei, wife of Late Nirvidhi. In the Forensic Report, Ex. Ka38, presence of blood on the Lathis and Danda has been found though it does not show whether blood is that of Man or animal. PW-2 himself is an injured witness in the said incident. His injuries have been verified in medical examination report, duly proved by PW-14. Story of incident given by all three ocular testimonies is more or less same that accused-appellants were beating Ram Pratap near the house of Dev Nandan and when Informant and other reached, they were also beaten causing injuries also to Sumaru and Ram Khelawan (PW-2). Three persons sustained injuries to which two succumbed. All three eye witnesses have consistently said that accused-appellants ran away towards west though as per site plan, it appears that Investigating Officer shown direction of accused-appellants being fled away towards north east.

28. A site plan is prepared subsequently on the information received. By itself it is not a substantive piece of evidence. If there is any variation in the site plan, it is the ocular version which has to be given due weight than site plan since Investigating Officer may have mentioned something therein on the basis of information received due to some wrong understanding or confusion. Ocular version with respect to factum that accused-appellants beat Ram Pratap, Sumaru and Ram Khelawan with Lathies and Dandas is duly corroborated by medical evidence also which show that injuries are basically lacerated wounds and according to Doctor, same could have been caused by a blunt object like Lathi. Further the fact that some of the injuries are on head of two deceased also shows that accused-appellants beat them mercilessly with a clear intention to kill them. Four Lathies and one Danda have been recovered from the house of accused-appellant-2 and on this aspect neither any explanation has come in defence including statement under Section 313 Cr.P.C. nor this factum has been shown to be incorrect and no evidence to discredit this finding has been adduced by accused-appellants. Now it is in this backdrop, we have to examine entire case including certain inconsistencies, discrepancies etc. pointed out by learned counsel for appellants in his arguments as noticed above.

29. Incident is of 02.03.1981 when neither it was a chilling winter nor a summer season. Time of incident is early part of morning i.e. around 6.00 AM. As per own argument of learned counsel for appellants, sunrise was at 6.15 A.M. on 02.03.1981. So the time of incident is quite early part of morning. The incident resulted in injuries to three persons, whereof two later died. All three were close relatives to Informant. Natural mental and psychological disturbance of Informant seeing members of family getting seriously injured is quite apparent. Despite that, all three were taken on cots with help of villagers and Informant proceeded towards Police Station which is about three miles from place of incident. By the time they could reach Kachwa Hospital, admittedly Ram Pratap died. Kachwa Police Station is situated in Kachwa Bazar, a township and comes after Kachwa Hospital when one is going to Police Station, Kachwa Bazar from Village Larwak. Report was registered by Police at Kachwa Police Station at 8.30 AM. It has also been stated by PW-1 and PW-2 that Police also recorded statement of Sumaru, another injured who subsequently died later in the day in District Hospital, Mirzapur.

30. Testimony of an injured witness comes within inbuilt assurance of his presence at the scene of crime. Such a person is not expected to spare actual assailant(s) but to implicate someone else falsely since the person who himself has sustained injuries being attacked by someone, in normal course, would make all out efforts to get real assailants punished. To discredit such an injured witness, convincing evidence is required. PW-2, Ram Khelawan, himself was an injured witness, hence his credibility is to be taken sufficiently higher.

31. In Chandrasekar and others Vs. State (2017) 13 SCC 585 Court said:

"Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise." (emphasis added)

32. In Brahm Swaroop V. State of U.P (2011) 6 SCC 288 Court said:

"Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone." (emphasis added)

33. The above observation has been quoted and followed in State of U.P. Vs. Ram Kumar JT 2017 (7) SC 466.

34. Discrepancies referred to by learned counsel for appellants are so minor and trivial which, in our view, does not dispel truth of core of incident which took place on 02.03.1981 at around 6.00 AM in front of house of Dev Nandan when accused-appellants are said to have beaten Ram Pratap and when he was sought to be saved by Sumaru, Ram Khelawan etc. They were also beaten resulting in death of Ram Pratap, when he was being taken to Hospital, and, Sumaru later in the day, in the Hospital itself.

