Udai Bhan Singh vs State
2019 Latest Caselaw 1326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 1
 
Judgment reserved on 20.02.2019. 
 
Judgment delivered on 15.03.2019.
 

 
Criminal Appeal No. 304 of 1983.
 
Udai Bhan Singh and another vs. State of U.P.
 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been preferred against the judgment and order dated 10.2.1983 passed by IVth Additional Sessions Judge, Ghazipur in S.T. No. 158 of 1982 convicting appellants Udaibhan Singh and Jai Prakash Narain Singh @ Lala and sentencing them to life imprisonment under section 302 I.P.C. and 302/34 I.P.C. respectively.

2. The prosecution case as set up in the F.I.R. is that the informant Onkar Singh son of Parasnath Singh had given a written report at police station Karanda, District Ghazipur stating that there is enmity going on between his family members alongwith Udaibhan Singh and his father Jaiprakash Narayan @ Lala resident of his village since long with regard to some landed property and in this respect a panchayat was also held by the villagers. On 21.4.1982, there was marriage of daughter of one Kailashu Vishwakarma, who was his neighbour where he along with his Tau Vikrama Singh and his cousin brother Indradeo Singh had gone. After taking meal at about 12 in the night, he along with his Tau and cousin had gone on his pumping set for sleeping where his father Parasnath was lying from before. He and his cousin Indradeo Singh had slept on one cot whereas his Tau had slept on another cot. There was a lantern burning which was hanging on a stick. He had taken food for his father, who had eaten the same. In between 2:30-3:00 a.m. in the night, accused Udaibhan Singh came near his cot and pulled the bed-sheet on which he and his cousin woke up and his Tau also woke up. At that moment Jaiprakash Narain Singh @ Lala exhorted and stated that Paras is lying here come quickly and shoot him on which Udaibhan Singh went near the cot of his father Parasnath and shot him with country made pistol on his chest from a point blank range and when the informant and the witnesses raised alarm then Udai Bhan Singh again reloaded his country made pistol and threatened them on account of which they kept quiet. Thereafter both the accused ran away towards North, thus, he prayed that necessary action be taken against the accused persons. One Harishchandra took the written report (Ex. Ka. 1) to the police station and gave it to Head Constable Raj Behari Singh in the presence of P.W. 5 S.I. Kamta Singh, who was the then Station Officer at police station Karanda. The Head Constable Raj Behari Singh prepared a chik report (Ex. Ka. 5) and registered a case vide G.D. No. 10 at 8:10 a.m. on 22.4.1982 which was registered as case crime no. 29 of 1982 under section 302 I.P.C. against accused Udai Bhan Singh and Jaiprakash Narain @ Lala. After registration of the case, P.W. 5 S.I. Kamta Singh took up the investigation of the case at 8:25 a.m. He sent two constables to the spot and recorded the statement of Harishchandra, who had taken the written report to the police station. Thereafter, he proceeded to village Vasuchak and went at the tubewell of the deceased. On reaching the place of occurrence, he found that the dead body of the deceased Parasnath was lying on a cot. He took it into his custody and prepared inquest report (Ex. Ka-8). He further prepared challan nash, photo nash, letters to C.M.O. and R.I. (Exs. Ka-9 to 12). After all formalities, he sealed the dead body and handed over the same to Constable American Ram, who has filed his affidavit and village Chaukidar Shyamdeo, who was not produced in the Court, along with necessary papers for being taken to mortuary at Ghazipur. The said two constables handed over the dead body of the deceased Parasnath Singh to P.W. 3 Dr. P.C. Srivastava, who conducted the post mortem on the dead body of the deceased at 2:00 p.m. on 23.4.1982.