35. Time and again, it has been held that while appreciating evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of prosecution case, may not prompt Court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode credibility of a witness cannot be labelled as omissions or contradictions. Difference in some minor detail, which does not otherwise affect the core of prosecution case, even if present, would not itself prompt Court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, Court comes to a conclusion, whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be at tuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.

36. Heavy reliance is placed by learned counsel for appellants on some defect in inquest report, time of sending special report and copy of FIR to higher authorities and Magistrate. The I.O. has explained all these aspects. Even otherwise, we find that mere existence of some defect in inquest report or delay in sending information to higher authorities or Magistrate by itself would not be fatal to discredit entire prosecution version.

37. In Krishna Pal and another Vs. State of U.P. (1996) 7 SCC 194, Court said that only for the reason that author of inquest report has not been diligent would not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by Court.

38. In Badam Singh v. State of M.P. (2003) 12 SCC 792, Court said that where Investigating Officer categorically stated that he was not in a position to give any explanation for the delay in sending Special Report, it may be fatal to the prosecution case.

39. A three-Judge Bench in Balram Singh and another Vs. State of Punjab (2003) 11 SCC 286 considered this aspect of matter and held that when there is no doubt that FIR was prepared promptly but there was some delay in transmitting the said information to Jurisdictional Magistrate in such a case ocular evidence adduced by prosecution and worthy of acceptance cannot be ignored merely for the reason of such delay in sending information to Magistrate and it will not weaken the prosecution case.

40. In Aqeel Ahmad Vs. State of U.P. (2008) 16 SCC 372, Court held that forwarding of the report to Magistrate is indispensable and absolute. It must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution's case and the introduction of a distorted version by deliberations and consultation and to enable Magistrate concerned to keep a watch on progress of investigation.

41. In State of Kerala Vs. Anilachandran @ Madhu and others (2009) 13 SCC 565, Court said that Police should not unnecessarily delay sending FIR to Magistrate as the delay affords the opportunity to introduce improvement and embellishment thereby resulting in a distorted version of the occurrence. Court also held that an explanation for delay can be forwarded by Prosecution. An unexplained delay by itself may not be fatal, but it is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence.

42. In Brahm Swaroop and another Vs. State of U.P. (supra), Court said that whole purpose of preparing an inquest report under Section 174 of Cr.P.C. is to investigate into and draw up a report of 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 Investigating Officer to investigate into or ascertain who were the persons responsible for the death. 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. Court further held:

"The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest."

43. In the light of above backdrop, we find hereat that incident occurred at around 6.00 AM in Village Larwak, P.S. Kachwa, District Mirzapur. Place of incident is about three miles from Police Station Kachwa. Report was registered at 8.30 AM. One of the injured died when being taken to Police Station. Police Officer also recorded statement of Sumaru. Thereafter, Sumaru, who was brought to District Hospital at Mirzapur after registration of FIR at Police Station was examined by Dr. Ramji Pandey, PW-14, at 11.30 AM. Ram Khelawan, PW-2, who was also injured was examined at District Hospital Mirzapur by the same Doctor at about 11.45 AM. Both were brought by a Taxi from PS Kachwa Bazar to District Hospital at Mirzapur which is around 45 Kilometers from Kachwa Bazar. Sumaru later died on 02.03.1981 at around 2.00 PM. Postmortem of Sumaru and Ram Prakash was conducted on next day i.e. 03.03.1981 at Mirzapur in afternoon, i.e. 1.00 PM and 2.00 PM respectively. This delay in postmortem is sought to be highlighted by learned counsel for appellants to discredit the prosecution version but he could not explain that to bring dead body of Ram Prakash from PS Kachwa for postmortem at District Hospital Mirzapur, there was easy availability of conveyance and dead body could have been carried without any delay. Moreover even availability of Doctor for postmortem in Postmortem House is not always easy. PW-8, Constable Bechan Ram has clearly said that he brought dead body from PS Kachwa to Postmortem House at Mirzapur by Ikka (Horse Cart) and could reach Mirzapur at 4.35 PM. Doctor became available on the next day at about 1.00 PM. Nothing has been found to discredit the above evidence in cross examination by defence. It, thus, cannot be said that there is any undue delay in Postmortem to doubt the time of death of deceased persons.