3. The Investigating Officer thereafter recorded the statements of Onkar Singh, Indradeo Singh and Vikrama Singh under section 161 Cr.P.C. He also inspected the spot and prepared the site plan (Ex. Ka. 13). He found blood stained Kurta of the deceased, his bedding and cot on which he was sleeping. He took the Kurta, quilt, Kathari and Sutari of the cot into custody through a memo (Ex. Ka. 14). He also found an empty cartridge lying on the spot and took into custody and prepared a recovery memo (Ex. Ka. 15) of the same. He also took into custody the lantern which was burning at the time of incident and found the same to be in working condition. He prepared the recovery memo of lantern (Ex. Ka. 16). On 23.4.1982, he recorded the statements of Kailashu, Paras Singh and Shambhoo Singh, who confirmed the fact of holding of Panchayat between the deceased and the accused fortnight ago. He made a search for the accused but they were reported to be absconding and could not be traced out. On 30.4.1982, he visited District Jail Ghazipur where the accused had been lodged after their surrender in the Court and recorded their statements. After completing investigation, he submitted charge-sheet against both the accused on 30.4.1982 which was marked as Ex. Ka. 17.

4. The case was committed to the Court of Session by C.J.M. Ghazipur vide committal order dated 28.6.1982.

5. The trial court framed charges against the accused appellants for the offence in question, who denied the prosecution case and claimed their trial.

6. In order to bring home the guilt of accused-appellants, the prosecution examined P.W. 1 Onkar Singh-the informant, P.W. 2 Indradeo Singh, P.W. 4 Vikrama Singh, who are two eye witnesses, P.W. 3 Dr. P.C. Srivastava, who conducted the post mortem of the deceased and P.W. 5 S.I. Kamta Singh. Beside the same, the prosecution has also filed affidavits of Constables American Ram and Head Constable Sadho Singh, whose evidence are formal in nature.

7. P.W. 1 Onkar Singh, who is the informant of the case and son of the deceased as well as alleged eye witness of the occurrence had deposed before the trial court that his father has been murdered in this case. His father including him was five brothers, namely, Vikrama Singh, Subedar Singh, Ram Briksh Singh and Ganesh Singh. One of his uncle, namely, Ganesh Singh was doing service out of village and rest of three brothers used to live in the village. Accused Udaibhan Singh and Jaiprakash Narain Singh @ Lala are resident of his village. Accused Udaibhan Singh is the son of accused Jaiprakash Narain Singh @ Lala. He stated that there was inimical relationship between the family of the accused with his family members since before with regard to landed property. The courtyard (Sahan) which is at the North of his house is in his possession and there was a dispute with respect to the same between the accused persons and his father and uncles. 10-15 days prior to the present incident a panchayat also took place and in the Panchayat it was decided that courtyard (Sahan) which was in front of his house be taken by his family members and the courtyard (Sahan) which was in front of the house of accused they may take the same. The accused and the witness both have two houses out of which one is 'Kachcha' house and one is 'Pakka' house. The wall on the Western side of 'Kachcha' house of the accused had fallen down whereas the 'Kachcha' house of the witness is in order. The accused Udaibhan Singh and Jaiprakash Narain Singh @ Lala did not pay any heed to the decision of Panchayat whereas his father accepted the decision of Panchayat. He told the accused that according to the decision given by the Panchayat about the land, he would take the same on which the accused stated that they are not ready to abide by the decision of Panchayat. The witness deposed that Indradeo Singh is the son of his Bua. He further deposed that on the fatal night at about 3:30 a.m. when the murder had taken place there was marriage of the daughter of one Kailashu Vishwakarma of his village in which his family members were invited. On the said date, his cousin brother Indradeo Singh had come and he along with Indradeo Singh and his Tau Vikrama Singh had gone to the house of Kailashu at about 11 p.m. in the night. On reaching there, they had taken meal. His father was at pumping set at that time, hence he had not gone for taking food at the house of Kailashu along with them. After taking meal at the house of Kailashu, they took food for his father and all the three witnesses had gone at pumping set and reached there at about 12 a.m. in the night and when they reached at the pumping set his father was present and a lantern was burning which was hanging on a stick. Out of the food which they had taken, his father only had taken the curd. After taking the meal his father had slept on his cot. He along with Indradeo Singh slept on one cot whereas his Tau Vikrama Singh slept on another cot. They were sleeping at the pumping set towards South of the hut. The lantern was burning in the middle of his and his father's cot which was at a distance of 4-5 paces. On the North of the cot of his father, the cot of his Tau was at about 5-6 paces. While they were sleeping, at about 3 a.m. in the night, his bed-sheet was pulled on account of which he and his cousin Indradeo Singh woke up. He and Indradeo Singh saw accused Udaibhan Singh standing near their cot and Jaiprakash Narain Singh @ Lala was standing near the cot of his father. Udaibhan Singh was armed with country made pistol in his hand and when his bedsheet was pulled then he woke up and stated what is the matter on which his Tau also woke up. By that time Jai Prakash Narain Singh @ Lala, who was found standing near the cot of his father uttered that Parasnath is lying here come at once and shoot him. He stated the said words to Udaibhan Singh, who quickly went to the cot of his father and shot him on his chest from a point blank range, who could not get up on which they raised alarm, then Udaibhan Singh again reloaded his country made pistol and threatened them not to scream on which they stopped screaming and both the accused fled away towards North. After the accused fled away, he went near the deceased and saw that he had received injuries on his chest from which blood was exuding and his father had died. After the incident, he sent Indradeo Singh to the house for giving information about the incident. Thereafter he wrote a report in his handwriting and put his signature at the pumping set. After the incident, from his house and village many persons had arrived at the pumping set. The written report which he prepared is available on record. He has identified the same to be under his signature and proved the same as Ex. Ka. 1. He stated that he has given the said written report for submitting at the police station to Harishchandra, who submitted the same and F.I.R. was lodged. After registration of the F.I.R., the police had arrived at the place of occurrence at about 10:11 a.m. He has shown the Investigating Officer the lantern which was burning at the pumping set where the incident had taken place, who after preparing papers returned the same to him. He further stated that he has seen the incident and identified the accused in the light of lantern. Near his pumping set there is no abadi. He has denied the suggestion that the report of the incident was prepared by Ganesh in consultation with the police. He further denied the suggestion that he along with other witnesses have not seen the incident. He further denied the suggestion that he along with his family members had come to know about the death of his father in the morning. He denied the suggestion that he along with his brother Indradeo Singh and Tau Vikrama Singh were not present at the pumping set at the time of incident. He further denied the suggestion that on account of enmity he has falsely implicated the accused-appellants.

8. P.W. 2 Indradeo Singh, who is the nephew of the deceased and cousin brother of P.W. 1 has stated that he was employed in Gandhi Ashram at Narhi in district Ballia. He deposed that he had come to Saidpur to fetch clothes from Gandhi Ashram and as he had arrived late he was told to come on the next day. He deposed that he had brought some money from Ganesh, brother of the deceased which he had to give it to his house. He denied the suggestion that he has not seen the incident and only on account of the fact that he is related to the deceased Parasnath he is falsely deposing against the accused. He has also reiterated about the incident in which the deceased was murdered by the two accused and narrated the prosecution case as has been stated by P.W. 1 in his F.I.R. as well as in his statement before the trial court, hence for the sake of brevity, the same is not being repeated.

9. P.W. 4 Vikarama Singh, who is the brother of the deceased and alleged eye witness of the occurrence also reiterated about the incident in which the deceased was murdered by the two accused and narrated the prosecution case as has been stated by P.W. 1 in his F.I.R. as well as in the statement before the trial court, hence for the sake of brevity, the same is not being repeated. He has denied the suggestion that he has not seen the incident and as the deceased was his brother he is falsely deposing against the accused persons. He further denied the suggestion that he came to know about the death of the deceased Parasnath in the morning and on account of enmity he is falsely deposing against the accused.