44. Recording of statement of Sumaru at Police Station Kachwa has been proved by Sri Ram Sagar Dwivedi, PW-10. He also recorded statement of Ram Khelawan, PW-2 at Police Station. Initially two injured persons, i.e. Sumaru and Ram Khelawan were said to be sent for medical examination at Kachwa Hospital, but Doctors were not present, therefore, they were forwarded to District Hospital, Mirzapur.

45. Some arguments sought to be made, whether injured were sent to kachwa Hospital first or report was lodged earlier or thereafter or any Compounder came to Police Station itself to verify death of Ram Pratap etc. and an attempt was made to argue that FIR actually was not lodged at 8.30 but 9.30 and is ante timed. We, however, find no substance therein for the reason that FIR was registered by Head Constable Brij Raj Singh, PW-11 and he prepared chik report which has verified the same. Since other Police officials were also present in Police Station, looking to the seriousness of matter, it appears they made an attempt to get medical help from Kachwa Hospital but when Doctor was not found, then two injured persons were forwarded to District Hospital, Mirzapur, where injured persons were examined at 11.30 and 11.45 AM but after some time at about 2.00 one of the injured, namely, Sumaru, died.

46. Doctor Ramji Pandey, PW-14, who examined injured persons at District Hospital, Mirzapur has clearly said that Sumaru was admitted in Hospital and examined by Senior Surgeon Dr. Udai Singh and Dr. A.K. Kher, who was on emergency duty. Condition of Sumaru was very serious and he died at about 2.30 PM.

47. Ocular version of prosecution evidence is broadly consistent, and, in fact, core story of prosecution is consistent showing implication of accused-appellants in the present incident causing death of two persons and injuries on PW-2 Ram Khelawan.

48. All the questions on various facts which have been found against appellants were put to their notice while examining under Section 313 Cr.P.c. and accused-appellants was given due opportunity in this regard but they have not given any explanation, whatsoever, except of a consistent denial of all these facts.

49. In respect to recovery of four Lathis and one Danda from the house of accused-appellant no. 2, Dev Nandan, we find that defence has not been able to point out any contradiction in the deposition of PW-10, Ram Sagar Dwivedi, S.I., who conducted investigation and recovered the said items from the house of Dev Nandan. Interestingly, at the time of recovery of aforesaid incriminating material from residence of accused-appellant no. 2, none was present in the house including ladies and no explanation has been given by accused-appellants despite opportunity at the time of statement under Section 313 Cr.P.C. Statement of PW-10 in cross examination in respect to aforesaid recovery of incriminating material reads as under:

^^ykfB;ksa ds cjkenxh ds le; cyoUrk ekStwn FkkA cyoUrk us nso uUnu vkSj HkqD[ku eqyfteku ds edkuksa dh fu'kkunsgh fd;k FkkA ryk'kh ds le; os eqyfteku ;k mudh ?kj dh vkSjrsa ekStwn ugha FkhaA mudk ?kj ml le; [kkyh FkkA^^

"Balwanta was present at the time of recovery of lathis (staves). Balwanta had pointed out the houses of accused Dev Nandan and Bhukkhan. Accused persons or female members of their families were not present during the search. There were none in the houses at that time." (English Translation by Court)

50. Looking to entire facts and circumstances, as discussed above, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellants. We find no reason to take a different view in the matter. In our view, accused appellants have been rightly convicted and sentenced under various provisions as discussed above by Court below.

51. The appeal, therefore, has no merits. Dismissed.

52. The appellants-4, 5, 7 and 9, Lal Bahadur, Lal Ji, Ram Dhani and Lal Chand are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith and shall be lodged in jail to serve out their sentences imposed upon them.

53. A copy of this judgment be sent to Trial Court by Fax for immediate compliance. The Lower Court's record be also sent back alongwith a copy of this judgment.

Dt. 24.08.2018

PS