10. P.W. 3 Dr. P.C. Srivastava, Medical Officer, District Ghazipur deposed before the trial court that he was posted on the date of incident on the said post. He has received the dead body of the deceased which was brought by Constable American Ram and Shyamdeo Chaukidar of police station Karanda, District Ghazipur at 2 p.m. He found following ante mortem injuries on the person of the deceased:-

1. Gunshot wound, wound of entry, left side chest, rounded, 2.5 cm diameter x chest cavity deep vertical direction, 1.5 cm. above left nipple at 12 O'clock position. Tatooing and charring present. Margin inverted.

2. Gunshot wound, 2 cm x 2.5 cm x skin deep, passed tangentially, middle and inner left fore-arm, 7 cm above wrist joint, tatooing and charring present. Margin inverted, directions forward and upward.

11. On internal examination he found the membranes pale and 4th, 5th and 6th ribs of left chest fractured. Left plura had also lacerated. Chest cavity was full of blood. He found three rounded big size pellets in post wall of left side lung. Heart and pericardium were lacerated. He also found two pellets and one wad piece lodged in post wall of left verticle. Stomach of the deceased was found empty and his large and small intestines were found full with gases and fecal matters.

12. In the opinion of doctor, the death had resulted due to shock and hemorrhage on account of ante mortem injuries. He further opined before the trial court that the ante mortem injuries found on the person of the deceased in ordinary course of nature were sufficient to cause death. Moreover, he deposed that the death of the deceased could have taken place around 3 a.m. on the intervening night of 21/22.4.1982. He stated that on account of injuries sustained, the deceased could have died spontaneously and the ante mortem injuries caused to the deceased could have been caused by some fire arm from a close range. He had also taken out the clothes of the deceased and had sent the clothes, pellets and wad pieces recovered from the body of the deceased in separate sealed covers to the police station concerned. He has proved the post mortem report as Ex. Ka. 1.

13. P.W. 5 S.I. Kamta Singh stated that on 22.4.1982, he was posted as Station Officer of police station Karanda. On the said date, a written report about the incident (Ex. Ka. 1) was brought at police station by one Harish Chandra which was received in his presence. On the basis of the said written report, Constable Raj Bihari Singh prepared the chik F.I.R. in his writing and signature which is marked as Ex. Ka. 5. He has proved the same as Raj Bihari Singh was on leave and has not returned. The registration of the F.I.R. was also incorporated in G.D. Report No. 10 at 8:10 a.m. on 22.4.1982 by Raj Bihari Singh. The original G.D. is before him and the carbon copy of which was prepared, is on record. He has proved the same as Ex. Ka. 6. He had taken over the investigation of the case and recorded the statement of Harishchandra at police station under section 161 Cr.P.C. Thereafter he proceeded to the place of occurrence. He conducted the inquest proceedings of the dead body of the deceased by appointing Punchas and proved the same as Ex. Ka. 8 which was in his writing and signature. He has prepared the other police papers and proved the same as Exs. Ka. 9 to 12. He recorded the statements of the witnesses under section 161 Cr.P.C. as well as interrogated the accused in jail, who had surrendered. After completing the investigation he submitted charge-sheet against the accused-appellants on 30.4.1982 and proved the same as Ex. Ka. 17.

14. The accused in their statement under section 313 Cr.P.C. have denied the prosecution case and stated that they have been falsely implicated in the present case because of enmity but have not led any defence evidence.

15. The trial court after scrutinizing the prosecution case and the defence version found the appellants to be guilty of the offence with which they have been charged and convicted and sentenced them. Aggrieved by the same, the appellants have preferred the present appeal.

16. Heard Sri M.D. Singh Shekhar, learned Sr. Advocate assisted by Smt. Amrita Mishra, learned counsel for the appellant, Sri Sharad Kumar Srivastava, learned counsel for the complainant and Sri Jai Narain, learned A.G.A. for the State and perused the record.

17. Learned counsel for the appellants vehemently argued that the presence of three eye witnesses, namely, P.W. 1 Onkar Singh, P.W. 2 Indradeo Singh and P.W. 4 Vikrama Singh at the place of occurrence appears to be doubtful. In this regard, he has drawn the attention of the Court towards the conduct of the said three witnesses, who were found sleeping on the cot where the deceased was also sleeping at his pumping set and when the bed sheet of P.W. 1 and 2 was pulled by accused Udaibhan then no alarm was raised by the said two witnesses, who saw the accused Udaibhan with country made pistol in his hand standing near their cot and the other accused Jaiprakash Narain Singh @ Lala was found standing near the cot of the deceased Parasnath. He argued that the conduct of the said three witnesses after seeing the two accused out of which one was armed with country made pistol they did not try to save the deceased and after the accused Udaibhan had shot dead the deceased, they raised alarm and accused fled away towards North. He repeatedly had drawn the attention of the Court towards the evidence of three witnesses particularly in their cross examination about the conduct where no effort was made by them to scream or shout or to save the deceased from the accused which appears to be against the natural conduct of a prudent man. It was further argued by him that though it is stated that the deceased had taken food which was brought by the three witnesses from the house of one Kailashu whose daughter's marriage was solemnized on the said date but his stomach was found to be empty which further goes to show that the presence of the witnesses at the place of occurrence appears to be doubtful. In this regard, he has drawn the attention of the Court towards the evidence of P.W. 3 Dr. P.C. Srivastava, who has stated that stomach of the deceased was found to be empty. It was further submitted that though the incident had taken place at the pumping set of deceased Parasnath but no independent witness of the vicinity had arrived which further goes to show that the deceased was done to death by some unknown miscreants and no one has seen the incident and the three alleged eye witnesses, who are highly interested and partisan witnesses have deposed against the accused persons on account of inimical relationship which was going on between them from before. There was no recovery of country made pistol at the pointing out of accused Udaibhan, who is stated to have shot dead the deceased with country made pistol. He lastly argued that so far as appellant Jaiprakash Narain Singh @ Lala is concerned, he happens to be the father of appellant Udaibhan, who is said to have shot dead the deceased and his implication in the present case appears to be false one. No overt act has been assigned to the said appellant and it was only stated that he made an exhortation to his son Udaibhan to kill the deceased Parasnath. Thus on the strength of the said argument, he argued that the conviction and sentence of the appellants is against the evidence on record which is liable to be set aside by this Court.

18. Learned counsel for the complainant and learned A.G.A. on the other hand have opposed the arguments of learned counsel for the appellants and stated that the presence of three eye witnesses, i.e., P.W. 1, 2 and 4 at the place of occurrence is quite natural as all of them after taking food at the marriage of the daughter of Kailshu had carried the food of the deceased at the pumping set where all the three had gone to sleep and in the night lantern was burning in which two accused had come and in order to identify they pulled the bed sheets and quilt which the witnesses and the deceased had put on them to see where the deceased Parasnath was sleeping and when the deceased was seen by accused Jaiprakash Narain Singh @ Lala he exhorted his son to kill him and the deceased was shot from a close range as tattooing, charring and wading in the body of the deceased was found which was recorded by the doctor at the time of post mortem of the deceased. The ocular testimony corroborates the prosecution case. So far as argument of learned counsel for the appellants regarding conduct of the witnesses after seeing the accused that they did not make any alarm or try to save the deceased is concerned, the same appears to be unnatural and is of no significance as P.W. 1, 2 and 4 in their statements have stated that they raised alarm when their bed sheet was pulled by the accused Udaibhan and when they tried to save the deceased then the accused Udaibhan had threatened them by reloading the country made pistol due to which they kept quiet and after the accused fled away they went near the deceased and found him dead after receiving the gun shot injury on his chest. They further submitted that so far as the argument of the learned counsel for the appellants that the stomach of the deceased was found to be empty though is concerned it was stated that the deceased had taken food at 12 a.m which was brought by the said witnesses, also is of no help to the accused as in the evidence of P.W. 1 it has come that out of the food which he had brought for the deceased, the deceased had only taken curd which was in the form of liquid and passed out, hence the trial court has rightly convicted and sentence the appellants.

19. We have given thoughtful consideration to the submissions advanced by learned counsel for the parties and perused the impugned judgment and order as well as lower court record.

20. It is undisputed that the deceased was shot dead by fire arm at his pumping set where he was sleeping on a cot. There was enmity between the family of the deceased and the accused persons with respect to landed property for which Panchayat had also taken place and the complainant party-deceased was to abide by the decision of the Panchayat for holding of the landed property between him and the accused but the accused were not ready to accept the decision of the Panchayat, hence they had strong motive to commit the murder of the deceased. The incident though has taken place in the night but at the place of occurrence a lantern was burning and the accused were familiar to the three eye witnesses as they belong to the village of the informant. The three eye witnesses have narrated the prosecution story which is corroborated by the medical evidence as it is apparent from the prosecution evidence that the deceased was shot by a country made pistol by accused Udaibhan in the night from a close range and the injuries of the deceased shows that blackening and tattooing was found in the injuries and further wadding was found from the body of the deceased by the doctor, who has sealed the same. The argument of learned counsel for the appellants showing the conduct of the three witnesses P.W. 1, 2 and 4 that they kept quiet and did not make any effort to save the deceased from the accused Udaibhan, who had country made pistol in his hand and on the exhortation of his father accused Jaiprakash Narain Singh @ Lala, he shot dead the deceased, after he was being identified by his father, who was lying on a separate cot demonstrates, after going through the evidence of P.W. 1, 2 and 4 it is apparent that they in their examination in chief have categorically stated that P.W. 1 and 2 were sleeping on a cot together and when their bed sheet was pulled by accused Udaibhan they woke up and shouted and saw Udaibhan standing near their cot with country made pistol and because of alarm raised by them P.W. 4 Vikrama Singh also woke and saw the accused Udaibhan. When, the accused Jaiprakash Narain Singh @ Lala, saw the deceased lying on a separate cot exhorted his son to kill him, who shot at him and when the said three witnesses tried to raise alarm, he threatened them by reloading the country made pistol on account of which they kept quiet and the accused fled away from the place of occurrence, shows that the witnesses tried to raise alarm but were threatened to remain quiet. Moreover, it has been held by the Apex Court in various pronouncements about the behavior of the witnesses in what way the witnesses should look, cannot be predicted. In this context, the Apex Court in para-12 of the judgment passed in the case of Bachitar Singh vs. State of Punjab reported in (2002) 8 SCC 125 has observed on human behavior as under:-

"Human behavior vary from man to man. Different people behave and react differently in different situations. Human behavior depends upon the facts and circumstances of each given case. How a man would behave in a particular situation, can never be predicted. In the given circumstances, the behavior of Joginder Singh - PW-3 sleeping on the roof of the house of Sukhwant Singh; after seeing the accused armed with weapons and hearing of firing, jumping from the roof and running towards his village Mastewala to inform his father and family members instead of loitering around in the village Dholewala and informing somebody risking his life, is quite natural. One should not forget that the incident had happened at 1.00 A.M. and that at that odd time, nobody would be readily available to be informed without loss of time. In the process, the life of the witness would be at great risk."

21. Similarly in the case of Rana Partap vs. State of Haryana reported in (1983) 3 SCC 327 the Apex Court has observed as under:-

"Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

22. The view was followed by the Apex Court in the case of State of Punjab vs. Hardam Singh and others reported in (2003) 12 SCC 679, hence the said argument of learned counsel for the appellants regarding behavior of the said three witnesses which casts doubt about their presence at the place of occurrence, is not at all acceptable.

23. The next argument advanced by learned counsel for the appellants that the deceased had taken food at 12 a.m. in the night as has been stated by P.W. 1, 2 and 4 which was brought from the house of Kailashu where the said witnesses attended the marriage of daughter of Kailashu but the post mortem report of the deceased shows that his stomach was found to be empty which further goes to show that the incident has not taken place in the manner as stated by the prosecution is concerned, the said argument of learned counsel for the appellants also has no force as P.W. 1 , 2 and 4 have stated that out of the food which they had brought for the deceased he had taken only curd and P.W. 3 the doctor in his statement before the trial court has deposed that the curd which is in form of liquid if had been taken, the same would have passed out at time of death. Moreover, the finding which has been recorded by the trial court on this count does not suffer from any infirmity. So far as argument of learned counsel for the appellants that no independent witness was examined by the trial court though near the place of occurrence there were several agricultural fields and the witnesses after the incident must have got attracted but they have not been examined and the three eye witnesses are highly interested and partisan witness and reliance cannot be placed on the same is concerned, the said argument of learned counsel for the appellants is also of not much significance as it has been held by the Apex Court in catina of decisions that ordinarily near relation of deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of the real culprit and there is no reason as to why he should depose falsely but at the same time the evidence of close relation and relatives of the deceased has to be examined cautiously and minutely. In the facts and circumstances of the case, P.W. 1 is the son of the deceased, who is aged about 14 years and other witnesses P.W. 2, who happens to be the nephew of the deceased and P.W. 4 he is real brother of the deceased and from their evidence nothing has been pointed out which goes to show that the said three witnesses have falsely deposed against the appellants and simply because they are related to the deceased, their evidence cannot be discarded. So far as the last argument of learned counsel for the appellants that Jaiprakash Narain Singh @ Lala, who is the father of main assailant Udaibhan is concerned, his false implication in the present case appears to be doubtful as three prosecution witness have given him role of exhortation only and no over act has been assigned to him, hence there might be an exaggeration of his role and his false implication by the witnesses in order to see that both of them are put behind bars because of landed property dispute between the parties. Learned counsel for the complainant and learned learned A.G.A. on the other hand have though justified the conviction and sentence of the accused appellant Jaiprakash Narain Singh @ Lala by the trial court but they too could not dispute the fact that the implication of said accused can possibly be as a result of animosity between the parties and his implication in the present case has been exaggerated in order to see the conviction of the two accused, who are father and son. It might be possible that accused Udaibhan had gone alone to murder the deceased he pulled the bed sheet and quilt to see where the deceased Parasnath was sleeping and when he found him he shot at him with his country made pistol, hence the conviction and sentence of appellant Jaiprakash Narain Singh @ Lala appears to be doubtful and he may be given benefit of doubt.

24. So far as appellant Udaibhan is concerned his participation in the present crime is well established by the prosecution evidence and the trial court has rightly convicted him for the offence under section 302/34 I.P.C. and sentenced for life imprisonment, hence his conviction and sentenced awarded by the trial court is hereby upheld and the conviction and sentence of appellant Jaiprakash Narain Singh @ Lala is hereby set aside.

25. The appeal on behalf of appellant Udaibhan is hereby dismissed. He is said to be in jail. He shall remain in jail to serve out the sentence as has been awarded by the trial court.

26. The appeal on behalf of appellant Jaiprakash Narain Singh @ Lala stands allowed. He is said to be in jail. He shall be released forthwith, if not wanted in any other criminal case.

27. It is further directed that the appellant Jaiprakash Narain Singh @ Lala shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

28. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.

	(Dinesh Kumar Singh-I, J.)    (Ramesh Sinha, J.)
 
Dated:- 15.03.2019
 
Shiraz.